The Dynamics of State Constitutional Decision-Making: Judicial Behavior at the New York Court of Appeals

THE DYNAMICS OF STATE CONSTITUTIONAL DECISION-MAKING: JUDICIAL BEHAVIOR AT THE NEW YORK COURT OF APPEALS

Luke Bierman*

Although scholars continue to refer to its infancy,' the "New Judicial Federalism" is rapidly approaching maturity. Indeed, the genre's most ar- dent analysts recognize that judicial federalism "isn't new anymore."'2 As the enthusiasm that initially sustained judicial federalism wanes, informed observers recognize that the focus of scholarly investigation of state constitutionalism must be broadened if the subject is to move forward in an intelligent and useful fashion.3 This article is meant as a contribution to the expansion of our thinking about state constitutional decision-making. Rather than focus simply on doctrinal analysis of how state high court judges approach and interpret state constitutions, this article examines state court decision-making from the perspectives offered by the rich literature of judicial voting behavior. Specifi- cally, this article considers how the judges of the New York Court of Appeals exercise their individual prerogatives in resolving cases. By looking at voting preferences, patterns, and alignments in different categories of cases, including state constitutional cases, one can identify the influences and motivations affecting voting behavior. From this examination, a broader understanding of the dynamics involved in decision-making under the so-called "New Judi- cial Federalism" is possible.

* Visiting Specialist in Constitutional Law and Civil Liberties, The Richard Stockton Col- lege of New Jersey; B.A., Colgate University; J.D., Marshall-Wythe School of Law of the College of William and Mary; M.A., Ph.D., State University of New York at Albany. This article is adapted from a chapter of the author's doctoral dissertation. The author would like to thank Professors Stephen L. Wasby and Vincent M. Bonventre for thoughtful criticism in initial drafts of this article, and Christine Kenefick for coming through in a pinch with research assistance, as she always does. 1. See, e.g., Michael Esler, State Supreme Court Commitment to State Law, 78 JUDICATURE 25, 25 (1994) (arguing that extent to which state courts rely on own constitution is overrated). 2. Ronald K.L. Collins, Reliance on State Constitutions-Beyondthe New Federalism, 8 U. PUGET SOUND L. REV. vi, vi (1985). 3. See, e.g., G. Alan Tarr, Constitutional Theory and State Constitutional Interpretation, 22 RUTGERS L.J. 841, 861 (1991) (reviewing constitutional bases for judicial review of regulatory practices in Oregon). 1403 HeinOnline -- 68 Temple L. Rev. 1403 1995 1404 TEMPLE LAW REVIEW [Vol. 68

I. APPROACHES TO JUDICIAL DECISION MAKING Although the influence of the states as "laboratories" for developing social and economic policy has long been recognized,4 the importance of state courts to constitutional development has been slower in gaining recognition. Of course, state courts have rendered decisions on state grounds, including state constitutional grounds, since the American Revolution, 5 but only in the last half of the twentieth century has significant attention been paid to the state constitutional phenomenon.6 Having gained popularity as a mechanism for protecting individual rights and liberties at a time when the U.S. Supreme Court was less protective of those rights, state constitutionalism has gener- ated substantial scholarly interest and concern. The fact that the "New Judicial Federalism" has actually been less protective of individual rights and liberties than generally believed 7 has not undermined the importance or growth of state constitutionalism. State courts have remained an important concern for several reasons. The bulk of litiga- tion occurs in state courts, providing numerous opportunities for innovative state law, including state constitutional claims. Not surprisingly, state courts have utilized state constitutional provisions to effect public policy development in such diverse areas as education, welfare, civil justice, and civil liberties.8 The breadth of state court constitutional decision-making makes the importance of these courts apparent. The failure of state courts to develop principled approaches or founda- tions to state constitutional interpretation, however, has raised concerns within the scholarly community.9 Among the more perceptive and knowl-

4. See, e.g., New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1931) (Brandeis, J.,dissenting) (recognizing that state choosing to act as laboratory for experimentation is "happy incident"). 5. See, e.g., Vincent M. Bonventre, State Constitutionalismin New York: A Non-Reactive Tradition, 2 EMERGING ISSUES ST. CONST. L. 31, 35 (1989) (discussing long tradition of independent decision-making by state). 6. Former Oregon Justice Hans Linde generally is conceded to have sparked attention to state constitutional adjudication. See, e.g., Hans Linde, Without "Due Process": Unconstitu- tional Law in Oregon, 49 OR. L. REV. 133, 153 (1970) (reviewing constitutional bases for judicial review of regulatory policies). However, the more practical concern over "the Burger Court's perceived hostility to Warren Court activism and its extension" has led to the growth in attention to state constitutionalism. Earl Maltz, The PoliticalDynamism of the "New Judicial Federalism", 2 EMERGING ISSUES ST. CONST. L. 233, 235 (1989). See also William J. Brennan, State Constitu- tions and the Protection of Individual Rights, 90 HARV. L. REV. 489, 489 (1977) (arguing that federal law must not be allowed to inhibit independent protective forces of state law). 7. Barry Latzer, The Hidden Conservatism of the State Court "Revolution", 74 JUDICATURE 195, 195 (1991). 8. See generally A.E. Dick Howard, The Renaissance of State ConstitutionalLaw, 1 EMERG- ING ISSUES ST. CONST. L. 1, 12 (1988) (discussing how state constitutionalism has affected areas of economic regulation, separation of church and state, criminal procedure, environment, and gender discrimination). 9. See, e.g., Vincent M. Bonventre, New York's Chief Judge Kaye: Her Separate Opinions Bode Well for Renewed State Constitutionalism at the Court of Appeals, 67 TEMP. L. REV. 1163, 1163-64 (1994) (evaluating appointment of Judge Kaye to improve ailing court's state constitutional decision-making); Peter J. Galie, Modes of ConstitutionalInterpretation: The New York HeinOnline -- 68 Temple L. Rev. 1404 1995 1995] NEW YORK COURT OF APPEALS 1405

edgeable critics of the development of state constitutional interpretation, G. Alan Tarr recently has recognized the inadequacies of a "result-oriented" approach to state constitutional decision-making. 10 Tarr argues forcefully that state courts need to develop "a principled state constitutional jurisprudence" in order to bring greater understanding and legitimacy to state constitutionalism." Rejecting the prevalent use of text-based interpretivism for state constitutional provisions as too similar to federal constitutional jurisprudence despite different historical and philosophical bases, Tarr suggests that better understanding of state constitutional law will come only from "more sustained reflection about the nature of state constitutions and through a dia- '12 logue with scholars outside the field of state constitutional law." Of course, jurisprudential choices and ideological approaches form the bases for most doctrinal analysis of judicial behavior. Judicial process scholars from all fields, however, recognize the judicial decision-making process as a complicated undertaking that implicates more than just doctrinal interpretation. These scholars acknowledge that the way in which a judge's vote is exercised, with its accompanying explanation as expressed in an opinion, is a fundamental expression from which we can learn much about the beliefs and roles of those serving on a court. In other words, a judge's voting behavior can serve as a window to the motivations underlying the judicial decision- making process. Tapping into this expressive conduct for explanatory pur- poses would seem especially appropriate to elucidate the developing area of state constitutionalism. Recognizing the importance of a judge's vote, judicial process scholars interested in judicial behavior have tended to concentrate their attention on judges' voting practices. For example, the nature of an appellate court's jurisdiction can affect such voting behavior as dissent rates and patterns. The capacity of an appellate court's leader to exert various forms of leadership can change a court's voting preferences and patterns. Judges' ideologies and capacities to influence colleagues to accept their views relate to how judges vote. A court's "standard operating procedures" and its judges' perceptions about them contribute to the way in which votes are exercised. The judges' backgrounds and experiences also affect voting behavior. By drawing on the rich literature devoted to judicial voting behavior, we can use these various approaches to assess judges' voting preferences and patterns and thereby determine their motivations and influences when deciding cases. Focusing this

Court of Appeals' Search for a Role, 4 EMERGING ISSUES ST. CONST. L. 225, 248 (1991) (raising concerns regarding state courts' unwillingness to dissociate from federal law); James A. Gardner, The Failed Discourse of State Constitutionalism,90 MIcH. L. REV. 761, 766 (1992) (arguing failure of state constitutional discourse results from failure of internally inconsistent state constitution itself); Tarr, supra note 3, at 842 (describing concerns regarding lack of dialogue between constitutional theorists and constitutional scholars). 10. Tarr, supra note 3, at 842. 11. Id. 12. Id. at 861. HeinOnline -- 68 Temple L. Rev. 1405 1995 1406 TEMPLE LAW REVIEW [Vol. 68

effort on cases raising state constitutional issues provides greater insight into what has been called the "New Judicial Federalism." The relationship between discretionary jurisdiction and lack of consensus in resolving cases is apparent from the trend away from unanimity at the U.S. Supreme Court following enactment of the Judges' Bill of 1925.13 The ability to choose cases with important and divisive issues helped to define the Supreme Court's role and its justices' habits during this century. The most frequent dissenters in Supreme Court history hail from this period, with Justice Douglas well-recognized for his prodigious number of dissenting votes and opinions. 14 The prevalence of dissents by those at ideological extremes, such as Justices Brennan, Marshall, and Rehnquist, also has been recognized. 15 Although the most famous of the Supreme Court dissenters, those known as the "Great Dissenters" such as Justices Holmes and Brandeis, developed their reputations at a time when the Court's mandatory jurisdiction seems effectively to have diminished the number of dissents, the frequency and rates of their dissents are far below those of the more prolific dissenters of more contemporary times. 16 This suggests that the frequency of dissent should not be confused with the tenor, content, and ultimately, the effectiveness of the dissent. This suggestion, that the quality rather the quantity of dissents may affect how others perceive the effectiveness of the dissenter's position, raises the possibility that certain judges can exert influence over others. This "ability to persuade or convince another of the correctness of one's opinions" will reveal whether particular judges played more influential roles than others in the dynamics of an appellate court. 17 For example, Spaeth and Altfeld found that the justices on the Warren and Burger Courts exerted little influence on each other through their dissenting and concurring opinions, although justices of similar ideological preferences were more likely to be influenced by each other.' 8 Related to the possibility of influencing colleagues' votes through separate opinions is the opportunity to affect voting behavior by exerting judicial leadership. A variety of leadership roles have been identified as contributing to a chief justice's ability to marshal the Court's resources and, ultimately, its

13. See generally Stephen C. Halpern & Kenneth N. Vines, Institutional Disunity, the Judges' Bill and the Role of the U.S. Supreme Court, 30 W. POL. Q. 471, 472 (1977) (examining ways Judiciary Act of 1925 influenced new norms in dissenting behavior). 14. DAVID M. O'BRIEN, STORM CENTER 340-42 (3d. ed. 1993); STEPHEN L. WASBY, THE SUPREME COURT IN THE FEDERAL JUDICIAL SYSTEM 243 (4th ed. 1993). 15. WASBY, supra note 14, at 243-44. 16. O'BRIEN, supra note 14, at 341. 17. Harold J. Spaeth & Michael F. AItfield, Influence Relationships Within the Supreme Court: A Comparison of the Warren and Burger Courts, 38 W. POL. Q. 70, 70 (1985). 18. Id. at 82 (formulating measures of influence independent of effect on power and leadership in Supreme Court); see also Michael F. Altfeld & Harold J. Spaeth, Measuring Influence on the U.S. Supreme Court, 24 JURIMETRICS J. 236, 244-47 (1984) (analyzing influence of Supreme Court justices on each other). HeinOnline -- 68 Temple L. Rev. 1406 1995 1995] NEW YORK COURT OF APPEALS 1407

members' votes. Task leadership requires control over the Court's workload and procedures, with social leadership requiring attention to the diverse needs and relationships among strong-willed, successful individuals. 19 The chief justice, as the first among equals, has been afforded a variety of tools to effect these leadership roles on the U.S. Supreme Court. For example, the chief justice compiles the "discuss list" and leads conference dis- cussions, affording important opportunities to set the Court's agenda and to persuade others.20 Opinion assignments offer another useful means by which the chief justice can provide leadership; justices' votes as well as public opinion may well turn on the tenor of a written opinion, which is related to the way the chief justice handles voting responsibilites. 21 Although some have seized these opportunities for leadership, not all chief justices have successfully risen to the occasion to serve as effective and persuasive leaders.22 Chief Justices Taft and Hughes, for example, have been acknowledged as strong leaders, moving the Court's practices and doctrine in desired directions. Likewise, Chief Justice Warren's ability to craft a unanimous opinion in Brown v. Board of Education23 is but one example of his unique leadership skills, which earned him recognition as "Super Chief."'24 On the other hand, Chief Justice Burger's lack of doctrinal consistency and failure to master certain administrative tasks expected of the chief justice 5 inhibited his ability to marshal votes. 2 In attempting to seize the opportunities for leadership presented, it is not unusual for a chief justice to enlist the assistance of other justices. For example, Justice Van Deventer's intellectual leadership complemented Chief Justice Taft's social graces. Chief Justice Warren's social leadership is well- recognized, and he relied on Justice Brennan for task and policy assistance.2 6 William Rehnquist, as Chief Justice, softened his conservative rhetoric to function more effectively in the center chair,2 7 while Justice Scalia, later

