Appellate Division Review

A judge “may err in the interpretation even of written laws,” Thomas Hobbes wrote, “but no error of a subordinate judge can change the law.”¹ Keeping a gimlet eye on those subordinate judges, the Appellate Division’s four Departments were busy issuing decisions during the final quarter of 2009. Some of the notable advancements in New York law from the past three months are described below.

First Department

Separation of Powers. Courts cannot decide a challenge to the State Legislature’s internal practices regarding printing, franking and Web site-hosting privileges without violating the principle of separation of powers, a unanimous panel of the First Department ruled in Urban Justice Center v. Silver,² an unsigned decision and order. The plaintiffs, an advocacy group and its clients, alleged that their First Amendment right to receive information had been violated by prohibitions contained in Assembly and Senate rules on what constitutes “official mail” falling within the franking privilege.³ The meaning of “official mail” is left to the discretion of the Assembly and Senate.