SPLITS IN DECISION-MAKING: COMPARING THE LEADERSHIP STYLES OF CHIEF JUDGE KAYE AND CHIEF JUDGE LIPPMAN.

• Author: DiBenedetto, Deana

1. INTRODUCTION

   There are many ways in which a judge may choose to lead his or her respective court. Some take command of the group, whereby one individual serves as the main authority figure and makes decisions for others. Others choose to consult with those around them before making a decision. Some discuss potential options with those around them and then take a vote to determine the final outcome.

   As for Chief Judge Judith S. Kaye and Chief Judge Jonathan Lippman, their leadership styles differed. Kaye sought to build consensus during her time as chief judge of the New York State Court of Appeals. (1) Reorienting the Court of Appeals in the direction of greater unanimity and fewer separate opinions, Chief Judge Kaye hoped that the Court of Appeals would speak with one unified and strengthened voice. (2) Chief Judge Lippman, on the other hand, was more concerned with results. (3) Under his leadership, unanimity was not prioritized, and split opinions and dissents soared. (4) The effect that these differing leadership styles had on the New York State Court of Appeals (hereinafter the "Court of Appeals") cannot be overstated. As a direct consequence of the ways in which Chief Judge Kaye and Chief Judge Lippman led their respective courts, the ultimate decisions reached by the Court of Appeals during their terms diverged in astounding ways.

   This Note seeks to analyze the judicial leadership styles of Chief Judge Kaye and Chief Judge Lippman in further detail to determine the benefits and detriments that each leadership style yielded. Part II provides helpful background information and introductory material regarding the Court of Appeals and the role of chief judge. This section also explains what split decisions are and discusses how cases that reach the Court of Appeals often arrive there after having already been met with disagreement by lower court judges, thereby further increasing the likelihood of an eventual split decision by the Court of Appeals as well. Part III discusses Chief Judge Kaye's path to the bench, as well as her judicial leadership style in favor of consensus. The Note will introduce how Chief Judge Kaye's leadership style was formed and describe how it shifted throughout her time on the bench by analyzing her decisions as an associate judge from 1983-1993 and as chief judge from 1993-2008. Part IV discusses Chief Judge Lippman's path to the bench, as well as how he altered the focus of the Court of Appeals toward results, thereby leading to split decisions and increased dissenting opinions during his reign from 2009-2015. Part V analyzes the strengths and weaknesses in adopting a judicial leadership style in favor of unanimity versus dissent.

2. BACKGROUND: THE ROLE OF CHIEF AND THE INEVITABLE SPLIT

   The Court of Appeals is the highest court in New York State. (5) The courthouse itself is located in Albany, New York, but the Court of Appeals has jurisdiction over any appeal brought forth in the State of New York. (6) The Court of Appeals is a "court of last resort," meaning that "the Court of Appeals ordinarily hears final appeals from decisions of the intermediate appellate courts." (7) Typically, "[m]ost appeals must pass through the Appellate Division before reaching the Court of Appeals, but an appeal may go directly from the trial court to the Court of Appeals in a civil case in which the only disputed issue is the constitutionality of a law" (8) or statute. (9)

   The Court of Appeals consists of one chief judge and six associate judges, each of whom is appointed for a term of fourteen years. (10)

   Together, these judges issue decisions, which can at times be somewhat controversial, and which ultimately create precedent that is thereafter binding on lower courts and "persuasive authority for future cases heard by the Court of Appeals." (11)

   The role of chief judge is one of particular importance on a court. Depending on the court, the chief judge serves as the highest-ranking or most senior member of a court with more than one judge. (12) Those appointed as chief judge are awarded a "unique leadership role as the presiding officer of the [c]ourt." (13) Great chief judges have the potential to "lead their courts to advance the law and thereby help improve life in a free society under the rule of law." (14) In New York State, the chief judge sets the tone of the Court of Appeals by "establishing] Statewide standards and administrative policies after consulting with the Administrative Board of the [c]ourts and approval by the Court of Appeals." (15) For these reasons, the position of chief judge often comes as a "result of an exemplary career as a lawyer and a judge." (16)

