Partners Y. David Scharf and Hon. David Saxe Co-Author Article on Importance of Separation of Powers Between Legislative Branch and Judiciary

Chair and Co-Managing Partner Y. David Scharf and Partner Hon. David Saxe, a former Associate Justice in the New York Supreme Court Appellate Division, First Department, recently co-authored an article in New York Law Journal entitled, “Recent Attacks on Judicial Independence Impair the Proper Functioning of the Judiciary in New York.” The authors pointed to many instances of current legislative approaches that have been disruptive to the long-standing separation of powers between the legislative branch and the judiciary. “Attacks on our state judiciary have become increasingly common, threatening its independence,” they wrote.

Their concerns include the State Senate’s interest in modifying the state constitution to eliminate the bi-partisan Committee on Nominations, which recommends a list of candidates to the governor for positions on the Court of Appeals. Saxe and Scharf stated, “We believe that the elimination of this valuable and bi-partisan commission would operate to politicize the judiciary and could cause candidates for the Court of Appeals to curry favor with legislative power-points for the purpose of being considered to be suitable candidates for future confirmation to our state’s high court.”

The authors also pointed to “a blizzard of bills” recently passed by the State Senate, which are “intrusive to the state judiciary.” They wrote, “It is not the purpose of our essay to dissect these proposed enactments other than to say that as a totality they tend to strike at the independence of our court system. The emergence of these bills offers a glimpse at the struggle that lies ahead between these two branches of government.”

Saxe and Scharf scrutinized a particular proposed bill that would require the Office of Court Administration (OCA) to provide annual reports to the legislature and the governor on court system operations, including a report consisting of “dramatically broad” data points on the performance of the judges and justices of the unified court system.

The authors stated, “What is requested here appears to be a template for a report card for state judges. The facts are these however: OCA already maintains detailed records regarding the performance and productivity of its judges… Importantly, the requirement for the production of detailed statistics regarding reversals, modifications and affirmances can have a chilling effect on the ability of judges to effectively write opinions without looking over their shoulders, thereby directly impinging on their judicial independence.”

Regarding the “hot button” issue of bail among legislators and the public at large, the authors acknowledged the importance of a dialogue on this topic, stating that the legislature should not be encouraged “to publicly analyze these decisions through a statistical analysis without an understanding of other important aspects of this decision.”

The authors concluded, “The discontents of the legislative branch should not be ignored but dealt with in a way that recognizes the supremacy of the separation of powers doctrine of our constitutional government and importantly maintains judicial independence.”

Subscribers, read the New York Law Journal article here.