I have sought to shape not just a good court but an excellent one, a court of strong and intelligent jurists who bring competence and commitment to every case and dispense justice based on reason, logic and the accumulated experience reflected in the law.
LIKE NO OTHER governor before or since, Mario Cuomo had a respect for the New York State Court of Appeals that bordered on reverence.
As a young lawyer, Cuomo had clerked for a court of appeals judge, Adrian Burke, and often described the two years he spent at the court as among the most rewarding and formative of his career. Before leaving office, he would appoint the entire court, all seven judges, putting in place an incredibly balanced panel of three Democrats, three Republicans, and one independent. He named the first black judge ever appointed to a full term on the court (Fritz W. Alexander II), the first woman to serve on the court and the first woman chief judge (both Judith S. Kaye), and the court’s first Hispanic judge (Carmen Beauchamp Ciparick).* Cuomo stunned the political establishment when he selected, for his very first appointment, an upstate, law-and-order Republican (Richard D. Simons). Before Judith Kaye, he even appointed a Republican as chief judge (Sol Wachtler).†
Cuomo agonized over those appointments, studying the decisions of nominees who had prior judicial experience and examining the professional and personal records of those who did not. It was often speculated that Cuomo would have preferred, and was perhaps better suited for, the courthouse than the executive mansion, speculation fueled in part by a story he often shared of his mother. According to Cuomo, on election night 1982, when he became the first Italian American elected to a full term as governor of New York, the governor-elect turned to his immigrant mother, Immaculata Cuomo, put his arm around her, and said, “Mama, what do you think now?” She responded, “Is not bad. But when you gonna be judge?”‡
When Kiryas Joel got up to the New York Court of Appeals for argument on April 29, 1993, there were six judges on the court, all of them appointed by Cuomo.* I was unconcerned that those judges—Chief Judge Kaye and judges Simons, George Bundy Smith, Stewart F. Hancock Jr., Joseph W. Bellacosa, and Vito J. Titone—were all Cuomo appointees, and I felt confident that they would decide the case on the merits rather than any allegiance to the governor. They were too smart and had too much integrity to engage in such crass political calculation. But I was concerned that the court would follow the lead of Howard Levine, the dissenter in the state supreme court case, who would finally join the appellate court a few months later. I knew the high court greatly respected his judgment.†
The argument before the court of appeals lasted for nearly an hour—a relatively long session. Our three adversaries—Nat Lewin for Kiryas Joel, Lawrence Reich for the Monroe-Woodbury Central School District, and Assistant Attorney General Julie Mereson for the state—argued first, and in my view, got nowhere. They basically insisted that the legislation creating the Kiryas Joel school district was necessary for cultural, not religious, reasons. Under questioning from Chief Judge Kaye, Lewin was boxed in and had to admit that if the district was created specifically to cater to the interests of a religious sect, it could not stand.
Lewin: “If this were a religious gerrymander, I think we would be in a very difficult position, and maybe an untenable position. If what happened was there was a drawing of lines … to deliberately take into account a religious community and try to single it out—”
But the chief judge cut him off and came back with a rhetorical question for which he had no good answer. “In practical effect, isn’t that what’s happened?”
Reich and Mereson followed, relying on the same logic as Lewin. “There are many areas of the state where by choice or chance or freedom of association virtually all of the individuals are of a common religious background, and we would suggest that the mere fact that people choose to associate within a particular community does not render their actions unconstitutional when they take civil, secular action,” Reich argued. “The desire for separation is the desire to be free of acculturation, rather than a religiously based precept of the Satmar…. We believe that under Lemon, this passes constitutional muster…. There is absolutely nothing in the record … to indicate that the Kiryas Joel school is under the direction or control of a religious denomination or that religious tenets are taught at the school.”
Mereson insisted that the legislation was religiously neutral. “Once you recognize that these were secular concerns that prevented these parents from sending their children to the Monroe-Woodbury schools, you will see that the political process did its work, that it was neutral, that it was trying to break an impasse,” Mereson told the court. “It was a neutral action that did not favor religion. There was not a single accommodation to religious tenets of the Hasidic sect.”
The chance for us to make our case finally came about forty minutes into the argument, and Jay Worona dove right in with a fervor unmatched by his rivals and, I thought, appreciated by the court. From the gallery, where I was seated, Jay appeared more energetic, more passionate, and better prepared than his opponents.
