The calculus of dissent: a study of appellate division.

• Author: LaValley, Joseph C., III
• Position: New York Court of Appeals

The New York court system is divided into three discreet functional layers.(1) The Appellate Division(2) of the New York Supreme Court, although technically only an intermediate court, is for most litigants the court of "last resort."(3) In recognition of the importance of Appellate Division decisions, appellate justices, unlike trial judges, do not decide cases "solo."(4) Cases are decided by panels of four or five justices, a majority--three or more--of whom must agree in order to reach a decision.(5)

Not unexpectedly, many--if not most judges--occasionally disagree with their fellow judges over important cases. Less frequently, the disagreement will be strong enough for one or more to disagree formally with the majority by writing a dissenting opinion (sometimes referred to simply as a "dissent"). Interestingly, while it is an obvious fact that some judges dissent more frequently than others, a small minority of judges seem to dissent much more often than the norm.(6) This study will examine some of the possible implications of the foregoing statements, i.e., what makes certain justices of New York's Appellate Division--referred to herein as "Great Dissenters"--dissent so often, and how does this shape the overall direction of Appellate Division decisions.

1. INTRODUCTION

   By performing an empirical study of dissenting justices' voting patterns over time, it is possible to discern at least some of the issues generally most important to the dissenting judges. It also seems logical to assume that judges formally dissent only when some disputed issue in a case is important enough to warrant public disagreement. After all, people even judges--genera]]y do not enjoy disagreeing.(7) Further, a dissenting opinion can "weaken the court's authority,"(8) thus providing an institutional disincentive to judges who may be considering dissenting in a "borderline" case. Given these assumptions, one may reasonably suppose that an analysis of certain judges' voting patterns--more precisely, of the types of issues over which they most frequently dissent--could reveal something about the judges themselves.

   Of course, undertaking research of this sort necessitates making some choices. One important decision made early on in this study involved the choice of which cases--or, more precisely--what sort of cases would be reviewed here. After some initial forays into the various online databases of Appellate Division decisions, the choice of limiting the primary research herein--frequency of dissenting opinions--to "constitutional law" cases seemed prudent.(9) However, the overall volume of criminal law cases heard in the Appellate Division's four departments have been analyzed herein, in order to compare constitutional law caseloads to criminal law caseloads.(10)

   In fact, the research underlying this study has revealed several interesting details with respect to voting habits of certain justices, as well as the distribution of cases within the courts themselves. For instance, the "constitutional law"(11) caseloads of the four departments are disproportionate both to their overall caseloads and to their "criminal law"(12) caseloads.(13) In addition, the department that hears the most constitutional cases in proportion to its overall caseload is the least divisive on constitutional issues,(14) while the department that hears the smallest proportion of constitutional law cases is the most divided over these issues.(15) Finally, certain judges dissent much more frequently in constitutional cases than their peers, and for reasons that imply that judges who disagree the most may have a common link.

   Part II will discuss the research methodologies used to obtain and analyze the data for this study.(16) Part III will discuss the findings of this research in detail.(17) Part IV will briefly discuss some of the conclusions reached in this study.(18) Finally, the Appendix presents the data in a series of charts and tables that graphically illustrate the conclusions presented with respect to the "macro-patterns" of the four Appellate Division Departments, as well as the "micro-patterns" of certain individual judges.(19)

