An empirical study of dissent at the Supreme Court, Appellate Division, Third Department.

• Author: Stevens, Christopher J.
• Position: New York

1. INTRODUCTION

   An empirical study of a court can reveal a great deal. Courts must decide the cases before them and, in doing so, the judges who comprise those courts cannot possibly avoid weighing several, often competing, considerations in order to reach a result. (1) In other words, judges have no choice but to make choices. Through analysis of the choices made over time, as recorded in written decisions, an observer can identify a "stream of tendency" flowing from both a court and its individual judges. (2) As Justice Cardozo recognized nearly a century ago, "the considerations and motives determining the choice, even if obscure, do not utterly resist analysis." (3)

   The study of a court's divided opinions can be especially revealing. (4) For example, studying the divided opinions of an appellate court can tell an observer a great deal about not only the tendencies of the court itself, but also those of its individual justices. Because the decision to formally dissent means entering into public disagreement with their colleagues, and due to the fact that dissent can "weaken" the authority of a decision, it is logical to assume that justices will only dissent if they feel particularly strongly about the issue at hand. (5) Thus, a justice's pattern of dissent--his or her "stream of tendency"--reveals not only his or her tendency to vote a certain way in certain cases, but also what legal issues matter most in their mind.

   Additionally, a comparative analysis of the subsequent history of intermediate appellate courts' divided cases that reach a higher court can prove equally useful. By looking at how the higher court decided the exact same issues addressed below, and comparing the high court's resolution of those issues to those reached by the court below, an observer can gain insight concerning the tendencies of both courts involved.

   Finally, an awareness of the vindication rates of the individual justices at an intermediate appellate court can also be of assistance to practitioners. Knowledge of those rates can allow attorneys whose clients suffer a loss at an intermediate appellate court to feel more (or potentially less) confident about the chances of a subsequent appeal if they have a certain justice, or group of justices, choosing to take their side in dissent.

   With the hope of offering precisely the type of insight summarized above, this study takes an empirical look at the divided opinions of the New York State Supreme Court, Appellate Division, Third Department over the last ten years. Focusing on comparative analysis, this article will highlight identifiable differences between the institutional tendencies of the Third Department as compared to those of the Court of Appeals in similar cases. With respect to the specific tendencies of the individual justices of the Third Department, this study will provide raw data but will, for the most part, leave speculation about varying ideologies to the reader and to future studies.

   Part I presents the "raw numbers," summarizing the data compiled from a study of the Third Department over the last ten years. It will offer some general observations concerning what the numbers reveal about the Third Department as a whole, and will also set forth a year-by-year summary of dissent at the Third Department for the years 2000 through 2010.

   Part II will examine the subsequent handling of some illustrative divided Third Department opinions on review by the Court of Appeals. In doing so, it will offer some analytical insight into the Third Department's institutional tendencies in both criminal and civil cases. It will also compare and contrast the tendencies of these two courts with respect to the types of cases analyzed, drawing some conclusions about each court in the process.

   Part III will examine the individual dissent and "vindication rates" (6) of each justice of the Third Department, and will call attention to some general patterns.

   The data and analysis contained in this article are intended only to provide practitioners information from which to glean practically useful insight. However, this article will surely raise as many--if not more--questions than it will answer. It is the author's hope that this study, along with the others contained in this book, will inspire future studies that will attempt to answer any lingering questions.

2. DEPARTMENTAL DATA: BACKGROUND AND "RAW NUMBERS"

   1. Background on the Third Department

      The Supreme Court, Appellate Division, Third Department hears appeals from the Supreme Court, County Courts, Family Courts, and Surrogate's Courts located within the Third Judicial Department. (7) Additionally, because of its location in the State's capital, the Third Department also hears appeals from decisions by State government agencies. (8)

      The Third Judicial Department "stretches from the Canadian border in the north to the lower Catskills in the south and from the Vermont and Massachusetts borders in the east to the Finger Lakes in the west." (9) It is comprised of three judicial districts--districts three, four, and six--which contain a total of twenty-eight counties. (10)

