An empirical study of the vindicated dissents of the New York Appellate Division, Fourth Department, from 2000 to 2010.

• Author: Gross, Daniel
• Position: NEW YORK'S APPELLATE DIVISION

To be able to write an opinion solely for oneself, without the need to accommodate, to any degree whatever, the more-or-less-differing views of one's colleagues; to address precisely the points of law that one considers important and no others; to express precisely the degree of quibble, or foreboding, or disbelief, or indignation that one believes the majority's disposition should engender--that is indeed an unparalleled pleasure. (1)

1. INTRODUCTION

   Dissenting opinions represent a personalized and useful viewpoint of legal issues. In addition to the feeling of personal satisfaction (as noted in Justice Scalia's introductory quotation), there are many benefits to dissenting opinions. First, a dissenting opinion provides an honest illustration of the different feelings of the court toward both the issue and the facts surrounding a case. (2) The dissent "shows exactly who disagrees, with what and why there is a disagreement as well as the extent and depth of that disagreement." (3) A second benefit to dissents is the beneficial competition for the majority opinion. (4) Majority opinions, when presented with a dissenting opinion, need to carefully reinforce their legal analysis by admitting the limitations of their rationale, omitting unpersuasive arguments, and removing lackadaisical language. (5) Third, a dissent is the best place to unearth a judge's true beliefs, preferences, and personal philosophy. (6) "In short, a dissenting opinion is usually the authoring Justice's personal tongue-lashing (pen-lashing?) of his colleagues. And it's one that is so ardently felt that the Justice feels compelled to go public." (7)

   Finally, authoring a dissent gives a justice, or justices, the ability to influence the holdings of other courts, and may occasionally become vindicated by a higher court. (8) Dissenting opinions can serve as templates to a later court's opinion, outlining a legal analysis that may mark a more persuasive, or well-founded rationale for the outcome of a particular future case. It is this last benefit that this article concerns itself with: dissenting opinions that were ultimately found, on appeal, to present a better founded rationale for a particular case. More specifically, this article is an empirical study of the dissenting opinions of the New York State Appellate Division of the Supreme Court, Fourth Department, over the past ten years, focusing specifically on those dissenting opinions that were ultimately vindicated (9) by the Court of Appeals.

   It is important to realize at the outset that the data presented within this article is merely a "niche" in the total caseload that the Fourth Department hears. This study is only concerned with cases that resulted in a divided panel (10) of the Fourth Department within the last ten years. To put this in perspective for the reader, this study specifically deals with 350 of the approximately 20,490 cases heard by the Fourth Department over the past ten years, which is less than two percent of the total cases heard by the Fourth Department since January 1, 2000. (11) Additionally, this article in no way holds itself out as a perfect empirical study. Despite thorough research efforts, it is entirely possible--and likely--that a few dissenting opinions remain at large.

   It is also important to emphasize that this is an empirical study, meaning that this article is only concerned with the statistics. The statistics and data presented herein should not suggest to the reader that one justice is superior to another, nor should they suggest that certain justices feel more strongly or less objectively about certain issues than other justices. The data in this study is intended only to present an empirical point of view with respect to the voting behavior of the justices of the Fourth Department, specifically in those cases where a dissent was issued and that dissent's rationale was ultimately vindicated by the Court of Appeals.

   Part II of this article gives a brief overview of the Fourth Department, as well as a general overview of the Fourth Department data. Part III is an empirical exploration of the dissenting behavior of the Fourth Department justices, including the behavior of the empirically "average" Fourth Department justice. This section further presents the vindication rates of various Fourth Department justices, and certain voting trends by Fourth Department justices when on a divided panel. Finally, Part IV takes a closer look at trends presented within those cases where a Fourth Department dissent was ultimately vindicated by the Court of Appeals. Part IV further examines whether the vindication rates of the individual justices influence the voting behavior of other justices, and further examines noticeable trends in both criminal and civil law.

