Saturday, June 28, 2008

New York Court of Appeals: More Dissents in Kaye Court

In the closing years of Chief Judge Judith Kaye’s tenure on New York’s highest court, her colleagues have become increasingly divided. The number of decisions with dissent has risen dramatically. In fact, that number has more than doubled. In the last five years, the Court of Appeals has been divided in 161 cases ; there were only 69 such cases in the previous five-year period. Something has obviously changed the dynamics within the seven member tribunal.

There has been one conspicuous difference at the court during the five years in which dissents have risen so sharply. Throughout this period, from the ‘03 – ‘04 year to the current (and soon ending) ‘07 – ’08 term of the court, there have been a majority of judges who were appointed by former Republican Governor George Pataki. By the time this period had begun, Pataki appointees outnumbered judges selected by the previous Governor, Democrat Mario Cuomo. Pataki had appointed Susan Read a few months earlier to replace the retiring Cuomo-appointed Howard Levine. That gave Pataki a majority for the first time. Four members of the court were chosen by him; the remaining three by Cuomo. And Pataki’s 4 – 3 majority has continued to the present. (Actually, Pataki had a 5 – 2 majority for a very brief time. He replaced Cuomo-appointed George Bundy Smith with Eugene Pigott in September 2006. But in December of that year, one of his own appointees, Albert Rosenblatt, retired. The following month, Pataki’s successor, Democrat Eliot Spitzer, appointed Theodore Jones to fill the vacancy.)

But it was not just the fact of a Pataki majority that generated the doubling of dissents. It was who he appointed. His last three appointments to the court—two of whom were appointed during the recent five-year period, and one appointed immediately beforehand—have made the difference. Eugene Pigott was appointed nearly two years ago, at the start of the ‘06 – ‘07 term; Robert Smith four and a half years ago, in the middle of the ‘03 – ‘04 term; and Susan Read five and a half years ago, a few months prior to that term and to the five-year period in question. Each one of these judges has been authoring dissents at rates far higher than was the average for the court’s judges during the preceding five years. And each one of them has been authoring dissents at far higher rates than the two Cuomo appointees still on the court, Kaye and Carmen Ciparick.

Let’s do some comparing. The numbers are stark. Cuomo appointees Kaye and Ciparick authored 10 and 11 dissents, respectively, over the recent five-year period. By contrast, in his less than two years on the court thus far, Pigott, Pataki’s last appointee, has already authored 12. Pataki appointee Smith has authored 36 dissents in slightly less than five years. And Pataki appointee Read has authored 18 over the full five-year period.

Let’s look at the numbers from a different angle. Take Read’s rate of dissenting opinions, which is the lowest among Pigott, Smith and herself. If the court’s judges had averaged even her dissenting rate—i.e., each of the seven judges authored 18 dissents over five years—the total would be 126. That is in sharp contrast to the court’s 69 decisions with dissent during the previous five-year period (even when considering that some decisions generate more than one dissenting opinion).

The jump from 69 divided decisions to 161 is no trifle. It is a striking development. And it is one that cannot but have a significant impact on the decision-making process within the court, as well as on the decisions that are being produced. A future posting on the New York Court Watcher blog will look at some of the specifics of these increased dissents—e.g., who is dissenting in what kinds of cases and for what reasons.