Wednesday, November 9, 2016

Part 9 - Observations: Polarized? Decisions Unsigned? (Early DiFiore Court Patterns)

Well, we elected a new president yesterday. God bless our country through the next four years. Among many other things, whatever may become of the Supreme Court, we are fortunate in New York to have the Court of Appeals, which historically has provided some immunity from regrettable directions taken by the highest federal court.

We've already offered several observations about New York's highest court with Janet DiFiore as Chief Judge, a position she assumed this past February. (See Part 6, Part 7, Part 8.) In this post, we address two additional questions that arise from reviewing the voting and decisional output of the early DiFiore Court:
Is the Court polarized?
Has the Court resorted to unsigned decisions in significant cases?

The short answers: no, and sometimes yes.

No, New York's highest court is not polarized. Certainly not along the rigid ideological lines that have divided the Justices on the U.S. Supreme Court for the last few decades.
But yes, the Court of Appeals has occasionally been rendering decisions unsigned by the authoring Judge, even when the issue has been close, the law or its application has been unclear, and the Judges have been divided--sometimes deeply.

Let's take a look at the record.
Regarding the presence or absence of polarization, let's look at the 11 decisions rendered by a  4-3 majority. [Included are all 4-3 decisions through October.] That is, those rulings of the DiFiore Court--the disposition of the case and the rule of law announced--that were decided by a single vote.
Consider whether the 4-3 lineups, which evince the sharpest divisions among the Judges, show the kind of predictable patterns that that we've come to expect from the Supreme Court. Here are those cases:

People v. Johnson (3/29/16): co-defendant's out-of court statement [4-3].

People v. Badalamenti (4/5/16): "vicarious consent" to record child's conversation [4-3].

People v. Nelson (4/5/16): spectator conduct in the courtroom [4-3-0].

People v. John (4/28/16): right to cross-examine DNA analyst [4-3].

Sherman v. NYS Thruway Auth. (5/5/16): slip and fall liability [4-3].

Wally G. v. NYC Health & Hosps. Corp. (6/9/16): late notice of claim [4-3].

People v. Frankline (6/9/16): evidence of past crimes [4-3-0].

People v. Berry (6/14/16): sufficiency of child endangerment evidence [4-3].

People v. McCullough (6/28/16): reliability of eyewitness identification [4-3].

Pasternak v. Laboratory Corp. of Amer. (6/30/16): c/a in fraud and negligence [4-3].

M/O Jamal S. (10/27/16): search & seizure [4-3].

It should be clear from a survey of these lineups that the majorities have been constituted by different combinations of Judges. What has been most consistent, in these 11 most sharply divided decisions, is that different Judges have been voting with each other.

Having said that, a few other consistencies--or at least repetitions--have emerged:
    1) The most frequent majority in these 4-3 decisions--"frequent" as in only 3 of these cases--has been Chief Judge DiFiore and Judges Pigott, Stein, and Garcia. [Sherman, Wally G., and McCullough.]
    2) As a corollary to that, Judges Rivera, Abdus-Salaam, and Fahey were together in dissent in those same 3 cases; additionally, they were together with DiFiore in 1 of the cases to form a majority. [John.]
    3) There are pairs of Judges who voted together frequently in these 4-3 cases: Pigott & Garcia (10 times); Rivera & Abdus-Salaam and Rivera & Fahey (7 times each).
    4) On the other side of the coin, 2 of the Judges almost always voted in opposition: Rivera & Garcia (10 times).
    5) As has been clear in what we've seen in previous posts in this series, and has been underscored here, there are ideological bookends on this Court. Judges Rivera and Garcia have compiled the most liberal and conservative voting records, respectively. It is thus not surprising that they voted on opposite sides virtually every time in these most sharply divided decisions.

Finally, in 3 of these cases, the Court rendered its decision in an unsigned memorandum opinion. Consider: in each of these cases, 3 Judges disagreed with the Court's ruling, they did so in a separate opinion, and the bare majority rendered its decision in an opinion unsigned by the authoring Judge:
Sherman v. NYS Thruway Auth. (5/5/16): slip and fall liability [4-3, Unsigned Memorandum vs. Rivera, Abdus-Salaam, and Fahey in dissent];
People v. Frankline (6/9/16): past crimes evidence [4-3-0, Unsigned Memorandum vs Stein, Fahey, and Garcia in a separate concurring opinion]; and
People v. McCullough (6/28/16): reliability of eyewitness identification [4-3, Unsigned Memorandum vs. Rivera, Abdus-Salaam, and Fahey in dissent].

The Court did the same in other decisions in which at least one of its members authored a separate opinion taking issue with the unsigned majority:
People v. Davidson (6/7/16): power of special prosecutor [4-2, Unsigned Memorandum vs. Rivera & Abdus-Salaam in dissent];
People v. Reynolds (6/7/16): illegal plea condition [6-1, Unsigned Memorandum vs. Rivera in dissent];
People v. Joseph (10/25/16): burglary of a dwelling [6-1, Unsigned Memorandum vs. Stein in dissent]; and
M/O Yoga Vida (10/25/16): employer-employee relationship [4-2, Unsigned Memorandum vs. Rivera and Fahey in dissent].

Several years ago I noted the same thing about the Court at that time. (See Court of Appeals, 1990, 12 Pace L. Rev. 1, 53 [1992].) As I wrote at the time, addressing the somewhat curious incidence of unsigned majority opinions in significant divided cases: "It is not difficult to understand why opinions whose authors remain unnamed might tend to be less carefully considered and crafted than those that are signed...Most of those writings, to be kind, were unworthy of a distinguished tribunal."

A member of that Court publicly rebuked me for that observation, insisting that the Court issued unsigned memorandum opinions only when the law was well settled, when the resolution of the issue was clear, and when nothing significant was at stake. Of course, that explanation cum defense could hardly be taken seriously when the decisions I had referred to involved substantial constitutional questions on which members of the Court were deeply divided, as evidenced by strong, thoughtful, lengthy dissenting opinions.

Moreover, despite that one negative reaction to my observation, other members of the Court volunteered their agreement (as did other Court watchers) and noted that it was no mystery who was responsible for that development. Additionally, one Judge advised me that he/she would henceforth sign all opinions.

I hope that these several recent incidents of unsigned majority opinions, in cases involving close issues that generate divided decisions, does not portend a development in the DiFiore Court that had marred the Court's reputation in the past.