The Braschi Breakthrough: 30 Years Later, Looking Back on the Relationship Recognition Landmark

On June 3, 2019, The Richard C. Failla LGBTQ Commission of the New York Courts commemorated the 30th anniversary of the New York Court of Appeals’ decision in Braschi v. Stahl Associates Company with a program entitled The Braschi Breakthrough: 30 Years Later, Looking Back on the Relationship Recognition Landmark. The Historical Society of the New York Courts was among the event’s co-sponsors. The video of the program is available to watch below.

In Braschi, interpreting a New York City rent control regulation that protected a surviving member of a deceased tenant’s family from eviction, the Court of Appeals became the first American appellate court to conclude that same-sex relationships are entitled to legal recognition. The case was litigated at the height of the AIDS crisis and sadly, the plaintiff himself died only a year after his groundbreaking court victory.

Inside the Ceremonial Courtroom at the 60 Centre Street courthouse in Manhattan (where the Braschi case started), introductory remarks were made by Matthew J. Skinner, Executive Director of the Failla Commission; Hon. George Silver, Deputy Chief Administrative Judge for New York City; and Hon. Anthony Cannataro, the incoming Co-Chair of the Failla Commission. The speakers included William Rubenstein, Bruce Bromley Professor of Law at Harvard Law School and the man who argued the case before the Court of Appeals as a young ACLU staff attorney, Henry M. Greenberg, President of the New York State Bar Association, Vice-Chair at the Historical Society of the New York Courts, and a law clerk to Hon. Judith S. Kaye in 1989; Hon. Matthew Titone, Surrogate Judge of Richmond County and the son of Hon. Vito J. Titone (the author of the Braschi plurality opinion); former State Senator Thomas K. Duane; and Giannina Braschi, acclaimed writer and the sister of the late plaintiff Miguel Braschi.

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Excerpt from People v. Croswell: Alexander Hamilton and the Transformation of the Common Law of Libel

The theme for Law Day 2019 is Free Speech, Free Press, Free Society, and early New York cases tested some of the protections of the First Amendment. One such case is People v. Croswell (1804), and in 2011, we published an article written by Paul McGrath in our journal Judicial Notice on Alexander Hamilton’s role in the trial. In the spirit of Law Day, we have excerpted a part below.

Paul McGrath retired after serving as Chief Court Attorney of the New York Court of Appeals in Albany where he supervised the Court’s Central Legal Research Staff. Prior to his promotion to Chief Court Attorney, Mr. McGrath worked as the Deputy Chief Court Attorney of the Court of Appeals and as a Law Clerk to Associate Judge Richard D. Simons. Mr. McGrath earned his J.D., magna cum laude, from the State University of New York at Buffalo School of Law and his B.A., magna cum laude, from the State University of New York College at Geneseo.

Photo: Harry Croswell (1778-1858) by Henry Inman, 1839. Courtesy of Mead Art Museum, Amherst College. Bequest of Herbert L. Pratt (Class of 1895), AC 1945.12

The Motion for a New Trial

Before judgment could be pronounced, Croswell’s attorneys quickly moved for a new trial, arguing initially (1) that the truth should be permitted in evidence as a justification and thus that Chief Justice [Morgan] Lewis had erred in denying the motion for a further adjournment, and (2) that the court had misdirected the jury. Following accepted practice of the time, the motion for a new trial would be heard by the entire five-justice Supreme Court — somewhat like an appeal of the judgment in modern practice. The defense attorneys would employ a legal device called the “case stated.” By “making a case,” essentially a set of facts to which the prosecution and defense stipulated, all objectionable matters, including any not in the record proper such as the jury charge which at the time was a matter outside the record, could be considered by the full Court.25 Following certain adjournments, the case was finally heard in February 1804 with the Supreme Court sitting in Albany. In accord with the practice of the day, the parties would not exchange briefs before the argument.26

The defense team used the time to regroup. The Federalists sought out Alexander Hamilton who, according to Justice (later Chancellor) James Kent, was “universally conceded” to be the preeminent lawyer of the era.27 As early as June 23, 1803, they had persuaded General Philip Schuyler, Hamilton’s father-in-law, to write the former Secretary of the Treasury for help. The rabid Federalist Schuyler described the case as “a libel against that Jefferson, who disgraces not only the place he fills but produces Immorality by his pernicious example.”28 Although there is some evidence that Hamilton played an advisory role in the Croswell trial in the Circuit Court, other matters had precluded his appearing there. Now he was ready to enter the proceedings in person, gratis.