“Throughout the arguments you have heard today, we’ve talked about everything that is happening in the school district being secular in nature. That is not the issue of this case!” Jay argued forcefully. “The issue of this case was, why was this school district established? … The point we need to look at is why this particular district was established in the first place.”
Chief Judge Kaye attempted to corner Jay: “Mr. Worona, if a religious group moved into an area, dominated an area in terms of population and in terms of election to the school board, would that board then be unconstitutionally constituted?” But Jay, without hesitation, put that question to rest—“No, Your Honor”—and went on to argue that the surreptitious creation of Kiryas Joel was a political “sham,” unconstitutionally orchestrated, not a cultural happenstance.
“The parents of Kiryas Joel presently sent their nonhandicapped children to parochial schools, and they pay money to do that,” Jay told the court. “And certainly if they wish to exercise their religious rights for their special education students, they should have the same responsibilities. To do otherwise would violate the Establishment Clause and place the state in a position where no longer heterogeneity and pluralism would be the purposes of public education, but indeed homogeneity.”
Kaye pushed the issue. “These children … are unquestionably entitled to services from the state,” the chief judge stated. “Is there in your view no way they can receive them other than to enter the premises of the Monroe-Woodbury public school?”
Again, Jay was ready and did not miss a beat. He seemed to have anticipated the question. “I am glad you asked that question,” he responded. “My answer is, yes, they could be entitled to a neutral site, if indeed there were secular reasons, like safety…. [The US Supreme Court has not said] that you can isolate a parochial school and its students solely for the purpose of isolating them.”
The decision came down on July 6, 1993, about six weeks after oral argument, and we prevailed in a 4–2 ruling with three different writings. Judge George Bundy Smith, writing for the majority, was joined by Chief Judge Kaye and Judges Simons and Hancock in declaring the Pataki-Lentol bill unconstitutional under the second prong of the Lemon test, which says a challenged act of government, to survive Establishment Clause scrutiny, must have a “principal or primary effect … that neither advances nor inhibits religion.” I was delighted with the decision but disappointed that the court, like the appellate division, relied only on the second prong of Lemon. It did not rule on the other prongs of Lemon or, more significantly, on the New York State Constitution. In essence, Judge Smith took the path of least resistance (which he may have had to do to forge an opinion at least three judges would sign onto):
Because special services are already available to the handicapped children of Kiryas Joel, the primary effect of chapter 748 is not to provide those services, but to yield to the demands of a religious community whose separatist tenets create a tension between the needs of its handicapped children and the need to adhere to certain religious practices. Regardless of any beneficent purpose behind the legislation, the primary effect of such an extensive effort to accommodate the desire to insulate the Satmar Hasidic students inescapably conveys a message of governmental endorsement of religion….
Our conclusion does not, as the dissent declares, “drap[e] a drastic, new disability over the shoulders of young pupils solely on account of the religious beliefs of their community,” nor does it “penalize and encumber religious uniqueness.” Special services are made available to the Satmar student within the Monroe-Woodbury School District. Our decision does not impose any additional burdens on the students within Kiryas Joel; it simply determines that the Legislature may not treat the Satmar community as separate, distinct and entitled to special accommodation.
Chief Judge Kaye and Judge Hancock wrote separate opinions agreeing with Judge Smith. I found Kaye’s particularly enlightening, as well as revealing. At the time, she was in her first year as chief judge, and I thought that the wisdom she evinced in this case, and her skill in so artfully and articulately expressing her viewpoint, was a predictor of a great chief judge. The next fifteen years, and Kaye’s historic tenure as chief judge, proved me right, and then some.
Here, Kaye suggested that the establishment of the Kiryas Joel Village School District was nothing less than an attempt by the government to segregate the populace according to religion. While she agreed that the legislation failed the Lemon test, she wouldn’t have even bothered to apply the test, because it could never even meet the strict scrutiny test.
Strict scrutiny refers to the test the Supreme Court applies when Congress (or a state government) attempts to infringe on a fundamental right—such as freedom of speech, freedom of exercise, freedom of association, due process rights, and rights of equal protection. The basic idea is that the Supreme Court will allow the government to step on some fundamental rights if the government can show that it has a compelling need and that it has chosen the least offensive method of satisfying that need.
