LaSalle’s criticism reflects a misinterpretation of the court’s decision

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It’s not uncommon for partisan politics to interfere with the confirmation of high court judges, but if we view the law as a vital cornerstone of our democracy, we’d better stick to the facts of the case. ‘affair.

As a former Associate Justice of the Appellate Division of the New York State Supreme Court, I served with Justice Hector LaSalle, who today sits as Chairman of the Second Department. Justice LaSalle was nominated by Governor Kathy Hochul to serve as Chief Justice of the Court of Appeals, the highest judicial office in the state.

Unfortunately, some have attacked LaSalle, falsely accusing him of being an “anti-abortion” judge, citing a case, Evergreen Association Inc. v. (NY Attorney General) Eric T Schneiderman. LaSalle sat in this case with three other judges, including myself, who wrote the opinion in this case and, with my three colleagues, including LaSalle, reached a consensus with the opinion.

While there are those who seek to advance their own political ideology at LaSalle’s expense, the facts reveal that, quite simply, Evergreen was neither a pro-choice nor anti-abortion case. Those who accuse LaSalle of having “signed” the decision interpret it, at best, in an erroneous way.

According to the Evergreen Association, it operated facilities in New York City and provided women with unplanned pregnancies “non-medical counseling, emotional support, and material assistance.” Following a number of hearings, the New York City Council has concluded that the Evergreen Association has engaged in conduct that may constitute the unauthorized practice of medicine. As a result of this investigation and comments from the President of the Evergreen Association, the Attorney General’s office launched its own investigation. The Attorney General determined that the Evergreen Association may indeed have engaged in the unauthorized practice of medicine and issued a subpoena to the organization.

The issue before our court was the breadth of this subpoena, which sought many categories of documents. The Evergreen Association argued that the subpoena was too broad and asked the attorney general to withdraw it. When he refused, the Evergreen Association sued to overturn the subpoena, arguing, among other things, that it violated the organization’s First Amendment rights — as well as those of its staff and associates. clients – in matters of freedom of expression and association.

To pass muster under the First Amendment, the subpoena had to survive scrutiny, which meant it could not be broader than necessary to provide the Attorney General with information regarding the unauthorized practice of medicine. . The trial court denied the Evergreen Association’s motion to quash, finding that the attorney general had properly exercised his investigative power.

On appeal, our court also determined that there was a valid basis for the subpoena. But we also concluded that the subpoena was not sufficiently tailored to require disclosure only of documents relating to the unauthorized practice of medicine by the Evergreen Association. We expressly concluded that “the Attorney General’s investigation [was] of the utmost importance to the protection of women’s health and safety”, but that it was “equally important that such an investigation be conducted with respect and sensitivity to the constitutional rights of those involved. We therefore sent the case back to the lower court to limit the scope of the subpoena in accordance with our decision.

The decision in Evergreen Association is the product of an unbiased and unbiased judgment. He is neither pro-choice nor anti-abortion. It is written to defend the democratic process, which must be a priority for any Chief Justice.

As former United States Supreme Court Justice Louis Brandeis, an American prophet of constitutional freedom, recalled, Our founders believed that the freedom to think as you want and to speak as you think are indispensable means to the discovery and dissemination of political truth; that without freedom of speech and assembly discussion would be futile; that discussion with them ordinarily affords adequate protection against the dissemination of harmful doctrine; that the greatest threat to freedom is an inert people; that public debate is a political duty; and that it should be a fundamental principle of the American government.

When LaSalle “signed” the decision of the Evergreen Association, he signed this “fundamental principle of the American government”.

Now is the time for the New York State Senate to sign off as well. Published reports suggest there are factions in the Legislature trying to thwart LaSalle’s nomination to the Senate Judiciary Committee. But if public debate is truly a political duty, the committee should not silence the debate. It should hear the nominee, vote on their nomination for Chief Justice, and report their recommendation to the full Senate. The Senate must then grant an eminently qualified jurist a positive or negative vote.

We have already witnessed the derailment of the US government when the US Senate refused to act on President Barack Obama’s nomination of Merrick Garland to the US Supreme Court. Once is too much. The New York Senate must reject this same cynical maneuver and let the constitutional process take its course. LaSalle, the rule of law and the voters of this great state deserve no less.

Jeffrey A. Cohen of Westchester County is a recently retired Associate Justice of the State Supreme Court Appellate Division. He is an advisor to the law firm Abrams, Fensterman.

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