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Franklin H. Williams Documentary: A Film Celebrating His Life and Contributions

This article was written by John Caher, the Unified Court System’s senior advisor for strategic and technical communications.

Photo: Franklin H. Williams

Franklin Hall Williams: Civil rights leader, lawyer, diplomat, organizer of the Peace Corps and first African-American director, United Nations representative, foundation president, associate of Thurgood Marshall, New York attorney. He was a visionary and trailblazer who devoted his life to the pursuit of civil rights — not through acrimony or violence, but through reason and example. His enduring legacy, the Franklin H. Williams Judicial Commission, continues to promote racial and ethnic fairness in the courts.

Joyce Y. Hartsfield, Executive Director of the Franklin H. Williams Judicial Commission, and I thought it was unfortunate that Williams, who died in 1990, was but a footnote to history, although his impact on civil rights and the New York Courts was profound and lasting. A recent Pulitzer Prize winning book Devil in the Grove by Gilbert King documented Williams’ role in the infamous Groveland Boys case, but it seemed no one had really taken a good look at his life’s work and contributions. We decided to produce a short documentary, and with the financial support of the New York State Unified Court System, the New York State Bar Foundation and the Historical Society of the New York Courts, the fruits of our efforts are now publicly available.

The film is narrated by Elaine Jones, former director-counsel of the NAACP Legal Defense Fund (LDF). Former New York State Bar Association President Kenneth G. Standard is the voice of Ambassador Williams. And we were blessed to have a generous and tireless (and unpaid) consultant, Dr. Enid Gort, an anthropologist working on a book about Franklin Williams.

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Fritz Winfred Alexander, II: First Black Court of Appeals Judge Appointed to a 14-Year Term

This article was written by Angela Burton, and is an excerpt of her biography of Judge Alexander, which was originally published in The Judges of the New York Court of Appeals, edited by Albert M. Rosenblatt and published by Fordham University Press in 2007. You can read the full biography here.

Born Carl Bernard Zanders, Jr., in Apopka, Florida, on April 24, 1926, Fritz Winfred Alexander, II was later given the name of his mother’s brother, a Gary, Indiana, lawyer with whom he went to live after his mother became ill.[1] Upon surveying the Judge’s long and illustrious legal career, it becomes apparent that the elder Alexander gifted to his young nephew not only his euphonious name, but also imparted a drive for excellence, an inclination toward public service and social justice, and a passion for the rule of law.

Judge Alexander’s appointment to the Court of Appeals on January 2, 1985 by Governor Mario Cuomo marked a significant milestone in the Court’s history: he was the first Black American to be appointed to a full fourteen-year term on the Court.[2] Upon his nomination, the fourteen-member Committee on Judicial Selection of the New York State Bar Association judged him to possess “pre-eminent qualifications” and concluded that he was “well-qualified” for the position of Associate Judge of the Court of Appeals. Although the Judge was keenly aware of historical and social import of his appointment, he was adamant that his paramount allegiance on the Court was to the people of New York and to the rule of law. At his confirmation hearings before the Senate Judiciary Committee (which voted his nomination unanimously), he acknowledged the “symbolic significance” of his status as the first Black American to be elevated to a full term on the Court of Appeals,[3] and upon taking the bench insisted that he was appointed not because of his race, but because he was “a good judicial choice,” and that his paramount role was “to serve the people of this state as a judge of this court.”[4] On the occasion of his leaving the Court after only seven years into his term, and four years shy of the mandatory retirement age of 70, he remarked that he most wanted to be known “as a jurist who sought to discharge his responsibilities to the very best of his ability, to serve justice and the rule of law, and about whom it can be said ‘job well done.”[5]

