The last post listed the--well, my--"not-so-best" of Chief Judge Judith Kaye. (See New York Court of Appeals: The [NOT-SO-]Best of Judith Kaye (Part 1), Oct. 28, 2008.) Five majority opinions and three votes. Some of these are no doubt familiar to many COA watchers, but the reasons for including them on the list might not be. Others on the list may not be familiar at all. So here are a few words about each one of them. Hopefully this will make clear the essence the opinions, which are either authored or joined by Kaye, as well as why they each belong on the list.
Again, the list:
Lauer v. City of New York (2000)
People v. Tortorici (1999)
Johnson v. Pataki (1997)
People v. Page (1996)
People v. Wesley (1989)
Catholic Charities v. Serio (2006)
Horn v. New York Times (2003)
In Re Holtzman (1991)
In Lauer, Kaye's majority opinion was that New York City was not liable for a negligent autopsy performed by its coroner, because the city and its coroner had no "special duty" to the plaintiff whose reputation and life suffered because of that autopsy--even though the coroner had failed to correct what he knew was an erroneous autopsy report. This failure of the city's coroner resulted in a homicide investigation of the plaintiff which, in turn, severely damaged his reputation and led to the breakdown of his family.
In Tortorici, Kaye's majority opinion was that the trial judge did not abuse his discretion when he failed to conduct a competency hearing for a criminal defendant whose mental fitness to stand trial was, to say the very least, extremely questionable--even though the prosecution's own psychiatrist had warned the trial judge that the defendant was entirely unfit and, moreover, the prosecution was unable to secure a psychiatrist with a different opinion.
In Johnson, Kaye's majority opinion was that then-Governor Pataki was within his statutory authority to remove the anti-death penalty Bronx District Attorney as the prosecutor in a murder trial and replace him with the pro-death penalty Attorney General--even though the death penalty statute unambiguously left the choice whether to seek the death penalty with the prosecutor, and the legislative history made clear that the local district attorneys were to have the authority to make that choice independently.
In Page, Kaye's majority opinion was that the defendant's convictions for stealing an automobile had to be reversed because his consent at trial, to the replacement of a sitting juror with an alternate, was not in writing as required by statute and the state constitution--even though the defendant's consent was fully memorialized on the record when he was questioned by the trial judge, even though the consent was clearly understanding and voluntary and made with the advice of counsel, and even though the defendant himself had wanted the juror substitution.
In Wesley, Kaye's majority opinion was that the defendant had no "automatic standing" to challenge the search of his girlfriend's house that resulted in finding contraband and arresting and charging him with illegal possession--even though the prosecution was necessarily alleging that the defendant had a possessory interest over the place where the contraband was found (i.e., the charge was based on "constructive possession"), and simultaneously denying a possessory interest in order to preclude standing (i.e., to prevent him from complaining about the search); and even though the court ruled exactly the opposite on this issue of standing in two recent "constructive possession" cases. (See Millan  and Mosley .)
[Disclosure: I was clerking for Judge Stewart Hancock when he authored the dissenting opinion in Wesley.]
In Catholic Charities, Kaye voted with the court in a unanimous opinion that religious organizations that provide health insurance for their employees are required to comply with state law that requires coverage for contraceptives, regardless of the organizations' and officials' religious objections--because, according to the court's opinion, the government doesn't need a compelling interest to interfere with religious freedom. The Supreme Court had rejected the compelling interest test for religious freedom as a matter of First Amendemnt law in its disastrous 1990 decision in Oregon v. Smith, and the Court of Appeals followed suit under the state constitution in this case. The new rule adopted for New York in this case is that the state is prohibited from interfering with religious freedom only when the religious claimant can successfully demonstrate that the law is unreasonable.
[I should add this. There is language in the opinion, completely out of sync with the logic and tenor of the rest, which suggests that the ruling would not strip protection from some religious practices, such as kosher slaughtering. My own suspicion is that this language was an addition inserted at the behest of someone on the court concerned about the rather flimsy protection otherwise afforded free exercise of religion by the ruling. My further suspicion, born solely out of the style and sentiment of the language, is that it was suggested by Kaye, or maybe Rosenblatt. In any event, future religious freedom cases in New York may require the court to choose between the intention behind that language and what the rest of the opinion says.]
In Horn, Kaye voted with the majority in an opinion that a physician may legally be fired for refusing to violate medical ethics, unless the firing otherwise violates something specified in the employment contract; here, the court upheld the right of the employer to fire a physician who refused to violate patient confidentiality and refused to under-diagnose patients in order to reduce the employer's workers compensation costs--because under the Court of Appeals' "employment-at-will" doctrine, an employer is entirely free to fire an employee for any reason, no reason, or even a bad reason, whenever there is no contractual agreement setting a duration for the employment.
Though other states have adopted public policy exceptions to their general employment-at-will rules in order to protect employees who are terminated for egregious reasons, the Court of Appeals has steadfastly refused to ameliorate its rigid doctrine, treating it like a constitutional mandate. Moreover, the court had seemed ready for some flexibility several years earlier in Weider v. Skala (1992), where it ruled against a law firm that had fired a lawyer who insisted on being ethical. But the court reverted to its absolutist stance in Horn, apparently viewing medical ethics as somehow less critical than professional ethics for lawyers.
In Holtzman, Kaye voted with the court in a unanimous per curiam (i.e., unsigned) opinion that the constitutional protection of free speech normally accorded to citizens criticizing public officials (i.e., New York Times v. Sullivan) does not apply to an attorney who is being professionally disciplined for publicly complaining about a judge--instead, an attorney is free to complain about a judge only when the attorney's complaint satisfies an "objective standard" of "reasonableness." The court found that the standard was not satisfied in this case where the attorney, a district attorney at the time, had publicly complained that a particular trial judge had degraded a rape victim in his chambers. Notably, however, the court did not find that the attorney was guilty of "knowingly mak[ing] false accusations against [the] judge." Instead, the court resorted to the rather amorphous ethical charge that the attorney's conduct "adversely reflect[ed] on [her] fitness to practice law."
There. That's my "not-so-best" of Kaye. I'm sure others will have different lists. Maybe they'll have no list and think it unfair, uncharitable or even inappropriate to have any such a list. Hey, I confess to feeling a bit uneasy whenever something I write is critical of the work of a court or a judge that I admire. And I do admire Chief Judge Kaye. Indeed, like others who have worked with her at the court or elsewhere, I am personally as well as professionally very fond of her. She knows it, and I have made it clear to others both privately and publicly.
But my job as an academic, like Kaye's as a judge, is to call them like I see them. That's what I've done in these several posts on the "Best" and "Not-So-Best" of Kaye.