Public Hearing for Court of Appeals Nominee Jenny Rivera

1 BEFORE THE NEW YORK STATE SENATE

STANDING COMMITTEE ON JUDICIARY 2 ------------------------------------------------------ 3 PUBLIC HEARING 4 FOR COURT OF APPEALS NOMINEE JENNY RIVERA 5 ------------------------------------------------------ 6 New York State Capitol Building

172 State Street, Room 124 CAP 7 Albany, New York 12247 8 February 4, 2013

12:00 p.m. to 1:00 p.m. 9 10 PRESIDING: 11 Senator John J. Bonacic

Chair 12 13 SENATE MEMBERS PRESENT: 14 Senator John L. Sampson (RM) 15 Senator Neil D. Breslin 16 Senator John A. DeFrancisco 17 Senator Martin Malavé Dilan 18 Senator Adriano Espaillat 19 Senator John J. Flanagan 20 Senator Charles J. Fuschillo 21 Senator Kemp Hannon 22 Senator Ruth Hassell-Thompson 23 Senator Brad Hoylman 24 Senator Betty Little 25 Senator Michael F. Nozzolio 1

SENATE MEMBERS PRESENT (CONTINUED): 2

Senator Thomas F. O'Mara 3

Senator Michael H. Ranzenhofer 4

Senator Diane J. Savino 5

Senator Lee M. Zeldin 6 7 ---oOo--- 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1