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Founding President Hon. Albert M. Rosenblatt Hands Gavel to Hon. Jonathan Lippman, New President of the Historical Society of the New York Courts

Photo: Outgoing president and founding member of the Society Hon. Albert M. Rosenblatt offers hand-made gavel to our new President, Hon. Jonathan Lippman, and new Chair of the Board, Stephen P. Younger at our annual meeting in January 2019.

(L-R): Hon. Jonathan Lippman, Hon. Carmen Beauchamp Ciparick, Hon. Albert M. Rosenblatt, Stephen P. Younger, Marilyn Marcus

We knew the day would come but it still feels a bit surreal. Hon. Albert M. Rosenblatt, President of the Historical Society of the New York Courts for the past 16 years, has turned over presidential leadership to Hon. Jonathan Lippman, former NYS Chief Judge and Of Counsel at Latham & Watkins LLP. The announcement was made during the annual meeting of the Society’s Board of Trustees in mid-January. Judge Rosenblatt, retired Associate Judge at the Court of Appeals, co-founded the Society in 2002 with then-Chief Judge Judith S. Kaye.

The Board also elected Stephen P. Younger, Partner at Patterson Belknap Webb & Tyler LLP, as Chair of the Board, replacing Hon. Carmen Beauchamp Ciparick, Of Counsel at Greenberg Traurig LLP and former NYS Court of Appeals Associate Judge.

During the annual meeting, the Society’s Executive Director Marilyn Marcus read to the Board letters from Chief Judge Janet DiFiore to Judges Rosenblatt and Ciparick recognizing their service and commitment. The Chief Judge expressed her high regard and warm thoughts to them both.

Judge Rosenblatt presented a hand-made gavel to Judge Lippman and to Mr. Younger during the announcement.

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Revisiting Our Goals

Photo: Central segment of mural at Appellate Division, First Department Courthouse

We are now a few days into the new year, which is the perfect time to make some resolutions at the Society! But before we look forward, we want to look back and see what we’ve accomplished and how these accomplishments will guide us in 2019. Nine years have passed since we produced our About the Society video, which featured interviews with many people instrumental to the Society’s work, including founder Hon. Judith S. Kaye and president Hon. Albert M. Rosenblatt. This video provided, and continues to provide, a brief overview of what the Society does to preserve, protect, and promote the legal history of New York. We discussed our work documenting and preserving courthouses, our publications, a potential museum, the David A. Garkfinkel Essay Scholarship, our programs and lectures, oral histories, and the broader context of New York law. What have we accomplished since we filmed this video in 2010? Let’s take a closer look!

Publications

Each year, the Society produces an issue of Judicial Notice, our journal which features articles written by those interested in New York’s legal history. The 2019 edition of Judicial Notice is currently in production, and is a special issue on Native American legal history in New York State.

Since 2010, we’ve streamlined the journal’s aesthetics to make it more readable, while staying true to the spirit of scholarly publications. We’ve expanded the articles we publish to include more diverse topics. We accept article submissions year-round, and our authors can submit their articles to other journals at the same time. This is excellent for authors who are passionate about their research and want to share as much as possible!

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The Oneida Indian Nation: America’s First Ally — A History No Longer Ignored

In honor of Native American Heritage Month and in anticipation of our upcoming program Tribal Courts in New York: Case Study of the Oneida Indian Nation on Nov. 20th, we bring you this article written by the Oneida Indian Nation on their history and culture.

Photo: Oneida Indian Nation Representative Ray Halbritter with a framed copy of the U.S. Constitution and the 1794 Treaty of Canandaigua.

The story of America’s founding is often left incomplete in the history textbooks that repeatedly omit Native voices. The Oneida Indian Nation is proud of its legacy as America’s First Allies, but sadly, many generations of American citizens are unaware of our ancestors’ impact on the American Revolution and the establishment of the United States.