19. David J. Danelski, The Influence of the Chief Justice in the Decisional Process, in COURTS, JUDGES, AND PoLiTIcs 695 (Walter Murphy & C.H. Pritchett eds., 4th ed. 1986). 20. See, e.g., Gregory A. Caldeira & John R. Wright, Organized Interests and the Discuss List in the Supreme Court (Paper Presented at the 1988 American Political Science Association Annual Meeting). 21. See, e.g., Sue Davis, Power on the Court: ChiefJustice Rehnquist's Opinion Assignments, 74 JUDICATURE 66, 67 (1990) (discussing Chief Justice's power in assigning majority opinions to other justices). 22. See generally O'BRIEN, supra note 14, at 239-43, 277-84 (describing process of judicial conferences). 23. 347 U.S. 483 (1954). 24. See generally BERNARD SCHWARTZ, SUPER CHIEF: EARL WARREN AND His SUPREME COURT (1983) (examining career and impact of Chief Justice Warren on Supreme Court). 25. See generally BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN (1979) (analyzing inner-workings of Supreme Court from 1969 to 1976). 26. See, e.g., O'BREN, supra note 14, at 297 (discussing Justice Warren's reliance on Justice Brennan when planning conferences). 27. See Frank Guliuzza III, ProtectingJudicial Leadership: Did Rehnquist Prefer To Switch than Fight?, 29 WILLAMETTE L. REV. 151, 157 (1993) (examining Rehnquist's role as dominant conservative voice on Supreme Court). HeinOnline -- 68 Temple L. Rev. 1407 1995 1408 TEMPLE LAW REVIEW [Vol. 68

joined by his usual voting partner Justice Thomas, 28 provided the conservative salvos that characterized Rehnquist's opinions as an Associate Justice. The development of a centrist coalition of Justices O'Connor, Kennedy, and Souter for at least some doctrinal issues29 also reveals that it is not only the chief justice who can marshal the Court's votes to lead it in a particular way. At the New York Court of Appeals, the chief judge's leadership has been seen as particularly influential to the court's reputation, if not direction. Benjamin Cardozo's reputation as a leading common law jurist helped bring national attention to the court of appeals during the early part of the century. The court's progressive views in protecting civil rights and liberties as a matter of state law were enhanced under the leadership of Chief Judges Stanley Fuld (1967-1973) and Lawrence Cooke (1979-1984).3 0 As chief judge, Charles Breitel (1974-1978) pushed his colleagues to meet high standards in what has been characterized as "rough fondling," and his tenure saw important administrative reform at the court.31 Sol Wachtler, appointed chief judge in 1985, was described in 1990 as a "dominant force,"' 32 with the court 33 taking on his " 'cordial, pragmatic and intelligent' " personality. There has been other evidence of the chief judge's influence on the court of appeals during the 1980s and 1990s. Bonventre has suggested that Chief Judge Sol Wachtler in the late 1980s led the court to retreat from its traditional progressive views in protecting civil rights and liberties under the state constitution, 34 despite extrajudicial writings of several members of the Wach-

28. See Christopher E. Smith & Scott P. Johnson, The First-Term Performance of Justice Clarence Thomas, 76 JUDICATURE 172, 173 (1993) (noting frequency of Justice Thomas voting same as Justice Scalia during first term). 29. Id. 30. See Bonventre, supra note 5, at 45, 48 (discussing Judges Fuld & Cooke's respective roles in protecting civil rights through state law); Peter J. Galie, State ConstitutionalGuarantees and Protectionof Defendants' Rights: The Case of New York, 1960-1978, 28 BUFF. L. REV. 157, 167 (1979) (discussing Judge Fuld's role in deciding Marsh case limiting powers of police in search and seizure during traffic stop); see also Akel v. New York, 81 S.Ct. 25, 26 (1960) (referring to Judge Fuld as "solicitous" of claims to civil rights and liberties); Feiner v. New York, 340 U.S. 315, 288 (1951) (Frankfurter, J., concurring) (asserting that New York Court of Appeals is hospitable to claims involving civil liberties). 31. See Sol Wachtler, Remarks at Memorial for former Chief Judge Charles D. Breitel, Jan. 9, 1992, in 78 N.Y.2d vi, viii (describing reforms implemented during Breitel's tenure as chief judge and remarking on Breitel's management style). 32. Elizabeth Kolbert, In Rights Cases, New York Leans on Its Constitution, N.Y. TIMES, Jan. 8, 1990, at Al, B4. 33. Id. at B4 (quoting Norman Siegel, Executive Director of New York Civil Liberties Union). 34. See Vincent M. Bonventre, State Constitutional Adjudication at the Court of Appeals, 1990 and 1991: Retrenchment Is the Rule, 56 ALa. L. REV. 119, 121-23 (1992) [hereinafter Bonventre, State ConstitutionalAdjudication] (suggesting Judge Wachtler's tenure as chief judge reversed progressive movement of court); Vincent M. Bonventre, Court of Appeals-State Con- stitutional Law Review, 1990, 12 PACE L. REv. 1, 49-51 (1992) [hereinafter Bonventre, Court of Appeals] (providing statistical data linking Judge Wachtler to conservative trend in court); Vin- cent M. Bonventre, State ConstitutionalRecession: The New York Court of Appeals Retrenches, 4 EMERGING ISSUES ST. CONST. L. 1, 3 (1991) [hereinafter Bonventre, State ConstitutionalReces- HeinOnline -- 68 Temple L. Rev. 1408 1995 1995] NEW YORK COURT OF APPEALS 1409 tier court indicating broad support for the court of appeals' longstanding rec- 35 ognition of rights and liberties under independent state grounds. Bonventre's identification of a more recent shift back toward the court's traditional position under Chief Judge Judith Kaye36 adds further support for the effect of the chief judge's leadership opportunities at the court of appeals. The exercise of leadership, or the failure to do so, can alter the com- monly utilized and accepted practices and procedures of an appellate court, and thereby affect the prevailing customs and expectations of the court's members. These types of changes are noteworthy; appellate courts are rich in tradition and appellate court judges, usually with long periods of socialization as members of the bar if not the judiciary, 37 are sensitive to the local legal culture. 38 In considering the factors affecting judicial voting, then, it is

sion] (arguing that while New York gains attention for state constitutional adjudication, court actually has cut back on right-expanding decisions). 35. See, e.g., Joseph W. Bellacosa, A New York State Constitution Touch of Class, 59 N.Y. ST. BAR J. 14, 16 (1987) (citing example where New York Court of Appeals used procedural aspect of Supreme Court case to provide greater liberties than federal law); Stewart Hancock, Jr., The State Constitution, a Criminal Lawyer's First Line of Defense, 57 ALB. L. REV. 271, 279 (1993) (arguing that New York Court of Appeals led way in protecting civil rights through state constitution in areas of right to counsel and self-incrimination); Judith S. Kaye, Foreword: The Common Law and State Constitutional Law as Full Partners in the Protection of Individual Rights, 23 RUTGERS L. REV. 727, 744 (1992) [hereinafter Kaye, Foreword] (asserting that New York courts recognize rights and liberties under independent state grounds in area of privacy); Judith S. Kaye, Dual Constitutionalismin Practice and Principle,61 ST. JoHN's L. REV. 399, 419 (1987) [hereinafter Kaye, Dual Constitutionalism] (arguing that policy considerations rooted in state constitution caused New York Court of Appeals to depart from federal precedent in area of search and seizures); Vito J. Titone, State Constitutional Interpretation: The Search for an Anchor in a Rough Sea, 61 ST. JoHN's L. REV. 431, 465-66 (1987) (asserting that New York's traditional concern for rights of privacy and personal liberty led to development of right to counsel and prisoners' rights based on state law); Sol Wachtler, ConstitutionalRights: Resuming the States' Role, 15 INTERGOVERNMENTAL PERSP. 23, 25 (1989) [hereinafter Wachtler, Constitutional Rights] (stating that state courts often afford greater rights and protections then federal counter- parts); see also Judith S. Kaye, Contributionsof State ConstitutionalLaw to the Third Century of American Federalism, 13 VT. L. REV. 49, 52-56 (1988) [hereinafter Kaye, Contributions] (noting that state courts such as New York's provide more directly for the interests of their citizens); Sol Wachtler, Our Constitutions - Alive and Well, 61 ST. JoHN's L. REV. 381, 397 (1987) [hereinafter Wachtler, Our Constitutions] (noting that state constitution is most immediate protector of individual rights). 36. See Vincent M. Bonventre & John D. Powell, Changing Course at the High Court, EM- PIRE ST. REP. 55, 55-57 (Mar. 1994) (noting that Kaye's tenure as chief judge marks return to traditional position for court as protector of fundamental rights); see also Bonventre, supra note 9, at 1203-04 (charting court's shift back to more traditional decision-making under Judge Kaye). 37. See Stephen L. Wasby, Into the Soup?: The Acclimation of Ninth Circuit Appellate Judges, 73 JUDICATURE 10, 10-16 (1989) (arguing that socialization of judges is informal, unsys- tematic, and largely participatory). 38. Thomas W. Church, Jr., Examining Local Legal Culture, 1985 AM. BAR FOUND. REs. J. 449, passim (studying various ways "local legal culture" can impact on attitudes of judges and others); Michael C. Gizzi & Christopher M. McMahon, Exploring Appellate Court Culture: An Examination of the United States Courts of Appeals, Paper Presented at 1992 Law & Society Association Annual Meeting (examining impact of the "local legal culture" on federal appellate court judges). HeinOnline -- 68 Temple L. Rev. 1409 1995 1410 TEMPLE LAW REVIEW [Vol. 68 appropriate to keep in mind the socialization, norms of behavior, and backgrounds of the judges. Regarding accepted means of behavior, the New York Court of Appeals has traditions concerning congeniality among its members and consensus in its decision-making. The small number of concurrences and dissents at the court of appeals can be seen in the court's earlier years when its prestige was at its highest.39 The civility of those dissents written during Cardozo's time has been noted.40 Prominent members of the court of appeals serving from the 1940s to the 1980s have emphasized that dissenting opinions, though serving a useful purpose in some circumstances, were expected to be few and restrained.41 Indeed, at the beginning of his tenure as chief judge in 1985, Sol Wachtler placed consensus among his priorities for the court of appeals. 42 These expectations differ substantially from those currently in force at the U.S. Supreme Court, whose justices' dissent writing has been the subject of 4 3 criticism by prominent jurists. The manner in which a court's "standard operating procedure" can change and thereby affect its judges' voting behavior is seen in the dissent patterns at the U.S. Supreme Court. As already mentioned, the Judges' Bill of 1925 expanded opportunities for separate opinions."4 Stone's failure to stifle independent expression through concurrences and dissents during his tenure as chief justice contributed to the institutionalization of divided opinions by the Supreme Court.4 5 Similarly, Stone's practice of circulating his law clerks' memoranda on unpaid petitions for certiorari laid the foundation for the current "Cert Pool" and the justices' heavy reliance on their law

39. For example, in the 1934-1935 term, the Court of Appeals of New York decided 718 appeals with only 31 concurrences and dissents. ROBERT MACCRATE ET AL., APPELLATE JUS- TICE IN NEW YORK 178, App. E-8 (1982); see also RiCHARD A. POSNER, CARDOzo: A STUDY IN REPUTATION 80 (1990) (noting infrequency of concurring and dissenting opinions). 40. See POSNER, supra note 39, at 13 (noting absence of angry dissents in time of Cardozo). 41. See Stanley H. Fuld, The Voices of Dissent, 62 COLUM. L. REV. 923, 928 (1962) (arguing that dissents should only be published if they stimulate discourse regarding soundness of majority opinion); Hugh R. Jones, Cognitations on Appellate Decision-Making, 34 RECORD ASS'N BAR CrTY N.Y. 543 (1980) (arguing that decision to dissent must be made in view of best interests of court and law). 42. See Gary Spencer, Wachtler Reviews Judicial Tenure, N.Y. L.J., July 21, 1993, at 1 (discussing appointment of Judge Wachtler); The Making of a Chief Judge, N.Y. TIMEs, Jan. 6, 1985, § 4, at 6 (same). 43. See, e.g., Ruth Bader Ginsburg, Speaking in a Judicial Voice, 67 N.Y.U. L. REV. 1185, 1191 (1992) (asserting that writing of unnecessary concurrences and dissents undermines reputation of judiciary); Roger J. Miner, Federal Court Reform Should Start at the Top, 77 JUDICATURE 104, 107 (1993) (arguing for Supreme Court reformation of decision-making process to ease load of federal system). 44. See Halpern & Vines, supra note 13, at 472 (assessing impact of Judiciary Act of 1925 on dissenting behavior). 45. See generally Thomas G. Walker et al., On the Mysterious Demise of ConsensualNorms in the United States Supreme Court, 50 J. POL. 361, 378-84 (1988) (discussing ineffectiveness of Justice Stone as leading to breakdown of consensus of Supreme Court). HeinOnline -- 68 Temple L. Rev. 1410 1995 1995] NEW YORK COURT OF APPEALS

clerks in making decisions on whether to grant review.46 These develop- ments suggest that changes in the accepted norms of behavior at an appellate court can occur for a variety of reasons, all of which may affect voting behavior. Voting preferences of judges also have been analyzed from various perspectives related to judges' selection for the bench. Appointments to the U.S. Supreme Court are examined regularly to determine if the executive has been able to "have his way" on the nation's high court.47 The judges of other courts are similarly studied. For example, President Reagan's conservative rhetoric and policies, coupled with his administration's commitment to a conservative judiciary, seem to have yielded a federal judiciary less committed than earlier appointees to supporting environmental and economic regulation.48 President Bush's judicial appointees at the trial and appellate levels have been compared to judges appointed by other presidents and found relatively conservative,49 which is entirely consistent with the commitment made 50 by the Bush administration to appoint conservative judges. A variety of background characteristics have also been examined for insight into judicial voting behavior. Jaros and Canon suggested that the career experiences of state supreme court judges could affect their propensity to dissent.51 A series of studies of the Michigan and Wisconsin Supreme Courts during the 1960s reached contrary results about the effect of party identification on judges' votes in particular types of cases. 52 For the New York Court of Appeals, Beiser and Silverman found little correlation between party iden-

46. O'BRIEN, supra note 14, at 234-37 (discussing circulation of memoranda and reliance on law clerks). 47. See, e.g., HENRY J. ABRAHAM, JUSTICES AND PRESIDENTS 58 (3d ed. 1992) (examining various presidents' motives in appointing Supreme Court Justices and Justices' subsequent voting records); Russell W. Galloway, Jr., The Roosevelt Court: The Liberals Conquer (1937-1941) and Divide (1941-1946), 23 SANTA CLARA L. REV. 491, 492 (1983) (studying voting patterns of Supreme Court during Franklin D. Roosevelt's presidency); S. Sidney Ulmer & John A. Stookey, Nixon's Legacy to the Supreme Court: A Statistical Analysis of Judicial Behavior, 3 FLA. ST. U. L. REV. 331, 333 (1975) (examining voting trends and ideological impact of Nixon Supreme Court appointees). 48. William E. Kovacic, Reagan's JudicialAppointees and Antitrust in the 1990s, 60 FoRD- HAM L. REV. 49, 82-84 (1991) [hereinafter Kovacic, Reagan's Judicial Appointees]; William E. Kovacic, The Reagan Judiciary and Environmental Policy: The Impact of Appointment to the Federal Courts of Appeals, 18 B.C. ENvTL. AFF. L. REV. 669, 699-700 (1991) [hereinafter, Kovacic, Reagan Judiciary]. 49. Robert A. Carp et al., The Voting Behavior of Judges Appointed by President Bush, 76 JUDICATURE 298, 302 (1993). 50. Id. at 301. 51. Dean Jaros & Bradley C. Canon, Dissent on State Supreme Courts: The Differential Significance of Characteristicsof Judges, 15 MIDWEST J. POL. Sci. 322, 327-28 (1971). 52. David W. Adamany, The Party Variable in Judges' Voting: Conceptual Notes and a Case Study, 63 AM. POL. Sci. REv. 57, 72-73 (1969) (arguing that situational factors such as family and socio-economic status may influence judicial voting); Malcolm M. Feeley, Another Look at the "Party Variable" in Judicial Decision-Making: An Analysis of the Michigan Supreme Court, 4 POLITY 91, 101 (1971) (noting that party identification does not account for societal influences such as age, length of tenure, and region of residence); S. Sidney Ulmer, The Political Party HeinOnline -- 68 Temple L. Rev. 1411 1995 1412 TEMPLE LAW REVIEW [Vol. 68

tification and judges' voting in workers' compensation cases.53 Despite the inquiries into the effects of these background characteristics on judicial voting, no precise consensus seems to have been reached. These various perspectives on judicial voting behavior suggest that there are many opportunities for voting practices to be studied usefully to gain insight into the ways that judges exercise their discretion and authority. To appreciate further the development of state constitutional interpretation, these perspectives can be drawn upon. By examining voting behavior as reflected by judges' voting preferences, patterns and alignments, the motivations and influences that affect state constitutional decision-making can be understood. It is appropriate, then, to turn to this particular study and explain its methods and objectives.

