Full Episode: State Budget Deal Nears as Talks Continue; New York Has a New Chief Judge

Full transcript of Full transcript of New York Still Doesn't Have a State Budget. What's Next?

Dan Clark: I'm running out of ways to tell you this news, so I'm just going to give it to you straight. As of Friday morning, New York still doesn't have a state budget… three weeks after the deadline. Things seemed closer, at least than they have been in the past few weeks.
At the start of the week, there were rumors about a deal on changes to bail reform, but just a day later, we were told those rumors were false. By Wednesday, the door to a full state budget deal before next week was closed. Senate Majority Leader Andrea Stewart-Cousins said this.

Andrea Stewart-Cousins: You know, I hope that we are able to just, get to a point where we, I can come in and tell you that it is the end of the end very, very soon.

Reporter: This week?

ASC: No, unfortunately it's not this week.

DC: Lawmakers ended up passing an extender through Monday, but the majority leader did have a few updates for us. She said they were very close to a deal on bail and that any housing plan passed in the budget would have to include new protections for tenants, which Governor Hochul has been resistant to. Stewart-Cousins again had this to say.

ASC: I guess this is a national problem, quite honestly, but I don't think that we can talk about this building without talking about affordability. I want you all, I want my neighbors, my children to be able to afford to live here, and I think we have to figure out a way to do that.

DC: More on the budget in just a few minutes, but first, some news on New York's top court. 
Rowan Wilson was confirmed this week by the state Senate to be New York's new Chief Judge. He is the first person of color ever to serve in that role, and as we told you, that job has two parts. For one, the Chief Judge manages the entire judicial branch of state government. That's all the way from your local town and village courts up to the state's highest court, the Court of Appeals, and that is the other job of the Chief Judge. They lead and manage the Court of Appeals. That has to do with things like what kinds of cases the court hears and how many are heard at any given time.
In the past seven or so years, the court has heard far fewer cases than they used to. That was the purview of former Chief Judge Janet DiFiore, but his confirmation hearing, Wilson said under him that would change.

Rowan Wilson: The court's role and legitimacy is particularly important now in the face of the U.S. Supreme Court's retreat from several of its seminal decisions. In that environment, the actions of state governments, whether legislative, executive, or judicial, take on greater importance. Our court is now presented with an opportunity to reestablish itself as the clear leader among its peers.

DC: Just a little background on Wilson. He's a Harvard grad who practiced law for 30 years at one of New York's biggest law firms. That was until six years ago when he was first nominated and confirmed to the Court of Appeals. He's considered to be a relatively liberal judge who often sides with criminal defendants over prosecutors and writes decisions in a way that the public can easily understand. It's that experience and style that Democrats liked. Senate Deputy Majority Leader Mike Gianaris said this about Wilson.

Mike Gianaris: If you read his decisions, you see an understanding not just of the case before him, but of what it means in the context of the broader community, and that is what the Court of Appeals has historically been in New York, a place where other states and indeed the federal government and the federal judiciary can look for guidance for direction.

DC: Support for Wilson was split along party lines. Republicans took issue with the decision he wrote in March that overturned a rape conviction and they said that ruling and its favor toward defendants should qualify him as a “activist judge.” Senate Minority Leader Rob Ortt said this.

Rob Ortt: Judge Wilson, we have to presume or I’ll presume is a tip of the cap to the radical left. People like Senator Hoylman-Sigal, people like Senator Gianaris, an activist judge, and I think fits their ideal of not only a good chief judge, but an ideal for the court as a whole.

DC: I want to lay out the full context of that case, just so you know, what happened. It started in 2009 when a woman in St. Lawrence County was raped. She reported the rape that same day, but it wasn't until almost four years later that prosecutors in St. Lawrence County collected the DNA of the man who raped her and finally charged him with a crime.
It was that delay that caused the conviction to be thrown out on grounds of due process. Judge Wilson defended that decision at his confirmation hearing.