In the fight for independence from a tyrannical king, the colonists were aided in several major battles in the Revolutionary War by the Oneida Indian Nation of the Haudenosaunee Confederacy. Our ancestors, opposed to the other Haudenosaunee Nations that decided to support the British, made the extraordinarily difficult decision to fight for the fledgling United States and became forever known as America’s First Allies.

“Oneidas at the Battle of Oriskany” painting by artist Don Troiani
“Oneidas at the Battle of Oriskany” painting by artist Don Troiani

That friendship was forged — and cemented — after the Battle of Oriskany on August 6, 1777, preventing the British from advancing an expeditionary force intended to join other British forces marching south from Canada. If the two forces united, they may have succeeded in seizing Fort Stanwix, a critical trading post in the northeast, and divided the colonies in half.

Later that winter, several Oneida, including Han Yerry and Polly Cooper, travelled alongside the Marquis de Lafayette to aid Gen. George Washington and his troops in Valley Forge. They brought with them around 60 bushels of corn, immediately boosting the morale of the hungry soldiers at a critical time during the war.

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Historical Court Records at the New York State Archives: Available for Research, Grants for Conservation and Digitization — Part 2

This article was written by Dr. James D. Folts, head of Researcher Services at the New York State Archives. In his last blog post, Dr. Folts described the move of court records to the State Archives in Albany as well as how this move has facilitated a growth in interest from researchers. In this second half, Dr. Folts describes the condition of records when they were received, and what steps are being taken to ensure preservation and public access of the documents into the future.

Photo: Supreme Court of Judicature, People vs. John Munro and 44 others, indictment for treason, April 1780. [NYSA JN522-17 file P-1648]

This mass indictment contains witness depositions accusing Munro and others, residents of rural Albany County, of being “enemies of this state.” During Gen. John Burgoyne’s invasion of northern New York in 1777, they either served in the British army or supplied it with goods and services. Supreme Court minutes indicate that all the defendants were convicted in absentia, without jury trial, six months later. The multi-page document is soiled and damaged. This indictment and many others will be conserved with the support of the “Save America’s Treasures” grant.

Preservation Needs

Records of the pre-1847 trial courts in the State Archives are now stored in a climate-controlled, secure storage facility and are available for research. Many of them are in poor physical condition. The paper documents have high rag content, making them initially very durable. Documents stored upstate generally remain intact and quite flexible. But paper records formerly maintained in New York City and transferred to Albany in 2017 are often breaking up at the folds and edges. Atmospheric pollutants and temperature oscillations accelerated chemical reactions, causing severe embrittlement of paper and requiring that the records be handled with great care. (The many parchment documents are generally in good condition except for scattered vermin damage.) Microfilm reproductions are available for some of the court records and are used whenever possible to avoid risking damage to fragile originals.

The preservation and access needs of the historic court records have long been recognized. The New York County Clerk’s Office had the early court minute books rehoused by a conservator, and Unified Court System staff inventoried and boxed all the records transferred to the State Archives in 2017. Since then the New York State Archives and the Archives Partnership Trust have obtained important grant support for the preservation and digitization of selected records:

New York DAR Conservation Grant

The New York organization of the Daughters of the American Revolution has taken great interest in the state’s historic court records from the Revolutionary War period. A $10,000 grant has defrayed costs of re-boxing the extremely fragile minute books of the Supreme Court of Judicature and digitizing those books. The digital reproductions will be available through the State Archives’ online “Digital Collections.” Examples of Supreme Court filed documents from the Revolutionary period have been digitized and will be displayed on the State Archives’ web site with interpretive text.

“Save America’s Treasures” Conservation Grant

New York Supreme Court minutes, criminal case papers, and other documents from the Revolutionary era will be conserved with a “Save America’s Treasures” grant from the National Park Service [See news release at https://www.imls.gov/news-events/news-releases/48-million-grants-go-save-americas-treasures]. On September 21, 2018, the National Park Service announced grants for 16 projects in 12 states, including a $125,760 grant to the New York State Archives Partnership Trust for conservation of historical court records and other important documents of the Revolutionary War.