II. SCOPE OF THE STUDY The New York Court of Appeals is the subject of this study for a variety of reasons. The court of appeals historically has been one of the nation's most important state high courts. Its decisions have influenced the development of American law and social policy almost since the court's inception in 1847.54 Citation studies confirm the influence of the New York Court of Ap- peals on other courts at mid-century. 55 Benjamin Cardozo perhaps is the best known of the court of appeals judges56 but others have been elevated to the U.S. Supreme Court after serving on New York's high court57 and the court's chief judge has even resigned to run, albeit unsuccessfully, for Presi- dent.58 Notably, the court of appeals traditionally has held an important

Variable in the Michigan Supreme Court, 11 J. PUB. L. 352, 355-62 (1962) (arguing that political party affiliation is "cutting edge" as to how justices vote in certain types of cases). 53. Edward Beiser & Jonathon Silverman, The Political Party Variable: Workmen's Com- pensation Cases in the New York Court of Appeals, 3 POLrrY 521 (1971). 54. See, e.g., Palsgraf v. Long Island R. Co., 162 N.E. 99, 102 (N.Y. 1928) (introducing con- cept of proximate causation into tort law); MacPherson v. Buick Motor Co., 111 N.E. 1050, 1053 (N.Y. 1916) (attaching liability for product to manufacturer although product distributed through retailer); Lawrence v. Fox, 20 N.Y. 268, 274 (1859) (finding defendant liable for debt although promise to pay was made to third party). 55. See, e.g., Lawrence M. Friedman et al., State Supreme Courts: A Century of Style and Citation, 33 STAN. L. REV. 773, 804-06 (1981) (noting that New York state cases are used most frequently by courts of other states citing cases outside their state); John H. Merryman, The Authority of Authority: What the California Supreme Court Cited in 1950, 6 STAN. L. REV. 613, 667-68 (1954) [hereinafter Merryman, Authority] (noting that New York state cases were most frequently cited out-of-state authority); John H. Merryman, Toward a Theory of Citations: An Empirical Study of the Citation Practice in the California Supreme Court in 1950, 1960, and 1970, 50 S. CAL. L. REV. 381, 401-02 (1977) [hereinafter Merryman, Toward a Theory] (finding that New York cases were most heavily relied upon foreign authority). 56. See generally POSNER, supra note 39 (examining life and legal career of Benjamin Cardozo). 57. Ward Hunt and Rufus W. Peckham also ascended to the United States Supreme Court after serving on the New York Court of Appeals. 58. Alton Parker, who was Chief Judge from 1888 to 1904, was defeated by Theodore Roosevelt in the 1904 Presidential election. HeinOnline -- 68 Temple L. Rev. 1412 1995 1995] NEW YORK COURT OF APPEALS 1413

place at the forefront of independent state law decision-making and has been recognized for its progressive viewpoints.59 These aspects of the New York Court of Appeals make it especially appropriate for examination of decision- making influences in the area of state constitutionalism. Various voting activity by New York Court of Appeals' judges is studied here. First, voting preferences are assessed to determine the extent to which particular outcomes are favored. 60 Next, voting patterns are considered to determine the extent to which concurrences and dissents are registered. 61 Fi- nally, voting alignments are analyzed by looking at the extent judges voted together in pairs and searching for the existence of identifiable voting blocs.62 The analyses are undertaken for the court qua court, as well as for the individual judges. These examinations permit comparisons between particular judges and the court, as well as among the individual judges. The plenary appeals decided by the court of appeals during the five court terms from 1987 through 1992 comprise the data set for performing these analyses. All plenary appeals decided by the court using an opinion or memorandum format are included.63 Analysis of these court terms affords insight into a discrete court period comprising a natural court that has been the subject of some other serious investigation.64 During these terms, the

59. See generally Bonventre, supra note 5, at 32 (portraying New York Court of Appeals as leader in state protection of individual rights); Galie, supra note 30, at 193 (arguing that New York Court of Appeals was at forefront of states in protection of individual liberties); cf WAL- TER F. MURPHY, ELEMENTS OF JUDICIAL STRATEGY 99 (1964) (noting that New York Court of Appeals was generally hospitable to civil liberties claims) (citing Feiner v. New York, 340 U.S. 315, 288 (1951) (Frankfurter, J., concurring)). 60. See Appendix, Tables A-B for data examining voting preferences exhibited in the final outcome. 61. See Appendix, Tables C-G for data revealing voting patterns in the majority opinions, concurrences, and dissents issued. 62. See Appendix, Tables H-R for data showing voting pair alignments among the individual judges and identifiable voting blocs. 63. Appeals in the election cases were omitted from the data set because these appeals usually are not heard in the course of the court's regularly scheduled terms. A few other appeals were excluded because they exhibited unusual characteristics; such circumstances included certain odd jurisdictional bases giving rise to the appeal and the participation of lower court judges in the New York Court of Appeals' decision-making process due to the temporary absences of members of the court. 64. See Luke Bierman, When Less Is More: Changes to the New York Court of Appeals' Civil Jurisdiction, 12 PACE L. REv. 61, 76 (1992) (evaluating court's expanded civil jurisdiction between 1987 and 1989); Bonventre, Court of Appeals, supra note 34, at 3-4 (examining New York Court of Appeals' application of independent state constitutional law in 1990); Vincent M. Bonventre, Court of Appeals - State Constitutional Law Review, 1991, 14 PACE L. REV. 353, 354 (1994) (reviewing state constitutional decisions of New York's Court of Appeals in 1991); Bonventre, supra note 9, at 1164 (contrasting decisions of Chief Judge Kaye with those of Wach- tier-era high court); Bonventre, State ConstitutionalAdjudication, supra note 34, at 121 (noting Wachtler-era court's retrenchment to conservative stands on individual rights issues); Bonventre & Powell, supra note 36, at 57 (examining Wachtler court's "lopsidedly pro-government" stances); Galie, supra note 9, at 233-34 (examining New York Court of Appeals' use of federal or state grounds for decisions in individual rights cases); Carl Swidorski, The New York Court of Appeals and Civil Liberties: An Assessment of Recent Decisions, 3 ST. CONST. COMM. & NOTES HeinOnline -- 68 Temple L. Rev. 1413 1995 1414 TEMPLE LAW REVIEW [Vol. 68

members of the court of appeals were Chief Judge Sol Wachtler and Associ- ate Judges Richard D. Simons, Judith S. Kaye, Fritz W. Alexander, II, Vito J. Titone, Stewart F. Hancock, Jr., and Joseph W. Bellacosa. Governor Mario M. Cuomo appointed each of these judges to the court between 1983 and 1987. Each had served as a state appellate judge prior to appointment by Cuomo, except for Kaye, who had been a practicing attorney without judicial experience upon appointment, and for Bellacosa, who had been the Clerk and Counsel to the New York Court of Appeals and the Chief Administra- 65 tive Judge of the New York state courts. Different categories of cases are examined. The overall plenary caseload 68 constitutes a category, 66 as do the civil caseload 67 and criminal caseload. More specific categories also are examined. 69 Non-criminal civil rights and liberties cases provide one category for analysis. 70 These cases affect important freedoms under federal or state constitutional, statutory, or regulatory schemes, particularly those that have come to be perceived as important to personal autonomy and independence. Because these cases ultimately determine the kind of society that judges envi- sion, they appropriately are considered in an assessment of judicial behavior. Studying voting behavior in this area is particularly appropriate because, despite the progressive tradition of the court of appeals dating back at least to Cardozo, 71 the Wachtler court was seen as curtailing civil rights and liberties. 72 Judicial federalism cases, many of which are closely related to civil liberties, constitute another category for analysis, 73 but with a different focus. These cases involve disputes over the interpretation of the state constitution against the backdrop of federal constitutional doctrine. During the 1980s, as the U.S. Supreme Court limited or overturned Warren Court holdings

1, 7 (1991) (evaluating court's disposition of four civil liberties cases in 1990-1991 and analyzing decisions). 65. Bellacosa had been appointed a state trial judge during his service as administrative head of the New York courts but he did not exercise the functions of a trial judge, merely taking advantage of the title. 66. See Appendix, Tables D, H-M, Q for data related to the overall plenary caseload heard by the New York Court of Appeals. 67. See Appendix, Tables C, E for data relating to the civil caseload. 68. See Appendix, Tables A, C, F, R for data relating to the criminal caseload. 69. See Appendix, Tables B, C, G, N-P for data breaking down judicial voting behavior into the more specific categories of civil rights and liberties cases, judicial federalism cases, and the Cuomo Agenda cases. 70. See Appendix, Tables B, C, G, N for data relating to the civil rights and liberties cases decided by the New York Courts of Appeals. 71. Bonventre, supra note 5, at 41-42 (noting that Cardozo-era court was influential in development of modem tort, property, contract, and state constitutional law). 72. Bonventre, Court of Appeals, supra note 34, at 52-53; Bonventre, supra note 64, at 445; Bonventre, supra note 9, at 1164-65; Bonventre, State ConstitutionalAdjudication, supra note 34, at 121; Bonventre & Powell, supra note 36, at 57; Swidorski, supra note 64, at 7. 73. See Appendix, Tables B, C, G, 0 for data relating to the judicial federalism cases decided by the New York Court of Appeals. HeinOnline -- 68 Temple L. Rev. 1414 1995 1995] NEW YORK COURT OF APPEALS 1415

favorable to individual rights, the New York Court of Appeals confronted a number of cases raising the extent to which the New York Constitution adopted federal doctrine. Despite the attention provided to the few cases where the Supreme Court addressed a federal constitutional issue and remanded the case to the New York Court of Appeals for further consideration of the applicability of the state constitution, 74 the court of appeals enjoyed many other opportunities to define the scope of the state constitution. The cases in which the court of appeals specifically addressed whether to adopt, as a matter of state constitutional law, a federal constitutional principle or an independent rule are those included in this study. As already noted, the extrajudicial writings of several court of appeals judges, including Wachtler, Kaye, Titone, Hancock, and Bellacosa, indicated a commitment to state constitutional adjudication independent of federal constitutional principles. 75 Indeed, during the years just before those covered in this study, the court of appeals had been characterized as exhibiting a high level of commitment to state law.76 Yet the court of appeals during the period covered by this study was seen as retreating from its historical state constitution-based support for broad protection of civil rights and liberties, particularly for freedom of expression and criminal defendants.77 The extent to which the court and its judges preferred independent state constitutional rules or relied on federal constitutional principles as a matter of state constitutional law when confronted with a choice between these competing rationales reveals the commitment to state constitutional adjudication. Another category for analysis involves "Cuomo Agenda" cases.78 These cases involved challenges to programs that were a part of, or supportive of, Governor Cuomo's plan for New York as outlined by his legislative proposals and annual messages or implemented by his top appointees. Scholars have looked at Reagan- and Bush-appointed judges to determine whether these presidents' conservative policies and preferences gained approval from

74. See, e.g., Immuno AG. v. Moor-Jankowski, 549 N.E.2d 129, 132-33 (N.Y. 1989) (distin- guishing factual statement from constitutionally-protected opinions in defamtation action), va- cated and remanded, 497 U.S. 1021 (1990), on remand, 567 N.E.2d 1270 (N.Y.), cert. denied, 500 U.S. 954 (1991); People v. Harris, 532 N.E.2d 1229, 1232-35 (N.Y. 1988) (determining admissibil- ity of self-incriminating remarks after illegal arrest), rev'd and remanded, 495 U.S. 14 (1990), on remand, 570 N.E.2d 1051 (N.Y. 1991); People v. Class, 472 N.E.2d 1009, 1011 (N.Y. 1984) (deciding whether police inspection of vehicle identification number constitutes search entitled to protection of Fourth Amendment), rev'd and remanded, 475 U.S. 106, on remand, 494 N.E.2d 444 (N.Y. 1986). See generally Vincent M. Bonventre, New York and the Supremes: State Constitu- tional Law on the Rebound at the Court of Appeals, ST. CONST. COMM. & NoTEs (forthcoming). 75. See supra note 35 (citing articles by judges on New York Court of Appeals on application of state constitutional law). 76. See, e.g., Esler, supra note 1, at 27-29 (noting tendency of court to decide cases on independent state constitutional grounds). 77. Bonventre, Court of Appeals, supra note 34, at 52-53; Bonventre, supra note 64, at 445; Bonventre, supra note 9, at 1164-65; Bonventre, State ConstitutionalAdjudication, supra note 34, at 121; Bonventre & Powell, supra note 36, at 59-60; Swidorski, supra note 64, at 7. 78. See Appendix, Tables B, C, G, P for data relating to the Cuomo Agenda cases decided by the New York Court of Appeals. HeinOnline -- 68 Temple L. Rev. 1415 1995 1416 TEMPLE LAW REVIEW [Vol. 68

"their" judiciary.79 Similarly, Cuomo's expressed concern about the quality of the judiciary generally and the court of appeals specifically, 80 his appointment of all members of the Wachtler court, and his extensive policy initia- tives during three terms as governor provide the basis for examining how his 81 first seven appointees to the court of appeals responded to his agenda. Analysis of voting preferences is based on the outcome as represented by the prevailing position or party in a case. For criminal cases, the outcomes are based on whether the prosecution or the defendant prevailed. 82 For civil rights and liberties cases, the outcomes are based on whether the individual or the state or institution prevailed. 83 For judicial federalism cases, a judge is coded as adopting a state law ground if the opinion for which the judge voted explicitly adopted an independent state rule as its rationale; conversely, the judge is treated as preferring federal law if the opinion for which the judge voted adopted federal constitutional doctrine as the state rule. 84 For Cuomo Agenda cases, the outcomes are based on whether the Cuomo position was 85 favored or rejected. Analysis of voting patterns is based on the extent to which a judge aligns with the majority.86 This requires identification of whether a judge has concurred or dissented. Dissents are identified fairly simply, as the opinions indicate that a judge is dissenting. It should be noted that plurality decisions are practically nonexistent at the court of appeals, in sharp contrast to the situation at the U.S. Supreme Court. Because it typically reaches majority decisions, the court of appeals' voting patterns are much simpler to discern than those of the Supreme Court.