Explaining her decision to apply strict scrutiny to the law, Kaye wrote, “The State engaged in de jure segregation for the benefit of one religious group. Establishment of a public school district intentionally segregated along religious lines is a classic example of government action that must be ‘surveyed meticulously.’” Kaye expressed grave concern over “government-sponsored segregation,” and reminded her colleagues of Brown v. Board of Education, the landmark decision that brought state-sanctioned racial separation to its knees. She argued that the case “must not be assessed in a vacuum but measured against history,” insisting that the law was a grotesque overresponse to the problem facing the legislature: the education of a small number of disabled children in a little village.
Kaye did not dispute that the allegedly “intractable problem” of providing special education services to the children of Kiryas Joel “presented a compelling, secular government interest.” But she said the legislative response went far beyond what was necessary to resolve the problem, delegating incredible clout to a new school district and trampling the Constitution in the process. In a footnote, Kaye observed the many powers the legislature had bestowed on the religious leaders of Kiryas Joel:
The board of education of a union free school district, in addition to having in all respects the superintendence, management, and control of the educational affairs of the district, is given numerous more specific duties and powers. Thus it is empowered and duty-bound to adopt bylaws and rules for its government as proper in the discharge of its duties; establish rules and regulations concerning the order and discipline of the schools; provide fuel, furniture, apparatus, and other necessaries for the use of the schools; prescribe courses of study; regulate the admission of pupils and their transfer between classes or departments; provide milk, transportation, and medical inspection of schoolchildren; provide home-teaching to special classes for handicapped and delinquent children; provide, maintain, and operate, under prescribed circumstances, cafeteria or restaurant service and other accommodations for teachers and other employees, pupils, and the elderly; and prescribe, and, when authorized, furnish, textbooks to be used in the schools. It is also authorized to purchase property and construct school buildings and facilities thereon; take and hold possession of school property; lease premises, and lease-purchase instructional equipment, for school purposes; sell and exchange school property; insure school property; sue to recover damages, and offer monetary rewards for information leading to the arrest and convictions of persons, for vandalism of such property; provide, where authorized, for lighting, janitorial care, and supervision of highway underpasses; alter former schoolhouses for use as public libraries; and explore, develop, and produce natural gas for district purposes. It is authorized to appoint teachers and librarians and to raise by tax on the property of the district any moneys required to pay the salaries of teachers employed, and also to appoint committees to visit schools and departments under its supervision and report on their condition. Likewise the board is empowered to discharge district debts or their obligations. It has prescribed powers and duties with respect to self-insurance by the district, accident insurance of pupils, insurance against personal injuries incurred by school volunteers, and group insurance and workers’ compensation coverage of teachers and other employees’ salaries sums to be paid to specified credit unions. Finally, the board possesses all the powers, and is subject to all the duties, of trustees of common school districts, and has all the immunities and privileges enjoyed by the trustees of academics in this state.
At first glance, Kaye’s point about overbreadth and the footnoted catalog of unnecessary powers might seem like so many dry legal complaints, but such is not the case. In fact, with this argument Kaye opened up a second and more fundamental front of criticism, directed not so much at the Satmar but at the legislature. To declare the Pataki-Lentol law an attempt at segregation was to defend a vision of American society that flourished during the civil rights era but had roots stretching back at least as far as the “melting pot” dreams expressed at the turn of the nineteenth century (the term itself was popularized by the Jewish American Israel Zingwill in his 1908 play The Melting Pot).
But when Judge Kaye condemned the law for its staggering overreach, it was a defense not of a melting-pot social vision but of a Madisonian political vision that lies at the very heart of American political science. A little over two hundred years after James Madison wrote the tenth in the series of essays that made up the Federalist papers, Kaye challenged the court of appeals to check a legislature that had finally learned to evade the lessons of Federalist 10.
Madison’s essay remains famous for its argument that a republican form of government will frustrate the ability of factions to control the state because the different alignment of each representative’s personal interests will make factional juntas impossible. As Madison put it, “In the first place, it is to be remarked that, however small the republic may be, the representatives must be raised to a certain number, in order to guard against the cabals of a few; and that, however large it may be, they must be limited to a certain number, in order to guard against the confusion of a multitude.” Madison was correct to note that the public was best protected when power is shared among enough lawmakers to make graft very difficult, but he underestimated the power of discrete insular minorities to hijack or at least frustrate the legislature—as the financial industry has proved on the national level during the last twenty-five years.
