The Court of Appeals List: The Commission's Recommendations for the Abdus-Salaam Vacancy

The New York Commission on Judicial Nomination released its list of recommended candidates for the state's highest court. Seven names were presented to Governor Andrew Cuomo this past Thursday. He must select from that list to fill the vacancy on the Court of Appeals created by the tragic death in April of Judge Sheila Abdus-Salaam.

By state law, the Governor must make his choice no later than 30 days from when he received the list. The state senate must then act on his nominee, hopefully--as the Governor has made clear he would like--before the close of the legislative session at the end of this month.

As for the list itself, it is another fine one. It continues what has become customary for the Commission to produce strong lists This became especially true in recent years when former Chief Judge Judith Kaye assumed the position of Chair and added considerable gravitas, energy and insight to the application process.

With Kaye now deceased, the interim Chair, Leo Milonas--former Chief Administrative Judge of the New York State court system, former Appellate Division Justice, former president of the New York City Bar Association, etc. etc.--has by all accounts taken that legacy quite seriously. Together with a staff that includes the highly regarded Henry Greenberg as Counsel (notably, among many other things, a former law clerk to Kaye), the Commission would seem to be in very good hands indeed. And that is very good news for our high court.

Now what about that list?

Ok, here are the seven individuals:
(Photo from the New York Law Journal, "Commission Names 7 Potential Nominees for Court of Appeals," by Andrew Denney, June 1, 2017.)

(click to enlarge)

In alphabetical order (and in the photo clockwise from upper left):
Eric O. Corngold, Esq., Friedman Kaplan Seiler & Adelman LLP (Manhattan)
Paul G. Feinman, Justice, Appellate Division, 1st Department (Manhattan)
Judith J. Gische, Justice, Appellate Division, 1st Department (Manhattan)
Rosalyn H. Richter, Justice, Appellate Division, 1st Department (Manhattan)
Mary Kay Vyskocil, U.S. Bankruptcy Court Judge (Manhattan)
Troy Karen Webber, Justice, Appellate Division, 1st Department (Manhattan)
Gerald J. Whalen, Presiding Justice, Appellate Division, 4th Department (Rochester & Buffalo)

Here's another way to break down the list:

• Current Judges, 6: all but Corngold
• Current appellate judges, 5 : Feinman, Gische, Richter, Webber, Whalen
• Judicial career (20+ years), 4: Feinman, Gische, Richter, Webber
• Current private practice, 1: Corngold
• Private practice career (20+ years), 3: Corngold, Vyskocil, Whalen
• Manhattan, 6: all but Whalen
• I.e., Upstate, 1: Whalen
• Women, 4: Gische, Richter, Vyskocil, Webber
• African-American, 1: Webber
• Republican, 1: Vyskocil
• Openly Gay/Lesbian, 2: Feinman, Richter
• Physically disabled, 1: Richter
• Law Schools:
• Brooklyn (Richter [Go BLS!])
• Buffalo (Gische & Whalen)
• Minnesota (Feinman)
• NYU (Webber)
• St. John's (Vyskocil)
• Yale (Corngold)

Quite a diverse group. Certainly quite a contrast from what we see at the Supreme Court. And diversity has been a real strength at the Court of Appeals. It is for any high court.

The members of such courts, whether the Court of Appeals or some other state's highest court or the U.S. Supreme Court, simply cannot escape exercising judgement when deciding the close, policy-laden cases that come before them. These are cases where there are strong legal reasons for both--or all--sides. Where the plain words of some legal provision or the judicial precedents do not dictate a particular result. Where the judges judgements must be exercised to pick and choose and thus to decide how to resolve the issues.

In this type of an enterprise, i.e., appellate decision-making on a court of last resort, diversity is a huge plus. Different backgrounds, schools, careers, experiences, perspectives, deeply held beliefs and values all come into play and all contribute mightily to a wiser, more knowledgeable and insightful result. Stated otherwise, they help to avoid more narrow-minded, more ignorant decisions.

Now politically speaking, sure, would a governor like Andrew Cuomo like to please constituents and even make history with his selection? Of course! (Just like a governor in a much more homogeneous state or a president with a "traditional-values" base would want to appeal to their constituents.)

So let's suppose that Governor Cuomo looks at the list given to him by the Commission and does decide to widen the Court of Appeals' diversity. He also decides that he'd like to make history. Now, no matter who he chooses from among the seven names, that individual will have an impressive resume and comes to him well-regarded and recommended by the independent commission. He can hardly go wrong.