      The justices of the Third Department are appointed by the Governor, but must first have been elected to Supreme Court in one of the state's judicial districts. (11) The governor also has the power to designate the presiding justice of each appellate division court. (12) Each member of the court is appointed for a term that lasts a minimum of five years, and can last as long as the fourteen-year term that they earned by virtue of their election to the Supreme Court. (13) The justices can be reappointed an unlimited number of times before reaching the mandatory retirement age of seventy years old. (14) However, the governor may choose to reappoint a justice who has reached the mandatory retirement age to a maximum of three additional two-year terms. (15)

      There are currently twelve justices sitting on the Third Department. They are, in order of seniority: Presiding Justice Anthony V. Cardona, Justice Thomas E. Mercure, Justice Karen K. Peters, Justice Edward O. Spain, Justice Robert S. Rose, Justice John A. Lahtinen, Justice Bernard J. Malone, Jr., Justice E. Michael Kavanagh, Justice Leslie E. Stein, Justice William E. McCarthy, Justice Elizabeth A. Garry, and Justice John C. Egan, Jr. (16) Presiding Justice Cardona has held that position since 1994. (17)

      A number of other, now retired justices also took part in deciding some of the cases cited herein that were decided over the last ten years, and their names warrant mention as well. They are, in alphabetical order: Justice Anthony J. Carpinello, Justice D. Bruce Crew III, Judge Victoria A. Graffeo, who now sits on the Court of Appeals, Justice Anthony Kane, and Justice Carl J. Mugglin.

      A panel of five--sometimes four--justices is assigned to hear and decide each appeal. The members of the panel will usually receive the party's briefs, memoranda prepared by the court's law assistants, and other relevant documents, about three weeks in advance of oral arguments. (18) One of the justices on the panel is assigned the task of writing the opinion in the case, which he or she will then do prior to circulating a draft to the other members of the panel. (19) At this point, a final decision has not been made. Dissenting opinions, if any exist, are similarly circulated among members of the panel at this time. (20) After opinions have been drafted and reviewed by the members of the panel, the cases are conferenced during the court's following term, at which point a final vote is taken. (21)

   2. The "Raw Numbers"." A Ten-Year Summary

      Between January 1, 2000 and October 1, 2010, the Third Department decided a total of 18,690 cases, averaging 1869 decisions per year. (22) The panel was divided--meaning, for the purposes of this article, that a dissenting opinion was issued--in only 203 of those. (23) Of those divided cases, only twenty-one were later overturned by the Court of Appeals. (24) In eighteen of those overturned cases, the Court of Appeals vindicated the dissenters from the Third Department (25)--thirteen times in civil cases (26) and five times in criminal cases. (27) Thus, when the Court of Appeals does overturn the Third Department, it vindicates the dissenters an impressive eighty-six percent of the time.

      Over the last ten years, the Third Department has averaged only twenty-one divided opinions with dissents issued per year. (29) The year 2000 was the most prolific of the decade with respect to dissent at the Third Department, with twenty-seven dissents having been authored that year. (30) The year 2008 was a close second with twenty-six dissents. (31) Perhaps due to an awareness of increased dissent, each of the years following those peaks of division saw an unusually low number of dissents issued, with only twelve--the lowest number in the last ten years--having been issued in 2001, and sixteen issued in 2009. (32)

      Years of notable division were followed by years of extraordinary unity--perhaps due to a desire to issue as many unanimous opinions as possible. Any such effort, of course, would have been lead by Presiding Justice Anthony Cardona and, if they did indeed exist, appear to have been successful.

      Between 2000 and 2009, the Third Department was overturned by the Court of Appeals, on average, just over twice (2.3 times) per year. (33) Recently, however, the Third Department has seen a slight increase in both the number of times the majority opinion is overturned and the number of times the dissenters are vindicated. In 2008 and 2009, the Third Department had five and then four decisions overturned by the Court of Appeals, respectively. (34) There is a noteworthy difference between those two years, however. Of the five decisions overturned in 2008, the dissenters were vindicated only three out of five times. (35) In 2009, on the other hand, the dissenters were vindicated in all four cases reviewed by...