Quality in numbers? The dynamics of decision-making in the Second Department.

• Author: Ostrander, Kristopher
• Position: New York

The utility of dissenting opinions has long been the subject of debate amongst the bench and bar. Proponents urge that the dissenting opinion "safeguards the integrity of the judicial decision-making process," both "by keeping the majority accountable for the rationale and consequences of its decision," and by forcing the prevailing party to deal with the most difficult questions offered by its opponent. (1) Unlike the judge authoring the majority opinion, a judge writing for a unanimous court has the choice of selecting which of the losing side's arguments it wishes to refute, with the added luxury of framing the arguments in whatever manner he or she sees fit. (2)

In contrast, critics of dissenting opinions argue that they create uncertainty as to the finality of opinions and the infallibility of the judges who author them. (3) For them, dissenting opinions are merely self-aggrandizing nullities, "a sort of undesirable self-exploitation" that often leave open legal issues that should otherwise be resolved conclusively. (4)

Undoubtedly, dissenting opinions can serve a useful role in sharpening the issues for the majority by forcing them to omit arguments most vulnerable to objections, while acknowledging important limitations on the scope of the holding. (5) This role is diminished where such opinions originate in the courts of last resort, due primarily to the well-established legal doctrine of stare decisis. (6) Thus, critics argue, the benefit of dissenting opinions disappears well before they are within the public domain because by then the majority has already had ample time to address the dissenter's arguments and account for them in their opinions. However, this argument carries less weight when applied to dissenting opinions arising out of intermediate appellate courts.

To be sure, the usefulness of dissenting opinions as "benchmark[s] against which the majority's reasoning can continue to be evaluated," (7) is an inescapable trait when such opinions arise out of an intermediate appellate court. Provided that the losing party chooses to appeal and the court of last resort decides to hear the appeal, the dissenting opinion is almost certain to become a valuable tool to the high-court judges in formulating their own opinions of the case. Therefore, many of the criticisms that are directed at dissenting opinions, insofar as they relate to their utility for deciding future cases, are not applicable in the intermediate appellate courts.

The following study examines the divided decisions of the New York State Appellate Division, Second Department ("Second Department"), over the ten-year period beginning January 1, 2000 and ending October 1, 2010. (8) In so doing, this paper seeks to impart a practical and useful perspective to practitioners and academicians alike through the empirical analysis of the dissenting opinions of the Second Department. By focusing specifically on opinions that are later reversed by the Court of Appeals and, more specifically, dissenting opinions that are later vindicated by the Court, this study seeks to provide a better perspective into the decision-making tendencies of the New York State appellate courts.

It should be noted however, that this study does not purport to provide 100% accuracy in either its data or the analysis thereof. Indeed, in the time it would take to thoroughly and adequately analyze and dissect the tens of thousands of opinions required to accomplish such a feat, it is entirely probable that the utility of such a study would have all but disappeared--the judges having long since retired. For that reason, and for the reasons stated below, this study avoids characterizing the individual justices of the Second Department according to any preconceived judicial ideology (e.g., pro-plaintiff vs. pro-defendant).

Part I of this paper provides an introduction to the Second Department, briefly outlining the bounds of its jurisdiction and the composition of its bench. Parts II and III provide descriptions of the Second Department data with respect to the dissenting opinions and vindications at the Court of Appeals. Part IV examines the various factors that may affect the decision-making processes of the Second Department. Finally, Part V concludes by offering possible solutions for the problems outlined below.

1. AN INTRODUCTION TO THE SECOND DEPARTMENT

   The organization of New York's appellate courts is ... antiquated and inefficient. The current structure ... was set up in the 1890s, when the state's population was a small fraction of what it is today, and when the population was more evenly distributed. Today, more than a century later, one of these departments, the Second Department, has grown to include half the state's population. As a consequence, it now bears a highly disproportionate share of the state's appellate caseload, resulting in enormous backlogs, delays, and unnecessary costs to all concerned. (9) By way of background, the State of New York is divided into four Judicial Departments, each served by an Appellate Division of the Supreme Court, and divided according to geographic region. (10) The Appellate Divisions of the Supreme Court serve as New York State's predominant intermediate appellate courts, responsible for hearing civil and criminal appeals from the trial courts, in addition to civil appeals from the Appellate Terms and County Courts. (11) This jurisdiction encompasses orders, judgments, and decrees issued by the Court of Claims, the Supreme Court, the Family Court, and the Surrogate's Court. (12)

