Cavalier Knight
Member
In a rare written dissent, Judge Robert S. Smith has taken his six colleagues on the New York Court of Appeals to task for not finding the "substantial constitutional question" that would allow them to review a judge's denial of a pistol permit to a Westchester County, N.Y., attorney.
Smith said the refusal of the court to hear an appeal in Kachalsky v. Cacace (pdf), SSD4, highlights the "amorphous definition" that the judges have come to attach to "substantial" and how it is at odds with provisions in Article 6, §3(b)(1), of the state Constitution and provisions of CPLR 5601 and 5602 governing when the court recognizes a right to appeal in civil cases.
Most such appeals are dismissed unanimously in batches, with the court merely noting that "no substantial constitutional question is directly involved."
One court observer said he could recall only a few dissents in the last decade to denials of leaves to appeal.
Here, however, Smith protested that the majority had used a standard with no basis in state law to deny a hearing in a case that raised a serious constitutional issue.
The judge acknowledged that, like his colleagues, he also has been guilty of relying on loose readings of what constitutes a "substantial" constitutional question triggering the court's review as of right.
"We have at times followed the practice -- one in which, I confess, I have joined -- of giving 'substantial' a much more flexible meaning, so flexible that it confers on us, in effect, discretion comparable to that we have in deciding whether to grant permission to appeal under CPLR 5602," Smith wrote. "I am convinced that this practice is inconsistent with both the constitutional provision and the statute implementing it."
Kachalsky v. Cacace presented the question of whether Penal Law §400.20(2)(f), which requires "proper cause" for the issuance of a license to carry a concealed handgun, violated the Second Amendment of the U.S. Constitution. Smith argued that there could hardly be an issue posing a more "substantial" constitutional question for the court.
Kachalsky raises the questions of whether the Second Amendment limits the states or the federal government from issuing gun-possessing permits and whether a prohibition from carrying a concealed weapon without proper cause is consistent with the Second Amendment, Smith wrote.
"I make no comment on the merits of either issue, except to say that neither is insubstantial," the judge wrote in his Feb. 16 dissent to the majority's summary refusal to grant leave to appeal. "On neither issue could petitioner's case, by any remote stretch, be called frivolous or fanciful."
He noted that the issue of whether the Second Amendment limits the powers of states and the federal government to set limits on gun possession is of "such great substance" that the U.S. Supreme Court heard oral arguments on Tuesday in a case about the legality of Chicago gun control ordinances in McDonald v. City of Chicago.
If nothing else, Smith's dissent provides some insight into the thoughts of at least one judge on his colleagues' bases for denying leave to appeal on constitutional grounds in civil matters, court observers said.
Stewart Sterk, a professor at Benjamin N. Cardozo School of Law, said Smith is suggesting that it is not really "intellectually honest" for the court to be declining jurisdiction on appeals where it says a substantial constitutional question is missing when "there are some cases where you can't really say that, because the Supreme Court appears to be dealing with those issues."
"What he is really complaining about is that in some cases, the court effectively is deciding a case on the merits by declining to take jurisdiction," said Sterk, who once clerked for Court of Appeals Judge Charles D. Breitel. "The constitutional question is rejected and he is objecting to that practice."
E. Leo Milonas, a partner at Pillsbury Winthrop Shaw Pittman who writes a column on Appellate Division practice for the New York Law Journal, said he welcomed Smith's unconventional dissent in Kachalsky.
"It is good that they differ and when they do so, that they feel strongly enough about it that judges want to assert their position," said Milonas, a former state chief administrative judge. "It is good for the public. It is good for the law."
Smith is no stranger to standing apart from his colleagues on the court. He has by far been the member most apt to write dissents in cases the bench has heard, delivering 53 since he was appointed to the court by Governor George E. Pataki in 2003.
In some of those dissents, Smith has written in less-than-glowing-terms of the reasoning used by judges in the majority or the ramifications of their rulings.
THRESHOLD DETERMINATION
Challenging the failure to grant leave in this case, Smith wrote that neither Article VI, §3, of the state Constitution nor CPLR 5601 and 5602 of state law require that a constitutional question be found to be "substantial" for an appeal to be taken to the court as of right.