   Figure 1: Appellate Division Total Caseload 1990 1991 1992 1993 1994 1995 1996 1st Dep't 7,992 8,182 5,881 4,592 4,845 5,066 4,880 2d Dep't 3,493 3,666 3,590 3,708 4,633 4,645 4,665 3d Dep't 1,554 1,583 1,353 1,744 1,750 1,618 1,952 4th Dep't 2,802 2,380 2,084 2,067 2,370 2,287 2,516 1997 1998 1999 2000 Average 1st Dep't 4,942 5,271 4,863 5,088 5,600 2d Dep't 4,527 4,539 4,370 4,584 4,220 3d Dep't 2,128 2,019 1,899 1,906 1,773 4th Dep't 2,121 2,226 2,353 2,240 2,315 Figure 2: Appellate Division Criminal Caseload 1990 1991 1992 1993 1994 1995 1996 1st Dep't 1,512 1,307 1,133 1,130 1,081 1,078 1,041 2d Dep't 1,646 1,641 1,690 1,664 1,621 1,775 1,333 3d Dep't 491 523 470 612 546 576 698 4th Dep't 602 471 467 452 531 548 545 1997 1998 1999 2000 Average 1st Dep't 1,105 1,281 1,113 1,095 1,171 2d Dep't 1,447 1,300 1,308 1,252 1,516 3d Dep't 771 724 713 865 635 4th Dep't 469 464 516 649 519 Figure 3: Appellate Division Constitutional Caseload 1990 1991 1992 1993 1994 1995 1996 1997 1st Dep't 118 84 78 67 89 78 70 45 2d Dep't 138 121 95 91 104 93 73 78 3d Dep't 72 63 61 66 69 59 80 95 4th Dep't 44 34 29 38 41 34 50 33 1998 1999 2000 Average 1st Dep't 60 57 49 72 2d Dep't 58 80 64 90 3d Dep't 67 87 61 71 4th Dep't 38 46 60 41 Figure 4: Appellate Division Caseload Breakdown by Department, Jan. 1, 1990-Dec. 31, 2000 4(a): Total Caseload 1st Dep't 40% 2d Dep't 30% 3d Dep't 13% 4th Dep't 17% 4(b): Criminal Caseload 1st Dep't 30% 2d Dep't 39% 3d Dep't 17% 4th Dep't 14% 4(c): Constitutional Caseload 1st Dep't 26% 2d Dep't 33% 3d Dep't 26% 4th Dep't 15% Note: Table made from a pie chart Figure 5: Distribution of Cases by Department Jan. 1, 1990-Dec. 31, 2000 5(a): Total Caseload 1st Dep't 12.45% 2d Dep't 4.92% 3d Dep't 3.33% 4th Dep't 7.83% 5(b): Criminal Caseload 1st Dep't 21% 2d Dep't 36% 3d Dep't 36% 4th Dep't 22% 5(c): Constitutional Caseload 1st Dep't 1.29% 2d Dep't 2.14% 3d Dep't 4.00% 4th Dep't 1.76% Note: Table made from a pie chart Table 1: The "Great Dissenters" Jan. 1, 1990 -Dec. 31, 2000: NYS Appellate Division Justices Who Dissented on Constitutional Cases More than average Within Their Respective Department Ranked by "Co-Efficient of Dissent" First Department No. of Judge From Thru No. of Years Dissents Co-efficient Tom 1996 1998 3 7 2.33 Kupferman 1990 1995 6 13 2.17 Murphy 1990 1998 9 16.5 1.83 Rosenberger 1990 1999 10 18 1.80 Sullivan 1990 1998 9 15 1.67 Asch 1991 1994 4 6.5 1.63 Second Department No. of Judge From Thru No. of Years Dissents Co-efficient McGinity 1998 2000 3 4 1.33 Friedmann 1996 2000 5 5.5 1.10 Ritter 1992 1998 7 6 0.86 O'Brien 1992 1997 6 5 0.83 Thompson 1990 1994 5 4 0.80 Sullivan 1992 1999 8 4 0.50 Third Department No. of Judge From Thru No. of Years Dissents Co-efficient Casey 1991 1993 3 4 1.33 Peters 1997 2000 4 4 1.00 Crew 1991 2000 10 8.5 0.85 Yesawich 1990 1998 9 5.5 0.61 Mikoll 1990 1999 10 6 0.60 Fourth Department No. of Judge From Thru No. of Years Dissents Co-efficient Lawton 1990 1996 7 7.5 1.07 Boehm 1992 1996 5 4 0.80 Callahan 1991 1998 8 4 0.50 Pine 1992 1999 8 3.5 0.44 Green 1990 2000 11 4 0.36 II. THE RESEARCH PLAN

   The primary objective of this study was to analyze which, if any, New York Appellate Division justices write or join dissenting opinions on constitutional issues more frequently than average.(20) The overarching goal of performing this analysis was to identify and, if possible, to predict the voting patterns of individual Appellate Division justices on constitutional issues.

   For the purposes of this study, the Lexis.com[R] on-line database was used. By searching within Lexis' Criminal Law(21) and Constitutional Law(22) searchable topic databases,(23) and limiting each search to a single department of the Appellate Division, the author was able to determine the exact number(24) of criminal and constitutional cases decided by each Appellate Division per year, from 1990 through 2000.(25)

   However, before using this raw data to identify individual justices' voting patterns, the data was examined against the backdrop of the overall caseload within each department. Otherwise, it would be possible to overlook how the "macro-pattern" of a department's overall caseload may be reflected in the voting patterns of individual justices. Moreover, if the First Department heard twice as many constitutional cases each year as the Fourth Department, and the First Department also heard twice as many cases overall, then the disparity would not be significant. Thus, this study began with an attempt to determine the exact number of cases heard by each department during each year of an eleven-year span.(26)

   The following steps describe the research plan used to obtain this data:

   1. determine the total number of cases heard per year by each Appellate Division Department from January 1, 1990, through December 31, 2000;

   2. determine the total number of criminal cases in each department for the same period;

   3. determine the total number of constitutional cases, as above; and

   4. determine the total number of constitutional cases filed with dissenting opinions.(27)

      Having identified the raw number of cases, as well as the cases themselves to be used for this study, the data was then examined as scientifically--or, at least, as methodically--as possible to determine whether any patterns were evident regarding the individual justices' voting patterns. The following steps describe the method used to identify judges in each department who dissent more than average with respect to constitutional cases:

   1. identify all constitutional cases with dissenting opinions, as described above;

   2. tally all dissenting opinions, assigning a single "point" to each judge for every dissenting opinion he or she actually wrote, and one-half "point" to each judge for every dissenting opinion in which he or she joined;(28)

   ...