SPEAKERS:PAGE QUESTIONS 2

Michael Jaffe 7 11 3 President

New York State Trial Lawyers Association 4

Seymour W. James, Jr. 20 27 5 President

New York State Bar Association 6

Michelle J. Anderson 32 38 7 Dean

CUNY School of Law 8 9 ---oOo--- 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 SENATOR BONACIC: [No audio] the Judiciary 2 Committee. 3 I would like to now commence the public 4 hearing. 5 We were supposed to start at twelve. I'm 6 running about ten minutes late. 7 And, the public hearing will concern 8 Governor Cuomo's Court of Appeal nominee, 9 Professor Jenny Rivera, who is seated right in front 10 of me. 11 The purpose of the hearing is to fill the 12 vacancy of recently retired Judge Carmen Ciparick. 13 On behalf of the Committee, I would like to 14 thank Judge Ciparick for many years of integrity and 15 dedicated service to the Court of Appeals. 16 When we're done with the public hearing, we 17 will gavel in, to start the Judiciary Committee 18 meeting. 19 To fill -- subsequently, we'll be filling the 20 vacancy of the late Judge Theodore Jones, but that 21 will be done sometime in March. 22 Senator Sampson, my ranking member on 23 Judiciary, is running a little late. He'll be here, 24 about 12:30 he's expected. 25 UNKNOWN SPEAKER: I'll be sitting in until he 1 arrives. 2 SENATOR BONACIC: And, Senator Ruth Thompson, 3 welcome. 4 SENATOR HASSELL-THOMPSON: Thank you. 5 SENATOR BONACIC: Nice to see you. 6 But before we start the public hearing, I 7 would like to acknowledge the senators that are 8 here: 9 Senator Breslin, Senator Hannon, 10 Senator Fuschillo, Senator Flanagan, 11 Senator Ruth Hassell-Thompson, 12 Senator DeFrancisco, Senator Little, 13 Senator Nozzolio, Senator O'Mara, 14 Senator Ranzenhofer, and Senator Zeldin. 15 We'll probably have senators coming in, 16 because they're coming up from the city. 17 They probably -- a lot of us watched the 18 Super Bowl last night. I don't know how much sleep 19 they got. 20 But, in any event, for the public hearing, 21 we're going to have three people testifying, 22 concerning Professor Rivera's qualifications. 23 The first one will be, Michael Jaffe, who is 24 president of the New York State Trial Lawyers; 25 Seymour James, president of New York State 1 Bar Association; 2 And, Michelle Anderson, dean of CUNY School 3 of Law. 4 Each witness will be limited to ten minutes 5 of oral testimony. 6 If they don't take the full ten minutes, we 7 will not be disappointed, and then there will be 8 questions from the Committee. 9 So let us begin, and let me start with 10 Michael Jaffe. 11 Is Michael here? 12 MICHAEL JAFFE: I am. 13 SENATOR BONACIC: Michael, come on up. You 14 sit right in that seat, and let's hear what you've 15 got to say. 16 MICHAEL JAFFE: Thank you, Chairman Bonacic, 17 Senators. 18 And I believe I'll please, by being less than 19 ten minutes. 20 I thank you for the opportunity to testify 21 today. 22 My name is Michael Jaffe, and I'm the 23 president of the New York State Trial Lawyers 24 Association, and I appear here today on behalf of 25 the New York State Trial Lawyers Association Board 1 of Directors, and our 3,500 attorney members who 2 practice in trial and appellate courts throughout 3 the state. 4 We thank Chairman Bonacic for inviting us to 5 participate today, and for this opportunity to speak 6 in support of Governor Cuomo's nominee for associate 7 justice of the New York State Court of Appeals, 8 Jenny Rivera. 9 NYSTLA's members play close attention to the 10 work of the Court of Appeals. Many of them argue 11 appeals before the Court, and all are impacted on a 12 day-to-day basis by the effect of the Court's 13 rulings on the legal rights of the hundreds of 14 thousands of ordinary New Yorkers they represent. 15 We are also keenly aware of the Court of 16 Appeals' national prominence. The Court's decisions 17 are closely watched in other states, and shape legal 18 opinion across the country. 19 As such, we hardily endorse the nomination of 20 Jenny Rivera, a thoughtful, knowledgeable, and 21 experienced attorney and legal scholar, to this 22 state's highest court. 23 In December, NYSTLA's judiciary committee had 24 the honor of interviewing all seven candidates 25 recommended by the New York State Commission on 1 Judicial Nomination to fill the vacancy created by 2 the retirement of Senior Associate Judge 3 Carmen Ciparick. 4 Each of the commission's nominees from the 5 bench, the bar, and academia boasted impressive 6 credentials. 7 New York's legal community should be proud to 8 be able to offer so many capable candidates for such 9 a critical position. 10 Even among such a distinguished field, 11 Jenny Rivera stands out for her scholarship, 12 commitment to standing for the rights of the 13 individual, and dedication to a just and accessible 14 legal system. 15 Ms. Rivera will bring a breadth of 16 experience to the Court, and a long history of 17 fighting for the rights of all New Yorkers. 18 She has been an attorney with the Legal Aid 19 Society of New York City, and with the Puerto Rican 20 Legal Defense and Education Fund; has adjudicated 21 claims as an administrative law judge for the 22 New York State Division of Human Rights; and has 23 prosecuted cases as a special deputy attorney 24 general for civil rights for the Office of the 25 New York State Attorney General. 1 As an academic, Ms. Rivera's extensive 2 scholarship further demonstrates her broad knowledge 3 and understanding of the law, and her continued 4 dedication to a fair, just, and accessible legal 5 system. 6 NYSTLA is confident that Ms. Rivera's 7 experience and clear commitment to equality and 8 social justice will prove valuable to the Court. 9 Ms. Rivera's background in academia and 10 public service as a practicing attorney further adds 11 to the diversity of the Court and her qualifications 12 to serve. 13 Nor is it without precedence for a court of 14 appeals judge to be appointed from without the court 15 system. 16 Our illustrious former Chief Judge 17 Judith Kaye, and current Associate Judge 18 Robert Smith, both began their judicial careers at 19 the Court of Appeals. 20 Ms. Rivera also brings her inside knowledge 21 of courts and the judiciary, with her experience as 22 a law clerk to the Honorable Sonia Sotomayor at the 23 U.S. District Court for the Southern District of 24 New York, and as an administrative law judge. 25 So in conclusion, the New York State Trial 1 Lawyers Association commends Governor Cuomo for his 2 nomination of Jenny Rivera to the Court of Appeals, 3 and looks forward to Ms. Rivera bringing the 4 insight and skills she has developed through the 5 years to the work of the Court. 6 Thank you again for the opportunity to 7 testify today. 8 SENATOR BONACIC: Thank you, Mr. Jaffe. 9 Anyone have any questions of Mr. Jaffe? 10 Senator DeFrancisco. 11 SENATOR DEFRANCISCO: Mr. Jaffe, what is 12 the process for the board of directors of the 13 Trial Lawyers Association in determining whether a 14 candidate is "qualified," "well qualified," or 15 "not qualified"? 16 MICHAEL JAFFE: Senator, as you may know, we 17 interview all of the candidates. 18 We go over, in-depth, their background, their 19 experience; the things that they've done in their 20 lives, be it on the personal side, on the 21 professional side, and in the legal system. 22 And after meeting with all of the candidates, 23 we, as a unit, as a group, arrive at an assessment 24 of the candidate. 25 And we found Ms. Rivera to be very well 1 qualified to serve on the Court of Appeals. 2 SENATOR DEFRANCISCO: No, you didn't. 3 You found her "qualified." 4 MICHAEL JAFFE: Forgive my choice of words. 5 I apologize. 6 We found her qualified -- 7 SENATOR DEFRANCISCO: You're a trial lawyer; 8 you got to speak concisely, and correctly. 9 MICHAEL JAFFE: You're absolutely right, 10 Senator. 11 SENATOR DEFRANCISCO: All right. 12 So, is there an actual meeting of the board 13 of directors where there's a vote? 14 MICHAEL JAFFE: There is a vote by a unit 15 representative of the board of directors. 16 We have a committee that serves as the 17 committee that is speaking for the board of 18 directors. 19 SENATOR DEFRANCISCO: And were you present at 20 that meeting? 21 MICHAEL JAFFE: I was. 22 SENATOR DEFRANCISCO: Okay. May I ask you 23 this question? 24 Now, how come Ms. Rivera was not determined 25 to be "well qualified"? 1 Because there were other candidates here that 2 you rated, that were "well qualified." 3 MICHAEL JAFFE: The distinction that we made, 4 as to the levels, was purely one of whether or not 5 one had sat on the bench. 6 Beyond that, it really was not a tremendously 7 internally meaningful distinction. 8 It certainly reads that way on paper, but we 9 found that Ms. Rivera would certainly make a 10 wonderful addition to the Court of Appeals, and that 11 was what we were trying to say, by giving her the 12 highest rank that we could, absent somebody who was 13 actually sitting on the bench. 14 SENATOR DEFRANCISCO: All right, so you try 15 cases that you're living, correct, the whole -- all 16 of your group, your whole Trial Lawyers Association? 17 MICHAEL JAFFE: That's right. 18 SENATOR DEFRANCISCO: So one of the factors 19 in determining that she was "qualified," as opposed 20 to "well qualified," was that she didn't have bench 21 experience. 