RW: It's not as if the prosecutor's office came and said, look, we had some other things that made us busy, we had two people who were out on maternity leave, they came and said, we have no explanation for this lengthy delay. So, in that circumstance, I think then about what the alternative is, it's easier to say that's okay. What message does that then send to victims of rape or victims of crime generally anywhere?
DC: That was just round one of this week's judicial confirmations. Since Wilson was chosen for Chief Judge his old seat on the court was left open and the Senate confirmed Caitlin Halligan again this week to fill that spot. She's the state's former solicitor general who's had a huge career in the private sector and was once up for a federal judgeship. Even a handful of Republicans crossed party lines to support her.

Caitlin Halligan: I am very grateful and honored. Thank you.

DC: Democrats and Governor Hochul could be facing some legal trouble over Halligan nomination. Let's start there with this week's panel. Joe Spector is from Politico and Michael Gormley is from Newsday, thank you all so much. 
So, Mike, on this potential lawsuit from the GOP as of Friday morning, as we're talking, it has not been filed yet, but we did hear some comments from Senate Minority Leader Rob Ortt and Senate Judiciary Ranker Anthony Palumbo on the potential for a lawsuit. So where are we headed here? What do you think?

Michael Gormley: Well, it's hard to tell because there's a lot of lawsuits threatened in Albany that don't happen, but what the Republicans concern is, is that that Governor Hochul and the Democratic Senate really did an unconstitutional movement. They had two candidates, they elevated one candidate to chief of the court, and Caitlin Halligan, who is an associate to that position.
That's a might be unconstitutional because they used the same list of candidates.

DC: Right, they passed a law to make this possible.

MG: I mean, we're not legal scholars, so we don't know for sure, but the other side of this is that the Republicans may not pursue this, even though they might have a good case because maybe they'd get a worse candidate. So, in New York State, there's very few things that are more political than picking judges. Both parties do this. So, one side claiming the other being political is just the way it goes. 
You know, it's political picking judges from the town and village level on up. So, we'll have to see what they do, but the calculus is going to be whether they think they can win, maybe they could, and then whether they want to win.

DC: I wonder what happens if they do win. I would have no idea because it would be up to the judge. Would it be that if they do win that lawsuit that Caitlin Halligan is pulled off the Court of Appeals then and they have to restart that process? We just don't know. 
MG: Yeah, there's a lot, as you know because this is your background, but there could be a stay that everything would continue as status quo until there was another list of potential candidates and then a choice made, which is something that the governor would make the same choice. So that's the other thing, is it moot? That's what the Republicans have to consider.

DC: So up in the air on that right now, I don't want to get any more into that because we have to see what happens. There's plenty to talk about with the budget. 
Joe, on Thursday evening, Politico and New York Focus, a couple outlets reported that housing is just being taken out of the budget altogether. So, we're talking about the governor’s housing compact, tenant protections, good cause eviction, that type of stuff. What's going on there? They just couldn't get to a place where it made sense, I guess.

Joe Spector: Yeah, here we are three weeks, approaching a month for a late budget, and here were two big priorities for the governor, bail, more changes to the bail law, and then the housing piece. She wanted to have 800,000 new homes built over a decade, and the real controversy in this was to mandate the suburbs, outer boroughs, upstate, the whole state, to add new housing every single year, mandated, and if they didn't do it, then the state would have the ability to override local zoning laws. 
Really, that is like one of the third rails of politics, right, is to try to override local government control. You saw it right from the onset, lawmakers, suburban lawmakers, and it wasn't just suburban lawmakers, I think it became one of the suburbs versus city fights, but if you talk to outer borough lawmakers, Brooklyn, Queens, there was a lot of opposition among Democrats there too, because obviously there's a lot of residential housing there.
So, the long and short of it is Hochul pushed this proposal, it was met with resistance right from the beginning. She wouldn't move off the mandate piece it seemed, and Democrats did put forth in their one-house budget, a proposal that would be an opt-in with incentives to try to build new housing, and that wasn't enough. 
So, like you said, a lot of the other stuff with it, tenant rights, sort of a rent control piece, the good cause, all of that seems to be off the table now.

DC: Does that mean that it's all dead or would they like to address it, I guess for the rest of session?