So let's say the Governor goes with selecting the first openly gay judge for the high court. Suppose, for example, he chooses Rosalyn Richter. (Among other reasons, I use her as an example because we are fellow alums of Brooklyn Law. I don't know her personally, but by reputation.) If the Governor were to do so, no doubt some would scoff at the selection as being based solely on Richter's being gay or disabled or both. Also no doubt, others would praise the Governor for doing just that. And further no doubt, the Governor would have scored some political points for enhancing the Court's diversity and for making history.

But beyond all that, or perhaps prior to all that, Judge Richter does have a strong reputation as being a very smart, conscientious, and gutsy judge and, by all accounts relayed to me, would be a very fine choice.

The point of this is not to single out Rosalyn Richter (although, again, I did use her as an example because of our Brooklyn Law connection). Rather, it is to endorse the quality and diversity of the Commission's list, the quality and diversity of the current Court of Appeals owing to previous lists and this Governor's selections, and the continued enhancing of both quality and diversity on our high court.

Judge Sheila Abdus-Salaam, RIP

Shocking, tragic, and heartbreaking. Those are the first words that come to mind in reacting to the loss of Court of Appeals Judge Sheila Abdus-Salaam.

She was an absolutely lovely person and a magnificent judge. She was loved and admired by her colleagues and by all of us who were fortunate to get to know her.

Here she is recently with Albany Law students to whom she generously gave her time and openly shared her enthusiasm, humility, and insights about being a Judge on New York's highest court:

Judge Abdus-Salaam with Albany Law School's
 Court of Appeals Seminar students

Judge Abdus-Salaam's death is an enormous loss to the Court, to the state, to the law, and to all those who have been the beneficiaries of her wisdom, decency, and exquisite professional and personal example.

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.

Part 8 - Observations: Generally Conservative (Early DiFiore Court Patterns)

We saw in the last post that the early DiFiore Court has compiled a record in criminal cases that is somewhat pro-prosecution. More specifically, in the first half-year of criminal appeals since Janet DiFiore has presided over New York's highest court as Chief Judge, the Court rendered decisions more favorable to the prosecution in 65% of those close, divided cases. Stated otherwise, the majority of the Judges voted for the more pro-prosecution position in nearly twice as many of those cases as it supported the position more favorable to the accused.

We also saw that in those divided criminal cases in which only one Judge dissented, most of the time it was Judge Jenny Rivera who had authored the lone dissenting opinion. Moreover, she sided with the accused in each of her sole dissents.

Let's now take another look at how frequently Rivera and her colleagues have been dissenting, whether in criminal or civil appeals. We did that earlier in this series. (See Part 1.) Here's that same data, just a bit reorganized and highlighted in the following graph:

(click on any graph to enlarge)

As reflected again in this graph, Judge Rivera--the sole pro-accused dissenter in most of the single dissent cases--has been the Court's most frequent dissenter. And again, by a wide margin.

Not surprisingly then, her record has been the most pro-accused of the Judges--once again, by a wide margin. Here's a reorganization of some data we've seen before to help with our present focus:

No other Judge on the Court comes close to judge Rivera in siding with the accused. Indeed, she compiled a record nearly 3 times as pro-accused as that of the Court as a whole. But more relevant to the observation being offered here, the record of the Court as a whole as seen in this graph, 35% pro-accused, is that the majority only adopted the more pro-accused position approximately one third of the time.

Of course, it might be argued that Judge Rivera's record is extreme, that her tendencies lean so far in favor of the rights of the accused, that her votes skew the data. (To be sure, Judge Rivera's record evinces unmistakable leanings toward vigorous protection of the rights of the accused. But a fair reading of her opinions hardly suggests extreme positions.) However, her pro-accused record is more than counterbalanced by that of two of her colleagues, Judges Michael Garcia and Eugene Pigott, at the other end of the Court's spectrum--i.e., 0% and 18% pro-accused, respectively.

Moreover, take a look at the total votes cast in divided criminal cases. That is, the cumulative number of votes cast by the Judges for the more pro-accused position and the more pro-prosecution position. This takes into account the votes within the most pro-accused and the most pro-prosecution records among the Judges, as well as the votes cast by every other member of the Court.

As the graph shows, the data is pretty clear. The total votes cast by the Judges in these divided criminal cases add up to a more conservative, pro-prosecution record--just what we've been seeing with other data. Whether looking at the data for Court decisions, for individual Judge's voting, or for cumulative votes, it's hard to escape the fact that the Court as a whole has been at least somewhat conservative in deciding criminal cases.

What about the non-criminal cases?

Let's start just as we did with the criminal decisions. Look again at the data on dissents. During this period, Judge Rivera was followed by Judge Eugene Fahey as the Court's most frequent dissenter. In criminal appeals, his record was half as pro-accused as Judge Rivera's, but it was still on the more pro-accused side of the Court. As for the civil cases, take a look:

As the graph shows, Judges Fahey and Rivera--the Court's two most frequent dissenters--have the Court's most liberal records in the civil cases. More than that, their records are several times more pro-worker, consumer, tenant, etc. than 3 members of the Court (Chief Judge DiFiore and Judges Pigott and Garcia), and at least 3 times that of the Court as a whole.

