Wednesday, July 23, 2008

New York Court of Appeals: More Dissents in Kaye Court (Part 3: Read and Smith; and Pigott Too)

As was discussed in two previous posts on the New York Court Watcher blog (See, "New York Court of Appeals: More Dissents in Kaye Court," July 10 & June 28.), dissents have more than doubled at New York's highest court. From fall '03 to spring '08--the five year period just ended--there were 162 decisions with dissent. From fall '98 to spring '03, the immediately preceding five years, the number was 69--considerably less than half. The recent increase in dissenting opinions at the court coincides with former Governor Pataki's appointments of Judges Susan Read ( January 2003) and Robert Smith (January 2004). Indeed, as discussed in the earlier posts, Read's 28 dissenting opinions over the past five years, and Smith's 37 over the four and a half years in which he's been on the court, are much higher than the number of dissents authored by other judges.

Read's and Smith's numbers increase in significance when compared to those of the judges they replaced. Read's predecessor, Judge Howard Levine, authored 8 dissents in the five years prior to his retirement, from 1998 through 2002. During that same five year period, Smith's predecessor, Judge Richard Wesley, wrote only 2. That's Read's 28 vs. Levine's 8. Smith's 37 vs. Wesley's 2. A greater than three-fold and 18-fold increase, respectively!
Finally, since his appointment to the court by Pataki in September 2006, Judge Eugene Pigott has authored 12 dissents. Hence, in just two terms on the court (fall '06 to spring '08), he has already exceeded the 9 that Chief Judge Kaye wrote over the past five years. He has tied Judge Ciparick's 12 for those five years. And he has only one less than Judge Graffeo's 13 over that five year period.

It is clear that Judges Read, Smith, and Pigott feel much less tied to the tradition of consensus and unanimity or near-unanimity--a conspicuous preference for minimizing divisions--that had been a hallmark of the Kaye court for many years. The sharp rise in dissents beginning with Read and Smith has spelled an equally conspicuous ending of that tradition.