"But we have interpreted them to mean that," he wrote.
[LINK] | [PDF]
Smith said the refusal of the court to hear an appeal in Kachalsky v. Cacace (pdf), SSD4, highlights the "amorphous definition" that the judges have come to attach to "substantial" and how it is at odds with provisions in Article 6, §3(b)(1), of the state Constitution and provisions of CPLR 5601 and 5602 governing when the court recognizes a right to appeal in civil cases.
Most such appeals are dismissed unanimously in batches, with the court merely noting that "no substantial constitutional question is directly involved."
One court observer said he could recall only a few dissents in the last decade to denials of leaves to appeal.
Here, however, Smith protested that the majority had used a standard with no basis in state law to deny a hearing in a case that raised a serious constitutional issue.
The judge acknowledged that, like his colleagues, he also has been guilty of relying on loose readings of what constitutes a "substantial" constitutional question triggering the court's review as of right.
"We have at times followed the practice -- one in which, I confess, I have joined -- of giving 'substantial' a much more flexible meaning, so flexible that it confers on us, in effect, discretion comparable to that we have in deciding whether to grant permission to appeal under CPLR 5602," Smith wrote. "I am convinced that this practice is inconsistent with both the constitutional provision and the statute implementing it."
Kachalsky v. Cacace presented the question of whether Penal Law §400.20(2)(f), which requires "proper cause" for the issuance of a license to carry a concealed handgun, violated the Second Amendment of the U.S. Constitution. Smith argued that there could hardly be an issue posing a more "substantial" constitutional question for the court.
Kachalsky raises the questions of whether the Second Amendment limits the states or the federal government from issuing gun-possessing permits and whether a prohibition from carrying a concealed weapon without proper cause is consistent with the Second Amendment, Smith wrote.
"I make no comment on the merits of either issue, except to say that neither is insubstantial," the judge wrote in his Feb. 16 dissent to the majority's summary refusal to grant leave to appeal. "On neither issue could petitioner's case, by any remote stretch, be called frivolous or fanciful."
He noted that the issue of whether the Second Amendment limits the powers of states and the federal government to set limits on gun possession is of "such great substance" that the U.S. Supreme Court heard oral arguments on Tuesday in a case about the legality of Chicago gun control ordinances in McDonald v. City of Chicago.
If nothing else, Smith's dissent provides some insight into the thoughts of at least one judge on his colleagues' bases for denying leave to appeal on constitutional grounds in civil matters, court observers said.
Stewart Sterk, a professor at Benjamin N. Cardozo School of Law, said Smith is suggesting that it is not really "intellectually honest" for the court to be declining jurisdiction on appeals where it says a substantial constitutional question is missing when "there are some cases where you can't really say that, because the Supreme Court appears to be dealing with those issues."
"What he is really complaining about is that in some cases, the court effectively is deciding a case on the merits by declining to take jurisdiction," said Sterk, who once clerked for Court of Appeals Judge Charles D. Breitel. "The constitutional question is rejected and he is objecting to that practice."
E. Leo Milonas, a partner at Pillsbury Winthrop Shaw Pittman who writes a column on Appellate Division practice for the New York Law Journal, said he welcomed Smith's unconventional dissent in Kachalsky.
"It is good that they differ and when they do so, that they feel strongly enough about it that judges want to assert their position," said Milonas, a former state chief administrative judge. "It is good for the public. It is good for the law."
Smith is no stranger to standing apart from his colleagues on the court. He has by far been the member most apt to write dissents in cases the bench has heard, delivering 53 since he was appointed to the court by Governor George E. Pataki in 2003.
In some of those dissents, Smith has written in less-than-glowing-terms of the reasoning used by judges in the majority or the ramifications of their rulings.
THRESHOLD DETERMINATION
Challenging the failure to grant leave in this case, Smith wrote that neither Article VI, §3, of the state Constitution nor CPLR 5601 and 5602 of state law require that a constitutional question be found to be "substantial" for an appeal to be taken to the court as of right.
"But we have interpreted them to mean that," he wrote.
[LINK] | [PDF]
