Part 2: Dissents--The (very early) DiFiore Court [with graphs!]

The Court of Appeals has a back and forth recent history on dissents. Chief Judge Judith Kaye said she was not a big fan. Her successor, Jonathan Lippman welcomed them.

Kaye sought to avoid fractured decisions and unpleasant divisions by encouraging consensus. Lippman welcomed dissenting views that pushed the majority to address real disagreements among the Judges. Kaye preferred the Court to speak with one voice. Lippman favored clarity and boldness rather than reaching some blurry common ground.
[My agreement with Chief Judge Lippman may be evident. In any event, I have made my view on the matter pellucid--love that word. One of the finest NY Times pieces on the Court of Appeals, written by one of the finest legal journalists of our time, explores this very topic, see William Glaberson's "Dissenting Often, State’s Chief Judge Establishes a Staunchly Liberal Record," Oct. 9, 2011.]

Now what about Chief Judge Janet DiFiore and her Court? Embracing the Kaye or the Lippman view?

Let's first see who has been dissenting--both writing and joining dissenting opinions--since DiFiore took the center seat in February. Take a look:

Once again, as we saw with ideological voting patterns [See Part 1], Judge Jenny Rivera's record stands out. She has been the most prolific author of dissenting opinions (9), and the most frequently dissenting voter (13).

Beyond that, in every one of Rivera's dissenting opinions and votes, in cases with distinct ideological positions, she supported the "liberal" side of the issue. (E.g., in criminal cases: pro-due process vs pro-crime control, pro-accused vs pro-prosecution; in civil cases: pro-worker vs pro-business, pro-injured plaintiff vs pro-civil defendant, etc.)

Notably, Rivera was alone in 5 of her dissenting opinions. That is more than the total number of dissenting opinions written by any of the other Judges. In those cases where she was together in dissent with another Judge--in her opinion or theirs--she was most frequently together with Judge Sheila Abdus-Salaam (3 times). On the other hand, she was never in a dissent with Republican, Pataki-appointed, Judge Eugene Pigott, whether she or he or someone else wrote the opinion. She was, however, joined in 1 of her dissenting opinions by the other Republican, but Cuomo-appointed, Judge Michael Garcia. [Significantly, that opinion, which brought together those two ideologically opposite colleagues, argued for application of the attorney-client privilege in a case which did not entail distinct liberal versus conservative positions.]

At the other end of the dissenting-frequency spectrum is the Chief Judge. To date, DiFiore has neither written a dissenting opinion nor joined one authored by anyone else on the Court. Viewed from a different perspective, all of her opinions thus far have been either unanimous or majority, and she has never voted on the losing side of a case.

After Rivera, the most frequent dissenter on the Court has been Judge Eugene Fahey. As with Rivera, Fahey was not averse to authoring sole dissenting opinions (3). Very interestingly, in one of those sole dissents, he sided with the prosecution in a case involving the rape of a minor. In another, he sided with a minor suffering from lead-poisoning in a lawsuit against a landlord. In the third, he sided with seasonal workers whose per diem wages were reduced. Each of those dissents reflects a particular compassion for children and other vulnerable persons that has been a hallmark of Fahey's judicial career. [See Judge Fahey's Tendencies.]

Also notable are the dissenting records of the two previously mentioned Republicans on the Court. Of Pigott's 3 dissenting opinions and Garcia's 2, they joined each other 4 times. To date, that is the highest dissenting agreement on the Court. Moreover, 3 of those cases involved distinct ideological positions, and Pigott and Garcia took the clearly conservative, pro-prosecution side in each of them.

Before closing, let's take a look at the recent history of dissents at the Court, and how the early record with DiFiore as Chief Judge compares with that of the Court under her 3 immediate predecessors. First, here is a graph of the annual number of decisions with dissent, beginning with the last years of Chief Judge Sol Wachtler's tenure; then the early, middle and final years of Kaye's tenure; and ending with the early years of Lippman as Chief Judge:

As shown in the graph, the number of non-unanimous decisions remained fairly stable from the end of Wachtler's tenure through the first few years of Kaye's. Shortly thereafter, however, the number dropped precipitously (following then-Governor Pataki's public criticism of the Court for being too "liberal"), and it stayed quite low for several years. The number later rose somewhat in the final years of Kaye's tenure (when a majority of the Judges were Pataki appointees), and it then rose dramatically when Lippman became Chief Judge (and welcomed dissents as beneficial).

