Court of Appeals: What Lippman Inherited (Part 2 - Criminal Law Voting Spectrum)

The first post in this series on the New York Court Watcher introduced the subject of the court inherited by Jonathan Lippman as the successor to now-retired Chief Judge Judith Kaye. Who are the Judges who make up the court over which Lippman now presides? More specifically, how have these new colleagues of his been voting on the state's highest court before he arrived on the scene? What are their track records? Our examination has begun with criminal cases. (See Court of Appeals: What Lippman Inherited (Part 1-Criminal Law Voting), March 8, 2009.) Let's take another look, with a couple of new graphs to help.

GRAPH 1
The Court Before Lippman
Criminal Law Voting Spectrum
(click to enlarge)

This graph is a reorganization of the one included in the March 8 post. The Judges are reordered to illustrate more clearly the Court's spectrum of pro-defendant voting--i.e., voting for the position more favorable to the criminal suspect or accused--from the most, Judge Theodore Jones, to the least, Judges Victoria Graffeo and Susan Read.

[41 cases are reflected in the graph (and in the one that follows). They represent every divided criminal law decision rendered by the Court of Appeals for the 3 year period, from calendar year 2006 through 2008. For the purposes here, that includes every non-unanimous result reached by the Court--i.e., at least 1 Judge dissented from the Court's disposition of the case. (Unanimous results accompanied by separate concurring opinions are not included, except where the disagreement on the controlling rationale for resolving the case is substantial enough that the concurrence more nearly resembles a dissent--4 of the 41 cases are of that sort.) 3 years was chosen simply to insure that the data are recent enough not to be stale and yet the period is long enough to be significant. The most recent 2 years are separately depicted as well; that is the period since Judge Jones, the last appointee before Lippman, joined the Court. (See New York Court of Appeals: The Jones Factor in Criminal Cases (Part 2) , August 19, 2008.)]

As depicted in GRAPH 1, the three Judges appointed by Democratic Governors have voting records more pro-defendant (read "liberal") than the Court as a whole. That's Mario Cuomo appointees Judith Kaye and Carmen Ciparick, and Eliot Spitzer appointee Theodore Jones. Not unexpected. Likewise, the four Judges appointed by Republican Governor Pataki have voting records that are more pro-prosecution--i.e., less pro-defendant--(read "conservative). That's Susan Read, Victoria Graffeo, Eugene Pigott and Robert Smith. Again, not unexpected.

But when the very same data is depicted a bit differently on the same basic graph, some less expected patterns are highlighted.

GRAPH 2
Lippman's New Colleagues
Criminal Law Voting Spectrum
(click to enlarge)

With retired-Kaye and the Court as a whole removed from the graph, and with space injected to separate some of the Judges, what emerges is 3 pretty distinct pairings among the current Court's membership.

Judges Jones and Ciparick have the most unmistakably pro-defendant (i.e., most liberal) voting records in criminal cases. Jones' record is, in fact, even distinct from Ciparick's in being so strongly pro-defendant. Indeed, in the 2 years that Jones has been on the Court, there has been a noticeable upswing in the pro-defendant records of both Ciparick and Kaye and of the Court itself. (On this last point, refer back to GRAPH 1, as well as to the August 19, 2008 post cited above.)

At the other end of the Court's ideological spectrum are Judges Graffeo and Read. They have the most unmistakably pro-prosecution (i.e., most conservative) voting records of Lippman's new colleagues. About 1/3 as pro-defendant as Ciparick's record; about 1/4 as pro-defendant as Jones's. (Reminds me of the startling contrast between Vito Titone's record [liberal] and Joseph Bellacosa's [conservative] during their overlapping years on the Court. Think also of Ruth Bader Ginsburg versus Antonin Scalia on the Supreme Court.)

But then there are the other two Republican (Pataki) appointees: Judges Smith and Pigott. Their voting records are twice as pro-defendant as Graffeo's and Read's. Yes, twice as liberal. Indeed, both Smith and Pigott have voting records as close to Ciparick's as to their fellow Pataki appointees. Their voting places them at the Court's center. Not only as the pair midway between the more liberal Jones/Ciparick and more conservative Graffeo/Read, but also (as depicted in GRAPH 1) with voting records which are ideologically very close to the decisional record of the Court as a whole.

So where will Lippman fit in? With Jones/Ciparick, Graffeo/Read, or Smith/Pigott? Or will his voting place him in between one of those pairs, or even outside one of the Court's current ideolgical ends? Maybe his presence will change the Court's dynamics and actually alter it's ideological spectrum. Time will tell.

But as for now, the Judges' voting spectrum in criminal cases is quite clear, and three ideological pairings are remarkably well-defined.

In the next post in this series we'll take a look at the voting alignments in criminal cases. Not just the ideological similarities, but who's voting with whom, as well as who's voting in the majority.

(Part 3) NY Court of Appeals: Criminal Leaves Still Up & Still Uneven

[Dateline: Back home.

But now I'm beset with some dreadful winter illness. I suppose it's payback for 2 weeks in the glorious Sonoran Desert sun of Arizona. Nevertheless, onward with the final installment on this CLA series.]

As many readers are aware, the decision for New York's highest court to hear an appeal in a criminal case is made by a single Judge. Criminal Leave Applications (CLA's) are assigned randomly and equally among the Judges. The decision to grant or deny each application rests solely with the Judge to whom it has thus been assigned.

With that in mind, take a look:

(click graphs to enlarge)

GRAPH 1

Yes, those are the average number of CLA grants by Judges Robert Smith and Susan Read, respectively, over the last 2 years. The highest and lowest granters on the Court today.

So, does it make a difference? Specifically, a difference which Judge is assigned a particular CLA? Is there a greater chance that an application will be granted if it is assigned to some Judges rather than to others?

To put it bluntly, is the success of a CLA as much about the luck of the draw as it is about intrinsic merit? Is it simply much luckier to have a CLA assigned to some Judges and not others? Does the fate of a criminal case depend upon which Judge is assigned the application?

Well, for years there's been as much grumbling about that as about the dwindling number of CLA's being granted. As we have seen in previous posts, however, CLA grants have increased dramatically under Chief Judge Jonathan Lippman.

And yet, there remains the question--no, let's not mince words--the real problem about the luck of the draw. That is, the difference among the Judges in granting CLA's. The difference in their willingness to grant applications assigned to them.

Let's take another look at some of the numbers we've been dealing with in this series.

New York Court of Appeals: More Dissents in Kaye Court (Part 2: Who? How Many? What?)

The Court of Appeals has begun its summer break. The 2007-'08 year has thus come to an end. As of July 1, all the remaining cases heard by the court this past spring have been decided. It is now possible to calculate the final numbers for those preliminary statistics on dissents that were given previously on the New York Court Watcher blog. (See, New York Court of Appeals: More Dissents in Kaye Court, posted on June 28.)

The total number of dissents for the five year period just ended--i.e., from 2003-'04 to 2007-'08--was 162. That contrasts quite sharply with the number of dissents for the immediately preceding five years--i.e., from 1998-'99 to 2002-'03--which, as stated in the earlier posting, was just 69. That's nearly a 100 dissent increase from one period to the next. That's more than double. To be more precise, the increase was 133%.

