NY Court of Appeals: Granting Criminal Appeals--Up, Down, Now Up Again? (Part 5: When Did The Grants Drop?)

GRAPH 1
Total CLA's Granted by COA Judges
1988-92 vs. 2004-08 vs. May-Aug 2009
(click to enlarge)


Graph 1 recaps the previous posts in this series. Grants of criminal appeals to New York's highest Court dropped drastically in recent years. They then increased suddenly--and significantly--in recent months.

The previous posts showed that less than half as many criminal leave applications (CLA's) to appeal to the Court of Appeals were granted in the last several years as were granted in the past. This was true for applications granted by Justices of the state's intermediate court, the Appellate Division, as well as by Judges of the Court of Appeals itself.

As for the Court of Appeals Judges, the total number of CLA's granted by them fell from an annual average of 98 (during the last 5 years of Chief Judge Wachtler's tenure) to 46 (during the most recent 5 years--the last 5 years of Chief Judge Kaye's tenure).

Supreme Court: Fighting Discrimination...Remedies That Is (Part 2: Minority /Vulnerable Discrimination Claims)

When it comes to supporting minorities and the vulnerable against discrimination, the Supreme Court scores zero. Yes, a big fat 0.

To be fair, let me explain. At the least, let me offer one of the reasons for my assertion now. (I'll get to another later.)

Last term, the Court heard 5 close cases involving alleged discrimination against a minority or member of some vulnerable class. The cases were "close" in the sense that the Justices could not agree. They were divided. There were legitimate, competing arguments in each case. Some Justices adopted some arguments; some Justices adopted others.

Again, there were 5 such cases last term. The Court did not support the discrimination claimant in any one of them. Not once. In no case did the Court find merit in the discrimination claim.

Yes, some Justices did. Usually 4 of them. But in none of the cases did a majority of them--i.e., the Court--side with the minority or vulnerable-class discrimination claimant.

Part 1 of this series on New York Court Watcher began an examination of the Court's treatment of last term's discrimination cases. (See Supreme Court: Fighting Discrimination...Remedies That Is (Part 1: Discrimination Claims), Nov. 15, 2009.) We first looked at the decisional and voting patterns in all 7 divided discrimination cases. Then we separated the 2 cases that involved claimed discrimination against Whites or in favor of Blacks. We concluded by taking an initial look at the 5 remaining cases where the claim was discrimination against a minority or vulnerable-class member.

Let's rearrange the last graph in that previous post to make the point a bit more vividly. Here is how the Justices voted in those 5 cases.
GRAPH 1
Minority/Vulnerable Discrimination Claims
OCT08 Term
(Justices Arranged by Voting Pattern)
(click to enlarge)
Chief Justice John Roberts, and Justices Antonin Scalia, Clarence Thomas, Anthony Kennedy, and Samuel Alito sided with the discrimination claimant in none of the 5 cases. Let's be clear--and blunt--in not one of the cases brought by a minority or member of a vulnerable class did Roberts, Scalia, Kennedy, Thomas or Alito find merit.

On the other hand, the cases were close enough that 4 of the Justices found merit in most or all of them. Justices Ruth Bader Ginsburg and Stephen Breyer sided with the discrimination claimant in all 5 cases. (Ok, I admit that I love Justice Ginsburg. See Supreme Court: Ginsburg's Place Among Her Colleagues--A Voting Profile (Part 3), March 1, 2009.) Justices John Paul Stevens and now-retired David Souter did so in 4 of them.

These 5 cases involved claims of age, race, religion, ethnic, and gender-pregnancy discrimination. In each case there were competing interests. Perfectly legitimate competing interests. In any one of these cases, reasonable people of good faith could have gone either way. (I know that ideological purists and those with self-interests closely tied to these cases may adamantly disagree. But it's hard to deny that there are, in fact, good reasons supporting both sides in these cases.)

Hence, in each of the 5 cases, the Justices had to choose between anti-discrimination and some other competing interest or interests. As mentioned in the first post in this series, those competing interests included--as they typically do in such cases--the freedom to choose one's workers and other employment associates, the avoidance of frivolous lawsuits, the minimization of government interference, and the reduction of unnecessary costs and inefficiencies in business. In one of the 5 cases, there was also a claim of national security. Additionally, of course, in any particular case there's also the possibility that the discrimination defendant is actually innocent of any wrongdoing.