22 Why was that important to you? 23 MICHAEL JAFFE: It was merely a distinction 24 that we made. 25 I don't want to -- I would be misspeaking if 1 I said that it was important, other than to say, 2 that we made a decision to make a distinction 3 between sitting or non-sitting judges. 4 SENATOR DEFRANCISCO: All right. 5 And there were sitting judges that were part 6 of -- there were other nominees that went before 7 you; correct? 8 MICHAEL JAFFE: There were...? 9 SENATOR DEFRANCISCO: Sitting judges that had 10 judicial experience, where other nominees that went 11 before you, were well -- they were determined to be 12 "very qualified" or "well qualified"; correct? 13 MICHAEL JAFFE: That's correct. 14 SENATOR DEFRANCISCO: All right, now this I 15 really am confused about. 16 I chaired the Judiciary Committee for a long 17 time, and these qualifications are very, very usual; 18 either "highly qualified," "well qualified" -- 19 excuse me, "well qualified," "qualified," or 20 "not qualified." 21 I've never seen a "qualified and recommended" 22 before. 23 And that was your determination, the trial 24 lawyers: "qualified and recommended." 25 Can you tell me what the logic behind that 1 is? 2 MICHAEL JAFFE: I'm afraid, Senator, that I 3 probably could not tell you what the logic is behind 4 the terms that we chose. 5 I can tell you that the conversation went on 6 and on as to what words to use. 7 I don't remember what variations and 8 combinations and permutations there were as to the 9 words chosen. 10 Somehow we landed at that being the most 11 determinant. 12 SENATOR DEFRANCISCO: Can you explain why 13 someone who's qualified also got the term added to 14 the characterization, of "recommended," when there 15 was "well qualified" people who were not 16 recommended? 17 Is there some logic behind that? 18 MICHAEL JAFFE: I don't think we had 19 "well qualified" as our term, Senator. 20 SENATOR DEFRANCISCO: "Highly qualified." 21 MICHAEL JAFFE: The "highly qualified," 22 again, was something that was reserved for anybody 23 that had been on the bench. That was the 24 distinction that we made. 25 SENATOR DEFRANCISCO: I understood that. 1 But, I've never seen this "recommended" 2 before, next to either a "highly-qualified" or 3 simply "qualified" individual. 4 And I'm trying to figure out how someone 5 could have the second best score, so to speak, or 6 rating, and then be recommended over 7 "very qualified" people. 8 There had to be some reason that that phrase 9 was put in there? 10 MICHAEL JAFFE: Again, forgive me, Senator. 11 I -- I couldn't tell you that there was a specific 12 reason that we chose the terminology, or not. 13 SENATOR DEFRANCISCO: Were you there at the 14 meeting when this was discussed? 15 MICHAEL JAFFE: I was. I was there. 16 SENATOR DEFRANCISCO: You don't, and you're 17 the president? 18 MICHAEL JAFFE: I am the president. I take 19 full responsibility for the words that are on that 20 page, Senator. 21 I can't tell you that there was a specific 22 reason why we chose to say "recommended" -- 23 SENATOR DEFRANCISCO: You indicated that 24 "Ms. Rivera will bring a breadth of experience." 25 "A breadth of experience." 1 Now, explain what you -- what you determined 2 to be "a breadth of experience." 3 Is this in the practice of law, "a breadth of 4 experience"? 5 MICHAEL JAFFE: It was a combination of her 6 experience in academia, in working in the court 7 system, as well as in -- as a practicing attorney. 8 SENATOR DEFRANCISCO: And what areas do you 9 understand her to have practiced in? 10 MICHAEL JAFFE: The areas that I went over in 11 the testimony that I read. 12 It dealt with a lot of individual rights, 13 quite frankly, and it dealt with a lot of her work 14 in academia on behalf of individual rights, which 15 was something that we felt was important, as well as 16 the work that she had done in the court system. 17 SENATOR DEFRANCISCO: Do you think it's -- 18 did you review any of her writings? 19 MICHAEL JAFFE: We did. 20 I don't have them before me, but we did at 21 the time. 22 SENATOR DEFRANCISCO: And did you -- in 23 making your recommendation, I guess the other 24 question I have is: You had mentioned before that, 25 Judge Smith and Judge Kaye, neither had judicial 1 experience; correct? 2 MICHAEL JAFFE: Correct. 3 SENATOR DEFRANCISCO: And isn't it true that 4 both of them had extensive experience in the 5 practice of law in the courts, and a broad 6 experience of practicing law in different fields of 7 the law? 8 Is that fair to say? 9 MICHAEL JAFFE: I would defer to you, 10 Senator. 11 If that's so, by all means, sure. 12 SENATOR DEFRANCISCO: Well, I guess -- I 13 guess I'll ask the nominee those questions about a 14 "breadth of experience." 15 But it would seems to me that the highest 16 court of the state deals with every imaginable issue 17 over all the different areas of the law. 18 And there were people who were 19 "highly qualified," that didn't just limit their 20 focus to individual rights, and trying to promote 21 rights of individuals, which is a laudable goal, of 22 course, but, they have a breadth of experience, that 23 seems that they've dealt with different types of 24 issues in the law, not just one focus. 25 Or they've been on the bench; after they got 1 on the bench, and had the experience in all of these 2 areas. 3 And, was that a relevant factor in your 4 evaluation? 5 MICHAEL JAFFE: I don't fully follow your 6 question, Senator. 7 Are you asking whether or not the other areas 8 of experience was a relevant factor, or the overall? 9 SENATOR DEFRANCISCO: Yes, wouldn't it be 10 important, if the person is not a judge, and never 11 been a judge before, and has practiced in one 12 limited area, and has taught, and -- well, you know 13 her background, doesn't that concern you at all, 14 that there's not the breadth as far -- I mean, the 15 experience I'm talking about, having dealt with 16 different areas of the law in her own practice, or 17 having experience in other areas, when you know that 18 the Court of Appeals has got to decide issues on 19 every aspect of the law? 20 MICHAEL JAFFE: In fairness, Senator, I would 21 defer to the Committee to explore that with the 22 candidate. 23 SENATOR DEFRANCISCO: Okay. 24 All right, I don't have any other questions. 25 SENATOR BONACIC: Any other members have any 1 questions of Mr. Jaffe? 2 Hearing none, Mr. Jaffe, thank you for your 3 testimony. 4 MICHAEL JAFFE: Thank you. 5 SENATOR BONACIC: The next person is 6 Seymour James, Jr., who is president of the New York 7 State Bar Association. 8 Is Mr. -- 9 Mr. Seymour [sic], welcome, and good 10 afternoon. 11 SEYMOUR W. JAMES, JR.: Good afternoon. 12 Senator Bonacic, members of the Senate 13 Judiciary Committee, ladies and gentlemen: 14 My name is Seymour James, Jr., and I am 15 president of the New York State Bar Association. 16 It is my privilege to appear before you today 17 in support of the appointment of 18 Professor Jenny Rivera as associate judge of the 19 New York State Court of Appeals. 20 On behalf of the association, I thank you for 21 the opportunity to appear before you concerning 22 Professor Rivera's qualifications for the Court of 23 Appeals. 24 Since 1967, our association, presently 25 comprised of 76,000 attorneys licensed to practice 1 in New York State, has evaluated candidates for the 2 Court of Appeals. 3 During the past 32 years, since New York 4 amended its Constitution to provide for the 5 appointment of Court of Appeals judges, we have 6 provided the governor with our ratings of the 7 candidates whose names have been submitted to the 8 governor by the State Commission on Judicial 9 Nominations. 10 The integrity of our justice system and the 11 administration and development of law are matters of 12 paramount concern to our association. 13 As a result, we have a strong interest in the 14 process of selecting the members of our state's 15 highest court, and we appreciate the opportunity to 16 provide input in that process. 17 With respect to the present nomination, we 18 have found Professor Rivera to be well qualified to 19 serve as an associate judge of the Court of Appeals. 20 I would like to outline for you the process 21 by which our association evaluates Court of Appeals 22 candidates. 23 We appoint a committee to review judicial 24 nominations, made up of 17 members from across 25 New York State. 1 The rules governing the committee's operation 2 mandate that every judicial district be represented 3 on the committee. 4 Committee members are experienced 5 practitioners, selected to reflect diversity in 6 race, ethnicity, gender, and area of practice; and I 7 might add, include a number of appellate 8 practitioners. Their practice settings range from 9 solo practitioners to large firms. 10 Upon the announcement by the Commission on 11 Judicial Nomination of the list of candidates for 12 appointment to the Court of Appeals, committee's 13 chair appoints subcommittees to investigate the 14 qualifications of each candidate, and to make a 15 report at the meeting of the full committee. 16 These subcommittees review biographical 17 material provided by the candidates, read samples of 18 the candidates' writings, and interview the 19 candidates' colleagues. 20 Finally, the subcommittees meet with the 21 candidates. 22 Based on the information gathered during the 23 investigation process, the subcommittees prepare 24 reports and recommendations concerning the 25 candidates to present to the full committee. 