[Background: As stated in the June 28 post, the dramatic increase in dissents coincides with the making of a Pataki majority on the court. Shortly after his election as Governor in 1994, the Republican Pataki began a campaign of publicly rebuking the court for being too liberal, for coddling criminals, for caring more about criminals than victims, etc. etc. etc. He made it clear that he intended to appoint judges who were much more law-and-order oriented than those on the court at the time--not coincidentally, all of whom had been appointed by his election rival, the Democratic Governor Mario Cuomo. By the start of the 2003-'04 court year, in his third and final term as Governor, Pataki had appointed four of the seven judges. He had done so a few months earlier with the appointment of Susan Read. Several months later, when his first appointee, Richard Wesley, left the court for the federal 2d Circuit bench, Pataki maintained his majority on the New York court with the appointment of Robert Smith. So in the 2003-'04 court year, the first year of the most recent five year period, the Pataki judges outnumbered the others.
The Pataki majority persisted throughout the five years--it continues today. In fact, for a very brief period, Pataki had a 5-2 majority on the court. Pataki declined to reappoint Cuomo appointee George Bundy Smith when the latter's term came to an end in the fall of 2006. Instead, Pataki appointed Eugene Pigott. But within a few months, Pataki appointee Albert Rosenblatt retired, and his replacement fell to the newly elected Governor, Democrat Eliot Spitzer, who appointed Theodore Jones in January 2007. So at the start and at the end of the past five years, Republican Pataki has had a majority of four appointees on the court. (Then in 2003, Wesley, Victoria Graffeo, Rosenblatt, Read -- now in 2008, Graffeo, Read, Robert Smith, Pigott.) The remaining three judges were, and are, Democratic appointees. (Then, Chief Judge Judith Kaye, George Bundy Smith, Carmen Ciparick -- now, Kaye, Ciparick, Jones.)]

Now back to the dissent numbers!
The increase is in large measure attributable to two of Pataki's appointees: Robert Smith and Susan Read. Together, they alone wrote as many dissents these past five years--i.e., 65--as the entire Court of Appeals did in the previous five year period. Smith penned 37 dissents in his 4 1/2 years on the court. Read, 28 over the full five years. Those numbers compare, for example, to those of the remaining Cuomo appointees on the court: Kaye authored only 9 over the five year period; Ciparick, 12.
Of the two other Pataki appointees currently on the court, Victoria Graffeo wrote 13 dissents these past five years--just slightly more than the Cuomo appointees. But Eugene Pigott authored 12 in his slightly less than two years on the court. The remaining judge, Spitzer appointee Theodore Jones, has written 3 dissents since he joined the court 1 1/2 years ago.
Let's look a bit more closely at these dissenters and their dissents. Some fascinating goings on here--well, fascinating at least for court junkies. But important for everyone living or working in New York. We're all affected by what's happening at our high court.
There are three pairs of judges at the court whose dissents fall into clear patterns. Let's focus on that. First, there's Graffeo and Read. With these two, Pataki got what he said he wanted: staunchly pro-prosecution judges. Their overall voting patterns show it. (See for example, the graphs in my "Court of Appeals of New York State: The Judges, The Selection Process, Making the Current Court," Rockefeller Institute, October 15, 2007; available at http://ssrn.com/author=1031212.) Not surprisingly, their dissents show it as well. Of Graffeo's 13 dissents, she wrote 8 in criminal cases. (That number is 9 if a quasi criminal consumer fraud case is included.) In every one, she took the side of the prosecution. In every one, she disagreed with the majority which found some merit in a defendant's arguments. Likewise for Read. Of her 28 dissents, 8 were in criminal cases. All pro-prosecution.
Second, there's Kaye and Ciparick. They are the opposite of Graffeo-Read, if not as strongly so. (Again, see for example "Court of Appeals of New York State etc.," cited above.) Of Kaye's 9 dissents, 2 were in criminal cases; both were pro-rights of the accused. Of Ciparick's 12 dissents, 5 were in criminal cases; in all, she sided with the defendant. Another significant pattern is the extent to which these two judges join each other. Kaye joined 10 of Ciparick's 12 dissents, including all 5 of Ciparick's pro-defendant dissents in criminal cases. Ciparick, in turn, joined 7 of Kaye's 9 dissents; that includes 1 of Kaye's 2 dissents in criminal cases. Looked at from a different angle, Kaye and Ciparick have been on different sides only 4 times in the past five years. They have been a very tight voting block of two.
Third, the final pair is Smith (Robert, not George Bundy) and Pigott. They are not a pair in the sense that Kaye and Ciparick are. They are not a voting duo. But neither are they a pair like Graffeo and Read. And that is what is so significant. These two Pataki appointees are NOT nearly as strictly pro-prosecution. To be sure, they are not liberals. They are not reliably sympathetic to the arguments of the accused in close cases. But neither can either of them be relied upon in the close cases to cast a law-and-order" vote. They are not the "Pataki judges" that Graffeo and Read are. (Again, see for example "Court of Appeals of New York State etc.," cited above.) Specifically regarding dissents, of the 37 that Smith wrote, 10 of them were in criminal cases. In 5 of them--half of them--he sided with the defendant, taking issue with the majority of the court for inadequately protecting the rights of the accused. As for Pigott, in his almost two years at the court, 5 of his 12 dissents were written in criminal cases. Only 3 were pro-prosecution. That may seem a small number, but it is significant.
All these dissent numbers--not only Pigott's, but Smith's and Graffeo's and Read's and Kaye's and Ciparick's as well--represent instances where these judges felt strongly enough about a case to go public with a disagreement over a decision of their very collegial court. Dissents are not taken lightly. They are personal matters of principle. They represent only a small proportion of the disagreements that the judges actually have with each other. Most of these disagreements, perhaps aired internally when the judges conference, never see the light of day. There are many reasons. Workload, not sufficiently critical, feelings not sufficiently strong, conflict avoidance, etc., etc. But whatever the reason in any given case, what all this means is that the number of written dissents is but a fraction of the actual number of disagreements. And these written dissents, the few disagreements gone public, reflect much more than their numbers might suggest. They provide insights into other disagreements that are never made public. They afford us the strongest indications we have of the authors' strongest feelings, views, philosophies, tendencies, and ideological leanings--which, of course, come to play in many other cases.
Dissents are up--way up--at the New York Court of Appeals. That tells us a lot. About the court itself and about its members.

Scalia & Kennedy - Graffeo & Read (Part 2 of Supremes vs NY Court of Appeals: Judicial Output [with Charts!])

In the last post, we compared the judicial output of Chief Justice Roberts with that of New York's Chief Judge Lippman. We saw that Lippman authored nearly twice as many judicial opinions as Roberts did last year (Aug. 2012 thru July 2013). That included more than twice as many majority opinions, and more than twice as many dissents as well.

Let's now take a look at the judicial output of the next two most senior members of each court. On the U.S. Supreme Court, that would be Justices Antonin Scala and Anthony Kennedy. On the New York Court of Appeals, that would be Judges Victoria Graffeo and Susan Read.

Let's first look at the total opinions written by each of them last year.

CHART 1

(click to enlarge)

The picture is a bit less straightforward than it was when we juxtaposed Roberts' and Lippman's records. The total number of judicial opinions by New York Judges Graffeo and Read, combined, is significantly higher than that of the Justices Scalia and Kennedy combined--48 as compared to 39.

But while New York's Judge Graffeo authored the most opinions of the four, Justice Scalia came next. He wrote more total opinions than did Judge Read, as well as more than his colleague Justice Kennedy. The latter wrote the fewest of all. He authored significantly fewer opinions than did either Scalia or Read, and only half as many as Graffeo.

Let's look inside these total opinion numbers. What about looking just at opinions written for the majority. [Actually, opinions written for the Court, including the unanimous ones.]