JS: Yeah, there's a couple of things, right? I mean, one, there's still talk of some housing pieces. Mayor Eric Adams has a lot that he wants for the city. Maybe that’s something that gets included, there’s talk about housing vouchers that would help people who are struggling to pay their rent, NYCHA (New York City Housing Authority) has a big deficit, and so there might be some money for that. So, there's still some money pieces in there, but Hochul’s big housing proposal, yeah, that seems scrapped.

DC: Mike, what do you think this says about politics and dynamics at the Capitol right now? This is another situation where the governor has a major priority that she cannot get through with the legislature. Is that trouble?

MG: Well a little political background here, as you know, the state legislators have a synergy with local officials, they all help each other get reelected. So, there's a real responsiveness in Albany to local government, but it's important to note that independent studies and other states have all found that Hochul’s position is the right one. In fact, the only one that makes it work, because you're not dealing with communities that are not approving housing because they don't have enough money for infrastructure, which is what the incentive is from the from the legislature. Many of these are doing it because they don't want to change the character of their neighborhoods, and unfortunately, that sometimes means the racial character makeup of a neighborhood. That's why other states and independent studies have said Hochul way of going about this, to have an ultimate state board that could overrule local zoning decisions is essential.

DC: Yeah, and especially when we talk about, I think, Long Island and the suburbs, it's very much NIMBY neighborhoods, not in my backyard people. We see that on other issues, too. Some people on Long Island really don't like the concept of wind turbines off the coast to produce wind energy that way. Do you see that as the part where it broke down, just the local control or was there other stuff?

MG: I agree with Joe. This has always been a third rail type of thing. It was a very ambitious thing for the governor to take on, and you can look at that two ways. One, that it was the kind of bold vision that you want to see from leaders, and the other view might be that it was a mistake, a political mistake, should have seen that this was going to end up this way.

DC: I think that she's had some trouble with pre-selling things to people. You know, she comes out with a lot of surprises for rank-and-file lawmakers at least, I don't know how much legislative leaders know, but she seems to have this trend of having these big things and putting it out there before she sells it to people to get support.
Something that I think Andrew Cuomo did a very effective job at was really lining up everything before he puts forward a major policy initiative or a Chief Judge nominee or things like that, so that when it did become public, there was more likelihood for it to get forward. We don't really see that with Kathy Hochul.

JS: Yeah, it just wasn't like ready-made, you know, you didn't have the unions behind it, for example, you didn't have the real estate interests behind this, there were no rallies at the Capitol in support of this proposal. To the points that Mike made about why a mandate is a better way to go than an opt-in, because an opt-in might not lead to any results, but at the same time, you just felt that there might have been a compromise in some way. 
Maybe you do an opt-in with a lot of money to encourage municipalities and then have a commission, like some lawmakers said, where you come back in a couple of years and see if it worked, and if not, then you could maybe force it upon local governments a little more, but then you started it and other pieces into it right? You know, 421-A, revisiting that or some tenant protections, and you start adding all these other pieces into it and it just all kind of crumbled.

DC: Now, is there anything else that seems to be a major impasse? I think we saw some rumors about a deal on bail this week, and Andrea Stewart-Cousins, the majority leader, said they were very, very close. I think that probably means that there is a 99% deal and maybe they were waiting for housing to come together to make it a full package or something like that.
But what do you think there Joe? Are we done with bail finally?

JS: Yeah, they seemed like they had been for a for a couple of weeks. So, then they moved on to housing, that proved problematic so now they move on to many other pieces, which will take some time. So maybe there's a deal next week, but you hear a lot of maybes around the Capitol rather than reality.
But yeah, there’s other pieces like charter schools, whether they're going to move forward with allowing more charter schools in New York City, raising the minimum wage. Democrats want to raise taxes on the rich, there's a $500 million tab that the governor has for the MTA for the city to pay, who's going to pay for that, because clearly the city doesn't want to be hit with that baby. So, there are still a lot of issues, but yeah housing, bail, those were no question the two big ones.

MG: Watch for a lot of these to drop off, that would make the budget possible. Watch a lot of those big ideas that the governor had go into the legislative session where the governor has less leverage to push her stuff, and that's why a lot of this is in the state budget.