1 After the completion of the investigations, 2 the committee meets as a whole to review the 3 subcommittee reports concerning the qualifications 4 of each candidate, and to personally interview the 5 candidates. 6 The committee then votes to determine whether 7 the candidates should be rated "well qualified," 8 "qualified," or "not qualified" for appointment to 9 the Court of Appeals. 10 In making their evaluations, the committee 11 members are asked to consider the candidates' 12 professional ability and experience, character, 13 temperament, and possession of special qualities 14 necessary or desirable for the judicial office 15 sought. 16 Under the committee's guidelines: 17 A "qualified" candidate is one who 18 affirmatively demonstrates qualifications the 19 committee regards as necessary for judicial office; 20 A "well qualified" candidate is one who, in 21 addition, possesses preeminent qualifications for 22 judicial office. 23 After being selected as a candidate by the 24 Commission on Judicial Nomination, 25 Professor Rivera's qualifications were evaluated by 1 our committee in accordance with these procedures. 2 She met with our full committee on 3 December 13, 2012. 4 As a result of this investigation and 5 interview, it was the opinion of our committee that 6 Professor Rivera is well qualified for the Court of 7 Appeals. 8 She has years of experience as a law 9 professor at CUNY School of Law, and 10 Suffolk University Law School, as well as a visiting 11 professorship at American University College -- 12 American University, Washington College of Law, 13 during which she has taught a variety of courses, 14 including administrative law, civil procedure, 15 property, and civil rights. 16 She has served as a special deputy attorney 17 general for the civil rights, as an administrative 18 law judge, and as a commissioner of the New York 19 State Commission on Human Rights. 20 Additional public service includes, the 21 New York State Second Department Judicial Screening 22 Committee, as well as the Advisory Council for the 23 Housing Part of the New York City Civil Court. 24 A judge on the Court of Appeals must possess 25 the intellect to analyze and resolve complex legal 1 issues, and the ability to write opinions in a 2 clear, persuasive manner. 3 Professor Rivera's large body of scholarly 4 writings demonstrates skilled legal analysis and the 5 ability to convey her points of view in a clear 6 manner. 7 Moreover, her colleagues and references have 8 indicated that she possesses the ability to work in 9 a collaborative manner with individuals from 10 different disciplines and with divergent viewpoints. 11 She possesses a temperament and demeanor 12 which will serve her well in working with her 13 colleagues on the Court, as well as in dealing with 14 the counsel appearing before the Court. 15 She further has demonstrated an understanding 16 of the distinction between, working as a lawyer, and 17 serving as a judge, where her focus will be on 18 applying precedent and interpreting the law. 19 Given her background, it is the opinion of 20 our committee that Professor Rivera possesses the 21 abilities, character, and temperament to serve ably 22 as an associate judge of the Court of Appeals. 23 In 2012, Professor Rivera won our 24 association's "Diversity Trailblazer Lifetime 25 Achievement Award," which is awarded during our 1 annual meeting by our committee on diversity and 2 inclusion, in recognition of exceptional efforts to 3 promote the full and equal participation of diverse 4 people at all levels of the legal profession. 5 In 2010, Professor Rivera was the recipient 6 of our "Kay Crawford Murray Award," which is 7 presented by our association's Committee on Women in 8 the Law, in honor of a member of the bar who has 9 worked to enhance diversity in the bar, and to 10 advance the professional development of women 11 attorneys. 12 Her professional achievements are also being 13 recognized this month by the 400,000-member 14 American Bar Association, with its prestigious 15 "Spirit of Excellence Award," in recognition of her 16 efforts to promote a more racially and ethnically 17 diverse legal profession. 18 Her overall breadth of experience leads us to 19 conclude that Professor Rivera will serve the state 20 of New York well as an associate judge of the 21 Court of Appeals. 22 Jenny Rivera would bring to the Court of 23 Appeals her keen intellect, insightful legal 24 scholarship, and a commitment to equal justice for 25 all New Yorkers. 1 Accordingly, on behalf of the New York State 2 Bar Association, I am pleased to endorse 3 Professor Rivera's appointment to the Court of 4 Appeals, and urge the confirmation of her 5 appointment. 6 Thank you for your attention, and for 7 inviting participation by the New York State Bar 8 Association in this important process. 9 SENATOR BONACIC: Thank you, Mr. James. 10 Anyone have any questions of Mr. James? 11 Senator DeFrancisco. 12 SENATOR DEFRANCISCO: Yes, part of your 13 prepared remarks indicates that, "A judge on the 14 Court of Appeals must possess the intellect to 15 analyze and resolve complex legal issues, and the 16 ability to write opinions in a clear, persuasive 17 manner." 18 And earlier on, you indicated that your 19 subcommittee did review samples of the candidates' 20 writings. 21 Do you have any idea what writings you 22 reviewed -- your subcommittee reviewed? 23 SEYMOUR W. JAMES, JR.: I know they did 24 review a number of the writings that she has 25 submitted for law journals. 1 I have, I believe there is one that I 2 particularly was referenced, "Equal Protection 3 Standard for the National Origin Subclassification: 4 The Context That Matters," from the 82 "Washington 5 Law Review" in 2007. 6 SENATOR DEFRANCISCO: Have you read that? 7 SEYMOUR W. JAMES, JR.: I have not. 8 SENATOR DEFRANCISCO: But the subcommittee 9 members at least read that article? 10 SEYMOUR W. JAMES, JR.: Yes, they have. 11 SENATOR DEFRANCISCO: Felt that that was 12 clear and concise writing? 13 SEYMOUR W. JAMES, JR.: Yes. 14 SENATOR DEFRANCISCO: Okay. 15 And understandable? 16 SEYMOUR W. JAMES, JR.: Yes. 17 SENATOR DEFRANCISCO: Okay. 18 I have nothing further. 19 SENATOR BONACIC: Thank you very much. 20 Any other members have any comments? 21 Okay, thank you very much, Mr. James. 22 We've been joined by Senator Savino, and 23 Senator Sampson. 24 I had remarks that I wanted to make before 25 the witnesses started, but I held off till 1 Senator Sampson came. 2 So at this point, I would like to just make 3 some preliminary remarks. 4 I read the "New York Court Watcher" 5 commentary by an Albany law professor. 6 On that commentary, it was pointed out that 7 Professor Rivera is out of the ordinary for recent 8 nominees to the Court of Appeals. 9 She is not a judge, does not work in the 10 judiciary, is not currently a practicing trial or 11 transactional attorney, does not work in a law firm, 12 and it is not a government lawyer, does not work in 13 a district attorney's office, legislature, or 14 executive branch office. 15 The nominee is a practicing academic, which 16 is not a position or line of work that is a 17 traditional source of the Court of Appeals' judges. 18 So I think Governor Cuomo has given us an 19 interesting nominee, and I look forward to hearing 20 from her. 21 My staff and I have spoken to at least 22 12 people about Professor Rivera in the weeks 23 leading up to this hearing. 24 Those individuals included law professors 25 from outside of CUNY, law professors from CUNY, 1 students of hers, and others. 2 We reached out to the New York 3 City Corporation Counsel's Office, who 4 Professor Rivera was on the other side of a case in 5 a consulting capacity, and they declined comment. 6 We were unable to locate any adversaries from 7 any trial work she did, to comment on her work. 8 We attempted to undertake as thorough a 9 background check as possible. 10 We received word from various individuals, 11 they had made some people unhappy. 12 That is unfortunate. 13 I take, and I know the members of this 14 Committee take, their legislative responsibility 15 seriously. 16 Now, we have to be particularly serious about 17 it with respect to the Court of Appeals. 18 We will be giving out to each member, 19 exhibits, that will total 72 pages of all writings 20 that have commented on this nominee, for your 21 review. 22 I also want to note that, from Friday 23 evening, this past Friday, through Sunday afternoon, 24 my office received several items of correspondence 25 on this nominee. 1 Of course, of those, a dozen were addressed 2 to me, but were addressed -- directed to the 3 Governor's Office, and then handed to me. 4 I view that as problematic. 5 If people want to communicate with the 6 Judiciary Committee, even if acting on the behest of 7 others, they should communicate directly to the 8 Committee, not through a third party. 9 When communications come through a third 10 party, it makes the genuineness of those 11 communications suspect. 12 Now, Senator Sampson -- 13 That concludes my comments. 14 Senator Sampson, do you have any comments 15 that you would like to make? 16 SENATOR SAMPSON: I'll just be very brief. 17 Thank you very much, Senator Bonacic, and I 18 know you have -- went through an exhaustive process 19 doing the background check on this nominee. 