CHART 2

As the chart shows, when considering only those opinions that garnered the support of the majority of the Court--from a bare majority to unanimous--the picture is clearer. The two New York Court of Appeals Judges each authored many more majority opinions than either of the two Justices. Judge Graffeo wrote nearly three times as many majorities as did Scalia or Kennedy. Judge Read wrote twice as many as they did.

New York Court of Appeals: More Dissents in Kaye Court (Part 3: Read and Smith; and Pigott Too)

As was discussed in two previous posts on the New York Court Watcher blog (See, "New York Court of Appeals: More Dissents in Kaye Court," July 10 & June 28.), dissents have more than doubled at New York's highest court. From fall '03 to spring '08--the five year period just ended--there were 162 decisions with dissent. From fall '98 to spring '03, the immediately preceding five years, the number was 69--considerably less than half. The recent increase in dissenting opinions at the court coincides with former Governor Pataki's appointments of Judges Susan Read ( January 2003) and Robert Smith (January 2004). Indeed, as discussed in the earlier posts, Read's 28 dissenting opinions over the past five years, and Smith's 37 over the four and a half years in which he's been on the court, are much higher than the number of dissents authored by other judges.

Read's and Smith's numbers increase in significance when compared to those of the judges they replaced. Read's predecessor, Judge Howard Levine, authored 8 dissents in the five years prior to his retirement, from 1998 through 2002. During that same five year period, Smith's predecessor, Judge Richard Wesley, wrote only 2. That's Read's 28 vs. Levine's 8. Smith's 37 vs. Wesley's 2. A greater than three-fold and 18-fold increase, respectively!
Finally, since his appointment to the court by Pataki in September 2006, Judge Eugene Pigott has authored 12 dissents. Hence, in just two terms on the court (fall '06 to spring '08), he has already exceeded the 9 that Chief Judge Kaye wrote over the past five years. He has tied Judge Ciparick's 12 for those five years. And he has only one less than Judge Graffeo's 13 over that five year period.

It is clear that Judges Read, Smith, and Pigott feel much less tied to the tradition of consensus and unanimity or near-unanimity--a conspicuous preference for minimizing divisions--that had been a hallmark of the Kaye court for many years. The sharp rise in dissents beginning with Read and Smith has spelled an equally conspicuous ending of that tradition.

New York Court of Appeals: More Dissents in Kaye Court

In the closing years of Chief Judge Judith Kaye’s tenure on New York’s highest court, her colleagues have become increasingly divided. The number of decisions with dissent has risen dramatically. In fact, that number has more than doubled. In the last five years, the Court of Appeals has been divided in 161 cases ; there were only 69 such cases in the previous five-year period. Something has obviously changed the dynamics within the seven member tribunal.

There has been one conspicuous difference at the court during the five years in which dissents have risen so sharply. Throughout this period, from the ‘03 – ‘04 year to the current (and soon ending) ‘07 – ’08 term of the court, there have been a majority of judges who were appointed by former Republican Governor George Pataki. By the time this period had begun, Pataki appointees outnumbered judges selected by the previous Governor, Democrat Mario Cuomo. Pataki had appointed Susan Read a few months earlier to replace the retiring Cuomo-appointed Howard Levine. That gave Pataki a majority for the first time. Four members of the court were chosen by him; the remaining three by Cuomo. And Pataki’s 4 – 3 majority has continued to the present. (Actually, Pataki had a 5 – 2 majority for a very brief time. He replaced Cuomo-appointed George Bundy Smith with Eugene Pigott in September 2006. But in December of that year, one of his own appointees, Albert Rosenblatt, retired. The following month, Pataki’s successor, Democrat Eliot Spitzer, appointed Theodore Jones to fill the vacancy.)

But it was not just the fact of a Pataki majority that generated the doubling of dissents. It was who he appointed. His last three appointments to the court—two of whom were appointed during the recent five-year period, and one appointed immediately beforehand—have made the difference. Eugene Pigott was appointed nearly two years ago, at the start of the ‘06 – ‘07 term; Robert Smith four and a half years ago, in the middle of the ‘03 – ‘04 term; and Susan Read five and a half years ago, a few months prior to that term and to the five-year period in question. Each one of these judges has been authoring dissents at rates far higher than was the average for the court’s judges during the preceding five years. And each one of them has been authoring dissents at far higher rates than the two Cuomo appointees still on the court, Kaye and Carmen Ciparick.

Let’s do some comparing. The numbers are stark. Cuomo appointees Kaye and Ciparick authored 10 and 11 dissents, respectively, over the recent five-year period. By contrast, in his less than two years on the court thus far, Pigott, Pataki’s last appointee, has already authored 12. Pataki appointee Smith has authored 36 dissents in slightly less than five years. And Pataki appointee Read has authored 18 over the full five-year period.

Let’s look at the numbers from a different angle. Take Read’s rate of dissenting opinions, which is the lowest among Pigott, Smith and herself. If the court’s judges had averaged even her dissenting rate—i.e., each of the seven judges authored 18 dissents over five years—the total would be 126. That is in sharp contrast to the court’s 69 decisions with dissent during the previous five-year period (even when considering that some decisions generate more than one dissenting opinion).

The jump from 69 divided decisions to 161 is no trifle. It is a striking development. And it is one that cannot but have a significant impact on the decision-making process within the court, as well as on the decisions that are being produced. A future posting on the New York Court Watcher blog will look at some of the specifics of these increased dissents—e.g., who is dissenting in what kinds of cases and for what reasons.

NY Court of Appeals: Dissents Up With CJ Lippman [and graphs to show!]

(For the last couple of months, the posts on the New York Court Watcher have been focused on Sonia Sotomayor. The nomination, record, and confirmation of Judge --now Justice--Sotomayor who President Obama chose to replace David Souter on the Supreme Court.
Meanwhile, New York's highest court finished its winter/spring session and went on summer break. There's plenty to examine. Not only regarding the winter/spring session, but the entire 2008-2009 year. For the next few posts, however, let's look at that winter/spring session. Specifically, let's look at developments since Jonathan Lippman was sworn in as Chief Judge on February 25.
Some interesting and important developments to be sure.)

Dissents, and the divided decisions that they create, have been on the increase. As discussed in a series of posts around this time last year, the number of dissents at the court had more than doubled in recent years. The doubling coincided with the appointments of Judges Susan Read and Robert Smith, in 2003 and 2004 respectively, and the resulting majority of Pataki appointees on the court. (Cites/links below.)

The dissents have not abated with the new Chief Judge. Instead, they have increased even more. Indeed, the number of dissents from March through July (which represent the cases since Lippman's first full session of oral arguments) was higher than the number for any other such period in any recent year. Substantially higher than the number for most years. And notably higher than the number for the last few years which, in turn, were considerably higher than for the preceding years. In short, a significant increase in dissents.

Here's a graph that shows it.
GRAPH 1
Dissents in the (early) Lippman Court
(click to enlarge)

As Graph 1 shows, the number of dissents in Lippman's first few months as Chief Judge is the highest for any like period depicted. The number began in the low to middle single digits in the first few years of the decade It then doubled that in the years immediately following the appointments of Judges Read and Smith (i.e., 2004 & 2005). And it jumped again this past year with Lippman at the helm.

Many questions arise. One of them is: Who's been doing the dissenting?

We've seen in the earlier posts that Judge Robert Smith was a frequent dissenter. Judge Susan Read, although not as often as Smith, had been dissenting more than others on the Court. Also, we noted that Judge Eugene Pigott seemed more than willing to break with the majority of his colleagues as soon as he joined the Court. No rookie effect for him. As for Chief Judge Judith Kaye, we saw that she dissented quite infrequently.

