Court of Appeals Update, 2000 & 2001: Conservative Voting, Narrow Rulings

I. INTRODUCTION The necessity of expressing a view contrary to that of majority of one's colleagues must be kept in check and reserved for limited applications. [But,] differences of opinion are common in conference room. They are stuff of which a majority is made.... Of course, there will be times when matters of principle are at stake and held differences need to be aired--to fail to do so diminishes competing views. --Court of Appeals Judge Richard C. Wesley, on dissents. (1) Judge Wesley's point is precisely why divided decisions are so revealing. It is why judicial scholars look to decisions with dissenting and concurring opinions to gain clues about a court's individual members and, ultimately, about a court as a collective whole. Divided decisions reveal dissenters' and separate concurrers' high principle[s] and deeply held as Judge Wesley put it. Likewise, those decisions reveal what majority of a court necessarily rejected or subordinated to other considerations. At least since Herman Pritchett's seminal writings sixty years ago, (2) scholars have recognized that divided decisions provide a window into a court's inner sanctum. (3) Unanimous decisions are compromise than conviction. (4) A court's unanimous opinion is more likely to be a negotiated document[]. (5) Even where signed by one member of court, it is more likely the product of many minds. (6) Hence, unanimous opinions do not necessarily shed light on signed author's own views of law, case, or its policy implications; and whatever light might be shed, cannot be relied upon with much confidence as reflective of that judge's own judicial philosophy, jurisprudence, or actual position taken behind closed conference doors. Moreover, as Judge Wesley noted--and as previously told by Judge Hugh Jones in whose memorial lecture Wesley was speaking--many internal dissents and disagreements, expressed in conference and deliberation among members of a court, never see light of day. Many internal dissents are withdrawn, many conference disagreements are withheld, and result is an opinion for court which conceals actual differences among its members. (7) For this reason, emphasis here is on divided decisions. The purpose is to discern patterns, differences, and emerging trends among Judges of New York Court of Appeals and, by cumulation and extrapolation, of court itself. In that sense, this article represents a continuation of an ongoing examination of New York's highest tribunal--an examination that relies on voting records of its individual members, as well as their written expressions. (8) It focuses on issues that divided court publicly and which, consequently, required each judge to choose between opposing positions openly stated. Specifically, this article examines public law developments at Court of Appeals in years 2000 and 2001. It is an update to aforementioned previous studies and, most immediately, to Bonventre-Hiller article published in Albany Law Review State Constitutional Commentary last year. (9) Every case that divided court on a question of criminal justice or civil rights, civil liberties, and equivalent public protections is considered. (10) Part II of this article examines decisional highlights of court to ascertain developments, patterns, and trends, in both criminal and civil cases, involving individual rights and liberties and analogous claims against government or for government protection. Part III examines voting records of judges to discern ideological or jurisprudential patterns and to determine judges' respective positions within court's philosophical spectrum and contrasts among them. Part IV concludes article with a summary of voting patterns and decisional trends of court as a whole. II. …