79. See, e.g., Carp et al., supra note 49, at 302 (noting conservative voting behavior of Bush's judicial appointees); Kovacic, Reagan's Judicial Appointees, supra note 48, at 82-83 (recognizing anti-economic regulation stances of Reagan's judicial appointees); Kovacic, Reagan Ju- diciary, supra note 48, at 699-700 (noting tendency of Reagan appointees to adopt position opposing environmental regulation). 80. See How Cuomo Selected Wachtler, Alexander, N.Y. L.J., Jan. 3, 1985, at 3 (describing how Cuomo solicited members of state bar association in identifying selection concerns and criteria); David Margolick, Republican Judge Is Named to Top Court Post, N.Y. TIMEs, Jan. 3, 1985, at Al (stating that selection of Wachtler was based on judge's "excellence" and not political affiliation); Michael Oreskes, Cuomo Appoints a GOP Judge to Appeals Seat, N.Y. TIMEs, Jan. 4, 1983, at Al (stating that Simons was appointed judge to preserve court's "continuity"); Jeffrey Schmalz, Cuomo Sees Peril in Picking Judges on Ideology Basis, N.Y. TIMES, Aug. 12, 1986, at Al (noting Cuomo's concern that federal judges were being chosen for political ideology rather than qualifications). 81. It should be noted that the most telling "Cuomo Agenda" case, that involving Wach- ter's challenge to Cuomo's budgetary treatment of the judiciary, was not resolved by judicial determination. Howard B. Glaser, Wachtler v. Cuomo: The Limits of Inherent Powers, 78 JUDI- CAruRE 12, 19 (1994). 82. See Appendix, Table A. 83. See Appendix, Table B for data showing whether the outcome of the judge's vote was liberal or conservative. 84. id. 85. Id. 86. See Appendix, Tables D-G for data analyzing judicial voting patterns. HeinOnline -- 68 Temple L. Rev. 1416 1995 1995] NEW YORK COURT OF APPEALS 1417

Concurrences are not counted as part of the majority but are tabulated as separate votes because this study focuses on each individual's voting behavior. Because court of appeals judges rarely disagree on outcome,8 7 focusing here on the extent to which judges agree with the majority by treating a concurrence or a dissent as a distinct vote permits assessment of the judges' propensities to vote separately and thereby may avoid a false impression of the extent of unanimity derived from looking simply at outcomes. This approach, if anything, will overstate disagreement among the court's judges. Analysis of voting alignments is based on the extent to which the court of appeals judges voted with each other in cases with concurring and/or dissenting opinions.88 Voting pairs are analyzed from a matrix matching each judge's votes with those of each other member of the court. Consistent with the protocol described above, one judge's vote matches another's vote only when they join in a specific opinion, not merely when they agree on outcome. Alignments also are viewed from the parameters established by Schu- bert for identifying voting blocs. 89 For example, votes of the judges in cases with concurring and/or dissenting opinions are arranged in a matrix and, using the index of cohesion, which "reflects the average frequency of dissenting votes cast by bloc members in conjunction with other members of the same bloc," 90 the strength of the bloc is identified by low, medium, or high cohesion. 91 Although this study follows Schubert's use of the case as the unit of analysis, 92 Pritchett's counting of only judges who agreed on rationale as voting together is the methodology adopted in this study,93 as described above. These conventions in constructing voting alignments should ensure that the judges' votes in agreement with others better reflect the tendency for judges to be forming alliances based on specific ideological agreements in all cases decided.

87. See Bierman, supra note 64, at 86 (noting that New York Court of Appeals voted unanimously in approximately 90% of civil cases). 88. See Appendix, Tables H-R for data analyzing judicial voting pairs and blocs. 89. GLENDON A. SCHUBERT, QUANTITATIVE ANALYSIS OF JUDICIAL BEHAVIOR 79-89 (1959). 90. Id. at 89. 91. Id. at 90. 92. See id. at 80 (counting case voted on rather than opinions, where concurrences and dissents may apply to multiple cases); cf. C. HERMAN PRITCHETIr, CIVIL LIBERTIES AND THE VINSON COURT 240 (1954) [hereinafter PRITCHETT, CIVIL LIBERTIES] (counting votes only once regardless of how many cases to which vote applied); C. HERMAN PRITCHETT, THE ROOSEVELT COURT: A STUDY IN JUDICIAL POLITICS AND VALUES, 1937-1947 177-80 (1948) [hereinafter PRITCHETT, THE ROOSEVELT COURT] (same). 93. See PRITCHETT, CIVIL LIBERTIES, supra note 92, at 240 (counting frequency of judges voting together in non-unanimous opinions); PRITCHETT, THE ROOSEVELT COURT, supra note 92, at 177-80 (grouping judges by number of times they joined in same dissent). Cf.SCHUBERT, supra note 89, at 83-85 (basing voting agreement on joining in outcome rather than joining in rationale). See also Joel B. Grossman, Dissenting Blocs on the Warren Court: A Study in Judicial Role Behavior, 30 J. POL. 1068, 1089 (1968) (arguing that bloc analysis is useful only for identifying "the commonality of views shared by Justices who frequently dissent together" and not for examining dynamics of judicial decision-making process). HeinOnline -- 68 Temple L. Rev. 1417 1995 1418 TEMPLE LAW REVIEW [Vol. 68

Data for each court term are presented when examining the voting preferences and voting patterns in certain broader caseload categories. 94 The more specific subject matter categories of cases, however, are analyzed by category without regard to court term, largely because of the relatively small 95 number of cases included in these categories. With regard to analysis of voting alignments, data on voting pairs are presented only for the overall plenary caseload in each term and the more specific subject matter categories as the data for the civil and criminal caseloads essentially mirrored the overall data. Bloc analysis is presented without regard to court term, as the total number of concurring and dissenting votes is relatively small and consideration based on particular court terms provides too few votes to yield identifiable voting patterns. Indeed, even using this protocol left a sufficient number of cases to discern identifiable patterns only for the overall and criminal caseloads, which are presented. Examination of these various aspects of voting behavior will permit broader assessment of the New York Court of Appeals judges' approaches to state constitutional decision-making. By concentrating on judicial decision- making in a variety of distinct categories of cases, comparisons can be made which should allow greater insight into the influences and motivations that affect judicial decision-making generally and state constitutional decision- making specifically. In this way, the dynamics underlying the "New Judicial Federalism" might be better appreciated.

III. VOTING PREFERENCES A. Criminal Cases 1. Preferences In four of the five terms under examination, the court of appeals favored the prosecution more often than the defendant, with the other term showing outcomes about equally divided between the prosecution and the defendant.96 The court's preference for the prosecution was highest in 1987-1988 at 72% and lowest in 1991-1992 at 50%. The highest rates of preference for the prosecution occurred in the earlier three terms with the last two terms showing preference for the prosecution at noticeably lower rates. A trend away from favoring the prosecution can be identified in the judges' voting preferences in criminal cases during these terms.97 The individual judges' voting preferences in criminal cases in each term reveal several patterns. During these terms, each individual judge's preference tended to approximate the court's preference. In no term was an individual judge's preference more than eight percentage points different from

94. See Appendix, Tables H-M for data revealing voting behavior across broad categories in each of the terms studied. 95. See Appendix, Tables C, G, N-P for data showing voting behavior in smaller, more specific categories. 96. See Appendix, Table A. 97. Id. HeinOnline -- 68 Temple L. Rev. 1418 1995 1995] NEW YORK COURT OF APPEALS 1419

the court's preference (Alexander and Titone in 1989-1990 at eight points) and most judges' preferences fell within a couple of percentage points of the court's preferences. In four of the five terms, all judges preferred the prosecution, with the only exception in 1991-1992, when the court's preference was almost evenly divided. The difference between the most pro-prosecution and least pro-prosecution judge in each term ranged from 5% to 12%. These data suggest that there was a great deal of collective agreement about how to 98 resolve criminal cases. The individual judges' votes indicate that their preferences as compared to the court and to other judges tended to remain fairly consistent. Wachtler, Simons (except 1987-1988), and Bellacosa were more pro-prosecution than the court in each term. Kaye, Titone and Hancock were less pro-prosecution than the court in each term (except that Hancock equaled the court in 1990- 1991) and Alexander was less pro-prosecution in each term but 1988-1989. 99 Bellacosa was the court's most pro-prosecution member in four of the five terms (though tied with Wachtler in 1987-1988 and with Simons in 1990- 1991). Wachtler and Simons were within the top three most favorable to the prosecution in each term. Titone, on the other hand, was the court's most pro-defendant member in four of the five terms (though tied with Kaye and Alexander in 1989-1990). Kaye was the second or third most pro-defendant judge in each term. Alexander and Hancock's preferences tended to vary; Alexander was the most pro-prosecution in 1988-1989 but tied as the most pro-defendant in 1989-1990 and Hancock's record was more centrist. 100

2. Assessment The court's preference for the prosecution may be unexpected for several reasons. Considering the court's historical reputation as progressive, which should suggest sympathy for defendants' claims of unfairness, and its longstanding discretionary jurisdiction over criminal cases,10 which would suggest broad opportunities for selecting cases with egregious violations of defendants' rights, outcomes more favorable to criminal defendants might have been expected. The court's failure to act in this expected manner might be attributed to a law-and-order approach in criminal cases during a time of substantial public concern over crime. Certainly the court of appeals recog-

98. Id. 99. id. 100. Id. 101. Except for capital cases, which have not existed in New York since 1984, see People v. Smith, 468 N.E.2d 879, 893-99 (N.Y. 1984) (holding mandatory death sentence unconstitutional without consideration of mitigating circumstances), cert denied, 469 U.S. 1227 (1985), criminal cases are usually accepted for plenary review by the Court of Appeals upon the leave of a single Court of Appeals judge to whom an application for leave is assigned. N.Y. CONsT. art. VI, § 3(b) (McKinney 1982); N.Y. CRIM. PROC. LAW arts. 450.90, 460.20 (McKinney 1994). Certain intermediate appellate judges have limited authority to grant leave to appeal in criminal cases. N.Y. CRIM. PROC. LAW arts. 450.90, 460.20; see generally Stuart M. Cohen, Criminal Leave Ap- plications to the Court of Appeals, N.Y. ST. BAR J., Jan. 1990, 28, 30 (reviewing procedures for appealing criminal cases in New York state judicial system). HeinOnline -- 68 Temple L. Rev. 1419 1995 1420 TEMPLE LAW REVIEW [Vol. 68 nized the societal impact of increasingly pervasive criminal activity during the years of this study, as indicated by the court's references to substantial increases in lower court criminal caseloads in the late 1980s and early 1990s. 10 2 The trend away from pro-prosecution outcomes during the later terms of the study, then, would be hard to explain. Perhaps the more pro-prosecution outcomes could have resulted from the effect of a 1985 amendment to the court of appeals' jurisdiction, which afforded substantial discretion to the court over its civil jurisdiction. As they became more comfortable with their enhanced discretionary authority after the jurisdictional amendment, the judges might have tended to choose cases in which the criminal defendant had presented particularly attractive, and favorable, issues. The presence of a lag before the full impact of the jurisdictional amendment was felt can be attributed to the need for some time and effort before the judges became comfortable with the alterations to longstanding operating procedures, as occurred with the U.S. Supreme Court following the Judges' Bill of 1925.103 The rather noticeable change, however, in the judges' preferences in criminal cases, which were not affected by the jurisdictional amendment, tends to un- dermine this jurisdictional explanation. More likely explanations for the preferences relate to the chief judge's leadership and the other judges' approach to their work based on their backgrounds and experiences. That Wachtler pushed the court in a particular direction is consistent with Bonventre's assessment of voting behavior during this period.10 4 The court's high support for the prosecution during the early terms would be consistent with a law-and-order orientation encouraged by Wachtler in advance of a possible future bid for governor105 or to enhance his reputation with conservative presidents considering appointments to the

