NY Court Coy On Gay Marriage Appeal

[davidinalameda]

http://www.365gay.com/newscon05/02/020905nyCourt.htm

Lawyers for the city of New York filed official notice Tuesday that it is appealing last week's ruling that struck down the state's prohibition on gay marriage.

Friday judge Doris Ling-Cohan ruled that the state's ban on gay marriage is unconstitutional and that New York City's clerk may not deny a marriage license solely because a couple are of the same sex. (story) She stayed the ruling for 30 days so the city could file its appeal.

The notice of appeal was filed with the state Supreme Court in Manhattan. It seeks to bypass the interim Appellate Division arguing that the only issue is the constitutionality of the state marriage ban and the case should move directly to the full Court of Appeals in Albany.

[prodigal_green]

1. Interesting strategy being worked out here

the appeal is being filed to get it over with. I don't think they are going to try too hard with it. I think the idea is once the ruling is upheld in appeals court, people can go ahead and get married without fear of their unions being overturned a couple of weeks or months later.

[Lexingtonian]

2. sounds good, actually

Over the last 25 years, the court has ruled favorably on other issues involving gay rights. In 1980, it decriminalized sodomy. Fifteen years later, it decided that the domestic partner of a parent even if gay could legally become an adoptive parent of their partner's child.

The key question in legalizing gay marriage so far has been (and will probably continue to be) what evidence the courts choose to accept about the capacity of gay couples to raise their children. An established right, and record, of successful adoptions decides the question easily. It was the decisive question in Goodridge and was the decisive criterion in Wilson v Ashcroft/Ake. It seems that this will not be an obstacle in NY.

The other question, which can't be in any way resolved by the litigants, is what authority the Supreme Court of a state has (relative to its Legislature) when marriage is a common law definition. Of course, what legislatures do is invariably punt lose-lose problems of the sort to their state attorney general and, concluding s/he can't settle such things, the state attorney general punts it (back) to the state courts. It's a mode of cop-out by chickenhearted courts to be aware of. Worth writing a letter of amicus about, anyway.

[FreepFryer]

3. Thank God NY is still Blue. Now, a holding action to defend it. (n/t)

[GodlessBiker]

4. But...

The notice of appeal was filed with the state Supreme Court in Manhattan.

Do they mean the Court of Appeals, the State's highest court, in Albany?

[TaleWgnDg]

5. Indeed. The jurisdiction of the New York state courts is confusing . . .

Indeed. The jurisdiction of the courts, both civil and criminal, of the State of New York are difficult to understand for layppl. Many times in DU, I've seen posts about questions and (more) confusing attempts at answers about this very issue.

Added to all of that are the so-called "news media." The news media are of no assistance to layppl in explaining what is happening in what or which state court in New York.

To help clarify all this. Let me try to be as concise as possible. Generally speaking there are 3 levels (or layers, if you will) of state courts in New York, civil or criminal, as well as in most other states:

1.) The state trial court level (the lowest level of court),
2.) The state interim appeals court, and
3.) The state highest court of last resort (appeal).

However, where this all gets bogged-down is that New York state calls its highest state court the "Court of Appeals" and its interim or mid-level court its "Supreme Court." To add to the confusion, sometimes the New York Supreme Court is the court of exclusive jurisdiction, meaning that it is the trial court where the litigation begins. Are you still w/ me here?

Cutting through all of this, in this case, the trial court (the court of exclusive jurisdiction) to hear this case is the New York Supreme Court. This is because in New York, the New York Supreme Court has exclusive jurisdiction to hear matters (trials) concerning marriage. No other New York state trial court can hear matrimonial cases. Only the New York state Supreme Court has exclusive jurisdiction to try matrimonial cases. So, a matrimonial case begins as a trial in the Supreme Court. If the case is appealed, it may go to the next (secondary) level which is the "Appellate Division." And, if appealed again, it may go to the highest level in New York state courts which is the "Court of Appeals."

However, here, the news media indicate that the City of New York/State wants to appeal to Albany, directly, and is thus attempting to forego the interim "Appellate Division" state appeals court. All of which means (that is, if it's being reported correctly) that the City of New York/State wants to jump from the state's trial court directly to the state's highest court. Of course, the state's highest court may choose not to review (hear) this case and thus send it back to the Supreme Court or down to the "Appellate Division" (the secondary/interim state appeals court). Uuummmmmm, you still with me here?

Any speculation about the "whys" behind the City of New York/State of New York requesting this "jump" in appellate courts is just that -- speculation. After all, the City of New York/State's legal rationale are contained w/i its briefs, petitions, and other court filings for such an appeal. However, if the state's highest court is already about to hear/review another similar case, then the state's highest court w/i its discretion may want to "consolidate" the matter into "one" case which is the speculation contained within that online newsreport.

For further New York state court jurisdictional information, the Benjamin N. Cardozo School of Law, Yeshiva University, New York, New York, has a website that is helpful.

BTW, this is part of the reason why folks hire lawyers.

---

edited to correct Cardozo School of Law url.

[TaleWgnDg]

7. To further clarify my post #5, above . . .

.

To further clarify my post #5, above . . . there's a New York "Civil Practice Law and Rule" (jurisdictional issue) that I may have failed to clearly enumerate . . .

Under CPLR 5601(b)(2), New York law permits the appeal to bypass the intermediate appellate court thereby going directly to the highest court (the "Court of Appeals") if the City of New York (defendant) so chooses because the only issue is the constitutional validity of a state statute. However, it's up for grabs whether the justices seated on the Court of Appeals will determine the procedural/jurisdictional issue in favor of the City of New York. The highest court justices may vote to allow the case to be reviewed, substantively, before the state's highest court on those procedural grounds, or the may vote it down thereby sending it back to the trial court or to the "Appellate Division" for further action.

The parties are Hernandez v. Robles (this is a .PDF file), case # 103434/2004.

Again, this is why lawyers are hired.

[TaleWgnDg]

6. How silly to label a state's highest court as "coy"

.

How silly to label a state's highest court as "coy" as does 365gay.com. That's plain and simple bad reporting. Stupid too. That is, in light of the well-known fact that judges cannot comment about litigation that is before them or that may be before them (i.e., is in the pipeline of litigation, e.g., at a trial court level or otherwise).