So there often are other interests. And in these close, divided cases there surely are. But the point here is that some of the Justices, and the Court itself, sided with those other interests in every case. Fighting discrimination was pitted against other interests in each case. And some of the Justices and the Court as a whole sided with the other interest every time. You know: connect the dots.

Let's look at a depiction of this. Justices voting in the interest of anti-discrimination versus those voting for other interests. Yes, perhaps legitimate and even strong interests, but interests other than fighting discrimination.
GRAPH 2
Minority/Vulnerable Anti-Discrimination vs. Other Interests
OCT08 Term
(click to enlarge)
As shown in Graph 2, Ginsburg and Breyer voted in the interest of anti-discrimination in every case. Stevens and Souter in 4 out of 5. The other Justices, not once. In each case, those other 5 Justices--and, thus, the Court--found the other interests more compelling or compelled than anti-discrimination.




Let's just rearrange this graph to emphasize the "other-interests" voting.

GRAPH 3
Minority/Vulnerable Anti-Discrimination vs. Other Interests
OCT08 Term
(click to enlarge)
Here it is again. For a majority of the Court, fighting discrimination was always outweighed by something else. For Roberts, Scalia, Kennedy, Thomas and Alito, there was always some opposing interest or concern that prevailed.

And yes, the voting records for the other Justices were lopsided as well. For them, fighting historic discrimination always--or almost always--won. Just awful, huh?

One need not agree in every case with these more liberal Justices--Ginsburg, Breyer, Stevens and Souter--to recognize that they, much more so than the others, view fighting discrimination as a paramount American value. They give it precedence in all, or virtually all, of the cases. The others usually--or, as in these 5 cases, always-- find something else to be more important.

In the next and final post in this series, we will identify the other interests. That is, the interests that prevailed over anti-discrimination in these cases. We will also add the 2 "pro-White" decisions back into the mix. Not surprisingly, they share a common thread with the other 5.

For now, let's conclude with a preview. Let's look again at all 7 divided discrimination cases as we did in part 1 of this series. But this time, let's look at them a bit differently. Previously they were viewed as discrimination claims, regardless of who brought them. Let's now look at them from the perspective of remedies for historic discrimination.

Each of the 7 cases, regardless of the nature of the claim or who brought it, presented the question of whether or not to support remedial efforts for discrimination against minorities or the vulnerable. In each case, the issue involved an effort to fight such discrimination or to ameliorate the lingering effects of such discrimination in the past. So every case required the Justices to choose between supporting the remedial efforts or siding with other concerns or interests.

Take a guess.

Then look at the choices made by each Justice and by the Court itself in the 7 cases. As depicted in the following graph, there are no big surprises.
GRAPH 4
Remedies for Past Discrimination vs. Other Interests
OCT08 Term
(click to enlarge)
Need it be said again? Connect the dots.

Which Justices care about what? Really care. Care enough that they consistently choose anti-discrimination efforts. And which Justices consistently do not?

In the concluding post in this series, we'll take a final look at all of this.

Court of Appeals: Benefits OK for Gay Couples Married Elsewhere

New York's highest court unanimously gave the green light to health insurance and other benefits for married same-sex couples. It ruled that same-sex partners who were married in other states, and are public employees in New York, may be provided all the public employee benefits to which opposite-sex married spouses are entitled.

The Court's vote was actually 4 to 3. There was a majority opinion, and a separate concurrence. Both opinions embraced the Court's ruling. But the majority took a narrow approach; the concurrers took a broader one.

At issue were a pair of orders--one by Westchester County and the other by the state's Department of Civil Service. In brief, both orders required that married public employees within their respective jurisdictions be treated equally with regard to benefits. Whether those employees be spouses in an opposite-sex marriage, or in a same-sex marriage performed where such marriages are legal, the employees were ordered entitled to the same benefits.. The majority of the Court of Appeals upheld those orders--period. The separately concurring Judges voted to go farther and would have recognized the out-of-state same-sex marriages as entirely legal and equal marriages in New York.