   At times, there can be a "stark difference in the approach taken by different" judges and by different courts. (17) Differing decisions among judges and courts have actually become so commonplace that terms have been established to describe these trends. A split decision occurs "[w]hen the members of an appellate court cannot reach full agreement." (18) As distinguished from a unanimous decision, where "all the judges join in agreement," when a split decision is issued, "the will of the majority of the judges is binding." (19) While any number of judges may write a separate opinion in concurrence or dissent with the majority, the explanation contained in such an opinion does not create precedent that is binding on future courts. (20) Instead, "it is the majority decision, not a concurring or dissenting opinion, that determines the outcome of the case before the court and establishes the law of New York." (21) Likewise, the term circuit split has been adopted among United States federal courts to describe situations where "two or more circuits in the U.S. Court of Appeals reach different decisions on the same legal issue." (22) As a result of this disagreement, whether among judges on one individual court or among different courts, the law is applied differently, resulting in the potential for different outcomes occurring "depending on where or when an appeal is heard." (23)

   Many cases that reach the Court of Appeals come from New York State's "intermediate appellate courts," namely, the four appellate divisions of the supreme court, which "hear civil and criminal appeals from the trial courts as well as civil appeals from the Appellate Terms and County Courts." (24) In each of the four judicial departments, split opinions are commonly rendered. (25) Ultimately, many of these cases find their way up to the Court of Appeals and are painted with a procedural history that, upon further review, reveals lower court judges splitting in their decision-making. (26) New York CPLR section 5601(a) increases the number of split decisions that reach the Court of Appeals by allowing losing parties to take a further appeal to the Court of Appeals by right when there are at least two dissents in a decision furnished by the appellate division. (27) Additionally, "a single, forceful dissent below may resonate well with at least two judges and persuade them to vote to grant leave to appeal [to the Court of Appeals] in civil cases." (28)

3. CHIEF JUDGE JUDITH S. KAYE

   1. Path to the Bench

      Judith S. Kaye was born in Monticello, New York, on August 4, 1938. (29) Her parents were Jewish immigrants from Poland who fled religious persecution to the United States. (30) Together, they lived on a farm in Sullivan County before moving to the village of Monticello, where they opened and thereafter operated a women's clothing store. (31)

      Kaye showed her bright intelligence early in her life, skipping two grades and graduating from high school by age fifteen. (32) She went on to attend Barnard College in hopes of becoming a journalist, and thereafter became a reporter for the New Jersey Hudson Dispatch. (33) She eventually left this job, working as a copy editor during the day and attending night school at New York University Law School with the hope that the experience "would enhance her chances of becoming an international reporter." (34) By the time that she graduated cum laude from New York University Law School in 1962, however, the law "interest[ed] her more than journalism and [she] devoted her efforts to" entering the legal field. (35)

      In 1963, Kaye was admitted to practice law in New York State, (36) and began her legal career in New York City at the law firm Sullivan & Cromwell. (37) In the years that followed, before being appointed to the bench, Kaye worked at the IBM legal department, served as an assistant to the Dean of New York University Law School, litigated at the firm Olwine, Connelly, Chase, O'Donnell & Weyher, and raised three small children. (38)

      In 1983, Kaye was nominated to the Court of Appeals by then-Governor Mario M. Cuomo. (39) At the time, the Women's Bar Association of the State of New York actually branded Kaye as "not qualified" for the position. (40) Nevertheless, she was unanimously confirmed by the New York State Senate, and she was sworn in on September 12, 1983, thereby becoming the first female judge on the Court of Appeals. (41) In approximately ten years' time, Governor Cuomo would nominate Judge Kaye to become the first woman to serve as chief judge of the Court of Appeals, and she would once again be unanimously confirmed by the New York State Senate. (42) She remained on the bench until 2008, when mandatory retirement rules required that she step down. (43)

      At first glance, upon looking at Kaye's upbringing, one might guess that, when it came to opinion-writing upon her appointment to the bench, as the child of first-generation immigrants, with prior experience in journalism, and as one of the few women in her graduating class to join the practice of law, Kaye's perspective might diverge from others, and some may have anticipated that she would likely expect others to possess a wide scope of diverse perspectives as well. (44)

   2. Desire for Consensus During Chief Judge Kaye's Time on the Bench

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