For a more visually digestible look at the same data, here they are reorganized as annual averages over several 3-year periods:

Again, the changes and trends over the years in the number of decisions with dissent, from Wachtler to Kaye to Lippman, are clear and, in fact, clearly dramatic. But our focus in this series is on the early DiFiore Court. So what about that Court? How does it fit in this scheme?

Well.....the total number of decisions with dissent to date in the DiFiore Court is 23. (I.e., Pigott's 3 dissents + Rivera's 9 + etc. = 23.) Projecting that number by approximate extrapolation would equal a total of 52 non-unanimous decisions for a full year. (I.e., 23 dissents is the number for 18 session days of arguments from which cases have already been decided, out of the 43 such session days scheduled for the entire 2016 calendar year. So doing the grade school math gives a ballpark projection: 43/18 x 23 = 52.)

Now, juxtaposing that ballpark projection into the graph gives the following:

At the least, what can be concluded at this very early point in the DiFiore Court is that the number of decisions with dissent already exceeds that of the annual total for much of the Kaye era. In fact, unless the pace of dissents screeches to a halt, the number of non-unanimous decisions in the first year of the DiFiore Court will far exceed that of any year while Kaye was Chief Judge. Likewise, unless the pace slows considerably, the annual number will exceed the numbers for the Wachtler era.

On the other hand, the pace of dissents would have to accelerate for the DiFiore Court in its inaugural year to match the numbers reached while Lippman was Chief Judge.That might, of course, happen. But the pace may even slow. Who knows at this point?

What we do know, however, and what the raw data does tell us, is that the Judges of the Court are dissenting--a few of them with some fair regularity. Indeed, there would need to be an abrupt and dramatic change in the culture of the Court, which was nurtured by Chief Judge Lippman throughout his 7 year tenure, for there to be a significant reduction in the number of non-unanimous decisions in the early months or even years of the DiFiore era.

Next in this series, we will look at some of the notable--important and revealing--opinions of each of the Court's 7 Judges.

The (very early) DiFiore Court--Part 1: Voting Patterns [with graphs!]

Janet DiFiore assumed the center seat of New York's highest court this past February. Since that time, she has presided over 4 monthly sessions of appeals, and the Court has already rendered decisions for 3 of those dockets.

In replacing Jonathan Lippman (who was forced to retire because of New York's moronic mandatory age-70 retirement), the new Chief Judge joins the 7-member Court of Appeals that has been almost entirely recomposed in just a few years. Eugene Pigott, an appointee of then-Governor George Pataki, has sat on the high court since 2006. But every other member of the state's court of last resort is a recent appointee of current Governor Andrew Cuomo.

Jenny Rivera and Sheila Abdus-Salaam were appointed by Cuomo in 2013. Leslie Stein and Eugene Fahey in 2015. And Michael Garcia, like DiFiore, earlier this year.
(For some background on each of the Judges, see, on DiFiore: Parts 1, 2, & 3; on Pigott: Criminal Leaves, Judicial Output, Independent; on Rivera: The Rivera Hearings; on Abdus-Salaam: Love Fest; on Stein: Stein's 'Tendencies'; on Fahey: Fahey's 'Tendencies'; on Garcia: Michael Garcia.)

So it's a very new court, with a very new presiding judge. And yet, and yet, patterns are already developing.

Without further delay, let's see. To start, let's look at ideological voting patterns:

[Based on divided decisions rendered as of mid-June on appeals heard by the Court since the February session--the first with DiFiore as Chief Judge. "Politically Liberal" is used as it is in common parlance and as is traditional in judicial studies, e.g., pro-due process vs pro-crime control, pro-accused vs pro-prosecution, pro-worker vs pro-business, pro-injured plaintiff vs pro-civil defendant, etc. "Politically conservative" would be the opposite. There have been 17 non-unanimous decisions to date with clear liberal vs conservative positions.]

