The independent jurist: an analysis of judge Robert S. Smith's dissenting opinions.

AuthorMancuso, Peter A.

Independent and professional judges are the foundation of a fair, impartial, and constitutionally guaranteed system of courts of law known as the judiciary. This independence does not imply judges can make decisions based on personal preferences but rather that they are free to make lawful decisions--even if those decisions contradict the government or powerful parties involved in a case. (1)

INTRODUCTION

An independent judiciary is at the heart of our democratic society. Without such a judicial system, the government as well as powerful private parties could run rough-shod over weaker and less numerous factions. Within this judicial system, however, it is important that the judges themselves remain independent. Failure to do so can obviate the entire system if one judge, or a small group of judges, can control the entire panel. No single jurist exemplifies this principle more than Judge Robert S. Smith of the New York Court of Appeals. In six years on the bench of New York's highest court--from January 2004 to January 2010--Judge Smith wrote over sixty-five dissenting opinions covering numerous areas of New York law. In fact, in this article alone, eleven areas of law were studied, and each one tells a different story about Judge Smith's jurisprudence.

Dissenting opinions hold a unique place in our legal system. Practically speaking, they mean nothing. They are not the law, they hold no binding precedents, and rarely have any impact. Occasionally, a dissenting opinion will become vindicated by a future majority of the same court when attitudes or societal norms shift, however, this is rare. For the most part, they go unnoticed.

Nevertheless, dissenting opinions can be very useful to the practitioner. Although a judge should go into every case with an open mind, it would be naive to believe that a judge's preferences do not impact his or her decisions. Indeed, a judge's dissenting opinions are the best places to find such preferences. A dissenting opinion can reveal a judge's true beliefs since it is a public statement--that holds no precedential value--expressing what the individual judge believes the correct result to be. Furthermore, unlike a majority opinion, a dissenting judge need not appease his colleagues and therefore, this opinion is a truly accurate reflection of his or her philosophy. According to Professor Bonventre, dissenting opinions expose a judge's genuine jurisprudence. In a recent blog posting he asserted:

[Dissenting opinions] are the disagreements with his colleagues' rulings where he felt strongly enough that he chose to go public. Strongly enough that he chose to spend his time and use his staff and resources to compose a personal statement to say that his colleagues are wrong. The personal statement does not change the outcome of a case. It only serves to make public the author's disagreements, criticisms, and deeply held beliefs that the majority of his colleagues have made a mistake. A mistake that is so big and so bad that he cannot in good conscience be silent and just go along.... ... 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. (2) From this personalized statement of a judge's philosophy, a practitioner can learn a great deal, and put this knowledge to use when appearing next before that judge's court. Luckily for New York lawyers, Judge Smith often dissents.

Robert Sherlock Smith was born in New York City in 1944. After receiving his undergraduate education from Stanford University, he attended Columbia Law School, where he was the editor-in-chief of the Law Review; he graduated in 1968. After graduation he went to work for the New York City firm of Paul, Weiss, Rifkind, Wharton & Garrison where he stayed until 2003. During his tenure at Paul, Weiss he handled complex civil litigation and twice successfully defended convicted murderers before the United States Supreme Court who were sentenced to death. In 2003, he became an individual practitioner and special counsel to the firm of Kornstein, Veisz, Wexler & Pollard. And finally, on November 4, 2003 he was nominated by Governor Pataki to ascend to the bench of the New York Court of Appeals. Much ado was made of his nomination since he had no prior judicial experience; however, on January 12, 2004 he was confirmed by the senate and became an associate judge.

This past January marks Judge Smith's sixth year as a judge on the Court of Appeals. During those six years, he has emerged as the court's most vigorous questioner from the bench as well as the most independent. Since 2004, Judge Smith has written over sixty-five dissenting opinions. Clearly he has no qualms about going against the grain. Moreover, twenty-five times he wrote a dissenting opinion that no other member of the court joined, further demonstrating his independence. And when he is joined by a member of the court, it is usually Judge Read--twenty times. Frankly, Judge Smith does not care one way or the other if anyone agrees with him--he writes his opinions based on what he believes to be the correct result.