Beyond the strict legal ruling, there are some fascinating aspects of this case. The 4 to 3 division on the Court, for example. It was a straight party-line vote. The 4 Judges in the majority are all appointees of Republican Governor George Pataki. The 3 Judges who concurred in a separate opinion are all Democratic appointees. The 4 Republican appointees--Eugene Pigott, who authored the majority opinion, Victoria Graffeo, Susan Read, and Robert Smith--took the narrow approach. They voted only to uphold the specific 2 orders in questions. The 3 Democratic appointees--Carmen Ciparick, the remaining Governor Mario Cuomo appointee and author of the concurring opinion, Jonathan Lippman, Governor David Paterson's appointee as Chief Judge, and Theodore Jones, Governor Eliot Spitzer's appointee--took the broader approach. They voted to give wholesale recognition to out-of-state same-sex marriages, treating them the same as opposite-sex married couples under New York law.

So the narrow versus broad approaches, the limited versus unlimited equal treatment of same-sex marriages fell along political lines. And ideological lines as well. As discussed in numerous previous posts on New York Court Watcher, the ideological lines on the Court are clear, even if not as well-defined as the party lines are. Lippman, Ciparick, and Jones each have markedly liberal voting records. Graffeo and Read are very dependable conservative votes. Pigott and Smith, both somewhat less predictable (or less reliable or more erratic--depending on whether one likes or dislikes their voting patterns), are nevertheless somewhat more conservative overall than are the liberals. In this case, the votes lined up--more conservative versus more liberal--exactly as one might guess without even considering the legal arguments.

Also notable are the opinions themselves. Both superb. Let's start with that. Both the majority by Pigott and the concurrence by Ciparick are clearly, strongly, civilly, and persuasively argued. They are the kinds of opinions that characterize a strong court. We saw the same recently in the GPS automobile-monitoring case (See Court of Appeals: 4-3 Majority Holds GPS Surveillance Requires Warrant Supported By Probable Cause, May 12, 2009) and in the Lieutenant Governor case--I know that some strongly disagree with me on this one (See NY Court of Appeals: The Paterson v. Skelos Decision--The Judges, Politics, Votes, and Opinions, Sept. 22, 2009). In both those cases, as in today's Godfrey decision, the opposing opinions were lucid, well argued, and evinced the closeness and delicacy of the issues on which the Judges disagreed.

(If the foregoing sounds like bootlicking, I would plead guilty to how it sounds, but remind the reader of my, perhaps, more typical and disagreeable penchant for somewhat unvarnished criticism. I just really believe these opinions were excellent.)

It should also be noted that the Court's 2006 decision in Hernandez v. Robles was not affected. Well, at least not officially and formalistically.

Recall that the Court in that case rejected the claim that New York's restriction of marriages to opposite-sex couples violated equal protection and due process. (For related discussions on New York Court Watcher, see Notable Miscellany: Iowa Equalizes Marriage, New York Questions GPS Surveillance, and the Supremes Dilute Anti-Discrimination (Part 1 - Iowa), April 7, 2009; and New York Court of Appeals: Connecticut Supreme Court's Same-Sex Marriage Decision Adds to the Embarrassment, Oct. 11, 2008.) No, that decision was not affected by today's Godfrey decision about benefits.

But, it is very notable how the Court characterized the Hernandez decision. Not as an expression of New York policy against same-sex marriages. Not as a necessary prohibition against same-sex marriages. But as simply stating that the New York Constitution "does not require that marriage licenses be granted to same-sex couples" [the majority opinion], or "does not compel the recognition of same-sex marriages performed within the State" [the concurrence]. And the state legislature is urged to address the issue--much as Judge Graffeo had urged in her concurring opinion in Hernandez.

It should also be mentioned that the plaintiffs challenging the 2 benefits-for-same-sex-couples orders in Godfrey were represented by the Alliance Defense Fund from Arizona. This organization, which litigates cases nationwide, stands for human life, religious freedom, and family values. Of course, their meaning of human life is anti-right to choose [but apparently pro-death penalty for juvenile offenders]. Of religious freedom is a lowered or levelled wall of separation between church and state. Of family values is anti-gay and lesbian rights. Their website decries today's Godfrey decision for the Court's failure to reject out-of-state same-sex marriages outright.