As we did with the records in criminal cases, let's look at the cumulative number of votes cast by the Judges in the divided civil cases:

As in the criminal cases, the cumulative votes in the civil cases confirm the Court's overall conservative bent. (The Court's mere 25% liberal decisional record reflected in the previous graph might seem at odds with this closer 22 versus 30 cumulative vote total. But much of the seeming discrepancy is attributable to the bare 1 vote conservative majorities in the several 4-3 civil decisions. See Part 3.)

So, whether we look at the data from the criminal cases where the Court's record leans pro-prosecution, or from the civil cases where it leans somewhat more strongly pro-employer, business, tenant, etc., the early DiFiore Court's overall record is generally conservative. Not lopsidedly so. Indeed, it would be absurd to label this a right-wing Court. But if one had to choose between its being more liberal or more conservative, the latter would seem more accurate.

To conclude, let's add the cumulative criminal case and civil case votes. Here it is:

This graph reflects all the votes by all the Judges in the divided criminal and civil cases combined. It reflects the total votes of the Judges with the most liberal records (i.e., pro-accused, and pro-worker, consumer, tenant, etc.), those Judges with the most conservative (i.e., pro-prosecution, and pro-employer, business, landlord, etc.), and those Judges with records in between. To be brief: half again as conservative as liberal.

Sooooo, this is the record of the early DiFiore Court. The votes and the resulting decisions have generally been conservative.
[To those who are wondering: yes, in future posts I will be updating all that we've been discussing to include what the Court does in the remaining months of the first year of the DiFiore Court.)

One final point. Lest any of the foregoing be misconstrued, the observations here are not about the Court's being right or wrong, wise or foolish, or the same or different than I would have preferred. The observations are simply what the data can reveal, which is that the Court's record has been more conservative than liberal.
[Disclosure: I would have been somewhat more liberal, especially in the civil cases.]

One last observation in the next post.

Part 7 - Observations: Leaning Pro-Prosecution (Early DiFiore Court Patterns)

(The Court released a flurry of decisions this past week. One notable development is that the Chief Judge has voted in dissent a second time [M/O Jamal S.] and, as in the first, it was a 4-3 decision. This latest crop of decisions does not, however, alter any of the general patterns evinced in the "Early DiFiore Court" figures with which we've been dealing, nor does it suggest a change in any of the concluding observations now being offered.)

We have already seen the breakdown of pro-prosecution versus pro-accused in divided decisions in the early DiFiore Court. That is, in every decision by New York's highest court in a criminal appeal in the first 6 months of the Chief Judge DiFiore era, where at least one of the Judges disagreed with the majority--either in a dissent or a separate concurring opinion taking issue with the majority's analysis. There were 17 such divided decisions.

Specifically, we have already looked at the frequency with which each of the Judges voted for positions more favorable to the prosecution, and for positions more favorable to the accused. Here is what we've seen, focusing now on the pro-prosecution data:

(click on any graph to enlarge)

First, the Court as a whole sided with the prosecution, i.e., adopted the more pro-prosecution side of the issue that divided the Judges, most of the time. In fact, in a considerable majority, 65%, of those cases.

Beyond that, every Judge but one--Judge Jenny Rivera--sided with the prosecution in more of the cases than not. Several of those Judges voted for the more pro-prosecution position in a high percentage of those cases, i.e., Chief Judge Janet DiFiore, and Judges Eugene Pigott and Michael Garcia. In fact, Judge Garcia voted pro-prosecution in every one of these cases in which he participated (15 out of 15), and Judge Pigott did so in nearly every one (14 out of 17).

By sharp contrast, and alone in supporting the prosecution less than half the time, was Judge Rivera. Indeed, she virtually never voted for the more pro-prosecution position in these cases (1 out of 17). No other member of the Court has a record that even approaches hers.

But let's look a bit closer at these figures. Let's limit our focus to those decisions where at least 2 of the Judges disagreed with the majority. That is, those cases where at least 2 Judges on the 7 member Court had a different view than the majority of their colleagues. So let's eliminate those cases where a single Judge dissented. Here's what that looks like:

When restricting our focus to these cases, i.e., the 11 decisions where the Judges split 4 to 3 or 5 to 2 [or 4 to 2 where one of the Judges did not participate], the Court's record appears less one sided. It's 55% pro-prosecution record (6 out of 11 cases) seems much more evenly balanced.