102. The persistent theme in the annual State of the Judiciary reports prepared by Chief Judge Sol Wachtler from 1990 to 1992 was the tremendous increase in filings in the New York trial courts, especially the criminal courts. See STATE OF NEW YORK, UNIFIED COURT SYSTEM, THE STATE OF rHm JUDICIARY, 1992 4-5, 20-21 (highlighting dramatic increases in state-wide case filings); STATE OF NEW YORK, UNIFIED COURT SYSTEM, THE STATE OF THE JUDICIARY, 1991 9 (same); STATE OF NEW YORK, UNIFIED COURT SYSTEM, THE STATE OF THE JUDICIARY, 1990 4-8 (same). 103. See Halpern & Vines, supra note 13, at 473 (noting that full effect of Judiciary Act of 1925 not felt until 1927 Term). 104. See Bonventre, Court of Appeals, supra note 34, at 52-53 (indicating that Wachtler-era Court of Appeals restricted court's formerly progressive stances on individual rights); Bonven- tre, supra note 64, at 445 (same); Bonventre, supra note 9, at 1164-65 (same); Bonventre, State ConstitutionalAdjudication, supra note 34, at 121 (same). 105. Wachtler was a perennial possible candidate for the Republican nomination for Gover- nor. Sam H. Verhovek, Friends' View of Judge: G.O.P.Answer to Cuomo, N.Y. TIMES, Nov. 8, 1992, at 48 (describing Wachtler's frequent contemplation of gubernatorial candidacy). Indeed, Cuomo's appointment of Wachtler as Chief Judge of the New York Court of Appeals in 1985 effectively removed a prominent potential candidate from the 1986 gubernatorial election. And there was little doubt that he was considering a run for governor in 1994. See generally Sam Roberts, A Judge's Interest in Being Governor is Decided the Hard Way, N.Y. TIMES, Nov. 9, 1992, at B6. HeinOnline -- 68 Temple L. Rev. 1420 1995 1995] NEW YORK COURT OF APPEALS 1421

U.S. Supreme Court. 10 6 Indeed, Wachtler authored an opinion limiting the scope of post-conviction collateral attacks in criminal cases 10 7 that is analogous to contemporaneous U.S. Supreme Court limitations to habeas corpus relief,108 and supported a restriction to New York's expansive right to counsel rule' 0 9 in accordance with a view he had long advocated. 1 0 Wachtler's influence as chief judge in securing these decisions is apparent. The court's diminishing support for the prosecution during the latter terms could have resulted from Wachtler's distraction from the court's work as he battled Governor Cuomo in the press and the courts over funding for the judiciary"' and engaged in his own pattern of criminal conduct that led 12 ultimately to his resignation and conviction on federal felony charges." Without the strong influence of the chief judge, the other judges might have been more amenable to outcomes favoring defendants. The effect of Wachtler's leadership, or lack thereof, finds further support in the fact that his preferences follow the court's preferences very closely. These votes could support the view that Wachtler led the court, as Chief Jus- tice Warren was able to do,113 or that Wachtler registered his votes to ensure agreement with a court that had moved beyond his control, as occurred with Chief Justice Burger. 1 4 Considering that Wachtler's colleagues initially respected him as chief, and that the chief judge's authority and leadership are well-recognized in the workings of the court of appeals, the other judges' deference to Wachtler's preferences seems plausible, at least during the ear-

106. Reports indicated that Wachtler was consciously pursuing a high court seat. Eric Poo- ley, Crazy for You, N.Y. MAG., Dec. 14, 1992, at 35, 43 (stating that Republican fundraiser pushed for high court seat for Wachtler). 107. People v. Jackson, 585 N.E.2d 795, 796 (N.Y. 1991) (holding that defendant must show error and prejudice in prosecution's failure to produce witness statements during discovery). 108. See, e.g., Keeney v. Tamayo-Reyes, 112 S. Ct. 1715, 1718-19 (1992) (finding that on habeas appeal defendant must meet stricter "cause and prejudice" standard when denied federal evidentiary hearing); Coleman v. Thompson, 111 S. Ct. 2546, 2553-54 (1991) (finding federal habeas appeal properly dismissed when based on "independent and adequate" state procedural grounds). 109. People v. Bing, 558 N.E.2d 1011, 1012-14 (N.Y. 1990) (finding that right to counsel does not indelibly attach from prior charge to pending, unrelated charge). 110. People v. Bartolomeo, 423 N.E.2d 371, 377-79 (N.Y. 1981) (Wachtler, J., dissenting) (arguing that retention of counsel from prior, unrelated charge should not carry over to future charge absent police awareness), overruled by People v. Bing, 558 N.E.2d 1011 (N.Y. 1990). 111. See generally Glaser, supra note 81, at 12 (discussing lawsuit Wachtler filed against Cuomo over judicial budget). 112. See Josh Barbanel, Chief Judge Quits Post in New York in Extortion Case, N.Y. TIMES, Nov. 11, 1992, at Al (discussing Wachtler's resignation amid investigation on extortion charges); Diana J. Schemo, Sol Wachtler Is Sentenced to 15 Months, N.Y. TIMES, Sept. 10, 1993, at B1 (describing Wachtler's sentence upon conviction on extortion charges). 113. See O'BRIEN, supra note 14, at 298 (noting Warren's ability to command unanimity in Brown v. Board of Education); WASBY, supra note 14, at 245 (stating that Warren was known as "Super Chief" for strong leadership of Court). 114. See WASBY, supra note 14, at 231 (noting that Burger often "passed" on conference vote to vote with majority and assign opinion author). HeinOnline -- 68 Temple L. Rev. 1421 1995 1422 TEMPLE LAW REVIEW [Vol. 68 lier terms.115 His distractions in the latter terms would help explain the court's move to greater support for defendants. In conjunction with the effects of Wachtler's leadership is the possibility that the associate judges acted more independently in the latter terms. At the beginning of the 1987-1988 term, the senior associate (Simons) had served only four years on the court, with the most junior judge having less than one year of tenure (Bellacosa). As the length of the associate judges' service increased, they might have felt less constrained to follow the lead of the far more experienced chief judge (Wachtler had more than 15 years experience on the court of appeals, having served almost a full 14-year term as an associate upon his elevation to chief judge), especially if he became distracted from the court's work in the latter terms. The judges' independence also might have been enhanced by a "nudge" from the U.S. Supreme Court,116 which had reviewed several court of appeals rulings during this period. 117 The interrelationship of leadership and the lack thereof by the chief judge and of the socialization and personal growth of new court members can be seen to have affected voting preferences in criminal cases.

B. Civil Rights and Liberties Cases 1. Preferences The New York Court of Appeals rendered more decisions favoring conservative rather than liberal outcomes in the civil rights and liberties cases. Slightly more than 50% of the civil rights and liberties cases were resolved against individual freedoms and in favor of the state or institutions. 1 8 Thus the court during these terms can be described as being slightly more likely to favor conservative positions than liberal ones in civil rights and liberties situations. The individual preferences of the judges in these cases seem capable of division into two groups. Four judges (Wachtler, Simons, Hancock, and Bel- lacosa) were equally or more conservative than the court. Three judges (Kaye, Alexander, and Titone) were noticeably more liberal than the court. The more conservative judges expressed preferences that were comparable

115. See Kolbert, supra note 32, at Al, B4 (noting that Wachtler was viewed as "dominant force" on New York Court of Appeals). 116. See Richard A. Brisban, Jr. & John C. Kilwein, U.S. Supreme Court Review of State High Court Decisions, 78 JUDICATURE 33, 36 (1994) (finding Supreme Court usually affirmed or remanded state supreme court cases on criminal procedure issues between 1953 and 1990); but cf. id. at 37 (noting that Rehnquist court was more likely to reverse or remand state criminal procedure cases in conservative manner). It must be emphasized that the trend toward more liberal positions in New York identified by the authors is replicated in the broader subject categories in this study. Id. at 38-39. This suggests that the United States Supreme Court's role as the cause of shifting voting preferences should not be overstated. 117. See supra note 74 for a collection of court of appeals cases which were reveiwed by the United States Supreme Court. 118. See Appendix, Table B for data revealing the conservative voting preferences of the Wachtler court during the years of the study. HeinOnline -- 68 Temple L. Rev. 1422 1995 1995] NEW YORK COURT OF APPEALS 1423

to each other. Similarly, the more liberal judges expressed preferences that were comparable to each other.119 The clear delineation of different preferences contrasts with the judges' common preferences in criminal cases.

2. Assessment The court's conservative preference, even if a narrow one, is unexpected in light of its long recognized commitment to progressive protection for civil rights and liberties, a preference which other researchers have docu- mented.120 A majority group of Wachtler, Simons, Hancock, and Bellacosa provided the basis for the court's preferred conservative outcomes. 121 Wach- tler's leadership in forging this group is a plausible explanation for the court's preference. As a potential candidate for governor and an apparent suitor of a U.S. Supreme Court appointment by a conservative Republican president, Wachtler had much to gain by portraying himself on the conservative end of the spectrum. Support for this position from Simons and Bellacosa is not surprising considering their pro-prosecution (generally considered a conservative view) preferences in criminal cases.122 Moreover, Bellacosa was a long-time friend and supporter of Wachtler. Simons had served many years in the judiciary, where a tendency to follow an experienced chief judge could have developed. In contrast, it should not be overlooked that the more liberal judges con- sisted of a woman without prior judicial experience (Kaye), an African- American (Alexander), and an Italian-American (Titone), all of whom might be characterized as "outsiders" less prone to the influence of the chief judge. Bellacosa's longstanding friendship with Wachtler and prior service in leadership roles in the state judiciary, including as Clerk and Counsel of the New York Court of Appeals and as Chief Administrative Judge (serving with and under Wachtler in both capacities), could have diminished any "outsider" tendencies as an Italian-American, factors which might distinguish Titone from Bellacosa. Titone, as well as Alexander, however, had served lengthy terms in the state lower appellate courts, so they are difficult to characterize as outsiders in the same way as Kaye. Of course, Kaye's extensive experi-

119. See Appendix, Table B. 120. See, e.g., Bonventre, Court of Appeals, supra note 34, at 50 (observing court's increasing lack of sympathy towards civil rights and liberties claims in recent years); Bonventre, supra note 64, at 1196-98 (noting conservative preference of court in 1990 and 1991); Bonventre, supra note 9, at 1165 (describing record of court during later Wachtler era on state constitutional issues as "pro-government" and "pro-prosecution"); Bonventre, State Constitutional Adjudication, supra note 34, at 120 (observing conservative trend on court regarding civil rights and liberties issues); Bonventre & Powell, supra note 36, at 55-56 (describing traditional role of court of appeals in protecting constitutional liberties and strong pro-government record under Wachtler); Swidorski, supra note 64, at 1 (discussing tendency of New York Court of Appeals to rely on state constitution to decide civil liberties issues). 121. See Appendix, Table B for data revealing the conservative voting preferences of this group. 122. See Appendix, Table A for data revealing the pro-prosecution bent of Judges Simons and Bellacosa. HeinOnline -- 68 Temple L. Rev. 1423 1995 1424 TEMPLE LAW REVIEW [Vol. 68

ence as a litigator before appointment to the judiciary provided substantial exposure to the dynamics of traditional means of judicial behavior.

C. Judicial Federalism Cases 1. Preferences The court of appeals adopted the federal constitutional position almost twice as often as an independent state constitutional ground in the cases resolving whether to accept federal constitutional doctrine or a different standard under the state constitution. 123 In the thirty cases in this category, the court of appeals adopted an independent state ground in only twelve, or 40%, of the cases.124 This pattern reveals the court's preference for the federal constitutional standard as opposed to an independent state rule derived from the New York Constitution. The individual preferences of the judges are capable of division into separate groups. Three judges (Wachtler, Simons, and Bellacosa) preferred federal constitutional grounds more often than the court while the remaining four judges preferred independent state constitutional rules. Although the judges preferring the federal grounds registered similar rates, those more amenable to independent state grounds varied more in their preferences. For example, Titone was most supportive of independent state grounds at almost 80%, Kaye was at 69%, and Alexander and Hancock were more evenly split in their support of the different rationales. 25 This posture suggests that the three judges favoring federal grounds were rather firm in their support while the others, except perhaps for Titone, were more amenable to accepting another position. It is noteworthy that Wachtler, Simons, and Bellacosa again appear firmly on the same side of the scale.

2. Assessment The court's strong preference for the federal constitutional position in- stead of independent state grounds is unexpected from a court that has long been at the forefront of independent state decision-making and that has been characterized as having a high commitment to using state law grounds. 26 It is particularly noteworthy because several members of the court of appeals had gone out of their way to express strong support for basing decisions on the state constitution. 27 The preferences of Wachtler and Bellacosa for the federal constitutional position as a matter of state constitutional law sharply

123. See Appendix, Table B. 124. Id. 125. Id. 126. Esler, supra note 1, at 29. See also Bonventre, supra note 5, at 32 (referring to Court of Appeals as leader in adjudication of state-protected liberties since it first convened in 1847). 127. See generally supra note 35 (referencing articles written by members of New York's high court). HeinOnline -- 68 Temple L. Rev. 1424 1995 1995] NEW YORK COURT OF APPEALS 1425

contrast with their extrajudicial support for independent state constitutional 128 decision-making. Wachtler's ambition for the governorship or higher judicial office may explain his preferences for comparatively conservative federal doctrine. If so, Bellacosa's preferences mirroring those of his long-time friend and col- league are understandable. Simons' preference for the federal constitutional position coincides with his clearly expressed view that deference should be paid to federal constitutional doctrine. 129 The similar preferences of Wach- tler, Simons, and Bellacosa for federal constitutional rules at a time of conservative decision-making at the U.S. Supreme Court an be described as consistent with the pro-prosecution and conservative preferences displayed in the categories already examined. Titone and Kaye's more regular support for independent state constitutional grounds, unlike the situation with Wachtler and Bellacosa, is consistent with their extrajudicial pronouncements on the topic130 and compatible with more liberal preferences in the other categories. The more mixed preferences by Alexander and Hancock may reflect some accommodation to the chief judge, as at least Hancock has indicated that he favored no particular ideological approach in resolving cases raising state constitutional issues. 13' These latter judges' less dogmatic preferences in judicial federalism cases apparently afforded the Wachtler, Simons, and Bellacosa grouping the opportunity to achieve a fourth vote to attain the court's preferred federal position.