Let's see how the Judges of the Court did with the new Chief. And how he did as well.
GRAPH 2
Who's Dissenting in the (early) Lippman Court?
(click to enlarge)

Graph 2 depicts both the number of dissenting opinions each Judge wrote since Lippman became Chief, and the total number of dissents--written or joined--during that period.

Judge Smith leads his colleagues in written and total dissents. He's followed by Judge Pigott.

Interestingly, in contrast to what we've seen from Judge Read over the previous several years, she was not one of the leading dissenters in this early Lippman period. And speaking of Lippman, he was in dissent more frequently than any of his colleagues other than Smith and Pigott. (That's a big change for the Judge seated in the center. We'll return to that shortly.)

Let's reorganize the graph in descending order of dissenting frequency. (I.e., from highest to lowest--and that reminder is for my benefit as much as anyone else's.)
GRAPH 3
Dissenters in the (early) Lippman Court (descending order)
(click to enlarge)

Again, same data, just reorganized. Nothing new.

But this reordering of the Judges does make particularly vivid the wide spectrum of dissenting frequency. From Judge Smith to Judge Victoria Graffeo. An extraordinary difference. Perhaps reflecting an extraordinary difference in how they view the value of dissents--as much as how frequently they each actually agree with the majority's position. Is a disagreement with the majority worth a dissent? Is unanimity, acquiescence, and collegiality more important than expressing one's differing position? No doubt these two Judges have very different views on those questions.

And what about the new Chief and the old? As again depicted in Graph 3, Lippman has not been an infrequent dissenter in his first few months on the Court. How does his record compare with that of his predecessor?

The following graph adds Chief Judge Kaye's dissenting record for the same period last year (i.e., March through July 2008). Her record is depicted immediately adjacent to Lippman's for the contrast.
GRAPH 4
Dissenters in the (early) Lippman Court, with Kaye
(click to enlarge)

Could the contrast be more stark? Kaye, a firm believer in as much unanimity, as frequently, as possible, dissented much less frequently last year than Lippman did this year. In fact, Kaye dissented less last year than any Judge on the Court dissented this year. As Chief Judge, Kaye typically dissented infrequently. Last year was not out of the ordinary for her. (Her record was discussed along with those of her colleagues in those previous posts about dissents at the Court. The cites/links are given below.)

Soooo, dissents are up at the Court of Appeals. They're up from where they were already up! They're up from last year--Chief Judge Kaye's last year on the Court. And they're up for the new Chief Judge compared to what they were for his predecessor.

No honeymoon for Lippman? Or maybe he simply doesn't put as high a premium on unanimity as Kaye did.

In any event, the next posts will look a little more closely at the dissents and dissenters, what their individual and collective records may tell us, how those records compare with those from the past few years, and what the changes might signify.


(The doubling of dissents in recent years was explored on New York Court Watcher in New York Court of Appeals: More Dissents in Kaye Court (Part 3: Read and Smith; and Pigott Too), July 23, 2008; (Part 2: Who? How Many? What?), July 10, 2008; More Dissents in Kaye Court, June 28, 2008.)

NY Court of Appeals: Granting Criminal Appeals--Up, Down, Now Up Again? (Part 10: Who's Granting Now?)

Haiti
***************

It's Lippman, Graffeo, and Read. They're the ones who made the difference in 2009.

But first an update. The latest available data for 2009 shows that additional criminal appeals were filed in the last few days of the year. Here's what the latest tally of criminal leave applications (CLA's) granted last year looks like.
GRAPH 1
Total CLA's Granted by COA Judges
1999-03 Avg. & 2004-08 Avg. vs. 2009
(click to enlarge)

77 CLA's granted by Court of Appeals Judges is the latest total. (This total is derived from the latest available data on Westlaw, Lexis-Nexis, and the Court's own published case filings.)
As we've seen previously on New York Court Watcher, even with less complete totals, the number of grants in 2009 represents a very sharp increase from recent years.

Graph 1 depicts the contrast between the total grants for 2009 and the average annual number for the 2 most recent 5-year periods: '99 through '03, and '04 through '08.

Because averages can be misleading, let's look at the contrast between the number of grants in 2009 and the number for each of those preceding 10 years.
GRAPH 2
Total CLA's Granted by COA Judges
1999-2008 vs. 2009
(click to enlarge)

Again, as we've seen previously, the 2009 grants far exceed those for any individual year in the recent past. Graph 2 depicts just how sharp the contrast is.

Moreover, this jump in 2009 seems the result of a deliberate policy change at the Court. An article in the New York Law Journal last April, on the low rate of CLA grants in recent years, was met with Chief Judge Jonathan Lippman's expressed concern and intent to address the issue. Some change was apparently then adopted within the Court, and CLA grants are now up.

So who's granting more CLA's now? Let's look.

NY Court of Appeals: Granting Criminal Appeals--Up, Down, Now Up Again? (Part 8: Who Was & Wasn't Granting the Previous 5 Years)

GRAPH 1
CLA's Granted by Each COA Judge
Ann. Avg. & Each Year, 2004-08
(click to enlarge)

Graph 1 tells the whole story. Well, the story to be told in this post. That is, the number of CLA's granted by each Court of Appeals Judge in each of the previous 5 years, and each Judge's annual average over that period.

(A less cluttered and more digestible graph [#8] at the end of this post is a veritable nutshell of the highlights. Take a look now if you want to cut to the chase--you know, like going right to the bottom line, or the black-letter law of a case.)

A quick glance at Graph 1 shows the wide range of CLA granting among the Judges. There were a total of 9 Judges who were members of the 7-member Court at some time during the 5 years. (Some were on the Court the entire 5-year period. Others retired during that time, and still others were then appointed to replace them.)

Another quick glance shows that, among the total of 9 Judges, Eugene Pigott granted CLA's at the highest rate. Susan Read at the lowest.

But there's an awful lot of data crowded into that graph. Let's unpack it into more digestible pieces. But first, briefly recall some of what we've seen in earlier posts in this series in the New York Court Watcher. Just to give some quick perspective to what we're discussing here.

Supreme Court Wrap Ups (On Air Commentary)

The last several days have been a whirlwind of on air interviews about the Supreme Court's end-of-term decisions: Obamacare subsidies, same-sex marriage, lethal injection, etc.
Plus, at the state level, New York Court of Appeals Judge Susan Read announced her early retirement for the state's high court.