Finally, and related to the latter point, let me disclose that I firmly support recognition of these out-of-state marriages and, indeed, firmly support same-sex marriages period. As for the Godfrey case itself, I would have been more pleased if the Court had gone along with Judge Ciparick's opinion. (Truth be told, I usually agree with Judge Ciparick.) But strictly on the legal issue presented, and as a matter of perhaps--and only perhaps--more prudent restraint and deference to the legislature, I think that Judge Pigott's approach for the majority is probably more correct. But again, only perhaps! (OK, so I'm torn.)


In the next posts, New York Court Watcher will return to New York criminal appeals and the Supreme Court on discrimination.

Supreme Court: Fighting Discrimination...Remedies That Is (Part 1: Discrimination Claims)

It's kind of strange. What the Supreme Court is up to recently.

Most of us grew up believing that the Supreme Court was the ultimate guardian of our rights and liberties, the protector of unpopular minorities and the vulnerable. That was its loftiest role in our tripartite and federal form of government.

Of course, that may not have been an accurate reflection of the role actually played by the Court throughout much of its history. But we know it was the role served by the Court in its finest moments. Outlawing racial segregation. Safeguarding the free exercise of disfavored religions. Protecting politically and socially hated speech. Enforcing the rights of fair trial and humanitarian treatment for the detested criminally accused. Placing the powerful, whether private or public officials--including Presidents--under the rule of law. This is what we remember. These are the landmarks. This is what we cherish about living in America. (I have lamented the Court's altered role in the last few decades elsewhere, e.g., "Changing Roles: The Supreme Court and the State High Courts in Safeguarding Rights," 70 Alb. L. Rev. 841 [2007], also available at http://ssrn.com/abstract=1142692.)

But there were also times when the Court didn't play such a role. In fact, times when the Court did precisely the opposite. Such as after the Civil War. When the Court stripped the newly ratified14th Amendment's guarantees of liberty, due process, privileges and immunities of any substantive meaning. According to the Court, the amendment really didn't change anything. (See, e.g., the Slaughterhouse Cases, 1873.) Or, shortly thereafter, when it held that Congress had no power to pass laws outlawing racial discrimination in restaurants, hotels, movie theaters, or other public accommodations. (See the Civil Rights Cases, 1883.) Or, during the same period, when it upheld state-enforced racial segregation under the"separate but equal" doctrine. (See Plessy v. Ferguson, 1896.)

There was also the period when the Court persisted in invalidating virtually any social welfare legislation or public-benefit economic regulation enacted by Congress or the states. Child safety laws. Public health regulations. Labor laws. Minimum wage and maximum hours. Etc., etc. According to the Court, unsafe, unhealthy, and unfair workplaces and conditions were protected from government interference. (See any of a host of cases in the pre-New Deal and New Deal eras named for the infamous decision, rendered over Justice Holmes dissent, in Lochner v. New York, 1905. I offered a sampling of some of the Court's most unfortunate decisions, as well as some of its most laudable, in "Judicial Activism...and Nonsense," 68 Alb. L. Rev. 557 [2005], also available at http://ssrn.com/abstract=1142071.)

Virtually all of the Court's dreadful decisions from those eras have since been overruled. But the jurisprudence and sentiment underlying them have never been banished entirely. Indeed, it can scarcely be doubted that they are once again on the rise within the Court.

Among the areas in which this is most evident is discrimination law. It is not a solitary observation to say that the Court seems to be anti anti-discrimination. Actively opposing anti-discrimination efforts. At war with remedies for past discrimination.

This recent phenomenon was certainly in evidence this past year. Over the course of its 2008-2009 term, the Court issued decisions in 7 discrimination cases that divided the Justices. These cases--like divided cases generally--were the ones that were close enough that the Court could legitimately have gone either way. There were precedents and strong arguments supporting either position the Court might have adopted.