   The Second Department covers five (13) of the thirteen judicial districts of the State of New York. In all, it spans ten New York counties, (14) which corresponds to just over 8% of New York's total land area. However, what the Second Department lacks in size, it makes up for in total population--its jurisdiction representing just over one-half of the state's total population. (15) As a result of its expansive constituency, the Second Department is forced to bear a caseload that is substantially greater than that of the other three departments. (16)

   There are currently twenty-two justices that sit on the bench of the Second Department, led by Presiding Justice A. Gail Prudenti, who has served in that role since being appointed by Governor Pataki in 2002. (17) In addition to Presiding Justice Prudenti, there are six associate justices appointed by the governor pursuant to article VI of the New York State Constitution. (18) The justices of the constitutionally-prescribed, seven-member court include: Justice Daniel D. Angiolillo; Justice Leonard B. Austin; Justice Cheryl E. Chambers; Justice Mark C. Dillon; Justice Anita Florio; and Justice Reinaldo E. Rivera. (19)

   In addition, the Second Department bench includes fifteen additional associate justices (20) including: Justice Ruth C. Balkin; Justice Ariel E. Belen; Justice Joseph Covello; Justice Thomas A. Dickerson; (21) Justice Randall T. Eng; Justice Steven W. Fisher; Justice L. Priscilla Hall; Justice John M. Leventhal; Justice Plummer E. Lott; Justice William F. Mastro; Justice Howard Miller; Justice Sheri S. Roman; Justice Fred T. Santucci; Justice Sandra L. Sgroi; and Justice Peter B. Skelos. (22)

2. DISSENTING OPINIONS IN THE SECOND DEPARTMENT

   Collectively, the Second Department bench has rendered approximately 43,559 decisions--or 3960 per year--over the last ten years. An overwhelming majority of these decisions are issued in memorandum form, as opposed to an individual justice signing onto the opinion. (23) Because memoranda opinions are short, unsigned recitations of the salient facts and legal principles of a case, and consequently often fail to provide detailed guidance as to a case's nuances, they are necessarily limited in their usefulness to practitioners. At the very least, however, memoranda opinions must "briefly state the grounds of [the] decision" and identify those justices, if any, who dissent from the opinion. (24)

   Over the period examined, the Second Department issued 343 dissenting opinions, or approximately thirty-one per year. (25) Of the 343 divided decisions, twenty-three were overturned on review by the Court of Appeals. And, in twenty of those cases, the Court of Appeals adopted the rationale of the Second Department dissenter. (26)

   As Table 1 indicates, over the past ten years in which a divided decision was issued, the Court of Appeals has overturned the Second Department majority at a rate of approximately 7%. In other words, the Court of Appeals agrees with the Second Department majority in 93% of non-unanimous decisions. This figure, taken alone, appears to lend credibility to the Second Department bench, at least with respect to their ability to reach a consensus with the Court of Appeals majority. However, when compared to the overall rate at which the Court of Appeals has overturned the Second Department during the same period, the results are somewhat surprising. Indeed, over the ten-year period examined, the Second Department was overturned on review by the Court of Appeals 5203 times, at a rate of approximately 12%. (27) Thus, the data reveals that during the last ten years, the Court of Appeals was more likely to overturn a unanimous Second Department as opposed to a divided one.

   A dissent challenges the reasoning of the majority, tests its authority and establishes a benchmark against which the majority's reasoning can continue to be evaluated, and perhaps, in time, superseded.... And, each time the Court revisits an issue, the justices are forced by a dissent to reconsider the fundamental questions and to rethink the result. (28) Table 2 presents a side-by-side comparison of the subsequent history of unanimous and divided decisions issued by the Second Department. The data shows that over the period examined, the Court of Appeals, on average, was more likely to overturn a unanimous Second Department. From a...