Such independence is admirable, especially when the result that Judge Smith champions is not aligned with popular opinion, on the court or in the public at large. In fact, not only does this unpopularity fail to faze Judge Smith, but rather he revels in it. (3) At times he can be the (self-declared) villain of the court, and this is nowhere more apparent than when reading his dissenting opinions. In his dissents, not only does he disagree with other members of the court, but his rhetoric can be harsh at times, scolding the majority for what he believes to be the incorrect result. This rigid language, however, often is comical. Indeed, while conducting this study, many times this author laughed-out-loud in response to Judge Smith's expressions. (4) As demonstrated below, Judge Smith's dissenting opinions can be unkind as well as humorous; however, they are always well-reasoned and persuasive.

This article is organized into two main sections: Civil Actions and Criminal Appeals. Within those two sections, eleven subtopics are discussed. Each subtopic covers a different area of law that Judge Smith has written dissenting opinions concerning. The purpose of this study is to give the reader an accurate representation of Judge Smith's philosophy--through his dissenting opinions of course--on each area of law treated. Hopefully, this article will give the scholar a precise depiction of Judge Smith's jurisprudence and the practitioner a concrete guide to winning his vote.

  1. CIVIL ACTIONS

    In the realm of civil actions, Judge Smith is relatively predictable. Indeed, when analyzing his dissents categorically--by area of law--Judge Smith's philosophy and view point becomes apparent. This section attempts to give a fair and accurate examination of Judge Smith's jurisprudential philosophy on specific areas of civil law through his dissenting opinions. In six years on the Court, Judge Smith authored forty-seven dissenting opinions in civil cases. For the purposes of this article those opinions have been classified into seven distinct categories of law and analyzed accordingly. These categories include: Workers' Rights; Tax Law; Commercial Law; Insurance Law; Landlord-Tenant Law; Tort Law; and New York Practice. (5) This study reveals Judge Smith's perspective within each specific area of law scrutinized and hopefully will give the practitioner an accurate representation of how these topics will be treated in the future.

    1. Workers' Rights

      Judge Smith favors protecting employers and wishes to reduce the heavy burden placed on them by the New York State Labor Law. To be more specific, he detests the expansion of Labor Law section 240 because it places an enormous burden on employers and therefore should be read as narrowly as possible. Labor Law section 240(1), commonly referred to as the "scaffold law," provides in relevant part:

      All contractors and owners and their agents ... in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect ... scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed. (6) Labor Law section 240(1) "imposes absolute liability on owners, contractors and their agents for any breach of the statutory duty which has proximately caused injury." (7) In many applications, Judge Smith believes the strict liability imposed by this statute to be draconian in nature and in his dissenting opinions he seeks to narrow the scope of its reach and restrict its application to new fact patterns. Consequently, his judicial philosophy regarding worker's rights is apparent and consistent throughout his opinions.

      For example, in Walls v. Turn Construction Co., (8) the Court deals with the issue of whether a construction manager can be held vicariously liable for a violation of Labor Law section 240(1) in the absence of a general contractor. Finding that in the absence of a general contractor a construction manager is responsible for monitoring unsafe practices, the Court held that the defendant was a statutory "agent" for the purposes of Labor Law section 240(1) and therefore vicariously liable. (9) Judge Smith, however, disagrees because a statutory "agent" is one that has authority to supervise and control the work. (10) Indeed, a construction manager serves in merely an advisory role, where a general contractor has "decisionmaking authority." (11) Thus, the choice by the owner to appoint defendant as a construction manager is enough for Judge Smith to absolve defendant of the enormous liability carried by Labor Law section 240(1). In closing, Judge Smith explains that:

      The...

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