DC: I was also thinking of what's left for session. We have about a minute left, Mike, kind of give us a preview of what we should expect… I don't know, I think it just depends when the budget passes, but about five weeks for the end of session. Are we expecting anything?

MG: Well, I think you can definitely see some progressive victories come out of this. Whether that gets through the governor's vetoes later on is yet to be seen, but this last part of the legislative session is going to be filled with trying to get some headlines. Perhaps it's the increase in millionaire's tax. If that doesn't get into the budget, there's a lot of other progressive ideas that could get through, but also there's a whole bunch of local laws that have to be passed. Again, getting back to what we talked about before, this synergy that local communities need the state to sign off on.
DC: It is a lot to consider the housing part after the budget. I'm just fascinated to see if parts of it can be in it, like the incentives, because if you're going to put money towards it, you should really do it in the budget, lawmakers would say, but we're out of time, unfortunately. Joe Spector from Politico, Michael Gormley from Newsday. Thank you both.

Dan Clark: We're going to circle back to New York's new Chief Judge, Rowan Wilson. As we told you, he first joined the state's highest court in 2017 when he was nominated by then Governor Andrew Cuomo.
In those six years, a lot has happened. So, to learn more about Wilson and how he might operate as Chief Judge, we spoke this week with Vin Bonventre, an expert on the Court of Appeals from Albany Law School. 
Vin, thank you for coming back. We always appreciate it.

Vin Bonventre: Love to be with you, Dan.

DC: So, Judge Rowan Wilson has been characterized as a liberal judge. He's the new Chief Judge, the first black Chief Judge in New York state. When we talk about a liberal judge, what are we talking about there? What is a liberal judge and what is a conservative judge? Do you agree with the characterization that he is a liberal judge?

VB: Well, certainly he is liberal in the sense that, when you have these very close cases and the cases at  the Court of Appeals are close, but in those especially close cases where the arguments on both sides are just so strong, he would tilt in favor of the rights of the accused, due process, fair trial, as opposed to tilting in favor of crime control, law and order, that kind of thing. So that's what we mean in criminal cases.
In civil cases, for example, the same thing that very close cases, worker rights versus business. He would tilt in favor of worker's rights. In cases involving somebody who is injured, suing someone else who caused the injury, he's much more in favor most of the time of the individual who's been injured and would be entitled to compensation.
That's what we mean. We don't mean that he's some kind of a radical leftist. I mean, we know we've been hearing that, but no, this man is not a radical leftist. He is a traditional liberal.

DC: Republicans have tried to label him as an activist judge. He's been on the Court of Appeals for about six years. Before that, he was not a judge. He was at a very large law firm for a very long time, doing a lot of work there. What do you think about that characterization of him as you've looked at him over the last six years on the bench? Could you characterize him as an activist judge or, what is he?

VB: Usually when politicians use the term activist as opposed to a so-called restraintist, they usually have no idea what they're talking about? I mean, let's just be blunt. They have no idea. When you talk about an activist, what you mean is someone who, for example, doesn't give the proper respect to precedent, doesn't give the proper respect to the other branches of government.
So, for example, an activist would be someone who, like the United States Supreme Court in the Dobbs decision, overruling a 50-year-old precedent. That's activism. That doesn't necessarily mean that the judge's decision or voting is right or wrong. It just means that there hasn't been that degree of respect for precedent or degree of deference to the other branches of government, but whether somebody is an activist or whether somebody is a restraintist, does not have anything much to do with whether they're a good judge or a bad judge.

DC: Have we seen Rowan Wilson act in that way that you just described, in ways that could appear to usurp or challenge other branches of government?

VB: I really can't think of any decision like that where you would say that he's an activist, but, you know, to the extent that more conservative politicians and commentators are saying that he's an activist, what they mean is he's a liberal. I mean, that's basically what they mean.

