The development of independent New York constitutional jurisprudence in Chief Judge Kaye's judicial opinions: an empirical study.

• Author: Eddy, Gordon

1. INTRODUCTION

   On February 22, 1993, Judith S. Kaye was appointed Chief Judge of the New York State (NY) Court of Appeals, the state's highest court. (1) Prior to her appointment to Chief Judge, she served as an Associate Judge on the Court beginning in 1983. (2) As an Associate Judge, she stood out from much of the rest of the Court, then headed by Sol Wachtler, (3) as an advocate for adjudicating individual rights under the state constitution at a time when the Court decided individual rights issues primarily according to federal standards. (4) Judge Kaye wrote separately from the Court on many occasions, "advocat[ing] state decisional independence" (5) on matters of individual rights such as civil liberties, equal protection, and criminal rights. (6) For this reason, her appointment to the Chief Judgeship gave renewed hope to advocates of state constitutional adjudication in NY. (7) In early 2007, Chief Judge Kaye was honored by students, scholars, and colleagues for her service and her advancement of state constitutional decision-making during her fourteen years as Chief Judge and twenty-four years of service on the Court. (8) These efforts for which she has been deservedly lauded are the subject of this Study.

   As an initial matter, the Author feels that it is important to point out what is not the purpose of the Study. This Work is not meant to call into question the judgment of so many scholars and judges that honor Judge Kaye, or to cast doubt upon the sincerity of her efforts to develop an independent body of NY constitutional jurisprudence. The purpose of this Study is to objectively determine what the effects have been of Judge Kaye's conceded efforts to advance independent state constitutional decision-making since becoming Chief Judge in 1993. The Study seeks to measure the success of Chief Judge Kaye's efforts and to determine how much independent state constitutional jurisprudence she has ultimately been able to advance. This is done, not simply to answer that question, but also in hopes that the information reported herein will be useful to practitioners going before the Court in the future.

2. METHODOLOGY

   The Author began data collection by searching commercial electronic databases (9) for all Court of Appeals cases fitting the following criteria: the case was decided between February 22, 1993 and December 17, 2007; the root word "constitution" appeared in the case; and Chief Judge Kaye wrote an opinion in the case, whether for the Court, concurring or dissenting. The search yielded 138 cases. (10) Chief Judge Kaye's opinions in each of those cases were then reviewed, and those not adjudicating a civil or criminal constitutional individual right that is afforded, in some capacity, concurrently by the Federal and NY Constitutions were removed from the data pool (e.g., the Education Article of the NY Constitution, affording the right to a sound basic education, has no federal counterpart; thus, cases dealing solely with that issue were discarded). The data pool was thus narrowed to forty-three opinions reflecting fifty-one separate issues susceptible to adjudication under the Federal or NY Constitutions, or both. (11)

   Each issue was then evaluated in five categories of adjudicative characteristics: the opinion type, the constitutional principles included in the pleadings, the constitutional right adjudicated, the Chief Judge's adjudicative approach, and finally, whether the Chief Judge's disposition of the issue serves to develop independent NY constitutional jurisprudence. Each issue was classified as reflecting a particular characteristic within each category and assigned an indicator reflecting its classification. (12)

   Four different opinion types were used: 1) Chief Judge Kaye writing for the Court without another judge writing a separate opinion; 2) Chief Judge Kaye writing for the Court with another judge writing a separate opinion; 3) Chief Judge Kaye concurring; and 4) Chief Judge Kaye dissenting.

   Constitutional principles included in the pleadings were characterized in one of four ways: 1) federal only, where the pleadings claimed only federal constitutional rights; 2) NY only, where the pleadings claimed only NY constitutional rights; 3) federal and NY, where the pleadings claimed rights under both constitutions; and 4) ambiguous, where the pleadings claimed constitutional rights but it was unclear whether they were asserted under the NY or Federal Constitution.

   The constitutional rights adjudicated category was the most diverse and, in some cases, amalgamation of the various rights under general headings, where possible, was necessary to the meaningful presentation of results. Where such amalgamation would result in overgeneralization, it was not employed. Thus, certain classifications of rights contain insufficient data from which to draw valid conclusions, as indicated in the various charts and graphs, infra, that report the Study's results. Analysis resulted in eleven different "right types": 1) due process (no amalgamation); 2) equal protection (no amalgamation); 3) double jeopardy (no amalgamation due to overgeneralization, thus, insufficient data); 4) taking of private property (no amalgamation due to overgeneralization, thus, insufficient data); 5) criminal trial rights (a general heading including rights to a jury trial, to proof beyond a reasonable doubt, and to be present and defend pro se); 6) freedom of thought (a general heading including freedom of speech, freedom of the press, and freedom of religion); 7) right to counsel (no amalgamation); 8) right of confrontation (no amalgamation due to overgeneralization, thus, insufficient data); (13) 9) right against excessive fines (no amalgamation due to overgeneralization, thus, insufficient data); 10) right against self incrimination (no amalgamation); and 11) right to privacy (a general heading including the right against unreasonable search and seizure, and the right to probable cause for arrest).

   Chief Judge Kaye was found to use three adjudicative approaches in her disposition of the various issues: 1) interstitial, where the opinion addressed the issue on federal grounds first, moving to state grounds only if the issue remained unresolved by the federal grounds; (14) 2) lockstep, where the opinion adopts a federal standard governing an analogous right for state constitutional purposes; (15) and 3) primacy, where the opinion looks first to the state constitution to decide the case, moving to the Federal Constitution only if the issue cannot be resolved under the state's. (16) Chief Judge Kaye did not use the dual sovereignty approach to address any of the fifty-one issues. (17)

   As is discussed in the Study's Findings, (18) the likelihood that independent state constitutional jurisprudence will be developed varies depending on the approach a judge uses in deciding the case. Inasmuch as this inquiry is the ultimate point of the Study, in the last category, each issue was assigned a yes or no indicator based on whether Chief Judge Kaye's disposition of it served to develop independent NY constitutional jurisprudence.

   These categorizations and classifications are essentially empirical expressions of Chief Judge Kaye's decision-making behaviors with respect to the adjudication of individual constitutional rights. The final results are reported in the Master Table of Raw Data, infra, at Appendix A. They were analyzed to glean any decisional patterns that may shed light on the results of Chief Judge Kaye's efforts to develop an independent body of NY constitutional jurisprudence, or that may be of use to practitioners going before the Court in the future.

3. FINDINGS

   The most general and perhaps most important question to be answered by this Study is how successful have Chief Judge Kaye's efforts to develop a body of independent NY constitutional jurisprudence...