D. Cuomo Agenda Cases 1. Preferences The court of appeals approved Cuomo-supported positions by a wide margin. Almost two-thirds of the thirty-five Cuomo Agenda cases decided by the court during this period were resolved in favor of the Cuomo-supported position. 132 Thus, the Court of Appeals favored Cuomo-supported positions by an almost 2 to 1 margin. The individual preferences of judges in Cuomo Agenda cases seem divis- ible into two groups. Four judges (Wachtler, Simons, Kaye, and Bellacosa) were about as or more supportive of the Cuomo position than the court. The

128. See, e.g., Bellacosa, supra note 35, at 17 (commending court for basing decisions on state constitution, which provides greater protections for individual rights than federal Constitu- tion); Wachtler, ConstitutionalRights, supra note 35, at 23 (praising state courts for turning to state constitution more frequently in recent years, since state constitution offers greater protections of rights than federal constitution); Wachtler, Our Constitutions, supra note 35, at 395 (noting that state constitutions are significant part of American constitutional system). 129. Immuno AG. v. Moor-Jankowski, 567 N.E.2d 1270, 1283 (N.Y.) (Simons, J., concurring), cert. denied, 500 U.S. 954 (1991); Bonventre, supra note 64, at 400-01. 130. See generally supra note 35 (referencing articles written by members of the New York Court of Appeals). 131. See Hancock, supra note 35, at 286-87 (setting out alternate methodology for deciding cases which raise issues of state constitutional law). 132. See Appendix, Table B.

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other three judges were far less supportive of the Cuomo position, preferring this outcome between 42% and 48% of the time. Bellacosa was most supportive, preferring the Cuomo position in three-quarters of the cases. Wach- tier was next in support for Cuomo. On the other hand, Alexander and Titone were least supportive of Cuomo, both preferring the Cuomo position just over 40% of the time, with Hancock favoring the Cuomo-supported outcome at a rate of just under 50%.133

2. Assessment

The court of appeals' support for Governor Cuomo's position could easily be attributed to the judges' allegiance to their primary benefactor; after all, Cuomo appointed each of them to the court of appeals. But this explanation seems too simplistic. For example, both Bellacosa and Titone were long- time friends and allies of the governor, yet their voting preferences in these cases are at the opposite extremes. Wachtler, a long-time friend but now potential political foe of Cuomo, with whom he bitterly clashed over court funding,134 registered strong support for the governor's programs. Little political benefit could come from this support. From another perspective, however, the support for the Governor's programs by Wachtler, Simons, and Bellacosa can be explained as consistent with these judges' preferences in the other categories. By approving Cuomo's positions, these judges registered support for acts of government that had received approval in the democratic process. In this way, the judges can be seen as not simply approving Cuomo's agenda, but rather as deferring to the more representative branches of government. An approach of this sort in the Cuomo Agenda cases would be analogous to the conservative preferences expressed by these judges in favor of the prosecution in criminal cases, of the government in civil rights and liberties cases, and of the Federal Con- stitution in judicial federalism cases. Considering his reported aspiration to a U.S. Supreme Court that was in many ways supportive of and deferential to duly-adopted programs of the more democratic branches, Wachtler's strong support for Cuomo positions enacted through democratic means would make sense under this scenario. His influence as Chief Judge can be seen to have had mixed success, in light of the variable preferences of the judges in this category.

E. Summary

The court of appeals seems to have preferred the prosecutor in criminal cases, the state in civil rights and liberties cases, the federal approach in judi-

133. Id. 134. See supra notes 80, 105-06, and accompanying text for a description of both the relationship between Wachtler and Cuomo and of Wachtler's own political ambitions as portrayed in newspaper articles. HeinOnline -- 68 Temple L. Rev. 1426 1995 1995] NEW YORK COURT OF APPEALS 1427

cial federalism cases, and the governor's position in Cuomo Agenda cases. 135 Each of these positions could be characterized as conservative, which would seem contrary to the traditional progressive reputation of the court of appeals. These preferences, however, can be seen as responsive to societal concerns about increased crime and excessive concern for criminal defendants, and to public support for duly-enacted governmental programs initiated by Cuomo, who won reelection in 1986 and 1990 by landslide proportions. In this way, the court of appeals tends to reflect prominent emphases of the U.S. Supreme Court during the same period. The court's preferences also would comport with the objectives of a chief judge who may have been posturing for other public office, whether a run for governor or appointment to the U.S. Supreme Court. Under this scenario, the court of appeals' preferences during these terms are more understandable. The judges, most of whom served on or practiced in lower state courts where they exercised a subordinate role, can be seen as following the leadership of a charismatic and popular chief judge and agreeing to the more conservative outcomes. The consistent voting of Simons and Bellacosa for the same preferences as Wachtler, with occasional joinder by Kaye, Alex- ander, and/or Hancock, indicates that Wachtler might have exerted influence on the court's members. The drift toward more pro-defendant outcomes in those terms when Wachtler might have been most distracted from the busi- ness of the court and when the associate judges had gained more experience and confidence in their roles provides added support for the importance of Wachtler's leadership role in determining voting preferences. These different effects are analogous to Chief Justice Warren's strong leadership of the Supreme Court in the 1960s and Chief Justice Burger's less effective leadership over an increasingly experienced Court in the 1970s and 1980s.

IV. VOTING PATTERNS A. Overall Cases Perhaps the most striking aspect of the court of appeals' voting pattern is the extent to which the court decided cases without concurrences and dissents.136 The court decided cases with all judges agreeing in a single opinion approximately four-fifths of the time in each term, with the highest rate at 87% in 1987-1988. Concurrences were rather infrequent, never occurring in more than 6% of the cases per term. Dissents appear in no more than one- fifth of the cases per term, with the rate per term falling between 10% and 20%.137 This court acted with consensus. The court's high agreement rate also is seen from the extent to which the judges agreed with the majority. No judge agreed with the majority less than

135. See Appendix, Table B for data showing the voting preferences of the court in these specific categories of cases. 136. See Appendix, Table C. 137. Id.

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90% of the time in any term. 138 Having identified high rates of unanimity in the court's plenary civil caseload, 139 the strong tendency for agreement with the majority is not surprising. The court of appeals seems to have had a common approach to resolving its cases. Wachtler voted with the majority most often of all the judges, having the highest rate of majority agreement in each term (tying with others in two terms). By contrast, Titone voted with the majority least often in every term, with the lowest rates of majority agreement (tying in 1987-1988). In addition to having the lowest rate of majority votes in each term, Titone was the most prolific dissenter in each term but one (1987-1988).140 Notably, despite his "disagreeability," Titone agreed with the majority in at least nine out of ten cases in each term. The other judges fall within the narrow range between 14 Wachtler and Titone. '

B. Civil Cases The voting pattern of the court of appeals in civil cases resembles that in the overall plenary caseload. The rate at which civil cases were decided with all judges in agreement on the rationale ranged between 80% and 85% per term with concurrences in no more than 6% of the civil cases per term. Dis- sents appeared in between 13% and 17% of the civil cases per term. 142 The premium put on agreement in resolving cases on the merits remains apparent. This emphasis on consensus also appears in other voting characteristics. 143 All judges in all terms voted with the majority at least 90% of the time, with the corresponding lack of concurrences and dissents. Wachtler led or was near the lead in joining the majority the most in each term. Titone was the judge with the most concurrences and dissents in three terms, with Bellacosa the leader in the other two terms.' 4 As with the overall caseload, the court of appeals generally expressed consensus in resolving civil cases.

C. Criminal Cases In criminal cases, the court of appeals exhibited a bit less consensus than in the other categories described but only slightly sO. 145 Agreement on the rationale in resolving criminal cases in four of the five terms was about 75%, with the rate in 1987-1988 at 90%. Concurrences were written in no more

138. See Appendix, Table D. 139. See Bierman, supra note 64, at 86 (observing that unanimity rate for civil cases decided by Court of Appeals in recent four-year period was 82-90%). 140. See Appendix, Table D. 141. Id. 142. See Appendix, Table C. 143. See Appendix, Table E for data on the high degree of voting consensus evidenced by the court. 144. See Appendix, Table E. 145. See Appendix, Table C for data concerning the number of concurrences and dissents per category. HeinOnline -- 68 Temple L. Rev. 1428 1995 1995] NEW YORK COURT OF APPEALS 1429

than 10% of the cases per term. Dissents in criminal cases, written in propor- tionally more cases than in the overall and in civil caseloads in each term but 1987-1988, appeared in about 20% of the cases in each term, except for that first term with only a 7% dissent rate.146 Even though the criminal cases were more contentious than civil cases, consensus prevailed. These trends also are seen in other aspects of voting patterns in criminal cases.147 Almost all judges in all terms voted with the majority at least 90% of the time, with a correspondingly low rate of concurrences and dissents. The exceptions are Titone, who voted with the majority less than 90% of the time in all terms except 1987-1988, and Alexander, who voted with the majority 89% of the time in 1988-1989. Wachtler was the judge most often with the majority in each term except 1987-1988, when he was just behind Simons, the leader that term. Titone registered the most concurrences and dissents each term. 148 The court was rather agreeable in criminal cases, as in overall and civil cases.

D. Civil Rights and Liberties Cases The court's emphasis on consensus seems to have broken down slightly in the civil rights and liberties cases. 149 Only slightly more than one-half of these cases were decided without separate concurrences and/or dissents, with concurrences in about 10% of them and dissents in just over one-third. 150 Most of the judges, however, agreed with the majority most of the time, with joinder with the majority between 79% and 89% of the time.15' The extent of agreement for most judges is apparent. Wachtler did not lead the group in joining the majority in these cases, but he was only slightly behind Simons, the leader in this category, and tied with Hancock. Titone most frequently concurred and dissented, but even he agreed with the majority about four- fifths of the time. 152 In these cases, the court of appeals seems to have been seeking consensus, even though it eluded the court half the time.

E. Judicial Federalism Cases The court's inability to reach consensus appears most evident in judicial federalism cases. 153 All judges agreed to a single opinion in only about one- fourth of these cases; there were concurrences in about 20% of these cases

146. See Appendix, Table C. 147. See Appendix, Table F for data showing voting patterns in criminal cases. 148. Id. 149. See Appendix, Table C for data pertaining to the concurrences and dissents in civil rights cases. 150. See Appendix, Table C. 151. See Appendix, Table G. 152. Id. 153. See Appendix, Table C. See also People v. Scott, 593 N.E.2d 1328, 1326 (N.Y. 1992) (Kaye, J., concurring) (observing that state constitutional law cases fractured court more than any other issues in past decade). HeinOnline -- 68 Temple L. Rev. 1429 1995 1430 TEMPLE LAW REVIEW [Vol. 68 and dissents in about two-thirds. 154 Likewise, the judges' failure to join in the majority is more evident in this category than the others.155 Four judges (Wachtler, Simons, Alexander, and Hancock) agreed with the majority in between 80% and 87% of these cases and three judges (Kaye, Titone, and Bel- lacosa) voted with the majority only two-thirds of the time or less, although no judge voted with the majority less than 58% of the time. Wachtler was with the majority the most often and Titone the least, although Kaye and 56 Bellacosa registered only one less concurrence and dissent than Titone.1 The court apparently encountered difficulty in finding common ground in these cases.

F Cuomo Agenda Cases The judges also disagreed about the resolution of Cuomo Agenda cases.157 The court was in agreement without separate opinions in these cases only slightly less than one-half of the time. Although concurrences were rather infrequent, dissents appeared in about half of these cases. 158 The judges' rather variable voting patterns also illustrate the difficulty in reaching argreement in these cases. 159 Three judges (Wachtler, Simons, and Kaye) joined the majority in more than 90% of these cases; two judges (Alexander and Bellacosa) joined the majority 82% of the time; and two judges joined the majority less than 75% of the time (Hancock at 74% and Titone at 68%).160 Titone, thus, concurred and dissented the most in these cases. Rather sharp divisions in the voting patterns appear in these cases.

G. Assessment The court of appeals' strong preference for unanimity in outcome has been recognized 16' and apparently is long standing.' 62 The judges' voting patterns in the broad case categories tend to confirm this tendency for con-

154. See Appendix, Table C. 155. See Appendix, Table G for data concerning voting patterns in specific subject categories. 156. See Appendix, Table G. 157. See Appendix, Table C for data concerning the voting patterns in the Cuomo Agenda cases. 158. See Appendix, Table C. 159. See Appendix, Table G for data pertaining to voting patterns in Cuomo Agenda cases. 160. See Appendix, Table G. 161. See Bierman, supra note 64, at 86 (observing that unanimity rate for civil cases decided by Court of Appeals in recent four-year period was 82-90%). 162. See Jones, supra note 41, at 551 (expressing preference for unified view); McCrate et al., supra note 39, at 178-81 (illustrating low number of concurring and dissenting opinions in cases decided between 1933 and 1971); Posner, supra note 39, at 80 (noting scarcity of concurring or dissenting opinions written by Cardozo court); id. at 13 (describing Cardozo era as "example of civility" with no angry dissents); Spencer, supra note 42, at 2 (recognizing high level of consensus in Court of Appeals' decisions). HeinOnline -- 68 Temple L. Rev. 1430 1995 1995] NEW YORK COURT OF APPEALS 1431 sensus.163 The judges' agreement in a single opinion in 80% or more of the overall cases per term, and in about the same rate in civil and criminal cases, 164 demonstrates that New York's high court judges have little propensity to express individual views. This preference for consensus stands in marked contrast to the U.S. Supreme Court's decisions, which far more often than not are marked by concurrences and dissents and a fair number of pluralities. The small number of concurrences and dissents and the high rate of agreement with the majority may be unexpected in light of the court's discretionary jurisdiction, which should have allowed the court of appeals to choose for its plenary caseload important cases that were potentially divisive. Certainly this is what has been described as happening with the U.S. Supreme Court after enactment of the Judges' Bill of 1925.165 The opportunities for concurrences and dissents provided by the court of appeals' discretionary jurisdiction does not seem to have materialized. The effect of Wachtler's leadership may provide a better explanation for the minimal amount of concurrences and dissents. Wachtler's expressed emphasis on consensus in decision-making harkened back to the court of appeals' high prestige era under Cardozo, when civility was the norm.166 As a savvy, charismatic, and popular chief judge, Wachtler's objective in this regard might well have swayed the court toward agreement. Much like a mirror image of Chief Justice Stone, who has been described as affording U.S. Supreme Court justices greater opportunity for expressing individual views, Wachtler's influence in promoting consensus is a distinct possibility. Of course, this high rate of consensus remained evident even in 1990-1991 and 1991-1992,167 the terms when Wachtler might have been distracted from court duties, creating a vacuum in which more concurrences and dissents might have been possible. Wachtler's leadership, then, may not provide a complete explanation. Another related possibility is that the judges' common backgrounds and perspectives have constrained any impulses to express disagreement. Having been socialized in the state's lower judiciary, most of the court of appeals judges can be seen as adhering to familiar voting patterns; the appellate division has been viewed as deciding most cases without separate expressions through concurrences and dissents. 168 Moreover, these judges themselves