In fact, 3 of the Judges--Rivera, Sheila Abdus-Salaam, and Eugene Fahey--have records supporting the pro-prosecution position less than half of the time. And only two members of the Court--Pigott (9 out of 11 cases) and Garcia (11 out of 11)--have records that are unequivocally pro-prosecution.

All of this suggests that the single-dissent decisions, the 6 remaining divided decisions, are the ones that make the overall record of the Court seem so strongly pro-prosecution. So let's look at the records compiled in those 6 cases. To underscore the contrast, we'll focus on the pro-accused voting.

Sure enough, the records in these single-dissent cases reveal why the Court's overall record, i.e., when all the divided cases are considered, appears so pro-prosecution. Judge Rivera, whose record has been shown to be the least pro-prosecution within the Court by a wide margin, voted for the more pro-accused position in all 6 of these cases. Once again, no other Judge's record approaches hers.

Among the other Judges, 3 of them--Pigott, Abdus-Salaam, and Leslie Stein--voted pro-accused only once. The 3 remaining Judges--DiFiore, Fahey, and Garcia--never voted that way in any of these cases. (It must be added, however, that Chief Judge DiFiore and Judge Garcia did not participate in 2 of the cases, including that 1 case where all the other Judges, except Fahey, sided with the accused.)

As the figures in this graph reveal, in 5 of these 6 single-dissent cases, Judge Rivera was the lone dissenter, and she sided with the accused each time. To put it differently, in 5 of these 6 cases, all the other participating Judges of the Court took the more pro-prosecution position. It is these single-Rivera-dissent cases which make the Court's overall record, as well as the records of some of the other Judges, appear so pro-prosecution.

What is nevertheless true, what emerges regardless of how the data are viewed, is that Judges Pigott and Garcia do have distinctively pro-prosecution records. What is also true, is that in most of the single-dissent cases--5 out of 6 of them--the Court's majority did side with the prosecution, while only one of the Judges supported the accused.

It would not seem accurate to label the record of the early DiFiore Court as unambiguously pro-prosecution. Or even strongly so when the record is closely analyzed. But it would be fair to say that the record is certainly not pro-accused.

Judge Rivera's record is clearly pro-accused. But her record stands alone. The records of Judges Abdus-Salaam and Fahey may be considered pro-accused when contrasted with that of some other members of the Court and of the Court itself.

On the other hand, the records of the Chief Judge and Judge Stein are somewhat pro-prosecution, especially when contrasted with those of Rivera, Abdus-Salaam, and Fahey. When added to the decidedly pro-prosecution records of Judges Pigott and Garcia, it is no surprise that the record of the Court as a whole leans pro-prosecution.

And that's probably the fairest way to put it. The early DiFiore Court has been leaning pro-prosecution.

Next, we'll see what can be concluded from the dissents thus far in the Court's decisions.

Part 6 - Observations: The DiFiore Majorities (Early DiFiore Court Patterns)

Let's see what can be gleaned from the facts and figures presented in the previous posts in this series. To be sure, some of what we've seen, especially when displayed graphically, has been quite stark. So what conclusions can be drawn about New York's highest Court since Janet DiFiore became Chief Judge? What observations can be offered about the early DiFiore Court of Appeals?

Let's start with majority voting. We've previously looked at how frequently each of the Judges voted in the majority in those closely divided, 4-3 decisions. (See Part 2 and Part 3.) As noted then, these cases are especially revealing. Any Judge voting in the very bare majority in those cases could have changed the Court's decision by changing sides. In short, each of those majority Judges cast a decisive vote.

Here, in a less cluttered graph, is what we saw:

(click any graph to enlarge.)

The Chief Judge voted in the majority in 90%, or 9 out of 10 of the 4-3 decisions rendered by the DiFiore Court to date.

(Although the data was specifically gathered for the first 6 months of DiFiore's tenure--covering the cases considered by the Court starting with its February 2016 session and decided in its March through August decision days--the data is actually accurate through the October 20 decisions.)

Again, what is particularly telling about these cases is that the Chief Judge, like the other Judges in the majorities in these cases, could have changed the outcome by changing her vote. Her vote, like theirs, was dispositive. But her vote was dispositive in more of these cases than that of any other Judge--in every case but one. The spectrum: 9 dispositive votes (90% of these cases) for DiFiore  to 4 such votes (40%) for Judge Jenny Rivera.

These figures strongly suggest that the Chief Judge was creating, or at least helping to create, majorities. They show that she was not simply joining the majority, because there was no majority in those cases without her vote.

