How to win the Read vote: a profile of the statutory interpretation method of associate judge Susan P. Read from a practical viewpoint.

• Author: Devabhakthuni, Sanjeev

1. INTRODUCTION

   Text, intent, and purpose. Judges rely on one or more of these tools whenever they begin to construe a statute with ambiguous language. (1) But what do judges do when, on occasion, these tools fail to resolve the ambiguity? Judges must of course resort to some method or methods in order to apply the law and decide difficult cases. Although it is typical to start with one of the three interpretive touchstones stated above, the ensuing process and decision can vary greatly from judge to judge and case to case. As Judge Cardozo once said, a judge interpreting a statute is like "a wise pharmacist who from a recipe so general can compound a fitting remedy." (2)

   This article is an attempt to gauge the method of statutory interpretation employed by Associate Judge Susan P. Read of the New York Court of Appeals. This article will consider--among other subjects--Read's interpretive tendencies, whether she uses a method consistently, and her view on the proper role of the courts with regard to the separation of powers. Why is this subject important? For one thing, New York's high court resolves dozens of questions of statutory and constitutional law every year, and these decisions have a great impact on virtually every aspect of life for New Yorkers. (3) Second, attorneys want to win cases. Understanding how judges reach interpretive decisions is important for any attorney arguing before a court. Finally, Judge Read makes for an interesting study since she herself is a student of statutory interpretation and has in fact written on the subject. (4)

   Part II of this article summarizes the background surrounding Judge Read's nomination and confirmation to the Court of Appeals. Part III briefly introduces several methods of statutory interpretation that have developed over time. The goal is not to get over-involved in theory, but rather to provide a backdrop before considering some examples of Judge Read's own method of interpretation. Only the more established and recognized theories of construction will be introduced. Part IV of this article examines several of Judge Read's opinions in various areas of law. Included are analyses of cases involving rent regulation, administrative agency action, limited liability companies, criminal procedure, and workers' compensation. Ultimately, through a synthesis of these opinions, Part V strives (1) to develop at least a few common trends in Judge Read's method of interpretation and (2) to determine whether her method fits into one or more of the recognized theories--not for an extensive trek down a path of theoretical analysis, but to provide practitioners and advocates before the Court of Appeals with a better idea of how to win her vote.

   A foreword should be made about the method of analysis in this article. The focus is on dissenting opinions. Judge Read has sat on the Court of Appeals for approximately seven years and has written many dissents. Among those dissents are several that involve a lengthy discussion of statutory interpretation. For this article, five of Judge Read's more prominent dissents have been selected for study.

   Lost in majority opinions--of which Judge Read has obviously also written many--is a judge's pure analytical or theoretical viewpoint. This is naturally so because the majority opinion writer must draft it in a way that holds the votes of her colleagues. By contrast, with a dissent--particularly a one-judge dissent--there is no such constraint. This article will show that Judge Read has a well-developed method of statutory interpretation in which she places much confidence and conviction--illustrated by her willingness to write dissenting opinions.

2. APPOINTMENT AND CONFIRMATION

   On January 22, 2003, the New York State Senate confirmed Susan Phillips Read as an associate judge of the New York Court of Appeals. (5) Before her confirmation, Judge Read was a legal adviser to Governor George E. Pataki, and later served as presiding judge of the New York Court of Claims. (6) Pataki nominated Read to the high court after she had served on the Court of Claims for approximately six years. (7) Although she had no background in criminal law as an attorney or a judge at the time of her nomination, there were no serious doubts about her legal expertise or ability as a judge among scholars and her peers. (8) In fact, she received praise from several of the top members of the New York judiciary, including former Chief Administrative Judge and current Chief Judge of the Court of Appeals Jonathan Lippman. (9) Because Court of Claims cases do not often involve issues regarding constitutional law or civil liberties, it was difficult for experts to predict Judge Read's judicial philosophy. (10) The general feeling, however, was that her elevation to the Court of Appeals would keep the court headed in a conservative direction since she was a Republican appointee. (11) Upon Judge Read's nomination, Governor Pataki described her as "brilliant" with "knowledge and experience in the law, and ... as a judge." (12) Anyone interested in formulating Judge Read's views of statutory interpretation would have to wait for her opinions from the high court. At the announcement of her nomination, Read herself offered this note about the judicial role: "Technique without morals is a menace and morals without technique is a mess." (13)