163. See Appendix, Table C for data confirming the high degree of consensus among judges. 164. See Appendix, Tables E-F. 165. See Halpern & Vines, supra note 13, at 471 (noting that dissents were written in two- thirds of Supreme Court cases in 1975). 166. See supra notes 39-42 and accompanying text for a discussion of the civility of the New York Court of Appeals at various points in its history. 167. See Appendix, Table C for data confirming the high degree of consensus on the court even during 1990-1991 and 1991-1992 terms. 168. See Luke Bierman, Are Five Heads Better than Three?: A Case for Three Judge Panels for the New York Supreme Court, Appellate Division, 56 ALB. L. REv. 147, 153 (1992) (observing that appellate division department decided 97.2% of cases unanimously in 1991). HeinOnline -- 68 Temple L. Rev. 1431 1995 1432 TEMPLE LAW REVIEW [Vol. 68

may well have been emulating the traditional civility of the court of appeals' golden years under Cardozo and Fuld in the hope of accomplishing a similarly important role for the court. Possibly, then, the court of appeals judges stifle individual expression because such a pattern of conduct is expected in the New York judiciary. This expectation for consensus at the New York high court contrasts with the prevailing practice of divided opinions at the U.S. Supreme Court, 169 despite the fact most judges on both courts now have experience on lower courts where unanimity is the norm. The Supreme Court, in contrast to the New York Court of Appeals, now has a long tradition of dissension that may effectively undercut the justices' previously internalized expectation for agreement. The influence of norms and expectations appears strong. If this is so, Titone and Bellacosa offer interesting contrasts. As already noted, Titone has been the court's most prolific voter outside the majority, usually in dissent. 170 Titone's experience in the appellate division, where individual expression through separate opinions is unusual, would seem contrary to his "high" dissent rate at the court of appeals; however, Titone's "high" dissent rate pales in comparison to the U.S. Supreme Court's most prolific dissenters. 171 Nonetheless, Titone's tendency for individual expression comports with voting patterns at the U.S. Supreme Court after the enactment of the Judges' Bill of 1925,172 albeit in a less extreme manner. The number of Titone's concurrences and dissents has not seemed to cause much concern as there has been little comment on his propensity in this regard. In contrast, the number and rate of Bellacosa's concurrences and dissents fell typically within the mid-range of the court of appeals judges and nowhere near the high rates of separate voting at the U.S. Supreme Court. Nonetheless, some of Bellacosa's separate writings stand out as harsh and angry in tone,173 certainly different from the concurrences and dissents of other court of appeals judges. These expressions by Bellacosa can easily be characterized as the kind of judicial writings that have engendered criticism from leading jurists.' 74 Moreover, Bellacosa's writings are particularly note-

169. Howard's study of the Courts of Appeals of the United States reveals that most of the decisions of these federal courts are unanimous. J. WOODFORD HOWARD, COURTS OF APPEALS IN THE FEDERAL JUDICIAL SYsTEM 42, 193-96 (1981) (examining conflict in circuit courts); see also RIC-ARD J. RICHARDSON & KENNETH N. VINES, THE POLITICS OF FEDERAL COURTS 134- 38 (1970) (comparing rates of dissent in circuit courts to rate of dissent in Supreme Court). 170. See Appendix, Table D for data showing Titone's propensity for separate opinions. 171. See, e.g., O'BRIEN, supra note 14, at 341 (calculating that average rates of dissents per term range from .9 to 38.5% of cases for Supreme Court justices). 172. See Halpern & Vines, supra note 13, at 134-38 (describing voting patterns after 1925). 173. They have not gone unnoticed by commentators. See, e.g., Eve Cary & Mary Falk, People v. Scott and People v. Keta: Democracy Begins in Conversation, 58 BROOK. L. REV. 1279, 1284 (1993) (characterizing one of Bellacosa's dissents as "infuriated" and "scolding"); Stephen Wasby, Judicial Federalism and State Protection Against Searches: Once Again in the New York Court of Appeals, 4 ST. CONST. COMM. & NOTES 1, 3-4 (1993) (describing Bellacosa's dissent as forceful and angry, "characteristic of his other dissents"). 174. See Ginsburg, supra note 43, at 1196-98 (recommending collegiality in appellate decision-making); Miner, supra note 43, at 107 (noting lack of consensus among Supreme Court HeinOnline -- 68 Temple L. Rev. 1432 1995 1995] NEW YORK COURT OF APPEALS 1433

worthy on a court like the court of appeals, which usually decides cases in a single opinion and traditionally has emphasized civility in its opinion 175 writing. It is relatively easy to trace the development of Bellacosa's distinctive separate writings. As early as his first full term on the court, Bellacosa wrote strongly phrased opinions, especially when writing alone. In Boreali v. Axel- rod,176 Bellacosa was the sole dissent from the court's holding that the state Public Health Council had exceeded its statutorily delegated authority in promulgating regulations against smoking in public. 177 Bellacosa chastised the court for the practical effect of its decision, writing that the Public Health Council's efforts to protect nonsmokers "is crushed without analytical or precedential justification. That is the human dimension of this case which the court cannot avoid, however awkwardly it tries, by its dry doctrinal discussion."'1 78 His placing of blame on the court's majority for any detrimental public effects of the court's decision is as remarkable as his use of an exclamation point in his argument, 179 considering the usual congeniality of court of appeals opinions. Similarly, in People v. Harris,180 Bellacosa, this time joined in dissent by Wachtler, criticized the majority for adopting a state constitutional rule more protective of individual rights than required by federal constitutional search and seizure doctrine, writing that the majority had "to stretch precedent and twist logic" to reach its result. 181 He further accused the majority of intellectual and analytical inconsistency, and of engaging in "institutional egocentric- ity, a kind of Copernican view of the judicial universe.' 182 This type of critical exposition apparently has contributed to Bellacosa's distinctive writings that can be characterized as disagreeable and not judicious. On a court that traditionally has prided itself on consensus and congeniality, the harsh tones of some of Bellacosa's separate opinions stand in marked contrast to the norm. Bellacosa does not, however, always exhibit this vehemence or discor- dant tone in his dissents. He has also offered dissenting views in the court's opinions). Interviews conducted by the author of some judges on the Court of Appeals of New York who have served before and during Bellacosa's tenure confirm that the tenor of some of Bellacosa's separate opinions were troublesome. This is consistent with the views expressed by Bellacosa's colleagues in some of the opinions. See, e.g., People v. Scott, 593 N.E.2d 1328, 1346 (N.Y. 1992) (describing Bellacosa's dissent as "remarkable"). 175. See supra notes 39-43 and accompanying text for a discussion of the unanimity and consensus which has been evident on the Court of Appeals of New York. 176. 517 N.E.2d 1350 (N.Y. 1987). 177. Id. at 1358-60 (Bellacosa, J. dissenting). 178. Id. at 1360 (Bellacosa, J., dissenting). 179. See id. (Bellacosa, J., dissenting) ("Surely, if the greater power exists, the lesser, as responsibly exercised here, should not be forbidden!"). Exclamation points are rarely employed in judicial opinions. 180. 570 N.E.2d 1051 (N.Y. 1991). 181. Id. at 1058 (Bellacosa, J., dissenting). 182. Id. at 1059 (Bellacosa, J., dissenting). HeinOnline -- 68 Temple L. Rev. 1433 1995 1434 TEMPLE LAW REVIEW [Vol. 68 more usual civil style. For example, in People v. Moquin,'18 3 his dissent, which was joined by Simons, is a rather straightforward essay on the manner in which he would have decided the case, together with objective deficiencies in the majority's rationale. 184 These opinions by Bellacosa, joined by a judge other than his close friend and apparent ideological ally Wachtler, who may be able to influence the tenor of the opinions, are more restrained in tone and closer to the more "civil" dissent that garners greater acceptance in con- ventional judicial circles, especially those at the court of appeals. That some of Bellacosa's separate opinions were of this more civil sort185 may only serve to draw attention to his more strident writings, which can be denigrated as failing to exhibit collegiality by those more accustomed to consensus and civility. Bellacosa's meteoric rise from nonjudicial Clerk and Counsel of the New York Court of Appeals to associate judge' 86 might well have affected the way in which he expressed himself in separate opinions. Clearly his path to the bench is unique among the members of the court, all of whom had significant practical experience in the state judicial system as a practicing judge and/or attorney before appointment to the court of appeals. This prior service could easily have left these judges fully socialized to the standard operating procedures of the New York judicial system, such as acting in more collegial and congenial ways when exercising their independent decision-making authority on the court of appeals. Without prior practical experience in private legal practice or as a trial or appellate judge,187 Bellacosa had not undergone the socialization that can contribute to more experienced members of the bench and bar conforming to prevailing patterns of conduct. Indeed, Bellacosa's extensive experience as Clerk and Counsel of the Court of Appeals and as Chief Administrative Judge with oversight and supervisory responsibilities vis-a-vis other judges may have inhibited his acuity in adapting to prevailing practices. It is noteworthy that Bellacosa seems to have tempered his remarks when faced with some influence from certain colleagues, as in People v. Moquin,188 which may seem comparable to how Chief Justice Rehnquist's conservative rhetoric has become more restrained with the demands of leadership.' 89 The interplay of leadership, influence, and socialization at the court of appeals thus can be seen in Bellacosa's tendencies in writing separate opinions.

183. 570 N.E.2d 1059 (N.Y. 1991). 184. Id. at 1064-65 (Bellacosa, J., dissenting). 185. See, e.g., People v. Davis, 526 N.E.2d 20, 24-25 (N.Y. 1988) (Bellacosa, J., dissenting) (reciting competing views of evidence in dissent joined by Wachtler and Alexander). 186. Bellacosa left his nonjudicial position at the Court of Appeals of New York in 1983 to join the faculty of the Albany Law School. Two years later, he was selected by Wachtler as administrative head of the New York court system, and his appointment to the Court of Appeals came less than two years later. 187. See supra notes 65 and 186, and accompanying text, for a description of the career path of Judge Bellacosa. 188. 570 N.E.2d 1059, 1064-65 (N.Y. 1991) (Bellacosa, J., dissenting). 189. See Guliuzza, supra note 27, at 155-56 (suggesting that Chief Justice Rehnquist softened tone in 1987 and 1988 to enhance effectiveness as leader). HeinOnline -- 68 Temple L. Rev. 1434 1995 1995] NEW YORK COURT OF APPEALS 1435

In the more specific subject categories, the judges' voting patterns can be characterized as somewhat different than in the more broad categories. There is a greater propensity for the judges to vote independently through concurrences and dissents in the civil rights and liberties cases, the judicial federalism cases, and the Cuomo Agenda cases. 190 Indeed, the data clearly support Kaye's acknowledgement that the court's inability to reach consensus is most apparent in judicial federalism cases. 19 1 An obvious possible explanation for this greater propensity for disagreement in these cases is that the court's discretionary jurisdiction provided increased opportunity for choosing more contentious cases. This possibility, however, does not find much support from the broader case categories, where there is little dissension despite broad discretion to choose similarly contentious cases. Also, certain of the specific subject categories, such as the civil rights and liberties cases, did not engender nearly as many disputes as others, such as the judicial federalism cases. The effect of the court of appeals' discretionary jurisdiction may not adequately explain the greater dissension in the more specific case categories considering the overall high unanimity rate. After all, the U.S. Supreme Court exhibited a greater propensity for dissent after it received discretion over its plenary caseload. Perhaps certain specific subjects, such as judicial federalism, presented particular difficulties for some judges because they had to resolve competing motivations. For example, in the judicial federalism category, the judges faced particularly difficult questions about fundamental aspects of society in the context of state constitutional analysis, an area of law that was receiving increasing attention and criticism and that provided easy, if superficial, comparisons to federal constitutional analysis. The pressures to elaborate the developing concepts and ideas may have contributed to more frequent concurrences and dissents. If so, Wachtler's rhetoric favoring independent state constitutionalism, combined with his voting preference for federal constitutional doctrine, might have presented mixed signals to those judges who supported independent state constitutional grounds but also felt deference to the chief judge. Attempting to reconcile these competing motivations, in addition to the other pressures described above, might have contributed to these judges feeling compelled to explain themselves in concurring or dissenting opinions. Indeed, it appears that Kaye and Titone, whose votes express perhaps the strongest commitment to independent state constitutionalism, resolved these dilemmas by often casting concurring and dissenting votes; Hancock, who lacked commitment to any particular approach in judicial federalism cases, might have been more amenable to follow the majority. Simons, who preferred to address federal doctrine before even considering the applicabil-

190. See Appendix, Table C for data revealing higher percentage of concurrences and dissents in these types of cases. 191. See People v. Scott, 593 N.E.2d 1328, 1346 (N.Y. 1992) (Kaye, J., concurring) (noting that court was unusually split in state constitutional law cases). HeinOnline -- 68 Temple L. Rev. 1435 1995 1436 TEMPLE LAW REVIEW [Vol. 68

ity of the state constitution, found refuge with a majority that usually fol- lowed federal rules. Bellacosa's tendency to concur and dissent in judicial federalism cases even though his votes reveal strong agreement with the court's preferred federal position perhaps is more difficult to explain. Some of Bellacosa's most strongly worded writings emerged in judicial federalism cases and did not escape the criticism of his colleagues. For example, in the companion cases of People v. Scott1 9 2 and People v. Keta,193 the court of appeals confronted the question of whether the state constitutional proscription against unreasonable searches and seizures' 94 permitted warrantless searches of "open fields" and vehicle dismantling businesses, which the U.S. Supreme Court had held authorized under the Federal Constitution. 195 In deciding that the state constitution provided greater protection of individual rights and liberties than the Federal Constitution, a four-judge majority reviewed the particular circumstances affecting New York's guarantee against unreasonable searches and seizure and rejected the Supreme Court precedent permitting the warrantless searches. In dissent, Bellacosa suggested that the court of appeals' "declaration of independence from the Supreme Law of the Land ...propels the Court across a jurisprudential Rubicon into a kind of Articles of Confederation time warp."'1 96 Bellacosa rejected the majority position "because no appropriate basis, unique to New York, has been advanced warranting this double- barrelled declaration of peculiar New York-style separatism."' 97 In response to this strongly worded indictment of the majority's actions, Kaye wrote a concurrence noting, perhaps charitably considering Bellacosa's propensity for acerbic opinions, that the dissent "is distinctive only in the tone of its expression.' ' 98 In eloquent terms that stand in marked contrast to the tenor of Bellacosa's dissent, Kaye proceeded to justify independent state constitutional decision-making as appropriate under the federal constitutional system. Several factors may explain the extreme tone expressed by Bellacosa in these state constitutional cases. First, this kind of case would have presented particular difficulties for Bellacosa if his earlier-expressed support for independent state constitutionalism was sincere.' 99 Trying to justify as a matter of state law the adoption of conservative federal constitutional doctrine in