For anyone interested, here are links to a few of the interviews:

Fred Dicker: Live from the State Capitol! (6/30/15)
New York State STOPS...to hear Fred Dicker!
TUESDAY: ALBANY LAW SCHOOL PROF. VIN BONVENTRE: MY TAKE ON THE IMPORTANT ROUND OF NEW U.S. SUPREME COURT DECISIONS.
Link: www.talk1300.com/CMT/podcast/LiveFromtheStateCapitolJune302015.mp3 (@ 29:00 -49:00 mins) 

Fred Dicker: Live from the State Capitol! (7/31/15)
New York State STOPS...to hear Fred Dicker!
WEDNESDAY: ALBANY LAW SCHOOL PROF. VIN BONVENTRE PART II: A CONTINUING DISCUSSION ON THE U.S. SUPREME COURT'S FINAL DECISIONS, PLUS THE SIGNIFICANCE OF COA'S ASSOCIATE JUDGE SUSAN READ'S DECISION TO RETIRE.
Link: www.talk1300.com/CMT/podcast/LiveFromtheStateCapitolJuly12015.mp3 
(@ 29:30 - 49 mins) 

The John Gomez Show, LI News Radio (6/29/15)Gomez with Professor BonventreLink: https://soundcloud.com/jvcbroadcasting/gomez-with-professor-bonventre?in=jvcbroadcasting/sets/the-john-gomez-show-on-li-news

Capital Tonight (6/29/15)

Monday was the last day of the Supreme Court's term for this year, and while their two blockbuster decisions came last week the judges did weigh in on some big issues, including the death penalty and redistricting. Albany Law professer and New York Court Watcher blogger Vin Bonventre joined us to talk more about these issues.
Link: http://www.twcnews.com/nys/capital-region/capital-tonight-interviews/2015/06/29/vin-bonventre-062915.html#

Capital Tonight (6/29/15)

The US Supreme Court delivered a huge victory to President Obama today, upholding a key part of the Affordable Care Act.  That decision means millions of Americans across the country who enrolled through state health exchanges will not lose their insurance. Vin Bonventre from Albany Law School joined us to discuss.
Link: http://www.twcnews.com/nys/capital-region/capital-tonight-interviews/2015/06/25/vin-bonventre.html

NYCOA: Cuomo's Latest Two Nominees (Part 2--Some Perspective)

Governor Andrew Cuomo has now nominated 4 Judges for New York's 7-member Court of Appeals. Hence, if Appellate Division [The state's mid-level appeals court.] Justices Leslie Stein and Eugene Fahey are confirmed by the state's Senate, as is widely expected, this Governor will have appointed a majority of New York's high court.

Selection by appointment was adopted for the state's high court Judges in 1977--thus ending the previous system of partisan elections. Since then, 3 Governors have had the opportunity to appoint a majority of the Court's sitting members. Those 3 are Mario Cuomo, George Pataki, and now Andrew Cuomo.

Let's take a look at their appointments.

Mario Cuomo
Richard Simons (Republican, Upstate)
Judith Kaye (Democrat, NYC) [Assoc. Judge & Chief Judge]
Sol Wachtler (Republican, L.I.) [elevated to Chief Judge]
Fritz Alexander (Democrat, NYC)
Vito Titone (Democrat, NYC)
Stewart Hancock (Republican, Upstate)
Joseph Bellacosa (conservative independent. Upstate/NYC)
George Bundy Smith (Democrat, NYC)
Howard Levine (Republican. Upstate)
Carmen Ciparick (Democrat. NYC)

George Pataki
Richard Wesley (Republican. Upstate)
Albert Rosenblatt (Republican. Upstate)
Victoria Graffeo (Republican. Upstate)
Susan Read (Republican. Upstate)
Robert Smith (Republican. NYC)
Eugene Pigott (Republican. Upstate)

Andrew Cuomo
Jenny Rivera (Democrat. NYC)
Sheila Abdus-Salaam (Democrat. NYC)
Leslie Stein (Democrat. Upstate)
Eugene Fahey (Democrat. Upstate)

Governor Mario Cuomo's nominations were truly diverse. Not only by gender, race, ethnicity, and geography, but by political party as well. Indeed, even the ideological diversity of his appointees could hardly have been more pronounced.
Regarding the latter, there was Vito Titone and Carmen Ciparick, both Democrats and both compiled unmistakably liberal records. Then there was Richard Simons and Joseph Bellacosa, one Republican and one independent, but both had records just as unmistakably conservative.

Governor George Pataki's nominees, by sharp contrast and design, were a veritable sea of red. Expressly insistent on placing tougher law and order Judges on the Court, he appointed all Republicans. Beyond that, his 6 appointees have, in fact, all been at least somewhat ideologically conservative. They have ranged from the  moderately so, such as Albert Rosenblatt, to the more staunchly and consistently so, such as Susan Read.

Governor Andrew Cuomo's nominees, as we have noted on other occasions, have all been Democrats. The pattern of his 4 nominees to date has been more like Pataki's than like his father's. Partisan uniformity. Political homogeneity. All 4 the same political party. All 4 at least somewhat liberal--from moderately so to very much so.

Let me be clear. Andrew Cuomo's nominees will likely vote more like I prefer, and like I would, than the Republicans appointed either by his father or by Pataki generally would. I will most likely be delighted by the increasing protection of the rights of the accused, the worker, women, minorities, and the environment--to name just a few matters--that can be expected with a Democratic majority on the Court.
(And I'll go further: there are other Democrats I would love to see appointed to the Court.)

But there is a danger in politically uniform appointments, in appointments along party lines. A variety of perspectives--political, ideological, philosophical, etc., etc.--is always healthy. Some balance. Some variety. A mix.

Not a "mix" like the U.S. Supreme Court. No, not like that. Not like the Supreme Court with both major political parties represented in almost equal number, but each side so resolutely one sided, closed-minded, bitter and blind to the merits of the other. Republican presidents appointing intensely conservative ideologues. Democratic presidents appointing equally intense liberals. No, that's a recipe for disaster. And, sure enough, that's what the Supreme Court is today.

But if Republican governors are intent on appointing only conservative Republican Judges, and Democratic governors respond by appointing only liberal Democratic ones--if the Governors of New York persist in a pattern of  back-and-forth political party purity, instead of following the example that had been set by Mario Cuomo--then New York's esteemed high court risks going the way of the extremely polarized and indisputably mediocre Supreme Court. A court that is hopelessly and predictably (if not robotically) divided on most tough issues along political party lines.

One last point about all this.
Consider the Republican Judges placed on the Court of Appeals by liberal Democrat Mario Cuomo.
Consider Richard Simons. Stewart Hancock. Howard Levine.
These were all extraordinarily fine Judges.
Those who follow the Court of Appeals--whether Democrat or Republican, liberal or conservative, Upstate or Downstate--understand that these are some of the most highly and widely admired Judges to have sat on our high court in the last few generations.

Consider too: Democratic President Woodrow Wilson appointed Republican Louis Brandeis to the Supreme Court.
Republican Herbert Hoover appointed Democrat Benjamin Cardozo.
Republican Richard Nixon appointed Democrat Lewis Powell.
In the eyes of many, those were among the finest acts of those presidents.

Democrat Mario Cuomo's appointments of Republican Judges Simons, Hancock, and Levine were, likewise, among the finest acts of his governorship.
Many of us court watchers--perhaps, particularly those of us who have worked at the Court, who as New Yorkers are proud of it, and who view it as historically one of the truly fine institutions of this state and, indeed, of the nation--would hope to see the example of Governor Mario Cuomo's non-partisanship in appointments become more the rule than the exception.

In the next installment of this series, we'll see what can be made of nominee Leslie Stein's record while on the Appellate Division.

(Part 2) NY Court of Appeals: Criminal Leaves Still Up & Still Uneven

[Dateline Arizona: Nothing I can say will do it justice.

In the last post, we reviewed Judge Graffeo's free press opinion for the Court of Appeals in M/O Holmes v. Winter. Now we return to the matter of Criminal Leave Applications at the Court.]

Court of Appeals collection

In Part 1, we looked at the number of criminal cases being accepted for appeal by the 7 Judges of New York's highest court, collectively. We saw that the number of criminal leave applications (CLA's) being granted has remained at dramatically increased levels since Jonathan Lippman became Chief Judge.

We looked at the annual figures and at the averages over several years. It was clear from both that the Court of Appeals under Lipmman has been granting twice as many CLA's as it had been doing previously.

But remember, CLA's s are decided by a single Judge. CLA's are assigned randomly, and the assigned Judge alone decides whether to grant or deny it. So let's look at the number of CLA's being granted by each Judge--before and after Lippman's appointment.

