Honor The Process in a Democracy

(Justice Rolando Acosta, NELA/NY Members J. Patrick DeLince and Joshua Friedman)

By J. Patrick DeLince, Esq.  

Recently retired, former Presiding Justice of the Appellate Division, First Department, Rolando T. Acosta, gave the Keynote speech at the National Employment Lawyers Association/New York’s 26 Annual Fundraising Gala held at the Magic Hour at the Moxy Hotel in New York. Acosta was invited to accept NELA/NY’s Rule of Law Award for his 25 years of unwavering dedication and contributions to the interpretation of the laws to ensure that they are applied fairly and impartially and as intended by the legislators. 

Craig Gurian, who is presently the Executive Director of the Anti-Discrimination Center (ADC) and who had been the principal draftsman of New York City Human Rights Laws (comprehensive 1991 amendments, the 2005 Local City Rights Restoration Act, and Local Law 35 and 40 of 2016), provided context on the many years of fierce reluctance on the part of the judiciary to apply an analytically different standard—a more liberal standard—to city discrimination cases than applied under the state and federal discrimination laws.  Even though the 2005 amendments had decreed a more liberal construction of the city law, it wasn’t until 2009 when Acosta penned a landmark scholarly decision in Williams v. NYC Housing Authority,[1] that set forth the legislative history of the city laws and explained the analytical framework judges needed to use when deciding those cases.  The dam of judicial resistance had finally been broken. Over the years Williams became the leading judicial precedent on the city law as have a large body of other cases that Acosta decided in the employment sphere while on the bench.   

Having retired this year and returned to private practice, Acosta feels less constrained to speak on topics that interest him. During the keynote speech, he sounded the alarm by bringing the audience’s attention to what he perceived as assaults on governmental institutions and the rule of law upon a fragile democracy. Our ability to maintain our democracy is the most consequential issue of our time, he warned.                      
Although he believes that the third branch of government—the judiciary—has so far been able to withstand the assaults, he reminded the audience of the need to be vigilant by ensuring that the courts keep their independence. “…[T]he separation of powers and adherence to the rule of law is crucial to a functioning democracy,” stated Acosta. For the tripartite governmental branches to maintain their independence, each branch should avoid straying from its lane lest the democratic structure is undermined. Acosta quotes George Washington’s admonition that despotism results when one branch of government encroaches upon another to consolidate power.

Acosta believes that the erosion includes the lack of respect for the “constitutional process.”  “The process must be honored, even if the outcome may not be what is desired by some,” he stated by pointing to numerous instances where the process was undermined of late. As an example, he pointed to the unprecedented sight of a former president and leading presidential candidate, lambasting judges and their staff presiding over civil and criminal cases in which the former president is a defendant. Such institutional disregard by a national political figure helps to incrementally decrease the public’s perception of the court’s legitimacy.   
 
He noted that the Legislative branch also oversteps its mandate both at the federal and state levels from both sides of the aisle. We were reminded of the disregard for constitutional norms that occurred when in 2016 the Senate refused to confirm Judge Merrick Garland as then-President Barack Obama’s nominee on the pretext that it was too close to an election which was 10 months away during his second term, yet that same Senate rushed to confirmed Judge Amy Coney Barrett within weeks of the end of Trump’s first term as president.        
         
At the state level, Acosta chided the Senate Democrats for attempting to prevent Governor Kathy Hochul's nomination of Justice Hector LaSalle for the Court of Appeals Chief Justice position from getting to the Senate floor for a vote as unconstitutional, and contrary to legislative history and statutory law (Judiciary Law 68(4)(a)). Justice LaSalle's nomination was ultimately submitted to the full Senate for a vote, after the filing of a lawsuit brought to bear pressure upon the Senate Democrats. The point taken by Acosta was that the constitutional process needed to run its course, without a short-circuited attempt to bypass the process.    
 
Another area of erosion of the rule of law is when the will of legislators is not applied as intended. Acosta points to “community preference,” which is part of New York City’s affordable housing lottery policy that serves to continue to segregate the city. The policy devotes half of the affordable housing units to a given community district to people already living there, thus keeping many other New Yorkers locked out of certain neighborhoods. In a city where the legislators have enacted a progressive mandate of anti-discrimination laws housing segregation should not even be an issue.         
                   
Other cited assaults on the constitutional norms include the expulsion of young black lawmakers from the Tennessee legislature; barring a transgender representative from the floor of the legislature in Montana; and the very possibility that a candidate for president, who has shown total disrespect and disloyalty to the constitution, might become the nominee of a major political party.

Having come from Trujillo’s Dominican Republic, as a 14-year-old immigrant, Acosta has seen how democratic branches of government may be weakened and lose their independence when the separation of powers and respect for constitutional processes are trampled upon by other branches of government.  Let us heed his warnings.         


[1] 61 A.D.3d 62 (1st Dep’t 2009)