Let's now look at all those cases where at least 2 Judges dissented--i.e., either by dissenting or by disagreeing with the majority on a significant substantive matter in a separate concurring opinion. These are the cases where the issue was sufficiently close, the competing arguments sufficiently strong, to split the Court 4-3 or 5-2 (or 4-2, in those cases where one of the Judges did not participate):

In this total of 18 cases, the spectrum is virtually the same. The Chief Judge is at one end with 94% (i.e., in the majority in each of the 16 cases in which she participated but 1). The closest to her is Judge Sheila Abdus-Salaam with 72% (i.e., in the majority in 13 of the 18 cases). At the other end of the spectrum, as she was when looking strictly at the 4-3 cases, is Judge Rivera, with 33% (or 6 of 18 cases).

(To repeat myself on a truism that I would hope is entirely unnecessary to restate: being in the majority and being in dissent do not equate with being right and wrong, wise and foolish, a better or poorer judge. Indeed, the "great dissenters"--whether at the Court of Appeals or the Supreme Court--are among the finest judges and justices in the history of each of those courts. But that's not the point of this discussion about majorities.)

To complete this examination of Judges in majorities, let's look at the figures when every divided decision is considered--where at least 1 Judge disagreed with the majority in a dissent or separate concurring opinion:

The spectrum remains virtually unchanged over this total of 31 divided decisions. The numbers are a bit different, but the position of the Judges on the spectrum has remained mostly the same whether looking at split decisions with 3 or 2 or 1 Judge disagreeing with the majority. The Chief Judge has been in the majority in every divided decision (and that means every decision period) except for one, i.e., 25 out of 26 or 96%. She is followed by Judge Abdus-Salaam with 25 out of 31 or 81%. Judge Rivera was in the majority the least, i.e., 13 out of 31 or 42%.

What we are seeing is truly a DiFiore Court, or at least a DiFiore-Majority Court.

Finally, in addition to telling us that the Court is in sync with the Chief Judge (and [or?] vice-versa), the figures and the spectrum we've been seeing reveal a good deal more. Let's start with just one--the single case in which Chief Judge DiFiore was not in the majority, People v. Berry (6/14/16). Here's the lineup in that 4-3 decision: 

To those who study the Court, the lineup itself--without any regard whatsoever for the specific issue in this criminal case--is a veritably foolproof indicator of how the Court ruled, i.e., whether in favor of the prosecution or the defendant.

The Judges whom the Chief Judge joined in dissent were Eugene Pigott and Michael Garcia. That's pretty strong indication that the dissent favored the prosecution. On the other side of the divide, the majority included Judge Rivera. Her vote--and even more so because joined by Judges Abdus-Salaam and Fahey--very strongly suggests that the majority supported the defendant.

Sure enough, that's exactly how the majority voted and the case was decided.

(For those who want to be reminded what the ruling in the case was: the evidence was insufficient to prove that the defendant had the requisite control over the children to be guilty of permitting them to be in the apartment with illegal drugs.)

So, the only case in which the Chief Judge was not in the majority was decided in favor of the defendant. And in that one case, the pro-defendant majority included Judge Rivera, who has been in the majority the least of any member of the Court. What does that tell us about the early DiFiore Court in criminal cases?

We'll take that up next.

Early DiFiore Court Patterns (Part 5 - Civil Appeals Voting)

In the last post, we looked at the voting patterns of the Court of Appeals Judges in criminal cases. We now turn to the civil appeals.

In the first 6 months of Janet DiFiore's tenure as New York's Chief Judge, the state's highest court divided in 13 non-criminal decisions. Of these, 8 had a clear ideological split. That is, the disputes involved tenant versus landlord, worker versus employer, patient versus hospital, consumer versus, manufacturer, and the like--traditional liberal/pro-tort plaintiff versus conservative/restrictive liability confrontations.

To be sure, a question naturally arises about the reliability of any conclusions drawn from a relatively small pool of cases. Actually, however, the fact that the Judges aired their disagreements infrequently might well suggest that those few disagreements that they did choose to air were deeply felt. The dissents (or substantive concurring opinions) in these 8 cases might well signify particularly strong views of the authors.

Beyond that, some voting records may be so pronounced, even though the pool of cases is relatively small, that the patterns may be somewhat confidently extrapolated. Records that are ambiguous, because not clearly evincing a pattern, may tell us little. But a record that is absolute or especially one-sided likely reveals the Judge's strong leanings and deeply held perspectives on the issues.

So let's look at the Judges' voting records in these 8 divided civil decisions and see what if anything they reveal:

(click to enlarge)

And here is the flip-side of those same records: 

What immediately stands out is the 100% (or 0%) record of Judge Eugene Fahey. Voting the same way in every case. He participated in 6 of the 8 cases and, in each of those cases, he sided with the party complaining of being injured by the negligence or wrongdoing of a landlord, employer, health professionals, or other civil defendant. Moreover, in 3 of those 6 cases, he publicly took issue with the majority of his colleagues in a dissenting opinion. There is no mistaking Fahey's passionate leanings in these kinds of cases.