2. THE FOURTH DEPARTMENT

   1. An Overview of the Fourth Department

      The Fourth Department covers twenty-two counties that are located predominately throughout western and central New York State. (12) Geographically, the Fourth Department's jurisdiction covers from Chautauqua County, the southwestern-most county in New York State, up north to Niagara County; over west and further north to Jefferson and Herkimer Counties; and southeast to Steuben County. (13) The Fourth Department includes the upstate New York cities of Buffalo, Rochester, and Syracuse. (14)

      Over the past ten years, the Fourth Department has decided approximately 1863 appeals each year. (15) The Fourth Department takes these appeals from civil and criminal trial court decisions from trial courts, appellate terms, and county courts located throughout western and central New York. (16) The majority of these appeals are decided through the use of memoranda opinions, as opposed to having a single justice issue a formal opinion. (17) These appellate opinions are required to at least "briefly state the grounds of [the] decision," (18) and must also state whether any justices dissent from the opinion. (19)

      Before an opinion is authored, a Fourth Department justice must be well-versed on the legal issue. Before argument, a justice has access to the records, briefs, and a case report prepared by the legal research assistants. (20) After the argument, the justices will consult with each other and give oral reports of the cases to the panel. (21) Subsequently, a final vote will be made orally at conference, with the justices casting their votes in the order of reverse seniority. (22)

      Justices on the Fourth Department, like the other appellate departments, are selected from the supreme courts, and are appointed by the Governor of New York State. (23) Justices serve five-year terms or the remainder of their unexpired terms if they have less than five years left on their current terms. (24)

      There are currently twelve justices on the Fourth Department. (25) The current Presiding Justice is Henry J. Scudder, who was designated to the Fourth Department in 1999 and was appointed Presiding Justice in 2006. (26) Currently, the eleven associate justices include: Justice Edward D. Carni, Justice John V. Centra, Justice Eugene M. Fahey, Justice Samuel L. Green, Justice Jerome C. Gorski, Justice Stephen K. Lindley, Justice Salvatore R. Martoche, Justice Erin M. Peradotto, Justice Elizabeth W. Pine, Justice Rose H. Sconiers, and Justice Nancy E. Smiths

      In addition to the current Fourth Department justices, this study also includes decisions in which many former Fourth Department justices took part. These distinguished alumni include former Presiding Justice Eugene F. Pigott, Jr. (now of the Court of Appeals), Justice John P. Balio, Justice Christopher J. Burns, Justice Leo F. Hayes, Justice Robert G. Hurlbutt, Justice L. Paul Kehoe, Justice John H. Lawton, Justice Robert J. Lunn, and Justice Donald J. Wisner. (28)

   2. An Empirical Overview of the Fourth Department

      Between January 1, 2000 and October 1, 2010, the Fourth Department issued approximately 20,490 decisions, including 350 cases that featured a dissenting opinion. Of these 350 divided panels, the Court of Appeals ultimately overruled the majority opinion and reversed 35 times. (29) Thirty of these thirty-five reversals were based on the Court of Appeals adopting the rationale of the dissenting opinion--or, in other words, "vindicating" the dissenting opinion. (30) Thus, when the Court of Appeals overrules a divided panel decision in the Fourth Department, it adopted the dissenters' rationale 85.7% of the time.

      On average, the Fourth Department authors approximately thirty-two dissenting opinions per year, with 2010 being its most cantankerous (forty-seven dissents authored), (31) and 2001 being its most agreeable (twenty-one dissents). Interestingly, the Fourth Department's dissent output has increased annually since 2007. (32) However, this increase has not correlated into an increase in the number of reversals by the Court of Appeals. (33)

      As far as subject matter goes, the Fourth Department is more agreeable on criminal matters as compared to civil matters. During the past ten years, the Fourth Department has authored approximately three times as many dissents over civil matters than criminal matters. (34) Although the reversal rate by the Court of Appeals roughly reflects this ratio, (35) statistically speaking, a Fourth Department dissent is just as likely to be vindicated whether it deals with criminal matter or a civil matter. (36)

      This larger library of civil law dissents (compared to criminal law) is further reflected by the justice's voting behavior. Only three of the twenty-one justices relevant to this study cast more dissenting votes in criminal matters compared to civil matters. (37) These justices were Justice Wisner, who dedicated 64.3% of his votes to criminal matters; Justice Lunn, dedicating 55.6% of his dissents to criminal matters; and the recently-appointed Justice Sconiers, who at the time of this study had cast her only dissenting vote during a criminal matter.

      The most...