The first part of this discussion on the New York Court Watcher began with a brief consideration of Chief Judge Kaye's mandatory age-retirement at the end of this calendar year. It then proceeded to a recap of her tenure on the Court of Appeals via a selection (a highly subjective one to be sure) of her best opinions over that 25 year period. That selection, which was reduced to a "Top Ten" (only because top tens are usually fun and challenging, not because there were some predetermined opinions that numbered 10), was introduced by identifying the first 5. ( See New York Court of Appeals: The Best of Judith Kaye (Part 1), September 26, 2008.) Here's the second half of that top ten--as with the entire list, in no particular order:
6) People v. Scott (1992) - concurring opinion--specifically addressing an ill-tempered and ill-informed (and we'll leave it at that) dissent--in which Kaye presented a veritable lecture on the independent decisionmaking role of state courts in our federal system; she also wrote candidly about how the exercise of personal judgment is an inevitable and necessary ingredient in judging.
7) People v. Class (1984 [1986, on remand from the Supreme Court]) - majority opinion holding that a police officer must have some legal justification for reaching into an automobile, without the driver's consent, and moving papers and other possessions on the dashboard; as a matter of independent state search and seizure law, Kaye's opinion adopted a different rule than that of the Supreme Court, a majority of which took the position that police need no probable cause, nor reasonable suspicion, nor any justification at all for reaching into an automobile and clearing the dashboard because [sic] there is no privacy in a vehicle identification number.
8) People v. Hernandez (1990) - dissenting opinion concluding that the prosecutor's removal of prospective Latino jurors at trial was unconstitutionally discriminatory; Kaye argued that the elimination of an ethnic or racial group from a jury is inherently suspect and, accordingly, a prosecutor's "neutral" explanation should be subjected to enhanced scrutiny.
9) Ware v. Valley Stream High School District (1989) - majority opinion holding that the state's interest in AIDS education, though compelling, cannot be enforced against religious objectors if they can be accommodated without compromising the state's purpose.
[Contrast this opinion with that of the Supreme Court the following year in Oregon v. Smith (any otherwise valid "neutral" law trumps free exercise of religion) and the Court of Appeals' own Catholic Charities v. Serio (2007) (any law, unless shown to be unreasonable, trumps state constitutional free exercise)]
10) People v. Ryan (1993) - majority opinion applying the core principle of criminal law that culpability generally requires awareness of one's guilty conduct; here, Kaye applied that principle to an aggravated drug crime by requiring proof that the accused had some idea of the amount of drugs involved, the aggravating element that triggered a substantially increased sentence.
[Not surprisingly, Kaye's mens rea requirement was harshly criticized by politicians who quickly proposed various "corrective" legislation of questionable constitutional validity.]
So that's my "Kaye's Top Ten:"
Hernandez v. Robles [dissent]
People v. Hernandez [dissent]
A couple of honorable mentions must be acknowledged:
Tebbut v. Virostek (1985) - dissenting opinion, in one incisive paragraph, rejecting the majority's holding that a woman has no cause of action against a physician who negligently kills her unborn child because [sic] the woman herself has suffered no physical injury.
[I should disclose that this addition was suggested by my co-clerk at the Court of Appeals who assisted our judge, Matthew J. Jasen, pen his own lengthier dissent, unmercifully excoriating the court for its decision. Jasen and Kaye were ultimately vindicated when the court overruled itself in Broadnax v. Gonzalez (2004).]
Pataki v. State Assembly (2004) - dissenting opinion rejecting the court's ruling that any measure the governor may insert into his budget, regardless of how substantive or legislative-like, is covered by the governor's plenary executive budget power which is virtually immune from legislative action.
Yes, there are certainly others. Some that probably belong in the top ten; many more that deserve at least honorable mention. Indeed, I have several in mind right now. But this is not a doctoral dissertation. So let's end here.
Next up in this series of posts--so I'm not accused of simply fawning over the Chief Judge--a quick look my "not-so-best" of Kaye.