Appellate division on appeal: the justices' rates of agreement, rejection, and vindication by the Court of Appeals.

• Author: Cherna, Jason A.
• Position: New York

1. INTRODUCTION

   New York State's intermediate appeals justices vary widely in their rates of success on review by the Court of Appeals, the State's highest court. At one end, there are those justices whose votes and opinions, whether majority or dissent, are consistently ratified by the high court. At the other end, there are those whose positions are regularly rejected. Analogously, when some of the justices dissent against the majority decision of their court, they are frequently vindicated by a reversal at the Court of Appeals. Other justices only see their minority positions rejected a second time upon appeal at the state's highest court. These and other related observations are among the findings of a study examining Appellate Division decisions reviewed by the Court of Appeals since the year 2000.

   The study examined every non-unanimous decision of each of the four departments of the New York State Appellate Division rendered between January 1, 2000 and December 31, 2005, which was in turn reviewed on appeal by the Court of Appeals by June 2006, the point at which the data collection for this study was completed. (1) There were a total of 254 such Appellate Division decisions in which at least one justice wrote an opinion or cast a vote dissenting from the result reached by the majority. (2)

   This report begins with a preliminary overview of the study, providing some general observations about the number of decisions in the study from each Appellate Division department as well as some highlights of the findings about individual justices. This report then outlines the findings concerning those Appellate Division justices with high success rates when their opinions and votes have been subject to Court of Appeals review, and those justices with contrastingly low rates. Next, this report surveys those justices whose Appellate Division dissents have often become Court of Appeals majority rulings and those justices whose dissents rarely or never have. A brief conclusion offers some final thoughts and suggests some possible patterns corresponding to the high and low success rates of the justices. Finally, detailed findings of the study are illustrated in graphs and tables within this report to facilitate readily visual comparisons and contrasts. (3)

2. OVERVIEW

   Of the total 254 divided Appellate Division decisions reviewed by the Court of Appeals, the largest proportion, nearly one half, was from the First Department. The smallest proportion was from the Third Department. Specifically, and in descending order, 118 of the decisions, or 46% of the total, were from the First Department; 55 decisions, or 22%, were from the Second Department; 51 decisions, or 20%, were from the Fourth Department; and 30 decisions, or 12%, were from the Third Department. (4)

   The Court of Appeals affirmed 176 of the total 254 Appellate Division decisions, or 69%. The Second Department was affirmed the most frequently. In descending order, the rate at which the divided decisions were affirmed was 80% for the Second Department; 70% for the Third Department; 67% for the Fourth Department; and 65% for the First Department. (5)

   Among the individual Appellate Division justices, the variations were more pronounced--indeed, much more so. Regarding rates of success upon Court of Appeals review--that is, the frequency with which the high court reached the same result on appeal as that for which the justice had written an opinion or cast a vote in a divided decision--the differences are dramatic. So, for example, there are justices, such as Justice Thomas Mercure of the Third Department, with whom the Court of Appeals has agreed at a very high rate. For Mercure, the agreement rate was 100%. He participated in fifteen divided decisions at the Appellate Division, and, on appeal, the high court reached the same result for which he had voted in every case. By contrast, there are justices, such as Justice John Lahtinen also of the Third Department, who have had much less success. Lahtinen participated in twenty divided decisions, and the Court of Appeals agreed with his vote only four times--an agreement rate of only 20%.

   Among the frequent dissenters, there is Justice Peter Tom of the First Department. He cast a dissenting vote in twenty-three cases, the most for any Appellate Division justice during the period studied. Justice Samuel Green of the Fourth Department dissented eighteen times, or in 82%, of the divided decisions in which he participated, a higher rate than for any other Appellate Division justice. There are other justices who dissented less frequently but were vindicated on appeal by the state's high court whenever they did. So, for example, Presiding Justice Gail Prudenti of the Second Department, the late Justice Myriam Altman also of the Second Department, (6) and Justice Mercure of the Third Department, each dissented twice and were vindicated both times. On the other hand, some of those who sit on the Appellate Division such as Justices Anita Florio and Daniel Luciano of the Second Department, and Justice Anthony Carpinello of the Third Department, each dissented several times but were never vindicated on appeal by the Court of Appeals.

   These and other related observations about the individual justices of the Appellate Division emerged from the current study. The balance of this report, both in the discussions that follow and in the accompanying tables and graphs, provide a more complete account of the most salient findings.

3. COURT OF APPEALS AGREEMENT AND REJECTION: THE HIGH AND LOW RATES

   As noted at the outset, there are Appellate Division justices with whom the Court of Appeals always or nearly always agrees, and there are others whose votes and positions the high court usually rejects. Among those justices with the highest rates of agreement by the Court of Appeals, Justice Mercure's record surely stands out as particularly strong. The high court's agreement with all fifteen of the votes he cast in divided Appellate Division decisions--including the two votes he cast in dissent--is perhaps the most remarkable. Other especially notable records include those of Justices Milton Williams and David Friedman of the First Department; Presiding Justice Prudenti, the late Justice Altman, and Justice Gabriel Krausman of the Second Department; Presiding Justice Cardona and Justice Robert Rose of the Third Department; and Justice...