The First Department: an empirical study of the court at the heart of New York City.

• Author: Vigars, Jessica R.
• Position: NEW YORK'S APPELLATE DIVISION

First and foremost, a dissenting opinion serves the interests of the truth. (1)

1. INTRODUCTION

   Attorneys and law students focus most of their study on majority opinions. Often, a dissenting opinion is quickly overlooked or ignored; however, these judicial opinions have great value, both during a court's decision-making process, and after the fact as an analytical tool. Dissents can provide insight into the inner-workings of a court and its individual justices.

   Beyond this, there exists a distinct class of dissents of even greater importance--those that are written by an appellate court and later upheld as a valid analysis or rationale by a high court. Here in New York State, the four departments of the appellate division present justices with the opportunity to set forth a rationale in a dissenting opinion that the New York State Court of Appeals can later rely upon or adopt as its own on appeal.

   This paper will analyze the dissents and dissenting justices of New York State's First Department. Part II will introduce the current composition of the First Department. Part III will analyze, in general terms, the dissenting opinions written by First Department justices. Part IV will present a more critical analysis of dissenting opinions in the First Department that are later upheld by the Court of Appeals on appeal. In Part V, the individual justices and their track records will be examined, followed by Part VI where the vindication records of each dissenting justice will be reviewed through case analysis. Part VII discusses the practical value of identifying the dissenting justices. And, finally, Part VIII presents a brief conclusion, ultimately leaving the readers to draw their own inferences based upon the data and analysis provided.

   This study does not purport perfection; in fact, it is quite likely that a few dissents escaped capture despite extensive research. (2) However, after reviewing 774 split opinions with dissents, and closely evaluating 103 decisions overturned by the Court of Appeals, some trends clearly emerged.

2. THE FIRST DEPARTMENT: OVERVIEW & PROCEDURE

   The New York State Appellate Division of the Supreme Court, First Judicial Department ("the First Department") is a truly metropolitan court, primarily due to its location, (3) but also because of its character. The First Department has a vibrant history and has decided many pivotal cases. (4) Stated succinctly in its centennial review, "the First Department has become a vital and creative partner of a vital and creative City." (5)

   The First Department justices are predominately tied to New York City, primarily through their education. Sixteen of the current twenty justices received their law school education in New York City; three additional justices went to a New York City college or university for a degree other than their law degree. (6) Luis A. Gonzalez, a graduate of Columbia University School of Law, holds an impressive record of judicial service in New York City, and currently serves as the Presiding Justice of the First Department. (7)

   Logistically, the First Department takes appeals as of right only from Manhattan (New York County) and the Bronx (Bronx County). (8) Currently, there are twenty justices serving on the First Department. (9) Notably, the New York State Constitution provides for seven permanent justices in the First Department, and the Governor may appoint additional justices in accordance with the Court's needs. (10) A full bench consists of five justices, but four are necessary for a quorum, and only three are needed for a decision. (11) In the First Department, the clerk chooses a particular composition of justices, and the seatings seem to be the result of random scheduling; generally, the First Department justices do not sit two days in a row. (12)

   On the day of a particular argument, one justice of the First Department will be assigned to report on the case in the justices' conference. (13) The "reporting" justice will make an oral recommendation at the first conference and, after the justices vote, the reporting justice will write an opinion--either a dissent or the majority opinion, depending on which side of the vote the reporting justice falls on. (14) The most junior member will typically write the opinion opposing the reporting justice's opinion. (15) In the First Department, the dissenting justice will write his or her opinion first, and the majority opinion follows in response. (16)

   The First Department is, quite clearly, a court that is home to a large group of New York City justices. It is located in the heart of New York City and hears appeals from New York City boroughs. It is, at its very core, the "New York City" appellate court.

3. DISSENTS IN THE FIRST DEPARTMENT

   By its own estimates, the First Department decides 3000 appeals each year. (17) This is likely an accurate estimate; searches performed on LexisNexis and Westlaw produced similar results, and Annual Reports from the New York State Unified Court System also confirmed these estimates. The First Department heard and decided an average of 3044 cases each year in the period from 2000 to 2004. Recently, however, it seems as if the Court's load has eased a bit, as there was an average of 2693 opinions each year from 2005 to 2009. (18)

   Of all of the cases decided and opinions produced between 2000 and 2010, only 774 of these opinions contained an articulated dissenting opinion. (19) This means that most of the time, the justices of the First Department are in agreement. It appears that when there is a written dissent, the dissenting justice felt strongly about the issue--at least strongly enough to diverge from his or her colleagues. "[A] dissenter should feel free to express the precise degree of his or her disagreement--or, if warranted, outrage--that he or she believes is appropriate given the substance and tenor of the majority's opinion in any given case." (20) Writing a dissent only adds to an individual justice's workload, as the justice will be responsible for writing the dissent in addition to his or her regular caseload. (21)

   It is important to note that the number of dissents written in the First Department has increased in recent years. From 2000 to 2004, there was an average of 46 dissents written each year, with a low of 41 in 2001, and a high of 59 in 2004. (22) More recently, from 2005 to 2010, there was an average of 90 dissents authored--double the number written during the earlier period. Additionally, from 2005 to 2010, there was a low of 66 dissents written in 2005, and an astounding high of 127 dissents in 2007. (23)

4. THE COURT OF APPEALS' VINDICATION OF FIRST DEPARTMENT DISSENTING JUSTICES

   Between 2000 and 2010, the First Department produced 774 opinions with dissents. (26) Of these, the New York Court of Appeals overturned 103 after disagreeing with the First Department majority opinion.

   When overturning an appellate court, the Court of Appeals occasionally supplies its own reasoning, different from that articulated by the majority or the dissenter. But, sometimes the Court of Appeals agrees with the dissenting First Department justice and produces an opinion that essentially vindicates the dissenter below. The Court of Appeals will often decide an issue on the narrowest grounds possible, (27) upholding perhaps only one or two of the arguments articulated by the First Department dissenter. For the purposes of this study, such Court of Appeals decisions are considered "vindications," even though they were decided on the narrowest grounds possible and do not address every possible argument raised by the First Department's majority and dissenting opinions.

   Of the 103 First Department opinions overturned by the Court of Appeals, the Court adopted the reasoning of the dissenting opinion below in 83 cases, in whole or in part. (28) In terms of percentages, this gives the First Department dissenting justices an 80.5% vindication rate. Stated more eloquently, it is more likely than not that when the Court of Appeals overturns the First Department and rejects the legal reasoning of the majority, the Court of Appeals will concur with the dissenter in the First Department. It seems that when a First Department justice breaks away from the majority and authors a dissent, he or she would most likely be correct in doing so.

   However, looking at the numbers in a different light, there are so many dissents written in the First Department that its overall rate of vindication may not be as profound. As stated above, 774 dissenting opinions were written between 2000 and 2010. In comparing the overall number of dissents (774) with the later number of dissents vindicated by the Court of Appeals (83), it only amounts to a 10.7% vindication rate. In other words, about 90% of the time, the Court of Appeals ignores or overlooks the dissenting justice and either agrees with...