(We saw a similar very sympathetic perspective toward victims in Judge Fahey's record at the Appellate Division. See Judge Fahey's 'Tendencies.') 

As might well be expected from Judge Jenny Rivera's strongly liberal record in criminal cases, her record is strongly liberal in these civil appeals as well. She participated in all 8 cases, and she sided with the complaining injured party in 6 of them. In 2 of those she authored a dissenting opinion. In one she was by herself, [Fahey did not participate in that one.] In the other, she was in the 4-3 minority,

At the other end of the Court's civil appeals spectrum are Chief Judge Difiore, and Judges Eugene Pigott and Michael Garcia. [DiFiore's figure is slightly different because she did not participate in one of the cases.] Their records may not be quite as categorical as Fahey's. But they are nearly so.

DiFiore, Pigott, and Garcia each voted for the civil defendant--i.e., the landlord, employer, hospital, etc.--in every case but one. Beyond that, in the 3 civil appeals that were decided by a 4-3 vote--where they were part of the majority and, thus, a switch by any one of them would have changed the outcome--all three of them voted against the complaining injured party.

The remaining two Judges, Sheila-Abdus-Salaam and Leslie Stein, have voting records siding some of the time with the injured party and some of the time with the civil defendant. In fact, Abdus-Salaam's votes were divided equally, and Stein's votes almost so. [Stein did not participate in one of the cases.] On the other hand, though their numbers may be similar, they did not necessarily vote together in these cases. Indeed, they were on opposite sides in 3 of the 7 cases in which they both participated.

Finally, for those who like to see all the data in one neat, though noisy, package, here's that single graph: 

In the next post, we'll conclude with some overall observations.

Early DiFiore Court Patterns (Part 4 - Criminal Appeals Voting)

We've previously looked at how frequently each Judge on New York's highest court has been dissenting (See Part 1). We then looked at the lineups in the Court's 4-3 decisions, as well as how frequently each Judge has been in the majority in those closely divided decisions (See Part 2 criminal cases; Part 3 civil cases and totals).

Now let's take a look at the Court of Appeals Judges' ideological voting patterns in the criminal cases. How frequently has each Judge been siding with the accused? How frequently with the prosecution? More specifically, what are the Judges' voting patterns in those cases where some of them took a more pro-prosecution position than did other members of the Court? Or a more pro-accused position than others?

The figures and graphs that follow reflect every divided criminal decision rendered by New York's high court in the first 6 months of Janet DiFiore's tenure as Chief Judge. That is, every case beginning with those heard in February of this year when DiFiore first presided over arguments, through those decided on the Court's August 30th decision day.

These divided criminal cases encompass all those where a dissenting opinion argued for a result that was more favorable either to the accused or to the prosecution than that rendered by the majority. These also include all those where a separate concurring opinion took issue with the majority on a significant substantive matter, e.g., arguing for a different rule of law that was either more protective of the rights of the accused or was more supportive of the prosecution.

There were 17 such decisions during this early 6-month period of the DiFiore Court. The following graphs reflect the voting of the Judges in these cases.

The first graph displays the percentage of cases in which each Judge voted in support of a position more favorable to the rights of the accused than others on the Court did. These votes are denominated "Liberal/Pro-Accused."

(click to enlarge)

(N.B., the flip-side, "Conservative/Pro-Prosecution" graph is included below.)

As this graph shows quite vividly, Judge Jenny Rivera, who we've previously seen is the Court's most frequent dissenter by a wide margin (See Part 1.), also has the Court's most liberal, pro-accused voting record by a wide margin. Indeed, each of her fairly frequent dissents argued for a more pro-accused position than that adopted by the majority. Moreover, as her 94% liberal record indicates, she sided with the more pro-accused position in every one of the 17 divided criminal cases but one. That was People v. Gray, in which she joined Judge Sheila Abdus-Salaam's majority opinion rejecting a ineffective counsel claim.

The voting record of Judge Abdus-Salaam happens to be the second most pro-accused on the Court. But her record, as well as the very similar one of Judge Eugene Fahey, is half as liberal as Rivera's. Notably, while Rivera has sided with the accused far more frequently than the Court and than any of her colleagues, Abdus-Salaam's and Fahey's records also fall on the pro-accused side of the Court's spectrum--albeit by a much slimmer margin than Rivera's.

On the opposite end of that spectrum is Judge Michael Garcia. He participated in 15 of the 17 divided criminal decisions. He did not cast a vote in favor of the more pro-accused position in any of them.