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Historical Court Records at the New York State Archives: Available for Research, Grants for Conservation and Digitization – Part 1

This article was written by Dr. James D. Folts, head of Researcher Services at the New York State Archives.

Photo: Supreme Court of Judicature roll of attorneys admitted to practice. [NYSA series JN541]

Parchment was used for the rolls of attorneys admitted to practice in the Supreme Court of Judicature. This long roll, comprised of parchment sheets sewn together and wound on a wooden dowel, shows the names and dates of attorneys admitted in 1847.

Court Records as Sources for History

Archival records of New York’s Unified Court System contain unique, valuable information about court operations and caseloads, trends in civil litigation and criminal prosecution, changes in civil and criminal procedure, the decisions of judges, the practices of trial attorneys, the rights and status of persons, and the overall impact of the courts on New York’s society since the seventeenth century. These records often provide the only documentation of ordinary people, including those who were marginalized, especially in the colonial and early national periods.

Many historical records of New York’s courts have been lost over time. An important success in preserving a major collection of those that survive occurred in early 2017, when nearly 2,000 cubic feet of records of the Supreme Court of Judicature and the Court of Chancery were transferred from the New York County Clerk’s Office to the New York State Archives in Albany (read Geof Huth’s part 1 & part 2 of his account of the transfer of documents – Geof is the Chief Records Officer and Chief Law Librarian of the New York State Unified Court System).  These records joined nearly 5,000 cubic feet of records from upstate court offices that were transferred to the State Archives in 1982, thereby creating a complete, statewide resource of historical court records dating from 1683 to 1847.

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Inaugural Event of the St. John’s University School of Law Chapter of the Historical Society of the New York Courts

This article was written by Danielle Stefanucci, St. John’s School of Law class of 2020 and Alumni Chair of the new St. John’s University School of Law Chapter of the Historical Society of the New York Courts. Special thanks to Mollie Galchus, President of the St. John’s Chapter and to Prof. John Q. Barrett, Chapter faculty advisor and Society Trustee, for all their help establishing the new Society Chapter at St. John’s!

Photo: Mollie Galchus introducing the evening’s speakers. Sitting (L-R): Prof. John Q. Barrett, Hon. Saliann Scarpulla, and Hon. Alan D. Scheinkman

On the evening of Tuesday, October 2nd, the St. John’s University School of Law Chapter of the Historical Society of the New York Courts held its inaugural event. The Organization of the New York Courts (and How It Came to be This Way) was held at the law school and drew first-year and upper-class students, professors, and community members. Two veteran New York State judges, Hon. Alan D. Scheinkman, ’75, Presiding Justice, Appellate Division, Second Department and Hon. Saliann Scarpulla, Justice, NYS Supreme Court, Commercial Division, New York County, headlined the event. Justice Scheinkman, a St. John’s School of Law alumnus, walked the gathered students and professors through the history of the statewide court system. He traced the origins of the New York Supreme Court back to 1691, to a court of general jurisdiction then called the Supreme Court of Judicature.

Answering the oft-asked first-year law student question of why New York calls its lowest court the Supreme Court, Justice Scheinkman claimed that “it’s New York—we make everything complicated.” He further detailed the mid-nineteenth century changes to the court system: the distinction between law and equity was abolished and the New York Court of Appeals established. Finally, Justice Scheinkman discussed the New York court system as it works today in practice: it is overseen by the Chief Judge of the State of New York, a position held by Hon. Janet DiFiore, ’81. The Court of Appeals judgeships were formerly elected positions, but in the 1970s they became appointed by the Governor through a nominating commission. Layers of administrative judges assist the Chief Judge in managing the court’s 18,000 employees; Justice Scheinkman himself served as an Administrative Judge in the Ninth District before being elevated to Presiding Justice of the Appellate Division.

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