Thursday, July 10, 2008

New York Court of Appeals: More Dissents in Kaye Court (Part 2: Who? How Many? What?)

The Court of Appeals has begun its summer break. The 2007-'08 year has thus come to an end. As of July 1, all the remaining cases heard by the court this past spring have been decided. It is now possible to calculate the final numbers for those preliminary statistics on dissents that were given previously on the New York Court Watcher blog. (See, New York Court of Appeals: More Dissents in Kaye Court, posted on June 28.)

The total number of dissents for the five year period just ended--i.e., from 2003-'04 to 2007-'08--was 162. That contrasts quite sharply with the number of dissents for the immediately preceding five years--i.e., from 1998-'99 to 2002-'03--which, as stated in the earlier posting, was just 69. That's nearly a 100 dissent increase from one period to the next. That's more than double. To be more precise, the increase was 133%.

[Background: As stated in the June 28 post, the dramatic increase in dissents coincides with the making of a Pataki majority on the court. Shortly after his election as Governor in 1994, the Republican Pataki began a campaign of publicly rebuking the court for being too liberal, for coddling criminals, for caring more about criminals than victims, etc. etc. etc. He made it clear that he intended to appoint judges who were much more law-and-order oriented than those on the court at the time--not coincidentally, all of whom had been appointed by his election rival, the Democratic Governor Mario Cuomo. By the start of the 2003-'04 court year, in his third and final term as Governor, Pataki had appointed four of the seven judges. He had done so a few months earlier with the appointment of Susan Read. Several months later, when his first appointee, Richard Wesley, left the court for the federal 2d Circuit bench, Pataki maintained his majority on the New York court with the appointment of Robert Smith. So in the 2003-'04 court year, the first year of the most recent five year period, the Pataki judges outnumbered the others.
The Pataki majority persisted throughout the five years--it continues today. In fact, for a very brief period, Pataki had a 5-2 majority on the court. Pataki declined to reappoint Cuomo appointee George Bundy Smith when the latter's term came to an end in the fall of 2006. Instead, Pataki appointed Eugene Pigott. But within a few months, Pataki appointee Albert Rosenblatt retired, and his replacement fell to the newly elected Governor, Democrat Eliot Spitzer, who appointed Theodore Jones in January 2007. So at the start and at the end of the past five years, Republican Pataki has had a majority of four appointees on the court. (Then in 2003, Wesley, Victoria Graffeo, Rosenblatt, Read -- now in 2008, Graffeo, Read, Robert Smith, Pigott.) The remaining three judges were, and are, Democratic appointees. (Then, Chief Judge Judith Kaye, George Bundy Smith, Carmen Ciparick -- now, Kaye, Ciparick, Jones.)]

Now back to the dissent numbers!
The increase is in large measure attributable to two of Pataki's appointees: Robert Smith and Susan Read. Together, they alone wrote as many dissents these past five years--i.e., 65--as the entire Court of Appeals did in the previous five year period. Smith penned 37 dissents in his 4 1/2 years on the court. Read, 28 over the full five years. Those numbers compare, for example, to those of the remaining Cuomo appointees on the court: Kaye authored only 9 over the five year period; Ciparick, 12.
Of the two other Pataki appointees currently on the court, Victoria Graffeo wrote 13 dissents these past five years--just slightly more than the Cuomo appointees. But Eugene Pigott authored 12 in his slightly less than two years on the court. The remaining judge, Spitzer appointee Theodore Jones, has written 3 dissents since he joined the court 1 1/2 years ago.
Let's look a bit more closely at these dissenters and their dissents. Some fascinating goings on here--well, fascinating at least for court junkies. But important for everyone living or working in New York. We're all affected by what's happening at our high court.
There are three pairs of judges at the court whose dissents fall into clear patterns. Let's focus on that. First, there's Graffeo and Read. With these two, Pataki got what he said he wanted: staunchly pro-prosecution judges. Their overall voting patterns show it. (See for example, the graphs in my "Court of Appeals of New York State: The Judges, The Selection Process, Making the Current Court," Rockefeller Institute, October 15, 2007; available at Not surprisingly, their dissents show it as well. Of Graffeo's 13 dissents, she wrote 8 in criminal cases. (That number is 9 if a quasi criminal consumer fraud case is included.) In every one, she took the side of the prosecution. In every one, she disagreed with the majority which found some merit in a defendant's arguments. Likewise for Read. Of her 28 dissents, 8 were in criminal cases. All pro-prosecution.
Second, there's Kaye and Ciparick. They are the opposite of Graffeo-Read, if not as strongly so. (Again, see for example "Court of Appeals of New York State etc.," cited above.) Of Kaye's 9 dissents, 2 were in criminal cases; both were pro-rights of the accused. Of Ciparick's 12 dissents, 5 were in criminal cases; in all, she sided with the defendant. Another significant pattern is the extent to which these two judges join each other. Kaye joined 10 of Ciparick's 12 dissents, including all 5 of Ciparick's pro-defendant dissents in criminal cases. Ciparick, in turn, joined 7 of Kaye's 9 dissents; that includes 1 of Kaye's 2 dissents in criminal cases. Looked at from a different angle, Kaye and Ciparick have been on different sides only 4 times in the past five years. They have been a very tight voting block of two.
Third, the final pair is Smith (Robert, not George Bundy) and Pigott. They are not a pair in the sense that Kaye and Ciparick are. They are not a voting duo. But neither are they a pair like Graffeo and Read. And that is what is so significant. These two Pataki appointees are NOT nearly as strictly pro-prosecution. To be sure, they are not liberals. They are not reliably sympathetic to the arguments of the accused in close cases. But neither can either of them be relied upon in the close cases to cast a law-and-order" vote. They are not the "Pataki judges" that Graffeo and Read are. (Again, see for example "Court of Appeals of New York State etc.," cited above.) Specifically regarding dissents, of the 37 that Smith wrote, 10 of them were in criminal cases. In 5 of them--half of them--he sided with the defendant, taking issue with the majority of the court for inadequately protecting the rights of the accused. As for Pigott, in his almost two years at the court, 5 of his 12 dissents were written in criminal cases. Only 3 were pro-prosecution. That may seem a small number, but it is significant.
All these dissent numbers--not only Pigott's, but Smith's and Graffeo's and Read's and Kaye's and Ciparick's as well--represent instances where these judges felt strongly enough about a case to go public with a disagreement over a decision of their very collegial court. Dissents are not taken lightly. They are personal matters of principle. They represent only a small proportion of the disagreements that the judges actually have with each other. Most of these disagreements, perhaps aired internally when the judges conference, never see the light of day. There are many reasons. Workload, not sufficiently critical, feelings not sufficiently strong, conflict avoidance, etc., etc. But whatever the reason in any given case, what all this means is that the number of written dissents is but a fraction of the actual number of disagreements. And these written dissents, the few disagreements gone public, reflect much more than their numbers might suggest. They provide insights into other disagreements that are never made public. They afford us the strongest indications we have of the authors' strongest feelings, views, philosophies, tendencies, and ideological leanings--which, of course, come to play in many other cases.
Dissents are up--way up--at the New York Court of Appeals. That tells us a lot. About the court itself and about its members.