Kaye’s catalog of unnecessary powers further demonstrated how the system had failed. The culprit—and it would not have surprised James Madison—was a legislative system that concentrated all the power in the hands of a few party bosses. Because only a few people control the New York State Legislature, only a few people even know what the government is doing. There’s no incentive for civic-minded watchdogs to enter the legislature, because they’d be stonewalled by the leadership. What’s more, because the leadership controls the party campaign funds, they can make sure only team players get reelected. This is especially true in the assembly, where the Democrats’ hold is so substantial that the leadership can afford to ignore and isolate uncooperative fellow Democrats without a risk to their majority. Thus, it was easy for a party boss like Anthony Genovese to slip the gift of a school district into an agenda, confident that very few of his colleagues would notice, and that even fewer would recognize the significance of the move.
Judge Stewart Hancock also wrote a separate concurrence. The judge, a descendant of John Hancock, wrote primarily to address the first prong of the Lemon test (that the challenged government act must not have a religious purpose). While agreeing with his colleagues that since the legislation was so obviously contrary to the second prong there was no reason to address the first, Hancock went on to analyze the situation under the “purpose” test. And, under that test, Hancock said, the legislation failed miserably and obviously. He astutely observed that for all the chatter about the emotional and psychological trauma of the children, there is not a word “in the statute or its legislative history suggesting that the enactment of [the law] was anything other than the well-meaning desire to comply with the religious requirement of keeping the Satmar children separate from other children.”
Was the purpose of this accommodation anything other than religious? Unquestionably, the accommodation was to meet a requirement peculiar to the residents of Kiryas Joel—that their children be permitted to associate only with children of the Hasidic sect…. Realistically, can the legislative creation of the Kiryas Joel School District to make special additional education services available in order to obviate the religious objections of its residents have a purpose other than religious? As a matter of common sense—given the wording of the statute, its apparent intent and the absence of any reference to other than a religious purpose in the legislative history—the answer must be no.
Judge Joseph Bellacosa, a former Roman Catholic seminarian who initially planned to become a priest, wrote the sole dissent, arguing that the legislature’s “Solomon-like” approach was geared not to the religious needs of the sect but to the secular and cultural demands of the community. Bellacosa, with Judge Vito Titone, agreed with Justice Levine that the statute was presumptively constitutional and that the legitimate needs of the children were not inevitably based in religion. “The judicial nullification of the democratic prerogatives and solution for this intractable town wide controversy is not justified. Instead, it seems to spring from a reflexive veneration of a symbolic metaphor that sacrifices concededly necessary special education services of a small group of handicapped pupils. A real wall of separation thus arises and solidifies to a mythic height and density.”
Exactly 1,923 years prior to the July 6, 1993, decision by the New York Court of Appeals, on the seventeenth day of the summer month of Tammuz, the Roman legions breached the walls of Jerusalem with the intent to destroy the second temple and more or less put an end to the expensive state of disorder in one of their moderately important colonies. Was this factoid totally irrelevant? It may seem so to most people, but not to the Satmar, who have trained themselves to view all events in terms of mystical correlation to their own history. When Abe Wieder, president of the KJ school board, spoke to the New York Times, the first thing he did was draw attention to the anniversary, almost accusing the court of deliberately choosing the date, and saying, “This gives us another reason to mourn.”
The comments expressed by Malka Silberstein, whose daughter Sheindle was being educated by the KJ school district, were more realistic and less paranoid. She and Breindy Weiss, another mother of a child with disabilities, told the Times of how much progress their children had made at Steve Benardo’s school. Weiss’s daughter had a severe hearing deficiency, a common ailment among the Satmar. “We have a plan for her future,” she said. “Without this school, I don’t know how we can do it.”
Silberstein told of her struggle with the public school in Monroe. “It became impossible,” she said. “The law calls for these children to be in the least restrictive environment, but Sheindle was in the most restrictive. She wasn’t part of her sibling community and she wasn’t part of the public school community.”
Of course, the court of appeals’ point wasn’t that the state shouldn’t educate these children; the point was that the state couldn’t subsidize and endorse religious segregation.
Meanwhile, reporters gathered outside my office. Echoing Marc Stern of the American Jewish Congress, I told the New York Times reporter, “If this case went the other way, you would have many religious groups trying to set up their own schools at public expense to try to purvey their views.” I added that the law “might have been the end of separation of church and state as we know it.” On the program that Steve Benardo had set up in Kiryas Joel, I said, “The fact that they have not chosen [to teach religion] is not important—they can start tomorrow morning.” When asked privately about Mario Cuomo’s call for the court of appeals to stay its decision until the Supreme Court of the United States could review the decision, I said, “It doesn’t surprise me at all. I guess since a court handpicked by the governor wouldn’t help him sell out the Constitution, he’s hoping to find support among Reagan and Nixon appointees.” Yes, it was a bit hyperbolic, but it reflected my frustration at the time.