In short, the Justices had a choice in each of these 7 discrimination cases. So what did they choose? And what do the choices tell us?

Let's look at a tally of the Court's decisions and the individual Justices' votes.
GRAPH 1
Divided Discrimination Cases
OCT08 Term
(click to enlarge)
As Graph 1 shows, the Court rendered a decision supporting the claim of discrimination in 2 out of the 7 cases. These cases raised issues about the laws governing age, race, gender, ethnic, and religious discrimination. In only 2 did the Court take the side of the party complaining of discrimination.

As might be expected, the Justices were divided not only in each case, but also in the number of cases in which they found merit in the discrimination complaint. Some found merit in as many as 5. Some in 4. Some in no more than 2.

As might also be expected, the Justices divided along typical ideological lines. Let's rearrange the Justices in the graph and see.
GRAPH 2
Divided Discrimination Cases
OCT08 Term
(Justices Arranged by Voting Pattern)
(click to enlarge)
As depicted in Graph 2, the ideological lines are clearly drawn in discrimination cases. The four more liberal Justices were twice as likely to support the discrimination claimant as were the more conservative ones. Justices Ruth Bader Ginsburg and Stephen Breyer sided with the claimant in 5 of the 7 cases. Justices John Paul Stevens and now-retired David Souter in 4. Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito supported the claimant only twice.

It must be remembered that these cases presented issues that were close, difficult, not clearly or readily resolvable--except, perhaps, in the eyes of the most religiously ideological or closed-mindedly partisan. On the one side of each of these cases is the nation's legal dedication to eliminate invidious historic discrimination, and to take the extra step in doing so. On the other is the opposition to special treatment, the freedom to choose one's personal and employment associates, the avoidance of frivolous lawsuits, and the reduction of unecessary costs and inefficiencies in business. On both sides, there are weighty interests.

But there is one more aspect of discrimination cases that is important to note here. Indeed, it is crucial to understanding what is happening at the Court and among the Justices. It might well be the key. At the very least, it mightily underscores the nature of the division among the Justices and the overall direction the Court is taking.

Discrimination complaints by, or on behalf of, white persons. Yes, Whites claiming racial mistreatment. Or complaining about accomodations being made for Blacks, or for other minorities. Affirmative action. Reverse discrimination. Race conscious efforts to redress historic discrimination.

There were 2 such cases among the 7 we've been considering. 2 among the 7 divided discrimination cases decided by the Court last term. Recall that the conservative Justices sided with the discrimination claims in 2 cases. Yes, those were the 2. Not discrimination on the basis of age, gender, minority race, gender or religion. But discrimination against Whites. The only discrimination claims they found meritorious.

Yes, in each discrimination case there were strong competing interests. But only in the 2 cases involving claimed discrimination against Whites, or favoritism for Blacks, did 5 Justices--and the Court--find merit in the discrimination complaint. Connect the dots!

Let's close this post by removing those 2 cases from the graph. Let's take a look at the tally of decisions and votes when we consider the 5 cases involving discrimination claims by minorities or the vulnerable. Claims for redress or protection by, for example, racial minorities, the aged, and the pregnant.

Here's how the Court's decisions and the Justices' votes line up in those 5 cases.
GRAPH 3
Minority/Vulnerable Discrimination Claims
OCT08 Term
(click to enlarge)
For 5 of the Justices, not a single one of the claims brought by a minority or vulnerable class complainant was meritorious. Yes, the 2 cases involving complaints of discrimination against Whites or in favor of minorities had merit. But the 5 cases involving Blacks and the vulnerable did not.

And to top it off, the 5 Justices who found no merit in those latter 5 cases just happened to be the more conservative Justices on the Court, whose interpretations of the law just happened to disfavor Black and vulnerable claimants, but favor White ones. Hmmm!

Yes, it should also be said that the 4 more liberal Justices on the Court just happened to side most frequently with Black and vulnerable discrimination claimants, and not with the White ones. No doubt. And liberal Ginsburg and Breyer have voting records that are just as perfectly lopsided as the more conservative Roberts, Scalia, Kennedy, Thomas, and Alito.