What is immediately obvious is that there is a clear ideological spectrum on the Court. At the least, what has emerged thus far in the very early DiFiore Court is clear.

Judge Rivera's voting places her at one end of the Court's spectrum, and Judge Garcia's at the other. Moreover, the contrast between their voting records is stark. In the 17 cases with distinct "liberal" versus "conservative" positions that divided the Judges, Rivera voted for the liberal position 88% of the time. Garcia never voted for such a position.
[Neither the graph nor this discussion are intended to suggest that "liberal" is good, correct, wise, etc. Or that "conservative" is the opposite. For ease of discussion, we will speak of liberal votes and voting. Conservative votes and voting are simply the opposite--e.g., 88% liberal = 12% conservative. Nevertheless, this post will conclude with a graph reflecting the same data, but with conservative percentages.]

To be sure, the ideological leanings of Judges Rivera and Garcia would not be terribly surprising to those who follow the Court. Rivera's previous experience and academic publications evinced an ardent liberal and critical perspective on legal and societal issues. Garcia, by contrast, is a Republican who worked in the administration of President George W. Bush, and who served as a federal prosecutor, including as the U.S. Attorney (for the SDNY), and developed a strong reputation for being tough on crime and corruption.

So, for example, Rivera sided with the accused in cases dealing with such matters as confronting adverse witnesses, incriminating evidence obtained through eavesdropping, guilty plea allocutions, DNA analysis, sex offender classification, ineffective counsel, and the powers of a special prosecutor, Garcia sided with the prosecution in all of those cases.

Notable also from these early patterns are the records of Judges Pigott and Abdus-Salaam. Pigott, the only Republican on the Court other than Garcia, has compiled a record closest to Garcia's on the Court's ideological spectrum. His 18% liberal voting record, reflecting only 3 such votes in the 17 divided cases, may not be as striking as Garcia's. But it still places him unmistakably on the far opposite, more conservative wing of the Court. His record, like Garcia's, stands in stark contrast to that of Judge Rivera--and in sharp contrast to that of Abdus-Salaam as well.

Indeed, Judge Abdus-Salaam's 65% liberal voting record is the closest on the Court to Rivera's. And although her record is not as overwhelmingly liberal as Rivera's, it nevertheless does place her unmistakably on the Court's more liberal wing. Among other things, that record reflects her voting with Rivera on some of the issues previously mentioned, including confronting adverse witnesses, incriminating evidence obtained through eavesdropping, and the powers of a special prosecutor--as well as in civil cases involving government tort liability, and excusing a late notice of claim.

As for the remaining members of the Court, Judge Stein's record of 19% liberal voting reflects the positions she took in 3 of 16 cases. [She did not participate in 1 of the 17 cases.] That record of only 3 liberal votes places her on the more conservative wing of the Court and, in fact, equals that of Pigott. But Stein's 3 liberal votes were not the same as Pigott's. She actually disagreed with him in 2 of them--one having to do with an accused's right of confrontation, and the other with ineffective counsel.

Judge Fahey's record places him on the more liberal wing of the Court. His 56% liberal voting is very similar to that of Abdus-Salaam, not only numerically, but substantively as well. They were typically on the same side of the divided decisions, both criminal and civil.

Finally, Chief Judge DiFiore's record to date places her in the very middle of the Court's ideological record. Her 36% liberal voting is close to midway between the Rivera and Garcia extremes--i.e., the average of Rivera's 88% and Garcia's 0% = 44% liberal. Similarly, her record is close to being the average of her 6 colleagues--i.e., the average of 88+65+53+19+18+0 = 41% liberal.

Interestingly, her record is identical to that of the Court as a whole. Although not shown on the graph above, this identicality results from DiFiore's being in the majority in every case thus far. Stated otherwise, she has not been in dissent in any case to date. Coincidentally, [Well, not really at all.] we will turn our attention to dissents--who's writing them, who's joining them, and how many--in the next post.

But before we conclude, here is a graph reflecting all the same data we have been discussing, but displayed in terms of conservative voting percentages:

Again, as just mentioned, the next post will deal with dissents in the (very) early DiFiore Court.