20 But, being that she is a person, just reading 21 her resume, and also just reading a letter from the 22 dean of Albany Law School, which I attended, and 23 which she was a colleague of that dean, it shows to 24 me that this is an individual who possesses, not 25 only the intellect, but understands the purpose of 1 being a member of the judiciary, and understanding 2 how it is important, and what the role is in 3 playing, being a justice on one of the top courts, 4 not only looked at in New York State, but throughout 5 this country. 6 So I look forward to hearing from this 7 interesting nominee, because I think she possesses 8 the qualities and the capabilities to be an extreme 9 jurist on the Court of Appeals. 10 Thank you very much. 11 SENATOR BONACIC: Thank you very much, John. 12 Okay, we'll continue now with the public 13 hearing. 14 The final witness is Michelle Anderson, dean 15 of CUNY School of Law. 16 Good afternoon, Dean. 17 DEAN MICHELLE J. ANDERSON: Good afternoon. 18 My name is Michelle J. Anderson, and I'm the 19 dean of CUNY School of Law. 20 I'd like to thank Chairman of the New York 21 Senate -- State Senate Judiciary Committee, 22 Senator John Bonacic, for inviting me to participate 23 today, and for this opportunity to speak in support 24 of Governor Andrew Cuomo's nominee for an associate 25 judge on the New York State Court of Appeals, 1 Professor Jenny Rivera. 2 CUNY School of Law is one of two public law 3 schools in New York State. 4 Our program is unique among the 200 or so law 5 schools across the country in its commitment to 6 fostering both public service and diversity in the 7 legal profession. 8 We have a strong program that teaches the 9 skills -- teaches students the skills to be 10 effective advocates. 11 "U.S. News and World Report" ranks our 12 clinical program fourth in the nation; 13 The "Princeton Review" ranks us tenth in the 14 nation for best law professors; 15 "National Jurist" ranks CUNY the second most 16 diverse law school in the nation; 17 And a higher percentage of our graduates 18 enter public-interest and public-service work than 19 any other law school in the country. 20 Professor Rivera has been a distinguished and 21 well-respected member of the faculty at CUNY School 22 of Law since 1997. 23 She primarily teaches civil procedure, 24 administrative law, property, wills and trusts, and 25 lawyering. 1 Her students see her as a tough but fair 2 professor who holds them to very high standards. 3 And on many occasion, I have heard students 4 comment that they deeply admire Professor Rivera, 5 and that they are a tad bit afraid of her because of 6 her rigor in the classroom. 7 She uses the traditional Socratic method in 8 class, and she brings to her teaching an 9 understanding of the relationship between legal 10 rules and lived experience, incorporating ongoing 11 litigation and the most recent judicial decisions in 12 her syllabi and in her analysis. 13 Professor Rivera is active in the CUNY Law 14 School community. 15 She founded, and now directs, the Center on 16 Latino Rights and Equality, which is called "CLORE," 17 at CUNY Law. 18 She shoulders a heavy load on law-school 19 committees, and participates in community panels and 20 projects. 21 She serves as an elected member of the 22 American Law Institute. 23 She's also a member of the 24 National Conference of Bar Examiners Diversity 25 Issues Committee. 1 Professor Rivera's understanding of the 2 practice of law and judicial decision-making has 3 both depth, and I would say, breadth. 4 Before becoming a faculty member: 5 She clerked for then-Federal District Court's 6 Judge Sonia Sotomayor; 7 She litigated at the Homeless Family Rights 8 Project, and then at the Puerto Rican Legal Defense 9 and Education Fund; 10 She served as an administrative law judge; 11 She served as a commissioner on the New York 12 City Commission on Human Rights; 13 And while she was a professor at CUNY in 14 2007, she took a leave of absence from her 15 professorship to serve as special deputy attorney 16 general for civil rights in New York. 17 I believe that Professor Rivera will make an 18 outstanding judge. 19 Many distinguished jurists did not have 20 experience as judges before they were appointed to 21 appellate courts. 22 On the Supreme Court, there was Chief Justice 23 Earl Warren, and Justices Lewis Brandeis, 24 Byron White, and Thurgood Marshall. 25 Today, there is Justice Elana Kagan. 1 Here in New York, of course, 2 Chief Judge Judith Kaye stands as one of the most 3 revered judges to have ever served on the Court of 4 Appeals, and she had no experience as a judge before 5 her appointment. 6 Throughout her academic career, 7 Professor Rivera has remained deeply connected to 8 practice. 9 Even setting aside her work as special deputy 10 attorney general, New York City Commissioner for 11 Human Rights, administrative law judge, and clerk to 12 then-Judge Sonia Sotomayor, experientially, I think 13 Professor Rivera's work as an academic makes her 14 very well suited to sit on the New York Court of 15 Appeals. 16 Professor Rivera has spent a significant 17 amount of time in her career looking at 18 sophisticated problems, analyzing them, and writing 19 about them. 20 She has a demonstrated commitment to the 21 study of law, and to examining and researching legal 22 issues rigorously. 23 She's invested in the world, in the law, and 24 in the effects the law has on real people. 25 Professor Rivera will bring intellectual 1 rigor to the Court. She has a keen sense of how 2 judge -- how law evolves over time, and the reasons 3 it does so. 4 Appellate courts flourish, I believe, when a 5 team of judges brings a range of experiences to the 6 bench. 7 When there's a balance between former 8 trial-court judges, former appellate-court judges, 9 former academics, former litigators, in various 10 realms, new and helpful perspectives can emerge. 11 Professor Rivera brings energy, engagement, 12 insight, pragmatism, and organizational 13 sophistication to every task she undertakes. 14 She's a person of integrity and character, 15 and will make an excellent judge on the Court of 16 Appeals. 17 On behalf of CUNY School of Law's faculty and 18 administration, I urge you to confirm 19 Professor Jenny Rivera for the position of an 20 associate judge on the New York State Court of 21 Appeals. 22 It would be a tremendous gain for the 23 Court of Appeals, and the people of New York. 24 25 1 SENATOR BONACIC: Thank you very much, 2 Ms. Anderson. 3 I heard Judith Kaye's name mentioned twice. 4 Judith Kaye is a judge that we know 5 personally, a woman we respect greatly, as well as 6 her integrity and her performance as a judge. 7 I asked Judith Kaye to come today and 8 testify. 9 And, she said that she would come and testify 10 as to the process, but would not comment on the 11 nominee. 12 So for that reason, we -- we're looking for 13 witnesses to comment on the nominee. 14 I have a question for you, if I may. 15 DEAN MICHELLE J. ANDERSON: Certainly. 16 SENATOR BONACIC: I want to tell you why I'm 17 troubled. 18 I received an e-mail from a student at CUNY 19 Law School. 20 This -- the law student was 21 Nicholas Widzowski, W-I-D-Z-O-W-S-K-I. 22 The e-mail reads, in part: 23 "Professor Rivera believes strongly in the 24 power and the importance of the law in creating a 25 just society. 1 "She is deeply deferential to the language of 2 the law, and understands the integral role it plays 3 in the everyday lives of people. 4 "As a judge, she would be thoughtful and 5 discerning, and would pursue a just legal system for 6 all New Yorkers. 7 "Her integrity and intellect are exemplary." 8 That e-mail was sent on February 3rd at about 9 10:00 in the morning. 10 On that same day, at 1:10, Ali Robins [ph.] 11 sent an e-mail to my office. And I think Ali Robins 12 was a director of student affairs at CUNY Law 13 School, which is the identical language in the 14 letter that was sent from that student, but it was 15 sent three hours later. 16 Now, I find that disturbing, and I want to 17 know if CUNY faculty and staff are part of a 18 letter-writing campaign, encouraging students, 19 students who need faculty and staff at CUNY, to 20 contact the Judiciary Committee in support of one of 21 the professors. 22 Can you explain that coincidence to me? 23 DEAN MICHELLE J. ANDERSON: I cannot explain 24 the similar language in the e-mail you received, 25 sir, and in the letter you received. 1 There is a letter, on behalf of all the -- on 2 behalf of the faculty at CUNY, in support of 3 Professor Rivera's nomination, and I assume that 4 that's in the record, or will be read into the 5 record. 6 It indicates that she's an excellent 7 colleague, and is a brilliant member of the faculty, 8 and it's signed by 50 members of the faculty. 9 There's also in the record, I believe, a 10 letter from another faculty member who chaired the 11 tenure committee that assessed Jenny Rivera's work 12 for tenure and promotion at CUNY, a distinguished 13 university professor, Ruthann Robson. 14 And I assumed that that's also in the record. 15 I cannot -- I have no knowledge of this 16 similar language, sir, and cannot explain it. 17 I assume, as I'm sure many of you do, that 18 the language from one showed up with another, and 19 was copied and sent to you. 20 SENATOR BONACIC: Okay, thank you. 21 We're joined by Senator Espaillat, 22 Senator Dilan. 23 Senator Espaillat, do you have a comment? 24 SENATOR ESPAILLAT: Yes. 25 Senator Bonacic, thank you for announcing me. 1 You know, I don't share such a concern about 2 the e-mails that you have received. 