As we've previously seen, Garcia was in dissent in 5 of the 7 criminal cases where the Court was divided by a 4-3 vote. (See Part 2.) Among the most significant of those cases was People v. John, where he disagreed with the DiFiore-authored majority opinion that recognized a defendant's right to confront an analyst responsible for the prosecution's DNA report. Notably, Garcia authored no other dissent, nor any majority opinion in the divided criminal cases.

The next most pro-prosecution record on the Court during this period belongs to Judge Eugene Pigott. He authored 4 opinions in these divided criminal cases. In each one he took the more pro-prosecution position. In one of those, a dissent, he was joined not only by Garcia--as we just saw, not surprising--but also by DiFiore. It was the only case, criminal or civil throughout this period, where the Chief Judge joined (or wrote) a dissent.

In that case, People v. Berry, DiFiore joined Pigott's dissent which argued that the evidence presented did prove the defendant guilty of permitting children in an apartment with illegal drugs. DiFiore's record, in the 14 divided criminal cases in which she participated, is identical to that of the Court as a whole, except for that one case. As we saw previously (See Part 1.), the Chief Judge has been in the majority in every case since she joined the Court except one--Berry is that one.

Regarding Judge Leslie Stein, her 35% liberal/pro-accused record equals that of the Court as a whole. But, her record is identical to the Court's in number only. In the 4 opinions she authored in these 17 divided criminal cases, every one sided with the accused. Two of those were dissents. In one of them, she wrote in opposition to Abdus-Salaam's majority opinion in People v. Gray (mentioned above), arguing that defendant's trial counsel was ineffective for failing to seek a rehearing on a newly significant Miranda issue.

So that's the Liberal/Pro-Accused spectrum on the Court for the first 6 months of the DiFiore Court. Of course, that spectrum can be viewed from the reverse perspective. So, as promised above, here it is, the "Conservative/Pro-Prosecution" graph:

Nothing new. Just the flip-side of the spectrum in the first graph. Again, Judge Rivera's and Judge Garcia's records are decidedly the most Pro-Accused and Pro-Prosecution on the Court, respectively.

Finally. for those who'd like to see both sets of data in a single graph, here that is:

That's a bit noisy for me. But all the Pro-Accused and Pro-Prosecution figures, for each of the Judges and for the Court as a whole, is there in one tidy package.

In the next post, we'll take the same look at the civil cases.

Early DiFiore Court Patterns (Part 3 - The 4-3 Lineups [civil cases])

In the last post, we looked at the 4-3 lineups in criminal appeals. In this post, continuing with our examination of the first 6 months of New York's highest court under Chief Judge Janet DiFiore, we'll proceed to those 4-3 lineups in civil cases.

As was noted previously, the Court of Appeals divided 4 to 3 in a total of 10 cases during this 6 month period. Of those cases, 7 were criminal appeals, 3 were civil. Despite this much smaller number, however, several very notable patterns still emerge.

Here are the cases and their lineups [Again, click on any lineup pic to enlarge.]:

Civil Cases
Sherman v. NYS Thruway Auth. (5/5/16): the slip and fall claim was precluded because a storm was held to be still in progress.
[4-3]

Wally G. v. NYC Health & Hosps. Corp. (6/9/16): the city defendant's possession of the relevant medical records was held not to excuse the late notice of claim of the defendant's medical malpractice.

[4-3]

Pasternak v. Laboratory Corp. of Amer. (6/30/16): the airline pilot's causes of action in fraud and negligence against the defendants who performed and evaluated the FAA required random drug test were held to be not sustainable under New York law.

[4-3]

Alright, that's all there is. But as noted above, a few notable observations can be made (and are summarized in the graph below the following discussion).

Chief Judge DiFiore was in the majority in all 3 cases. Recall that she was in the majority in 6 of the 7 closely divided criminals cases--more frequently than any other member of the Court. That's a total of 9 out of the 10 decisions in which the Court split 4 to 3.

Judge Eugene Pigott was also in the majority in all of these civil cases. But that contrasts with his being in the majority in only 3 of the 7 closely divided criminal cases. That's a total of 6.

Similarly, Judge Michael Garcia was in the majority in all of these civil cases, but was in the majority in only 2 of the 7 corresponding criminal decisions. His total was 5.

Judge Sheila-Abdus-Salaam was in the majority in 5 of the 7 closely divided criminal decisions--she, along with Judge Eugene Fahey, was 2nd only to DiFiore on that score. But she was in the majority in only 1 of these civil cases. Total: 6.

As for Judge Fahey, his being in the majority in 5 of the 7 closely divided criminal cases sharply contrasts with his being in the dissent in all 3 of these civil cases. Total: 5.

Like Fahey, Judge Jenny Rivera was in dissent in all 3 civil cases. That means that her total being in the majority in all the 4-3 decisions was 4--all in criminal cases. That also means that she and Fahey, who voted together in all 3 of these civil cases, voted together, whether in the majority or dissent, in 7 of the total 10 closely divided cases: 4 criminal and 3 civil.