DC: Now, does that inform at all how we could see him as Chief Judge on the Court of Appeals, just taking back the side of hearing cases and issuing decisions, there's more to the Court of Appeals. You and I have talked before about how under the previous Chief Judge, the docket for the Court of Appeals, the number of cases that they hear had gone down pretty significantly. Do we see any indications that it's going to turn back around under Rowan Wilson. I think he said that at the hearing, but I may not be remembering correctly.

VB: No, you are right.
Look, I don't imagine that suddenly, Judge Wilson's jurisprudence is going to be transformed and suddenly he's kind of become a conservative. Of course, as the Chief Judge, as the leader of that seven member court, you might see him moderate a little, much like we've seen Chief Justice John Roberts on the United States Supreme Court, because now it really is a matter of institutional integrity and he is the leader of that institution. 
With regard to the dwindling caseload during the DiFiore era, he’s made it absolutely clear publicly, he's made it clear to my students, he made it clear the other day at the confirmation proceedings, you cannot be a preeminent court if you're not hearing many cases. The Court of Appeals in the last several years has dwindled its caseload from about 240 or 250 a year now to 80 one year, 90 another year. Who knows why?
I mean the seven judges each have three clerks, don't tell me that's too much work. I mean, they could certainly handle many, many more cases than they have been.

DC: You know, with these new judges joining the court, especially Judge Wilson, the tone of the state court system really is set from the top down. So, Judge Wilson's vision for whatever the court system would be will presumably be implemented by the court system. How do you see him changing the tone of New York's courts, which are this complex web of litigation? It’s just very messy.

VB: Well, the dynamics both within the Court of Appeals itself and throughout the judicial branch has not been very good. It has not been very good over the last few years. I don't know whether that's former Chief Judge Janet DiFiore fault or what it is. Maybe it's the selections that Andrew Cuomo has made. I mean, this is a governor who didn't really care too much about the Court of Appeals, unlike his dad. He basically would have his office send out a press release, oh, I'm nominating so-and-so. His dad always made a big deal of it because his dad understood how important it was, Andrew didn't. 
But again, getting back to what I said before if you have a leader like Judge Wilson, like Chief Judge Kaye or like Jonathan Lippman, you know, somebody who's extraordinarily bright, somebody who knows how to deal with people, they can really produce great changes and improve the judicial system, both in the court and through the judiciary itself.

DC: It is a really interesting time for state courts as we see all these changes and judgeships and court administration over the next couple of years, and we're in the middle of the state budget too.
Thank you for all that, Vin Bonventre from Albany Law School.

VB: Thanks so much for inviting me, Dan.

DC: The Court of Appeals with new Chief Judge Wilson has their next session in May.

Dan Clark: Turning now to a new edition of On the Bill, where we tell you about a bill out of Albany that you might not hear about otherwise. This week, we're talking about A1709, which deals with legal protections for abortion, medication prescribers. Last week we told you how New York is starting to stockpile misoprostol. That's a drug that can induce an abortion. That's after a few court rulings caused some uncertainty over whether another abortion pill called mifepristone would still be available in several states. 
That brings us to A1709. It's a bill that would grant new legal protections for doctors and clinicians who prescribe abortion medication for people in other states using telehealth, and it would specifically protect those people from extradition and having to cooperate if another state pursues criminal charges.

It's sponsored by State Senator Shelley Mayer, a Democrat from Westchester.

Shelley Mayer: We owe it to our sisters throughout this country to do what New York does best, which is ensure that we provide a legal means for these practitioners who are willing to assume this risk to provide the services so that women can terminate pregnancies or can deal with a miscarriage or can deal with all of the other medical needs they have.

Dan Clark: We'll let you know if that bill starts to move.

Catch this week's show on your local PBS member station, or watch on YouTube, Facebook, or using the free PBS app anytime after Friday.

On This Week's Edition of New York NOW:

• A deal on New York's state budget between Gov. Kathy Hochul and the Legislature appears to be near. We'll tell you more.
• Michael Gormley from Newsday and Joe Spector from Politico New York join this week's panel with analysis.
• New York has a new chief judge: Rowan Wilson, who is the first person of color to hold the role. We'll tell you about him, and get analysis from Vin Bonventre, an expert on the high court from Albany Law School.