3 In fact, I think it is very customary for us, 4 as legislators, to receive similar e-mails, 5 hundreds, in some cases, thousands, on an array of 6 issues. 7 And I think that what that shows, very often, 8 and is that, there is a collective will or support 9 for a particular issue; in this case, for a 10 particular candidate to Court of Appeals. 11 So rather than having -- showing concern, I 12 am happy that you have received several. 13 I hope that you -- maybe hundreds, with the 14 same language would even encourage us more to 15 recognize that, in fact, there may be a collective 16 will within the student body of CUNY Law School, 17 that they see this candidate as a very strong 18 candidate for the Court of Appeals. 19 So, I don't see this as a problem. 20 I think that it is -- maybe we should be 21 getting letters of support of that nature when we 22 take votes, hundreds and thousands of them. 23 And I hope that they are in the same 24 language, I have no issues with that. I think that 25 it shows that the student body at CUNY Law is fully 1 supportive of this candidate. 2 And, I'm happy to be here in her support. 3 SENATOR BONACIC: Thank you. 4 Senator Nozzolio. 5 SENATOR NOZZOLIO: Thank you, Mr. Chairman. 6 Good -- I guess it's afternoon. 7 Good afternoon, Dean Anderson. 8 DEAN MICHELLE J. ANDERSON: Good afternoon. 9 SENATOR NOZZOLIO: I would like to know a 10 little more about your law school. 11 That, I was very interested in reading about 12 the other performance standards that you cite. 13 How many students do you have at CUNY Law 14 School? 15 DEAN MICHELLE J. ANDERSON: We have about 16 450 students over 3 years. 17 We have a JD program. 18 We don't have an additional LL.M. program, or 19 anything like that, so it's just straight JD. 20 SENATOR NOZZOLIO: Is there a night-school 21 program, or is it -- do all students attend, night 22 classes? day classes? 23 What is -- how do you structure it? 24 DEAN MICHELLE J. ANDERSON: It's primarily a 25 day program, although we have some classes that are 1 offered in the evening. 2 We have just moved to a new location, 3 Two Court Square in Long Island City. It's a 4 beautiful new facility. 5 And we're considering on the faculty, the 6 development of an evening division, but we do not 7 currently have an evening division at the law 8 school. 9 SENATOR NOZZOLIO: And how many faculty do 10 you have? 11 DEAN MICHELLE J. ANDERSON: Well, it always 12 depends on how you count, but, it's about 40 or so. 13 SENATOR NOZZOLIO: I thought you said "50"? 14 DEAN MICHELLE J. ANDERSON: Right, 50 signed. 15 I know. 16 SENATOR NOZZOLIO: I thought you said 50 had 17 signed the letter. 18 DEAN MICHELLE J. ANDERSON: I know. It 19 surprised me. 20 SENATOR NOZZOLIO: Did you find 10 more 21 faculty -- 22 DEAN MICHELLE J. ANDERSON: Well, a number of 23 folks who are on the staff, the high-level 24 administrators signed as well. 25 SENATOR NOZZOLIO: Oh, so there was -- you 1 got about 40 faculty, but 50 faculty signed the 2 letter, Dean? 3 DEAN MICHELLE J. ANDERSON: Right. Right. 4 Although they weren't all faculty, you are 5 correct. 6 SENATOR NOZZOLIO: What is -- and I say that 7 in jest. 8 So, 40 faculty full time? Is that it? 9 And of those students, about 150 per class? 10 DEAN MICHELLE J. ANDERSON: Correct. 11 SENATOR NOZZOLIO: And of those 150, how many 12 take the New York bar exam each year? 13 DEAN MICHELLE J. ANDERSON: It depends on 14 different years. 15 It's probably, at a high, about 120. 16 Probably at a low, maybe 80-something. 17 SENATOR NOZZOLIO: And what is the -- 18 DEAN MICHELLE J. ANDERSON: But the vast 19 majority of our students who graduate do take the 20 New York bar. 21 SENATOR NOZZOLIO: And what is the pass rate 22 for your student on taking the New York bar? 23 DEAN MICHELLE J. ANDERSON: The most recent 24 New York bar that was offered was in July of 2012, 25 and our students passed at 83.5 percent, placing us 1 as seventh in the state for passage on the New York 2 bar. 3 SENATOR NOZZOLIO: How many had taken it this 4 last time? 5 DEAN MICHELLE J. ANDERSON: Jeepers, it was 6 the highest number that had ever taken it, so it was 7 120-something. 8 SENATOR NOZZOLIO: You must then have a 9 number of courses on civil practice in -- 10 DEAN MICHELLE J. ANDERSON: We do. 11 Jenny herself, Professor Rivera, teaches 12 civil procedure. 13 We have, obviously, property, and a number of 14 other courses on -- 15 SENATOR NOZZOLIO: Is that New York Civil 16 Procedure and Civil Practice? 17 DEAN MICHELLE J. ANDERSON: We do have a 18 New York practice course that focuses on New York 19 practice. 20 I don't believe Jenny teaches it. 21 SENATOR NOZZOLIO: So -- and that's what I 22 guess I was asking. 23 The nominee teaches a course in civil 24 procedure -- 25 DEAN MICHELLE J. ANDERSON: Right. 1 SENATOR NOZZOLIO: -- but it's not New York 2 civil procedure? 3 DEAN MICHELLE J. ANDERSON: I don't know -- 4 SENATOR NOZZOLIO: It's not the New York 5 Practice Law and Rules? 6 DEAN MICHELLE J. ANDERSON: Right, right. 7 SENATOR NOZZOLIO: Does your law school have 8 any classes or seminars on the legislative process? 9 DEAN MICHELLE J. ANDERSON: On the 10 legislative process? 11 We have a number of courses that deal with 12 the legislative process, but do not have a course 13 exclusively called "legislation," I believe, in 14 rotation right now. 15 SENATOR NOZZOLIO: That's -- the answer that 16 I got lost with, Dean, but, could you explain that a 17 little more -- again, so I can understand what you 18 suggested? 19 DEAN MICHELLE J. ANDERSON: Sure. 20 A number of courses deal with the legislative 21 process -- address the legislative process, in the 22 context of discussing any number of substantive or 23 procedural areas of law, but there's not a course 24 that's exclusively focused on legislation. 25 At some law schools, there are -- there is a 1 course on legislation, for instance, but I don't 2 believe that we currently have one in rotation at 3 CUNY. 4 SENATOR NOZZOLIO: The legislative process 5 then comes as kind of a segment of other classes? 6 Others -- could you give me an example? 7 DEAN MICHELLE J. ANDERSON: Sure. 8 Administrative law would include, certainly, 9 an analysis of the legislative process, and how 10 rules are made as a result of the legislative 11 process. 12 Immigration law, we deal with the legislative 13 process. 14 Any number of courses -- I teach -- I myself 15 teach criminal law, and that deals, in some part, 16 with how to understand legislation; less about 17 process, but certainly focused on legislative 18 analysis. 19 SENATOR NOZZOLIO: Are you a school that's, I 20 assume a CUNY, supported by taxpayers' dollars? 21 DEAN MICHELLE J. ANDERSON: Correct. 22 SENATOR NOZZOLIO: But you have no courses in 23 focusing young attorneys on the process that makes 24 the law? 25 DEAN MICHELLE J. ANDERSON: I don't think 1 that's accurate. 2 I think we have a lot of courses that include 3 an analysis of the process of the law, but do not 4 currently have a standalone course on legislative 5 process. 6 SENATOR NOZZOLIO: Is that a process 7 regarding the New York legislative process? 8 Or is it the legislative process in, 9 congressional level? at other state levels? 10 Or -- 11 DEAN MICHELLE J. ANDERSON: It's -- it's the 12 process about how legislation is made at a range of 13 levels. 14 So some would be federal legislative process, 15 some would be state legislative process. 16 It depends very much on the course. 17 SENATOR NOZZOLIO: I see that the nominee's 18 focus was -- in one of her writings, was on the 19 New Jersey legislative process. 20 Have you had any of your faculty focus on the 21 New York legislative process? 22 DEAN MICHELLE J. ANDERSON: A number of our 23 faculty have focused, at different times and in 24 different ways in their scholarship, on the process 25 here in New York. 1 But, again, it's not a particular individual 2 course, freestanding course, in the curriculum. 3 SENATOR NOZZOLIO: Has, to your knowledge, 4 the nominee ever focused on the New York Legislature 5 or the New York legislative process? 6 DEAN MICHELLE J. ANDERSON: I -- not to my 7 knowledge, in terms of teaching a course. 8 And -- right, so I'll just stick with that. 9 SENATOR NOZZOLIO: Dean, thank you the very 10 much. 11 Mr. Chairman, thank you. 12 SENATOR BONACIC: Senator Fuschillo. 13 SENATOR FUSCHILLO: Dean Anderson, thank you 14 very much for taking the time to be here, and I 15 appreciate your testimony. 16 I just wanted to ask you a few questions. 17 Are you a practicing attorney yourself? 18 DEAN MICHELLE J. ANDERSON: Not now, no, sir. 19 SENATOR FUSCHILLO: You have been? 20 DEAN MICHELLE J. ANDERSON: Yes. 21 SENATOR FUSCHILLO: Okay. 22 In your -- by the way, did anybody not want 23 to sign the letter? 24 DEAN MICHELLE J. ANDERSON: Not to my 25 knowledge. 1 SENATOR FUSCHILLO: Okay. 2 DEAN MICHELLE J. ANDERSON: Not to my 3 knowledge. 4 SENATOR FUSCHILLO: Figured I'd get that on 5 the record for you, Dean. 6 DEAN MICHELLE J. ANDERSON: Right. 7 No, I asked the person who was circulating 8 it, and said: Have we pretty much got everybody? 9 And she said: We've got more than the 10 faculty at this point. 11 SENATOR FUSCHILLO: But you don't know if you 12 got everybody? 13 DEAN MICHELLE J. ANDERSON: I don't know if I 14 got everybody. 15 SENATOR FUSCHILLO: Dean, you can stop there, 16 because you're going to open up a line of questions 17 to me, that we'll be here forever, about the 18 interpretation of that. 19 DEAN MICHELLE J. ANDERSON: That's right. 