A few months into Lippman's tenure as Chief Judge, we looked at the number of CLA's being granted by the individual Judges in the several years immediately preceding his appointment. Here's a visual of what we found:

(click graphs to enlarge)

GRAPH 1

 In the final 5 years of the Court under Chief Judge Judith Kaye (2004 thru 2008), the range of CLA grants among the Judges was an annual average of 11 for Eugene Pigott to 3 for Susan Read.
[As indicated in the graph, Judge Pigott's figure reflects his having been on the Court for only the last 2 full years of that period.]

But then came the change. Shortly after he was appointed to the Court as Chief Judge, Lippman expressed his dissatisfaction with the low number of CLA's being granted. Presumably, he also made clear his dissatisfaction with the very low numbers being granted by some of his colleagues.

NY Court of Appeals: The Paterson v. Skelos Decision--The Judges, Politics, Votes, and Opinions

As most New York-based readers of the New York Court Watcher surely know, the state's highest court, the Court of Appeals, ruled today that Democratic Governor David Paterson did have the legal power to appoint a Lieutenant Governor.

A vacancy in the office of Lieutenant Governor resulted last year when Paterson was elevated from that office to become Governor upon the resignation of former Governor Eliot Spitzer. Paterson appointed Richard Ravitch earlier this year to fill that vacancy. His authority to do so, however, was questioned by politicians, lawyers, academics, and papers around the state. The case just decided by the Court of Appeals was brought against Paterson by leading Republican State Senator Dean Skelos.

The high court's decision was as close as it could be: 4 to 3. Notably--and no doubt curiously, even suspiciously to some--the voting was almost entirely according to political party lines. All of the court's judges who were appointed by a Democratic Governor sided with Paterson. Chief Judge Jonathan Lippman (appointed by Paterson himself), and Judges Carmen Ciparick (Mario Cuomo) and Theodore Jones (Eliot Spitzer). Equally notable--and curious, even suspicious to some--3 of the 4 Republican appointees voted against the Governor, siding with the Republican challenger. Judges Victoria Graffeo, Robert Smith, and Eugene Pigott (all appointed by George Pataki). The remaining Judge, Republican appointee Susan Read (Pataki), was the only one among the court's 7 members who, so to speak, crossed party lines. It was her vote, joining the 3 Democratic appointees, that gave Democratic Paterson his court victory.

Most of the votes seemed predictable at the oral arguments. To be sure, oral arguments--the questions asked by the individual Judges--can be quite misleading in determining how the judges will ultimately vote. But in some cases, and this seemed to be one, judges do show their hands.

For one thing, it did seem pretty clear that the court as a whole was much more supportive of the Governor's position than the 2 lower courts had been. The trial court had ruled against the Governor, and the Appellate Division, New York's intermediate appeals court, was unanimous in ruling the same way. By contrast, at oral arguments at the Court of Appeals, at least some of the Judges seemed very sympathetic to the Governor's position.

Lippman and Ciparick seemed strongly in the Governor's corner. Lippman's questions indicated that he found nothing ambiguous about the statutory grant of a general gubernatorial appointment authority to fill vacancies (Public Officer Law sec. 43.), and that he believed that any perceived inconsistencies with other statutory and constitutional provisions could readily be reconciled--"harmonized", as he put it. Ciparick's questions indicated that the general appointment authority made perfect sense as a way to fill vacancies until the next gubernatorial election.

Jones, who I don't think asked a question of the Governor's lawyer, made clear to the lawyer for opposing side that he wasn't at all convinced that the Republican Senator had any right even to bring the case--i.e., standing. [IAE, Jones's voting record certainly suggests that he would likely share the views of the other liberal Democratic Judges. Also, as the only African-American Judge on the court, it would hardly be surprising if he were sympathetic to the state's beleaguered first African-American Governor. But, you say, "Judges shouldn't...." Yeah, yeah, yeah. But like the rest of humanity, they do.] So those 3 votes seemed pretty good bets for the Governor.

On the other side, Graffeo and Smith seemed just as strongly opposed to the Governor's position. Graffeo made clear that she was worried about possible partisan abuses of the gubernatorial appointment power. E.g., unelected and unelectable politicians could become Governor through a manipulative scheme of appointments and resignations. [And, let's just see if Paterson ends up resigning to accept a federal appointment and the entirely unelected Ravitch becomes Governor. Some are suggesting that this is exactly what has been contemplated by Democratic leaders.] As for Smith, he was extremely skeptical that a gubernatorial power to appoint a Lieutenant Governor was even intended, especially since no Governor had ever sought to exercise such a power before, despite previous vacancies in the office.

The 2 question marks were Republican appointees Read and Pigott. Read's voting record certainly suggested that she would likely vote with the other Republican appointees--Graffeo and Smith. But she asked few questions and gave little indication of her views on the merits of the case. The only indication she gave was that--like Jones and, perhaps, others on the court--she had serious doubts that the Republican Senator even had standing. So her voting with the Democratic appointees to make a majority is a bit of a surprise, but not a shock given her misgivings about standing.

Pigott is much less ideologically predictable than most of the other Judges. It cannot usually be assumed that he is more likely than not to vote with the other Republican appointees. Additionally, at oral argument, he gave no indication that he was skeptical of the argument made on behalf of the Governor. His questions to the other side, however, did seem to indicate serious doubts about the proposition that the Governor could not fill the vacancy and, consequently, that there could be no settled replacement for Lieutenant Governor until the next quadrennial gubernatorial election. It certainly appeared [at least to me and others with whom I shared notes] that Pigott was leaning towards the Governor's position. His vote, against the Governor's claimed appointment power--indeed, his writing the dissent in the case--is the only real surprise following oral arguments.

[Let me confess. If I had wagered on the outcome of the case, I would have correctly bet on a 4 to 3 vote. BUT, I would have gotten Read and Pigott reversed.]

As for the substantive merits of the case, a few comments. Each side claimed that the issue was clear. That is, they each claimed that their position was clearly correct, and that the other side's position was clearly wrong. Well, both sides might think they were--and still are--clearly right, but the case did not seem clear to me at all.

For what it's worth, this is my take. If the issue in this case is approached like a lawyer or a judge typically approaches an issue--i.e., legalistically--then I think you get one answer. If the issue is approached like a political scientist or historian would approach it, then I think you get the other.

Legalistically, looking at the text of the statutory provision in question (POL 43), the Governor has the general power to fill a vacancy in any elective office by appointment. Beyond that, there is nothing in that statute, or in any of the other relevant statutes or state constitutional provisions, that clearly and expressly states that such a gubernatorial appointment power does not apply to the office of Lieutenant Governor.

Yes, an argument--even a strong one--can be made that the implications of the statutory and constitutional schemes are that the office of Lieutenant Governor is not to be subject to the general gubernatorial appointment power. (More about that later.) But nothing clearly or explicitly denies that power. And the judiciary usually defers to what the Chief Executive does--just like it usually defers to what the other co-equal branch, the legislature, does--unless it's clear that what's been done is illegal or unconstitutional. So the Judiciary defers to the Governor, absent some clear prohibition to the contrary. So the Governor wins. This is how the majority resolved the issue.

A political scientist or historian would take a different approach. Text and what is explicit is not nearly as accurate or as important as the implications for government and the historical context. When viewed in those perspectives, the much stronger argument is that the constitutional scheme was most likely intended to insure that the office of Lieutenant Governor would be treated differently than other offices. A vacancy was to be filled only in the next gubernatorial election--i.e., with the Governor and Lieutenant Governor running together--and that, in the interim, the president pro tem of the Senate would fill in. Period. The use of the general gubernatorial appointment power is certainly inconsistent with that scheme. And that is how the 3 dissenters saw it.

