Saturday, July 6, 2024

Part 5, More on Caseload and on Criminal Appeals--NYCOA: The Wilson Uptick

The Court of Appeals remains the focus for now. Yes, dramatic developments at the Supreme Court should and will be addressed. Meanwhile, remember that for New Yorkers, our lives under the law are much more directly and regularly affected by the rulings of our highest court--just as they are for residents of other states and their high courts.

This post will be a review of sorts. We'll look at some of the same matters we did previously in this series, but with some more complete, supplementary data.

Credit:Tania Savayan.Westchester Journal News
In Part 1 of this series, we saw that the Court's overall caseload was already increasing in the very first few months of Rowan Wilson's tenure as New York's Chief Judge. In Part 2, we saw the same when considering only criminal appeals. In Part 3, we saw that the number of criminal appeals calendared continued to increase over the next few months. In Part 4, we compared the caseloads for the first full year of  Wilson's tenure with those of some previous years.

Let's now look at some similar comparisons, again with some supplemental and somewhat different data.

As noted previously, the State Bar News reported that Wilson made clear, at the 2024 Annual Meeting, that he believed that New York's highest court "must dramatically increase its caseload to regain its stature." [ at 23.] Indeed, he has made no secret about those sentiments and has repeated them frequently. 

To anyone who has been following the Court and, more specifically, the contrast among the Judges in how frequently they have been granting CLAs (Criminal Leave Applications), Wilson's views on the subject should be no surprise. [Recall, the decision to allow a criminal case to be reviewed by the Court is made by the one Judge to whom the CLA was randomly distributed. No other Judge participates in that decision.] Wilson consistently granted the most CLAs of any Judge on the Court during the years when Janet DiFiore was Chief Judge, and he continues to do so.

Let's take a look:
(click to enlarge for a better view)
Considering the two ends of the Court's CLA-granting spectrum during the DiFiore era makes pretty clear which Judges were deciding to afford review of criminal cases by the Court most frequently, and which Judges the least so. Rowan Wilson and Jenny Rivera were the most generous in granting CLAs, and Janet Difiore and Michael Garcia the least so.

Regarding then-Judge Wilson, he granted CLAs the most frequently of any Judge on the Court and far more frequently than DiFiore and Garcia. The result? If a party seeking to be heard at the Court of Appeals had their CLA distributed to Wilson, there was a far greater chance of having their application granted. If their CLA was distributed to DiFiore or Garcia, the chances of getting a hearing at the Court were minimal. [The manifest unfairness of this state of affairs has been a source of much debate about whether to change the CLA process. See e.g., former Judge Eugene Pigott's Criminal Leave in the Court of Appeals a Case of Implicit Bias?, 85 Albany Law Review 169 (2021-2022).]

The contrast in the CLA-granting figures among the Judges was much the same for the next two calendar years--i.e., for 2022 through 2023, the most recent full calendar years. Let's take a look:
(click to enlarge for a better view)
The composition of the Court had changed by the time of these calendar years. Chief Judge DiFiore left the Court in mid-2022. Judges Madeline Singas and Anthony Cannataro were both appointed in mid-2021 and, so, they were on the Court throughout 2022 and 2023. Judge Shirley Troutman was appointed in early 2022 and participated in CLA decision-making throughout 2023. (The figure for Troutman reflects only 2023.) But notwithstanding the compositional changes at the Court, the CLA-granting spectrum was similar to that of the preceding years. Some Judges were granting significantly more than others.

As in those previous years, Judge Garcia granted the fewest CLAs. Now-Chief Judge Wilson granted the most. To put the contrast in perspective, consider that a party that sought review by the Court of Appeals had a nearly eight times better chance of having their CLA granted if it was distributed to Wilson than if their application were to be decided by Garcia. A party would have a more than three times better chance with Wilson than with Singas or Cannataro.

Has Wilson's obvious preference for the Court to accept more cases to review been reflected in the caseload since he was elevated to be Chief Judge? For now, let's keep our focus on criminal appeals. (For additional perspective, I've included the final Fall to Spring year under Chief Judge Jonathan Lippman.) Take a look:
(click to enlarge for a better view)
As we've seen previously, the number of criminal appeals calendared under Chief Judge Wilson--Fall 2023-Spring 2024--increased significantly from the number calendared in the previous years. This is true for the period while Difiore was Chief Judge and while Cannataro was Acting Chief. Fifty-one calendared criminal appeals to an average of twenty-nine. To be sure, that's still considerably fewer than the eighty-two criminal appeals calendared under Lippman. But it is a substantial 75% increase from the immediately preceding years before Wilson was Chief.

Not surprisingly, an analogous development has been taking place for total appeals calendared--both civil and criminal. Take a look:
(click to enlarge for a better view)
The total appeals calendared at the Court under Chief Judge Wilson has increased similarly. An almost 50% increase from what the numbers had been in the immediately preceding years. Again, the caseload thus far in the Wilson era does not (yet?) approximate that under Chief Judge Lippman. It is still much lower than it was under Lippman--i.e., 180 in Lippman's final Fall to Spring year. But the increase of at least 30 appeals under Wilson, from what it was when DiFiore was Chief Judge and Cannataro was Acting Chief, is hardly insignificant.

Notably, there has been no decrease in civil appeals calendared under Wilson in order to keep the total number of appeals down to where it had been in the immediately previous years. Simple arithmetic--subtracting the number of criminal appeals calendared from the number of total appeals--tells us that.  The number of civil appeals calendared in the years immediately preceding Wilson's elevation to Chief Judge averaged about 40. In the first full year of calendaring under Wilson, there were over 50 calendared civil appeals. The Court's caseload is growing--period.

Where the caseload at New York's highest court goes from here is anyone's guess. But a good guess is that the caseload, both criminal and civil, will continue to be quite higher than it was before Wilson became Chief. He has left no doubt that he believes the Court's stature demands that, and that New Yorkers' worthy cases deserve that.

Next up--yes, finally--who's dissenting now!