Rivera was together with Abdus-Salaam, the other multiple dissenter in these civil cases, just as many times: in 5 of the criminal cases and 2 of the civil.

Judge Leslie Stein was in the majority in 2 of the 3 closely divided civil cases. That number added to her majority votes in 3 of the corresponding criminal appeals brings her total to 5--exactly half of the 10 combined criminal and civil 4-3 decisions.

Here's all that in a graph:

(click to enlarge.)

Well, there it is in beautiful technicolor!

One last point about these 4-3 civil cases. In each one, the Court decided against the injured plaintiff seeking compensation. Is that a trend? A pattern when all the divided civil cases--not just the 4-3's--are considered? And is there a corresponding conservative pattern in the criminal cases? And patterns in the individual Judges' voting records?

We'll see beginning in the very next post.

Early DiFiore Court Patterns (Part 2 - The 4-3 Lineups [criminal cases])

As noted in the last post, New York's highest court has rendered 10 decisions with a bare 4 to 3 voting majority since Janet DiFiore assumed the position of Chief Judge. The lineups in those cases, where a single Judge's vote made the difference and could have changed the Court's ruling, are quite revealing.

Divided decisions, where the majority is opposed by a dissenting opinion or by a separate concurring opinion on a significant substantive matter, provide insights into the Judges' strongly held positions. These are the positions held firmly enough and considered important enough that disagreements within the Court are expressed openly. And those 4-3 divided decisions, where the majority prevailed by a single vote--where a switch in just one of those votes would have switched the majority--may be the most revealing of all.

Let's take a look at the lineups in those cases [Click on any lineup pic to enlarge.]:

Criminal Cases
People v. Johnson (3/29/16): admitting the co-defendant's out-of court statement was reversible error.
[4-3]

People v. Badalamenti (4/5/16): a concerned parent had "vicarious consent" to record his minor child's conversation with the other, abusing parent; the prosecution could use as evidence.

[4-3]

People v. Nelson (4/5/16): though harmless in this case, it is error for a trial judge to allow spectator shirts bearing a deceased victim's photograph in the courtroom.

[4-3-0]

People v. John (4/28/16): a defendant has the right to cross-examine an analyst behind the government's DNA report.

[4-3]

People v. Frankline (6/9/16): though not prejudicial in this case, it was error for the prosecution to introduce the defendant's past crimes.

[4-3-0]

People v. Berry (6/14/16): the evidence was insufficient to prove that the defendant had the requisite control over the children to be guilty of permitting them to be in the apartment with illegal drugs.
[4-3]

People v. McCullough (6/28/16): the trial judge did not abuse discretion in concluding that the corroborating evidence was sufficient to establish that the eyewitness identification was reliable.
[4-3]

These are the 7 criminal decisions rendered by a  4-3 majority in the first half-year of the DiFiore Court. Stated differently, these are the 7 criminal cases where the actual ruling announced by the Court--i.e., the disposition and the rule of law--was decided by a single vote.

We will look at the civil cases in the next post. But before we do, let's consider a few quick observations about these 4-3 criminal cases.

Chief Judge DiFiore was in the majority in all but one of these closely divided cases. No other member of the Court was in that single-vote majority as frequently. No other member of the Court could have changed as many of the Court's rulings--6--by changing their votes.

Right behind DiFiore were Judges Sheila Abdus-Salaam and Eugene Fahey. They were each in the majority in 5 of these 4-3 decisions and, therefore, each of them could have changed the Court's rulings in 5 of these cases by switching sides.

At the other end of the spectrum was Judge Michael Garcia. He was in the majority in only 2 of these cases. That is, in 5 of these 7 closely divided criminal decisions, he was either dissenting or expressing a significant substantive disagreement with the majority in a separate concurring opinion. In short, in most of these 4-3 criminal decisions, his vote was unnecessary to the majority, and a change in his vote would not have affected the Court's ruling.

Now, lest any of this be misconstrued, let me be clear. Voting in the majority hardly equates with being right or wise or more faithful to legal principles or precedent. And disagreeing with the majority hardly means the opposite. Indeed, every student of the law knows well that majority opinions often fail the test of time and dissenting positions are often vindicated. But those are matters far beyond the recitation of lineups and the counting of votes with which we are concerned here.

On the other hand, the lineups and the votes do reveal which Judges' positions are prevailing and which are not. Which Judge or Judges are leading the Court, or helping to take it to their preferred positions, or are at least in sync with the Court's direction. And which Judge or Judges are not.

We will be looking at the Judges' voting patterns in coming posts. But in the very next one, we will look at the Court's 4-3 decisions in civil cases.

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.