In the weeks following the court of appeals decision, I received congratulatory phone calls, read press coverage of the case, and talked to reporters, all of which shed more sidelights on the decision. For most of that month, I could be found in my office at all hours of the day on the phone with one reporter or another. Despite being just a kid from West Virginia, I had pulled off a huge upset—I had beaten the legally overpowering Cuomo on a constitutional issue in a court made up entirely of the governor’s appointees! A more decisive victory would have been hard to imagine.
In my years as an aide to Mario Cuomo, I had developed an awe of his legal and political instincts. Although I continue to maintain Cuomo was wrong about Kiryas Joel, my overall admiration for him remains to this day. We had disagreed before, and those arguments had never threatened our relationship. I hoped with this one we could let bygones be bygones, but the fight over KJ felt different, largely because this one went public. Cuomo was clearly furious with me, and I imagine somewhat embarrassed by his court’s decision. The litigation made Cuomo look bad, as I had warned him it would when it all began, and I felt sad that this fight might spell the end of our relationship. Though this potential consequence troubled me, I had done what I thought needed to be done.
It had been a thrilling run, and yet, there were various administrative loose ends created by the decision. Jay Worona would have to prepare an order to have the decision carried out—that is, to shut down the school as it was then configured. We most certainly did not want children in need to be left without special services, and I did not think that would happen, as long as the state and Kiryas Joel acted rationally and within the confines of the ruling. In my mind, the leaders of Kiryas Joel had two obvious options, and I assumed they would pursue both.
First, they could return to the legislature and ask for a law that might pass muster with the New York State Education Department and the courts—one that could be applied universally, without singling out their particular religious group. It was easy enough to spur the legislature into action with the right amount of political muscle, but it was something else entirely to spur it into constructive solutions. The legislature’s unwillingness to think about what it was doing had caused the problems in the first place, and I had doubts about the ability of representatives to craft a solution that would be acceptable to Kiryas Joel, the education department, and the courts. In the end it didn’t matter, as—in contrast to my expectations—the leaders of Kiryas Joel had no legislative backup plan. They placed all their chips on their second option: the US Supreme Court. And for that game, it looked as if Kiryas Joel was about to be dealt the ultimate wild card. Justice Byron White had retired from the Supreme Court, and the name of his likely replacement was leaked: Mario Matthew Cuomo.
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* For a thorough analysis of Mario Cuomo’s appointments to the court of appeals, see Benjamin Pomerance’s insightful article “When Dad Reached Across the Aisle: How Mario Cuomo Created a Bipartisan Court of Appeals,” Albany Law Review 77 (2013/2014): 185, www.albanylawreview.org/Articles/Vol77_1/77.1.0185-Pomerance.pdf.
† Critics suggest, with some justification, that Cuomo gets more than his share of credit for appointing three Republican judges and promoting Wachtler to chief judge. He chose Simons and, later, Howard Levine only after his first choices didn’t pan out. And many skeptics have asserted that the promotion of the politically ambitious Wachtler to chief judge was based on the governor’s political calculus more than the jurist’s legal acumen. Wachtler was a potential rival for governor. By making him chief judge, the reasoning goes, Cuomo neutralized a serious threat to his reelection. Cuomo may well have had political and other considerations in mind when he made the appointments, but the people he appointed were outstanding judges. I do not think the governor would have sacrificed quality for expediency, at least when it came to court of appeals appointments.
‡ Cuomo told this story on many occasions, including November 21, 2007, when he received the Federal Bar Council’s Emory Buckner Medal for outstanding public service and delivered his “Our Lady of the Law” speech. The full text is archived at 2parse (blog), July 5, 2009, http://2parse.com/?page_id=3322.
* There was one vacancy that Cuomo would fill in August 1993 with the appointment of Howard Levine.
† When Levine was on the appellate division, a law clerk at the court of appeals told me it always made the clerks’ jobs easier when an opinion or dissent came up that was written by Levine. “All we had to do was follow Levine and we knew we couldn’t go wrong.”