20 That's right. 21 SENATOR FUSCHILLO: You know, I appreciate 22 your statement and your comments. 23 I just wanted to ask you a few questions. 24 In your review, in comprising this statement, 25 did you analyze any of the cases where the nominee 1 was a lead in any trial cases? 2 DEAN MICHELLE J. ANDERSON: I did not. 3 That was not part of the scope of what I 4 looked at, no. 5 SENATOR FUSCHILLO: Do you know if the 6 nominee has ever appeared before the Court of 7 Appeals? 8 DEAN MICHELLE J. ANDERSON: I do not know. 9 SENATOR FUSCHILLO: Okay. 10 So, your testimony and your statement is, 11 basically, your knowledge as the dean of the law 12 school? 13 DEAN MICHELLE J. ANDERSON: Yes. 14 SENATOR FUSCHILLO: Not with any respect to 15 any trial work or any courtroom work? 16 DEAN MICHELLE J. ANDERSON: Correct. 17 SENATOR FUSCHILLO: Okay. 18 Thank you very much. I appreciate you being 19 here. 20 SENATOR BONACIC: Does any other members have 21 any comments? 22 Yes, sir. 23 Oh, I'm sorry. 24 You're a new senator, and I should have 25 introduced you, and I apologize. 1 So, let me introduce you. 2 Senator -- 3 UNKNOWN SPEAKER: Hoylman. 4 SENATOR HOYLMAN: Hoylman; yes, sir. 5 SENATOR BONACIC: Senator Hoylman. 6 Excuse me. Thank you. 7 Please go. 8 SENATOR HOYLMAN: Thank you, Mr. Chair. 9 And thank you for having me. 10 It's a pleasure to be here, and I'm happy to 11 see you today, Dean. 12 I wanted to ask you about CUNY's reputation, 13 in terms of its public-service mission. 14 It's always fascinated me. 15 I didn't go to CUNY Law School myself, but I 16 know that it represents such an important part of 17 the city and state's public-service mission. 18 And, could you explain the philosophy of the 19 law school, and why you have such an enormous 20 representation in our public-service legal 21 profession? 22 DEAN MICHELLE J. ANDERSON: Well, it's a 23 terrific question, so I appreciate it. 24 CUNY Law has a unique mission, and the 25 mission is twofold. 1 One is to graduate outstanding servants of 2 the public; folks who go into public-interest work 3 or public-service work; 4 And the other aspect of our mission, is to 5 help diversify the practice of law, and make sure 6 that the practicing bar better reflects the 7 extraordinary diversity that we enjoy here in the 8 state of New York. 9 So, students are attracted to CUNY Law School 10 because of our mission. They're committed to going 11 into human-rights work, or a whole range of 12 public-service work. 13 And, we also attract a very diverse student 14 body. 15 Likewise, deans and faculty want to come to 16 CUNY, when they do, because they're committed to the 17 mission. 18 Our motto is: Law in the service of human 19 needs. 20 And that really encapsulates what we're 21 hoping to do. 22 And, at CUNY, it's not just about the 23 theoretical. It really is about the practical 24 aspects of teaching the skills to make effective 25 attorneys. 1 Unlike most other law schools, we have a 2 mandatory clinical program in the third year. 3 What that means is, that no one graduates 4 from CUNY Law School without engaging in real live 5 client representation. 6 We think it's not fair to send people out 7 into the world without actual real-practice 8 experience. 9 And, so, we're committed to the clinical 10 program; we're committed to, obviously, the mission. 11 And the law school was founded with the idea that 12 you cannot divorce the theoretical Socratic aspects 13 of learning the law, from really learning the 14 practical skills of what it means to be an effective 15 advocate. 16 SENATOR HOYLMAN: And I noticed that 17 Professor Rivera is an adherent of the Socratic 18 method, which is a little frightening to me as a 19 former law student. 20 But, could you just describe, briefly, the 21 lawyering course that she teaches. 22 DEAN MICHELLE J. ANDERSON: The lawyering 23 course? 24 SENATOR HOYLMAN: Yes. 25 DEAN MICHELLE J. ANDERSON: Sure. 1 So the "lawyering program" is a key aspect of 2 CUNY Law's sequence curriculum. 3 We have a lot of required courses, and in 4 some sense, that means somewhat fewer elective 5 courses that you might see at other law schools. 6 The "lawyering" course begins on day one. It 7 teaches students, deeply, the basic skills of 8 advocacy; 9 The writing: the legal writing, the revising, 10 the how to put together briefs, how to write letters 11 to opposing counsel; 12 How to interview clients; 13 How to negotiate with opposing counsels; 14 How to write effective memoranda. 15 These are the kinds of things that, in some 16 law schools, are sort of shunted to skills courses 17 in the second or third year. 18 We try at CUNY to start in year one with the 19 basic skills of legal practice; communicating that 20 to our students, so that they can't -- so that we 21 can really build on those skills, and make them more 22 effective advocates through the three years of law 23 school. 24 SENATOR HOYLMAN: Thank you so much. 25 DEAN MICHELLE J. ANDERSON: Thank you. 1 SENATOR BONACIC: I've asked Senator Zeldin 2 to come up here, because I didn't want you to get a 3 neck sprain when he was -- 4 DEAN MICHELLE J. ANDERSON: Thank you so 5 much. 6 SENATOR BONACIC: But Senator Zeldin has some 7 comments that he would like to make. 8 ZENATOR ZELDIN: Good afternoon, Dean. 9 DEAN MICHELLE J. ANDERSON: Hi, there. 10 ZENATOR ZELDIN: I received a letter from a 11 gentleman in Suffolk County, and I just wanted to 12 follow up on it. I represent a district in 13 Suffolk County as well. 14 DEAN MICHELLE J. ANDERSON: Do you have a 15 copy of the letter, Senator? 16 It's okay if you don't. 17 Go ahead. Sorry. 18 ZENATOR ZELDIN: It -- there's a paragraph, 19 that reads: 20 "In 2011, the school's pass rates for 21 first-time takers of the bar exam was 67 percent, 22 well below the statewide average of 86 percent." 23 And in your Post article, dated February 3, 24 2012, it was reported that administrators were 25 urging struggling students not to take the July 2012 1 exam, but to wait until the one given in February of 2 2013. 3 Reportedly, grants would be given to those 4 students who agreed to the postponement. 5 Just piqued my interest as Senator Nozzolio 6 was asking questions, because I read that over the 7 weekend, and I was just wondering if you cared to 8 respond. 9 DEAN MICHELLE J. ANDERSON: Sure. 10 Our bar pass rate has been, at times, 11 erratic. It's not something I'm proud of, and it's 12 something we're working very hard to repair. 13 We're very proud of the July 2012 New York 14 bar numbers. 15 '11 was not a good year. 16 The July '11 numbers that you're pointing to 17 was not a -- that was not a good year for us. 18 We have one of the smallest number of 19 students that takes the New York bar, because we're 20 a smaller school compared to other law schools in 21 this state. 22 I think that contributes a little bit to our 23 erratic numbers, but it's not an excuse. 24 We need to be consistently above 80 percent; 25 and we're working toward that, and we've done very 1 well this last year. 2 In terms of the article that you mentioned, 3 about our response to our difficult bar numbers in 4 2011, we encouraged students who were at risk, we 5 believed, for not doing as well on the bar, we did 6 urge them to have another semester of preparation 7 before they took the bar. 8 And that preparation would include retaking 9 some of the courses that they didn't do well in, 10 intensive one-on-one tutoring to support their work 11 in areas where they were weakest. 12 And, so, that part of the story is accurate. 13 ZENATOR ZELDIN: Just a follow-up. 14 It said: 15 "Reportedly, grants would be given to those 16 students who agreed to the postponement." 17 What's that about? 18 DEAN MICHELLE J. ANDERSON: Well, actually, 19 it's not unique to those students who agreed to the 20 postponement. 21 CUNY Law has a unique group of students. 22 Our students are, often, first in their 23 family to attend college, or law school. And, they 24 often don't have the financial means available to 25 many other law school -- law students at other 1 schools. 2 And one of the things that we found is that, 3 if they graduate, and have no money to prepare for 4 the bar, for those three months that one needs to 5 prepare, full time, for the bar, then, the 6 likelihood of them being able to pass is much 7 diminished. 8 And, so, we have a program where I -- 9 actually, we, raise money, to actually give students 10 grants, to allow them to live, and not have to take 11 a job at Starbucks, or somewhere else, in order to 12 be able to pay the bus fare to get to the bar-review 13 courses, to actually pay for the bar-review courses, 14 and to pay for their rent, and to pay them, to be 15 able to live for that period of time. 16 It's a way we think of evening the playing 17 field between, students who are wealthy, who come 18 from wealthy families where they have that kind of 19 the support in the family, and students who don't, 20 and yet need to have that kind of support in order 21 to prepare, full time, for the bar. 22 ZENATOR ZELDIN: Thank you, Dean. 23 SENATOR BONACIC: Does anyone else have any 24 comments? 25 Senator Espaillat. 1 SENATOR ESPAILLAT: Thank you, 2 Senator Bonacic. 3 I want to shift more the question, from the 4 CUNY Law School-perspective to the actual nominee. 