So the 4-3 majority adopted the more "legalistic" view of the statutory and constitutional texts. As to the more political sciencey and historian-like view of the overall constitutional scheme, the majority responded, in effect, "But the texts of the statutory and constitutional provisions do not explicitly make a Lieutenant Governor exception to the Governor's general appointment power; nor do those texts necessarily preclude the exercise of that appointment power to fill the vacancy till the next gubernatorial election."

Yes, there are other details and other technicalities in the arguments presented by the lawyers at oral argument and in the briefs. But that's the basic outline, and that's a distillation of the court's decision.

As for my own view of the merits--again, for whatever it's worth--let me start by repeating that I think the case was a close one. I think the court could legitimately have decided either way. But ultimately, I do think one view of the issue is stronger than the other. Following oral argument, I was persuaded that the Governor had the better position. No doubt, I was greatly influenced by Kathleen Sullivan--former Dean of Stanford Law School, eminent constitutional law scholar, someone who would have been an extraordinary choice for President Obama to nominate for the Supreme Court. She clearly, concisely and compellingly laid out for the court how the general gubernatorial appointment power exercised to fill the office of Lieutenant Governor made sense in the state constitutional and statutory scheme--no, how it was a virtually essential component of that scheme.

However, if I were on the court, I ultimately would have voted the other way. That is, with the dissenters. (Who, if I were on the court, might then have had the votes to be the majority!) After reading the 2 opinions circulated at the court--the opinion by Lippman that did become the majority and the opinion by Pigott that did become the dissent--I would have joined Pigott.

Both opinions are quite good, btw. They are of the type that each one is thoroughly persuasive when read alone. But I would ultimately have sided with the view of the dissent, that the gubernatorial appointment of a Lieutenant Governor is inconsistent with the scheme that seems almost surely to have been the underlying contemplation of the relevant constitutional provisions. This is not to say that, as a pure textual matter, the appointment power is explicitly denied or otherwise necessarily irreconcilable with the relevant constitutional provisions. But that the better, more sensible and most likely intended construction of those provisions is a scheme that limits the selection of a Lieutenant Governor to the quadrennial gubernatorial elections, and that the president pro tem of the Senate--and only that official--serves in the interim. [This argument was spelled out very convincingly in the amicus brief prepared by my Albany Law colleague Michael Hutter, Canisus College professor and state constitutional scholar Peter Galie, New Paltz dean, professor, and state government scholar Gerald Benjamin, and former Lieutenant Governor Stanley Lundine.]

But that's not how the court ruled. I ultimately do disagree with the court, but I would be hard pressed to claim that the court's view is clearly wrong, or a disaster, or driven solely by partisan politics unsupported by a good faith view of the law. There will surely be some who will contend that. And some of them will contend that in good faith and after much consideration. But like the issue itself in this case, I just don't see that that's clear at all.


And, BTW, this was another big-case victory for the new Chief Judge. More about his brief tenure thus far in shortly forthcoming posts on the New York Court Watcher.

New York Court of Appeals: The Jones Factor in Criminal Cases (Part 2)

As discussed previously on the New York Court Watcher (see New York Court of Appeals: The Jones Factor in Criminal Cases, August 8, 2008), the decisional record of the New York Court of Appeals in criminal cases has shifted significantly in a pro-defendant direction since the appointment of Judge Theodore Jones in February 2007. The above graph illustrates the shift.

The graph does so by depicting the frequency with which the court rendered pro-defendant decisions in criminal cases before and after Jones' appointment. More specifically, it depicts the before and after percentages of the nonunanimous criminal decisions in which the majority of the court took a position more favorable to the rights of the accused than did the dissenter(s) on whatever issue divided the judges. In short, the percentage of times the majority (the court) was more pro-defendant than the dissent. And the graph does so for the five year period (fall '01 through spring '06) prior to Jones' appointment and for the nearly one and one-half year period (February 2007 through spring '08) since his appointment. (The most recent two year period of the pre-Jones five years (fall '04 through spring '06) is also depicted to show that the pro-defendant shift actually did begin with Jones' appointment, and not sometime shortly beforehand.)

As shown on the graph, the court adopted a pro-defendant position in 32% of the divided criminal cases in the five-year pre-Jones period. It did so in 39% of those cases in the immediate two year pre-Jones period. Those figures contrast markedly with the 63% since Jones' appointment.

The graph also depicts the voting percentages for the individual judges. Most notably, perhaps, is the difference in the voting pattern between Jones and the judge he replaced, Judge Albert Rosenblatt. Whereas Rosenblatt's voting record was 37% and 42% pro-defendant, respectively, for the five-year and two-year pre-Jones periods, Jones' record to date is 88% pro-defendant. [That's a figure that has not been seen at the Court of Appeals since Judge Vito Titone--by far the most sympathetic to the rights of the accused of any member of the court during his tenure.]

Also particularly notable are the voting records of Jones' colleagues since his appointment. Cuomo-appointed Chief Judge Judith Kaye and Judge Carmen Ciparick have both been voting 69% pro-defendant. And Pataki-appointed Judge Robert Smith has also compiled a pro-defendant voting record--56%. Hence, four of the judges, a majority, have pro-defendant voting records since Jones' appointment. Three of those records--Jones', Kaye's, and Ciparick's--are significantly pro-defendant.

The remaining three members of the court--all Pataki appointees--Judges Victoria Graffeo, Susan Read, and Eugene Pigott, have strongly pro-prosecution voting records. They have each voted 25% pro-defendant since Jones' appointment.

There is much else to note in the decisional and voting records depicted on the graph. Suffice it to say that on the seven member New York Court of Appeals, three of the judges compiled strongly pro-defendant voting records in the year and a half since Judge Jones joined the court: Kaye, Ciparick, and Jones himself. Additionally, the voting record of Judge Smith reveals that, more often than not, he too has been siding with the defendant in the difficult, divisive cases. Indeed, he has been voting for the accused twice as frequently as the other three Pataki appointees, Graffeo, Read, and Pigott.

And the result, as we've been discussing, is that the court has been deciding cases in favor of the accused much more frequently than it was previously. Jones' 88% certainly seems to be a factor.

New York Court of Appeals: The Jones Factor in Criminal Cases

The decisional record of New York’s highest court has shifted markedly in criminal cases since Judge Theodore Jones joined the seven member tribunal. That record has gone from distinctly pro-prosecution to distinctly pro-defendant. Since his appointment by former Governor Spitzer in February 2007, Jones has compiled a voting record that shows strong sympathy for arguments protecting the rights of the accused. And it was during that same period of a year and a half that the court itself became considerably more sympathetic to the accused.

Previous posts on the New York Court Watcher noted a sharp rise in dissents at the New York Court of Appeals, as well as a significant change in the court’s criminal record. An increase in dissents coincided with the appointments, by former Governor Pataki, of Judges Susan Read and Robert Smith a few years ago. An increasingly pro-defendant record in criminal cases is a more recent phenomenon. (See, New York Court of Appeals: More Dissents in Kaye Court [Part 3: Read and Smith; and Pigott Too], July 23, 2008, and New York Court of Appeals: Sharp Pro-Defendant Swing in Criminal Cases, July 22, 2008.)