Yep, the liberal Justices are applying the law to protect those who have historically suffered discrimination. The conservative Justices are doing so to protect Whites. Again, yep.

In the coming posts in this series on New York Court Watcher, we'll take a look at the 7 discrimination cases from different angles. We'll see how stark and transparent the Court's direction and the Justices' divisions are.

(New York Court Watcher will also be returning to the series on criminal appeal applications in New York. Coming posts will explore when and perhaps why the sharp drop in criminal appeals grants occured over the last several years, as well as what is happening now.)

NY Court of Appeals: Granting Criminal Appeals--Up, Down, Now Up Again? (Part 4: More on Absolute Numbers)

In the first 3 posts of this series on New York Court Watcher, we looked at the sharply reduced rates and numbers at which criminal appeals to the Court of Appeals have been granted in recent year. We did so by comparing the rates and numbers from the most recent 5 years, 2004 through 2008, with those for an earlier period of the same length 1988 through 1992. We saw that the rates and numbers in the more recent period (which happened to be the last years of Chief Judge Kaye's tenure) were half of what they were in the past (specifically, the last years of Chief Judge Wachtler's tenure). (See NY Court of Appeals: Granting Criminal Appeals--Up, Down, Now Up Again? (Part 1: Overview)Oct. 27, 2009; (Part 2: Not Just Averages, But Year By Year) Oct. 29, 2009;(Part 3: And Not Just Rates, But Absolute Numbers), Nov. 5, 2009.)

The last post concluded with a look at the total number of criminal appeals granted in each of those 5 year periods. Here is that graph again.
GRAPH 1
Criminal Appeals Granted--Numbers
1988-92 vs. 2004-08 (totals)(click to enlarge)



From 656 grants over the earlier 5 years to 272 in the more recent period.

Let's now take a closer look at those total numbers. Remember, as we noted in the last post, criminal appeals to the Court of Appeals can be granted by a Judge of the Court of Appeals or by a Justice of the Appellate Division, the state's intermediate court, after that court has ruled on a case. So total grant figures include CLA's [criminal leave applications] which were granted by Court of Appeals Judges and those by Appellate Division Justices. I.e., the applications are for the Court of Appeals to review a case, but applications can be granted by members of either court.

Let's break down the numbers according to which court's members granted the application.

NY Court of Appeals: Granting Criminal Appeals--Up, Down, Now Up Again? (Part 3: And Not Just Rates, But Absolute Numbers)

It's not just the rate at which criminal appeals have been granted, it's the actual numbers as well. As discussed in parts 1 and 2 of this series, the rate at which applications to appeal to New York's high court were granted dropped sharply in recent years. It dropped to one half of what it had been in years past. (See NY Court of Appeals: Granting Criminal Appeals--Up, Down, Now Up Again? (Part 1: Overview)Oct. 27, 2009; (Part 2: Not Just Averages, But Year By Year) Oct. 29, 2009.)

In those previous posts on New York Court Watcher, we saw that the rate of granting criminal leave applications was 2.1% for the past 5 years, 2004 through 2008--the last 5 years of Chief Judge Kaye's tenure. That compared to a rate of 4.1% in the earlier 5 year period we looked at--the last 5 years of Chief Judge Wachtler's tenure--1988 through 1992. We also saw that there seems to be a sudden dramatic increase in the rate of granting criminal appeals in the last few months--i.e., early in the tenure of Chief Judge Lippman.

Here again is how these 3 phenomena look when visually compared.
GRAPH 1
Criminal Appeals Granted--Rates
1988-92 vs. 2004-08 vs. May-Aug 2009
(click to enlarge)



4.1% down to 2.1% and then up to 4.8%. A roller coaster. And the drop to 2.1% was steep enough, and the apparent very recent rise to 4.8% was abrupt and substantial enough, that they each very likely reflect some conscious, deliberate change at the Court.

Moreover, regarding the earlier 4.1% and later 2.1% rates, the relative consistency with which they were each achieved over their respective 5 year periods would seem to rebut any suggestion of mere happenstance. Here again is how the rates for those two 5 year periods look--year by year, as well as respective annual averages--when visually juxtaposed.