5 I think that that's why we're here for. 6 And, you know, I think that we have plenty of 7 forms where we could ask questions about CUNY, 8 including our recent budget hearings, where we can 9 ask questions of the chancellor, or the Dean 10 herself. 11 And, you know, Dean, thank you for your 12 testimony. 13 And I just wanted to ask, if you are familiar 14 with the Judicial Commission on Nominations, as 15 headed by former Judge Judith Kaye? 16 DEAN MICHELLE J. ANDERSON: I am generally 17 familiar with it, but not intimately familiar with 18 it. 19 SENATOR ESPAILLAT: And in your general 20 knowledge of it, what is it that they do? 21 What are they do to help us in this process? 22 Do they -- do they interview the candidates? 23 DEAN MICHELLE J. ANDERSON: I think they 24 interview and vet the candidates, and make 25 assessments on that. 1 SENATOR ESPAILLAT: And are you familiar with 2 their recommendations regarding our nominee? 3 DEAN MICHELLE J. ANDERSON: I believe their 4 recommendations were positive. 5 SENATOR ESPAILLAT: Okay. 6 And, also, I wanted to go into -- a little 7 bit more into her resume, because I see that, while 8 she was with the New York State Office of the 9 Attorney General, she headed the civil rights 10 division. 11 And that division, not only supervised the 12 rights bureau, with regards to federal, state, and 13 civil-rights law, but it also gave her the authority 14 to conduct the investigations, enforcement actions, 15 and anything that had to do with discrimination in 16 the areas of employment, predatory lending, public 17 accommodations, and such. 18 Are you familiar with her work at the 19 State Attorney General's Office? 20 DEAN MICHELLE J. ANDERSON: In general, yes, 21 I am. 22 SENATOR BONACIC: Excuse me, 23 Senator Espaillat, I don't mean to interrupt you, 24 but we're going to have the nominee come and tell 25 you about everything she did. 1 SENATOR ESPAILLAT: Oh. 2 SENATOR BONACIC: So, you're going to hear 3 from the source itself. 4 SENATOR ESPAILLAT: Okay. 5 SENATOR BONACIC: I don't mean to cut you 6 short; it's just a suggestion, and I have two or 7 three other members. 8 SENATOR ESPAILLAT: I appreciate that, 9 Senator Bonacic. 10 I just wanted to make sure that we shifted 11 back to the nominee -- 12 SENATOR BONACIC: Yeah, of course. 13 SENATOR ESPAILLAT: -- which is where we need 14 to be. 15 Thank you so much. 16 SENATOR BONACIC: Sure. 17 Senator Flanagan. 18 SENATOR FLANAGAN: Dean, just a couple of 19 quick questions, if I may. 20 The -- what is the policy for employment? 21 If you are a professor at CUNY -- 22 DEAN MICHELLE J. ANDERSON: Yes? 23 SENATOR FLANAGAN: -- are there any 24 limitations in terms of what you can do outside of 25 your employment with the university? 1 DEAN MICHELLE J. ANDERSON: Yes. We're State 2 employees, as professors and deans and those who are 3 employed by CUNY. 4 And, so, there are limitations on the kinds 5 of work that one can do outside of that when you're 6 a full-time employee of CUNY. 7 SENATOR FLANAGAN: And who sets those 8 limitations? 9 DEAN MICHELLE J. ANDERSON: The university -- 10 well, it's possible that the State does. 11 It certainly comes to us through the 12 HR office at CUNY Central. 13 SENATOR FLANAGAN: So if one of your faculty 14 is seeking some type of outside employment...? 15 DEAN MICHELLE J. ANDERSON: It would need to 16 be limited, I believe, to a few days a month. 17 SENATOR FLANAGAN: Is there any prohibition 18 on the type of work one can be engaged in? 19 DEAN MICHELLE J. ANDERSON: Not to my 20 knowledge, but I don't know -- I don't follow those 21 rules very closely. Very rarely are they violated. 22 So, I couldn't say more specifically than 23 that. 24 SENATOR FLANAGAN: Let me ask this, 25 respectfully: If you don't follow them very 1 closely, how would you know if they're violated? 2 DEAN MICHELLE J. ANDERSON: Well, when 3 there's an issue, every single faculty member on 4 the -- on my faculty reports all of their outside 5 employment. 6 And if it goes -- comes within a certain 7 amount of hours, it's considered fine by CUNY 8 Central. 9 When it goes beyond that, then there's an 10 individual assessment of it. 11 SENATOR FLANAGAN: So there's no obligation 12 of your faculty to seek some type of opinion, 13 advisory, or otherwise, prior to being involved in 14 outside employment? 15 DEAN MICHELLE J. ANDERSON: I believe that's 16 correct. 17 SENATOR FLANAGAN: And are you aware of any 18 cases where there have been violations? 19 DEAN MICHELLE J. ANDERSON: No. 20 Where faculty members were employed outside 21 the university for more than the minimum -- or, the 22 maximum, presumptively, authorized by the HR rules, 23 there was an analysis of them, and it was deemed to 24 be fine. 25 These matters go through the personnel and 1 budget committee on campus. 2 There are, of course, standard 3 conflict-of-interest rules which would limit the 4 kinds of employment that one could engage in. 5 But I presume that you're talking about, 6 simply, the scope of what kind of outside work one 7 might engage in. 8 SENATOR FLANAGAN: Well, I'm just trying to 9 determine what prohibitions exist, if there are any. 10 And, so, if someone doesn't have to come 11 before, there are substandards for conflicts of 12 interests. And it sounds like -- 13 DEAN MICHELLE J. ANDERSON: Yeah, if there's 14 a potential -- 15 I'm sorry. Go ahead. 16 SENATOR FLANAGAN: It sounds like you're more 17 interested in the hours outside of work, as opposed 18 to the type of work. 19 DEAN MICHELLE J. ANDERSON: Well, there are 20 different processes for each. 21 If someone has a set of work that may pose a 22 conflict of interest, they certainly have an 23 obligation, as an attorney, and as a member of the 24 community, to come forward with that, and vet it 25 with the general counsel's office. 1 There's a full vetting process for potential 2 conflicts of interest. 3 That's a kind of separate process than the 4 usual reporting that happens through the personnel 5 and budget committee, which, you're right, does 6 focus on hours. 7 SENATOR FLANAGAN: So, just a final: To the 8 best of your knowledge, there is no formal 9 prohibition on one of your faculty working on any 10 given type of case? 11 Just, for argument's sake, I'll say, you 12 know, a high-profile capital-punishment case. 13 DEAN MICHELLE J. ANDERSON: I believe that is 14 correct, yes. 15 SENATOR FLANAGAN: Thank you. 16 SENATOR BONACIC: Senator Sampson. 17 SENATOR SAMPSON: Just a point of reference 18 that Senator Zeldin was talking about: 19 Being a member of the board of trustees at 20 Albany Law School, 2011 was a difficult year for a 21 lot of schools -- law schools in New York State who 22 took the bar exam. That was a pretty low passage 23 rate in a lot of law schools. 24 But, second, as a person who took the bar, I 25 know a lot of students who have taken the bar, it's 1 usually easy to take the bar exam in July, instead 2 of February. 3 The bar exam in February is a lot harder than 4 the bar exam in July. 5 And, also, just a point of reference: 6 My cousin, who's a justice of the 7 Supreme Court in Queens County, was one of the first 8 graduating classes of the CUNY Law School; 9 Pam Jackson Brown. 10 DEAN MICHELLE J. ANDERSON: Terrific. 11 SENATOR SAMPSON: Thank you, Senator Sampson. 12 Senator DeFrancisco. 13 SENATOR DEFRANCISCO: Just a question on 14 CLORE. 15 Are you familiar with that program? 16 DEAN MICHELLE J. ANDERSON: Sure. Yes. 17 SENATOR DEFRANCISCO: Was that in existence 18 when you got to the school as the dean? 19 DEAN MICHELLE J. ANDERSON: No, it was not. 20 It's -- 21 SENATOR DEFRANCISCO: When was it created? 22 DEAN MICHELLE J. ANDERSON: When 23 Professor Rivera returned after her stint as special 24 deputy attorney general for civil rights. 25 SENATOR DEFRANCISCO: And can you tell me 1 what the mission statement of CLORE is? 2 DEAN MICHELLE J. ANDERSON: I believe it's to 3 focus on legal questions, and to create community 4 around legal questions affecting the Latino 5 population. 6 SENATOR DEFRANCISCO: When you say "create 7 community," what does that mean? 8 DEAN MICHELLE J. ANDERSON: Well, quite 9 literally, it means pull together people for 10 conferences, lectures. Have a range of fellows; a 11 number of students become fellows at CLORE. 12 And, at CUNY, we talk about community a lot, 13 so, that's why I bring that up. 14 But, primarily, it's an academic center, and 15 its goal is to do critical analysis around these 16 issues; engage in critical analysis, in addition to 17 supporting students. 18 SENATOR DEFRANCISCO: Okay. 19 All right, I'm sorry, what? 20 (Off-the-record discussion.) 21 SENATOR DEFRANCISCO: I have no further 22 questions. 23 Thank you. 24 DEAN MICHELLE J. ANDERSON: Thank you. 25 SENATOR BONACIC: Anyone else have any 1 comments? 2 I want to thank you very much, Dean, for your 3 testimony. 4 It is now 1:15, and that concludes the public 5 hearing of the Judiciary Committee. 6 We're going to take a two-minute recess, and 7 then we're going to commence the 8 Judiciary Committee, and we're going to ask the 9 nominee, Jenny Rivera, to come forward and speak to 10 us. 11 Okay, two-minute recess. 12 (End of proceeding.) 13 (The nominee interview was held behind closed 14 doors; no transcript required.) 15 16 (Whereupon, at approximately 1:02 p.m., 17 the public hearing held before the New York State 18 Senate Standing Committee on Judiciary concluded, 19 and adjourned.) 20 21 ---oOo--- 22 23 24 25