Focusing now on Judge Jones’ appointment to the court, and specifically on the court’s decisional record before and after his appointment, is quite revealing. Indeed, it is striking. In the five full “terms” of court preceding Jones’ elevation to the Court of Appeals (the five years from fall 2001 through spring 2006), the court had amassed a record of siding with the accused in 32% of the contentious criminal cases. [I.e., in 22 of the 68 decisions where at least one member of the court publicly took issue with his colleagues in a dissenting opinion or in a separate concurring opinion expressing a substantive disagreement.] From this 32% pro-defendant record, the court swung to 63% once Jones was on the court. [I.e., in 10 out of the 16 divided criminal decisions from Jones’ appointment in February 2007 to the end of the court’s spring 2008 sessions.] So, from 32% to 63%. That is no minor blip.

But to double check, to be sure this change did not actually take place sometime prior to Jones’ appointment—e.g., in the latter part of that 32% pro-defendant five years—let’s look at the immediate pre-Jones period. Specifically, let’s look at the year immediately preceding the first criminal decision in which Jones participated. [That would be the 12 months from March 2006 through February 2007; the first criminal case in which Jones participated was decided in March 2007.] In that immediate pre-Jones year, the court’s record was 23% pro-defendant. [I.e., 5 out of 19 divided decisions.] Looking back another year, the court’s record for the two years immediately preceding Jones is not much different. For the 24 months from March 2005 through February 2007, the court’s record was 30% pro-defendant. [I.e., 10 out of 33 divided decisions.] So, 23% and 30%.

And then came Judge Jones, and the court’s pro-defendant record leapt to 63%--more than double. (A look at Jones' voting record, as well as that of each of his colleagues, for the year and a half since he joined the court will be the subject of a forthcoming post.)

Postscript: Inasmuch as Judge Jones will likely be a serious contender to replace Chief Judge Judith Kaye upon her mandatory retirement at the end of the year, the foregoing may have particular significance.

NY Court of Appeals: The Dissenting Dynamics Continue Under Lippman [and graphs are back!]

It's no fluke. Apparently not an aberration at all. Not even simply a court finding its way with a new Chief Judge.

The rise in dissents that we saw when Jonathan Lippman assumed the center seat at New York's highest court has persisted. We discussed the increased dissents early on in this blog. The New York Times even weighed in.

Chief Judge Lippman himself made clear that his emphasis was quite different than that of his predecessor, Judith Kaye, who prized decisions where the judges spoke with one voice. As he told the Times' William Glaberson : "I am a result oriented person, and the result I am looking for is not necessarily unanimity."

Indeed! Unanimity has certainly taken a back seat under Lippman. Take a look.

(click graphs to enlarge)

As the above graph shows, divided decisions are unquestionably on the rise. And dramatically so. The number of decisions with at least one judge dissenting has increased, and has continued to do so.

The dynamics of dissent, of open discussion of differences of opinion, has persisted. It is not just a blip. It has been a hallmark of the Lippman Court. A pretty sharp contrast with the Court under Kaye.

What began in the first 12 months of Lippman's tenure as Chief Judge, has developed into a lasting characteristic of his Court. A characteristic that has become even more pronounced. By the end of the last full calendar year, the number of decisions with dissent had more than doubled the number for the Court under Kaye.

Court of Appeals: What Lippman Inherited (Part 3 - Criminal Law Voting: Who's been in the Majority?)

GRAPH 1
The Court Before Lippman
Criminal Law Voting: Frequency in Majority

(click to enlarge)

Now-retired Chief Judge Judith Kaye was part of the Court's majority in the non-unanimous criminal decisions more often than any of her colleagues in recent years. A review of all the criminal law cases (41) over the past 3 years in which at least one Judge dissented (or separately concurred on the basis of a substantial disagreement with the majority) reveals that Kaye voted in the majority most frequently, and Judge Eugene Pigott the least. And the margin was significant. Almost 2 to 1.

Between Kaye and Pigott, the remaining 5 Judges voted at different--if not so drastically different--rates in the majority. Here's a look at the full spectrum in order of frequency.

GRAPH 2
The Court Before Lippman
Criminal Law Voting: Frequency in Majority (Descending Order)
(click to enlarge)

As GRAPH 2 illustrates, 4 Judges--Kaye, Susan Read, Carmen Ciparick, and Victoria Graffeo--voted in the majority at similarly high rates. At the other side of the spectrum, Pigott and Judge Robert Smith were part of the Court's majority the least often. Judge Theodore Jones' rate of majority voting falls between the two groups.

The Judges' rates of frequency in the majority take on added significance when considered in light of the the Court's ideological spectrum. Indeed, it all becomes particularly curious.

As discussed and illustrated in the previous 2 posts in this series in the New York Court Watcher, there is a wide ideological spectrum in the Judges' pro-prosecution and pro-defendant voting in criminal cases. Additionally, there are 3 ideological pairings among the 6 Judges that remain on the Court (i.e., now Lippman's colleagues). Relative to each other, these 3 pairings are unmistakably liberal (pro-defendant), conservative (pro-prosecution), and centrist (midway between the other 2). (See Court of Appeals: What Lippman Inherited (Part 2 - Criminal Law Voting Spectrum), March 19, 2009; (Part 1-Criminal Law Voting), March 8, 2009.)

Let's combine the data on majority voting and the ideological pairings in a single graph. Here it is.

GRAPH 3
Lippman's New Colleagues
Criminal Law Voting: Frequency in Majority (By Ideological pairings)
(click to enlarge)

What the GRAPH 3 vividly shows is that the centrist pairing of Smith and Pigott has the lowest rates of voting with the majority. Now that is fascinating.

Think of the centrists on the United States Supreme Court. Justices Anthony Kennedy and, before him, Sandra Day O'Connor. Those centrists have had the highest rates of alignment with that Court's majority. Isn't that just what would be expected? Being part of neither the more liberal nor more conservative wing of the Supreme Court, Kennedy and O'Connor have been "swing" votes. Typically, they've made majorities. Consequently, they've overwhelmingly been part of their Court's majorities. (See, e.g., Supreme Court: Justices In The Majority (Part 2--And Compared to In Dissent), Dec. 18, 2008; Supreme Court: Justices In The Majority, Dec. 8, 2008.)

By contrast, Smith and Pigott--though like Kennedy and O'Connor in having voting records that place them with neither wing of their court's ideological spectrum--unlike the Supreme Court's centrists, do not have the highest rates of majority voting. Instead, they have the lowest! Stated otherwise, they are out of the majority more than the rest of their colleagues.

So, the Court of Appeals "centrists," Smith and Pigott, are closer ideologicaly to the Court's liberals and conservatives than the liberals and conservatives are to each other. BUT, they do not appear to be the Court's "swing" votes. They do "swing" from liberal to conservative more frequently than their colleagues. That's just another way of saying that their voting records are not as liberal as that of the liberals, or conservative as that of the conservatives. But they are NOT the "swing" votes in the sense that Kennedy and O'Connor have been. They have not been the deciding factors in making majorities. Rather, they have helped make majorities less often than their colleagues.

One more thing before concluding. Among the 3 ideological pairings, the conservative pro-prosecution pairing of Read and Graffeo has the highest rates of voting in the majority. The liberal pairing of Jones and Ciparick, collectively, has lower rates. True, just a bit lower. But that only reinforces what we've already noted. It is not the centrists that have the high rates of being in the majority in criminal cases at the Court of Appeals. Rather, the Judges at the ideological ends of the Court's spectrum do. The conservative pair followed--and closely so--by the liberal pair. The centrist pair is last!

Next, we'll take a look at which Judges are voting allies, and which clearly are not.