3. THEORIES OF STATUTORY INTERPRETATION

   1. Intentionalism

      Perhaps the most popular traditional theory of statutory interpretation is intentionalism. (14) Proponents of this model see the Court's role as applying the original intent of the enacting legislature. (15) Judges on the federal and state level frequently approach statutory construction with canons rooted in intentionalism, (16) and New York courts are no different. As set forth by one Court of Appeals case: "When construing a statute, we seek to discern and give effect to the Legislature's intent." (17)

      Intentionalist theory claims legitimacy in the fact that enacted laws in America are the product of a representative democracy.IS The rationale is based on a fixed view of separation of powers among the branches of government: the legislature is the lawmaker and the courts serve to merely give effect to those laws; thus, "requiring the courts to follow the legislature's intentions disciplines judges by inhibiting judicial lawmaking, and in so doing seems to further democracy by affirming the will of elected representatives." (19) This foundation underlies the reason why so many courts construe statutes based on legislative intent. For attorneys arguing and attempting to persuade an intentionalist judge, an additional point should be made. Legislative history is fair game, even if the statutory text is unambiguously clear. (20) Unlike supporters of other theories--discussed later-intentionalists believe that the text is merely one indicator of the statute's meaning, and evidence contained in legislative history, such as committee reports, can shed light on original intent. (21)

      Critics of intentionalism posit that it rests upon a skewed view of the legislative process. (22) Intentionalism contains an underlying presumption that what is said in a committee report or floor debate represents the "intent" of the entire legislature regarding a given law. (23) But this is not true. Such reports and statements are often representative of the views of a faction within the legislature. (24) Legislative history therefore often flows not from the entire process of enactment of a law, but from a small portion of the lawmakers involved.

      A second criticism is that legislative history is often cumbersome and resistant to the discovery of a single "intent." (25) That is, a shrewd judge can parse through legislative history to find statements or evidence that supports her position. (26) If the end goal is to discover the legislative intent of ambiguous statutory language, how can that be achieved if the legislative history is also ambiguous? (27) Yet another negative aspect of intentionalism is that there simply may be no clear evidence in the legislative history of a statue as to what the enacting legislature meant. (28) In those situations, intentionalism adds nothing to the discussion, and the court is left to give effect to ambiguous text. These negative critiques are reasons why most courts, including the Court of Appeals, adhere to the familiar common-law doctrine that legislative history--or any other extrinsic evidence for that matter-should not be used for interpretation purposes if unnecessary. (29)

   2. Purposivism

      From the critiques of intentionalism stemmed a new method of statutory interpretation in the twentieth century: purposivism. At its roots, purposivism accepts the intentionlist idea that the legislature occupies a place above the judiciary with regard to interpretation. (30) It differs, however, in that it does not undertake a rigid approach but rather opts for more flexibility. (31) The presumption underlying the purposivist view is that the legislature must have a specific purpose or goal in enacting every statute. (32) Met with an ambiguity in text, a judge should try to ascertain the purpose of the statute and arrive at an interpretation that best serves--or is at least consistent with--that purpose. (33) Like intentionalism, purposivism has elements that have been adopted by most courts--including those in New York--when interpreting unclear statutory language. (34) It should be noted that legislative history does not disappear from the landscape for purposivists; it has a role to play--though not as crucial a role as with intentionalism. (35) By examining the text, history and "legal landscape" surrounding legislation, a purpose should be formed. (36)

      Of course, purposivism has its critics as well--critics who argue that purposivism fails to offer a comprehensive method of interpretation for similar reasons that make intentionalism an imperfect theory: "unrealistic...