192. 593 N.E.2d 1328 (N.Y. 1992). 193. Id. 194. N.Y. CONST. art. I, § 12. 195. See New York v. Burger, 482 U.S. 691, 716 (1987) (holding search of junkyard without warrant constitutional); Oliver v. United States, 466 U.S. 170, 177 (1984) (holding warrantless search of open field constitutional). 196. Scott, 593 N.E.2d at 1348 (Bellacosa, J., dissenting) (citing People v. Harris, 570 N.E.2d 1051 (N.Y. 1991) and People v. Reynolds, 523 N.E.2d 291 (N.Y. 1988)). 197. Id. at 1349 (Bellacosa, J., dissenting). 198. Id. at 1346 (Kaye, J., concurring). 199. See Bellacosa, supra note 35, at 16 (expressing strong support for decisions based on state constitutions). HeinOnline -- 68 Temple L. Rev. 1436 1995 1995] NEW YORK COURT OF APPEALS 1437

light of the court of appeals' traditionally independent, progressive approach and his own public acknowledgment of the value of independent state constitutionalism might have provoked the dissenting diatribe. Also, Scott and Keta were decided during the time that Wachtler's distraction from the court's work (due to the budget battle with the Governor and his own criminal conduct) might have been at its zenith, thereby providing Bellacosa with additional incentive to provide a strongly worded justification for a position that his long-time friend, the chief judge, could join, as Wachtler did. It similarly is worth noting that Simons, a serious and skillful jurist,20 0 uncharacteristically joined Bellacosa's strongly worded dissent in these cases; 20 1 Simons never joined another dissenting or concurring opinion authored by Bellacosa in the judicial federalism cases, despite similar preferences in these kinds of cases.20 2 Indeed, contrary to the court of appeals' usual practice whereby the junior judges have responsibility for writing dissents,20 3 Simons, the more senior jurist, authored the separate opinions in judicial federalism cases where Simons and Bellacosa expressed views different from those of the majority. 2° 4 It was, however, during the period when Scott and Keta were being considered that Simons' wife was administered drugs improperly during a hospitalization and tragically and unexpectedly

200. See, e.g., Bonventre, supra note 9, at 1164 n.5 (commending interim leadership of court by Judge Simons) (citing Gary Spencer, Kaye is Selected Chief Judge by Governor, N.Y. L.J., Feb. 23, 1993, at 1). 201. People v. Scott, 593 N.E.2d 1328, 1348-56 (N.Y. 1992) (Bellacosa, J., dissenting). 202. See, e.g., People v. Torres, 543 N.E.2d 61 (N.Y. 1989) (Bellacosa, J., dissenting); People v. Luna, 535 N.E.2d 1305 (N.Y. 1989) (Bellacosa, J., concurring); People v. Bell, 535 N.E.2d 1294 (N.Y. 1989) (Bellacosa, J., dissenting). 203. Opinion and dissent writing assignments at the New York Court of Appeals are made in accordance with a long-standing tradition that is decidedly low tech. At the conclusion of a session of oral argument, each judge, in order of seniority, randomly chooses an index card on the back of which the name of a case that was argued is written. The judge becomes responsible for preparing an initial report on that case, which will provide the basis for preliminary discussion about the case during the court's conference. The conference discussion proceeds in reverse order of seniority, with voting also accomplished in this manner. If the judge initially reporting retains a majority, that judge typically will write the court's opinion; otherwise, the most junior judge in the majority receives that assignment. If a dissent is to be written, the first judge raising disagreement, usually a judge with lesser seniority considering the way discussion and voting proceed, will draw that assignment. See generally Frank H. Hiscock, The Court of Appeals of New York: Some Features of its Organizationand Work, 14 CORNELL L. REV. 131, 138 (1929) (explaining that Court of Appeals judges receive cases by rotation); Judith S. Kaye, The Impor- tance of State Courts: A Snapshot of the New York Court of Appeals, 1994 ANN. SUR. AM. L. xi, xii-xiii (describing process of decision-making in Court of Appeals). Contra Melinda G. Hall, Opinion Assignment Proceduresand Conference Practices in State Supreme Courts, 73 JUDICA- TURE 209, 212 (1990) (arguing that procedure for assigning cases in New York Court of Appeals is "random assignment after consideration of case merits and tentative votes"). 204. See, e.g., People v. Dunn, 564 N.E.2d 1054, 1059 (N.Y. 1990) (dissent authored by Simons), cert. denied, 501 U.S. 1219 (1991); People v. Vilardi, 555 N.E.2d 915, 915 (N.Y. 1990) (same). The data further indicate that Simons did not join in any Bellacosa-authored dissent or concurrence in the "Civil Rights and Liberties" and "Cuomo Agenda" categories. HeinOnline -- 68 Temple L. Rev. 1437 1995 1438 TEMPLE LAW REVIEW [Vol. 68

died.205 This personal catastrophe might well have distracted Simons' attention and thereby inhibited him from exerting restraint to temper the tone of Bellacosa's language or even taking over the dissent writing responsibility. These circumstances suggest that a variety of factors contributed to these judicial federalism opinions. The impact of ideological predispositions and conformity to standard operating procedures interacted in ways that contributed to a highly unusual exchange at the court of appeals. Although these factors mirror those identified as affecting the patterns and preferences in the more specific case categories, their combination or presence in cases involving questions of fundamental importance-the state constitution-that had been addressed by at least some of the judges in extrajudicial writings might have affected the decision-making in distinctive ways. Thus the tenor of Bel- lacosa's dissent in Scott and Keta might not have been particularly unusual for him, especially considering his relationship with the distracted chief judge, but Simons' tacit endorsement of it and the strongly worded responses to it are unique in the annals of the usually congenial court of appeals. From these perspectives, the effects of leadership, influence, and socialization on state constitutional decision-making become apparent. Thus we see that, although the court of appeals clearly emphasized consensus in its decision-making, in the more specific subject categories, and especially in the judicial federalism category, agreement by all seven judges was more elusive. 2°6 This suggests that the court of appeals' jurisdictional control over its plenary caseload did not promote divided decision-making. Titone, the court's "rebel" with the most concurrences and dissents, voted with the majority in most cases in most categories. 20 7 Even Bellacosa's intemperate language did not infect all his separate opinions. The court of appeals seems to have emphasized consensus despite its ability to choose for its plenary caseload the important cases that can provoke disagreement. Unlike the U.S. Supreme Court, where discretionary jurisdiction promoted divided decision-making, the court of appeals' voting patterns do not seem to be a consequence of the court's discretionary jurisdiction. Rather, it appears that the leadership of the chief judge and the backgrounds of the judges in New York's generally unanimous lower appellate courts and as observers of the standard operating procedures for the New York Court of Appeals encouraged consensus and congeniality at New York's high court. This contrasts with the United States Supreme Court, where Chief Justice Stone helped entrench common dissenting practices and where formerly agreeable U.S. Courts of Appeals judges find much to disagree about. Wachtler's objective for consensus is consistent with his usual votes in the majority, which could have provided leadership by example.

205. Jane Fritsch, Syracuse HospitalAdmits Causing Death of Patient, N.Y. TIMES, May 13, 1992, at B5. 206. See Appendix, Table C for data showing higher number of concurrences and dissents associated with these categories of cases. 207. See Appendix, Table G for data showing that Titone voted with the majority in most categories in most cases. HeinOnline -- 68 Temple L. Rev. 1438 1995 1995] NEW YORK COURT OF APPEALS 1439

Most of Wachtler's colleagues' experiences in the lower judiciary, where unanimity seems to prevail, not only could have promoted joining in the majority but also could have limited their motivation to write concurrences and dissents notwithstanding the court of appeals' discretionary jurisdiction. 208 The court's traditional emphases on civility, consensus, and deference to the chief judge also may have contributed to the judges' voting behavior. The relative lack of agreement seen in the specific subject categories, especially in the judicial federalism category, can perhaps be attributed to competing values presented by these cases. The judges had to balance conflicting motivations, including ideological preferences, emphasis on consensus and congeniality, and deference to the chief judge, which might have resulted in the higher incidence of concurrences and dissents observed in these cases. Likewise, these factors might well have contributed to the distinctive disagreeable tenor of Bellacosa's separate writings. The interrelationship of these factors suggests that decision-making in cases raising state constitutional issues occurs in more complicated and dynamic ways than in other cases, as additional motivations and pressures must be integrated in the decision-making process. Yet, the important factors that seem to affect decision-making at the court of appeals generally-the emphasis on consensus and civility that de- rives from the court's traditional approach to resolving cases, the background of judges whose prior experiences largely are in the deferential lower judiciary, and the effects of leadership and influence-play important roles in the state constitutional cases. The case categories may change and the dynamics may change, but the basic factors underlying decision-making propensities remain the same.

V. VOTING ALIGNMENTS A. Voting Pairs 1. Overall Cases The methodology used in this study for determining when pairs of judges voted together may tend to depress the rates of agreement, which are based on joinder in opinions and not on joinder in outcomes. The U.S. Supreme Court has seen interagreement rates between justices as high as 95% and as low as 4%.209 Notwithstanding these extreme voting patterns, interagree- 210 ment rates of 70% and 80% have been characterized as rather strong. These rates provide a basis for assessment of the court of appeals judges' voting patterns.

208. In contrast to the New York Court of Appeals' essentially discretionary jurisdiction, the Appellate Division of New York (the state's primary intermediate appellate court, where four of the seven Court of Appeals judges had previously served) has mostly mandatory juridic- tion. N.Y. CrIM. PROC. L. art. 450 (McKinney 1994); N.Y. Civ. PR¢c. L. & R. arts. 55, 57 (McKinney 1994). 209. WASBY, supra note 14, at 255-56. 210. Id. at 257. HeinOnline -- 68 Temple L. Rev. 1439 1995 1440 TEMPLE LAW REVIEW [Vol. 68

Some definite voting alignments can be discerned from looking at the rates at which each judge joined another judge in support of particular opinions in cases with concurrences and dissents in the overall caseload.211 In three of the five terms studied, the pair most often in agreement was Wach- tier and Bellacosa; in the other two terms, it was Wachtler and Simons, with the Wachtler and Bellacosa pair a close second. In three of the five terms, the pair least often in agreement was Titone and Bellacosa; in one of the other terms it was Alexander and Bellacosa, and it was Hancock and Bel- lacosa in the other term. Rates of agreement varied for other pairs in other terms; for example, agreement of voting pairs involving Kaye, Alexander, Titone, and Hancock would fluctuate from term to term, without discernable pattern. The extent of each of these four judge's agreement with Wachtler 212 and Simons also seemed rather variable. These voting alignments are further seen in the voting pair data for all cases with concurrences and dissents in the 1987-1992 terms.213 The pair of Wachtler and Bellacosa agreed more often than any other pair, with the Wachtler and Simons pair close behind. The pair of Titone and Bellacosa had the least agreement, with the Hancock and Bellacosa pair and Titone and Simons pair in agreement nearly as infrequently. The variability of agreement of other pairs apparently put them in between the extremes exhibited 214 by these pairs. Titone and Bellacosa issued sole concurrences and dissents most often. Wachtler was the least likely to be voting alone, even failing to vote alone once during whole terms. The other judges were closer to Wachtler than Titone and Bellacosa in their propensities to vote independently of any other judge.215

2. Civil Rights and Liberties Cases In these cases, Wachtler and Bellacosa are the pair with the most agreement.216 The pairs of Simons and Hancock, Wachtler and Simons, Wachtler and Hancock, and Wachtler and Kaye also show high agreement. On the other hand, the pair of Wachtler and Titone and Simons and Titone are in agreement least often, with Titone and Hancock and Titone and Bellacosa agreeing almost as infrequently. Again, Titone and Bellacosa vote alone most frequently.217

211. See Appendix, Tables H-L for data concerning the voting alignments found in the five terms studied. 212. See Appendix, Tables H-L. 213. See Appendix, Table M for data concerning voting alignments in concurrences and dissents over the five terms studied. 214. See Appendix, Table M. 215. Id. 216. See Appendix, Table N for data concerning voting alignments in the civil rights and liberties cases. 217. See Appendix, Table N. HeinOnline -- 68 Temple L. Rev. 1440 1995 1995] NEW YORK COURT OF APPEALS 1441

3. Judicial Federalism Cases In the particularly contentious judicial federalism category, Wachtler and Simons are the pair most often in agreement, with the pairs of Kaye and Alexander, Wachtler and Bellacosa, and Simons and Bellacosa agreeing almost as often.218 Titone and Bellacosa agree least often, with the pairs of Simons and Titone and Kaye and Bellacosa agreeing almost as infrequently. Titone and Bellacosa again voted alone most often. 4. Cuomo Agenda Cases In the Cuomo Agenda cases, Wachtler and Simons are the pair agreeing most often.219 Titone and Bellacosa are the pair in agreement the least. Again, Titone and Bellacosa are the most frequent independent voters, with 220 Simons the only other judge voting alone in this category. 5. Assessment The juxtaposition of pairs involving Wachtler, Simons, and Bellacosa as those with the highest agreement and of pairs involving these three judges with Titone as those with the lowest agreement in several categories is noteworthy. Wachtler, Simons, and Bellacosa had the court's most conservative preferences in several categories, with Titone seen as the most liberal. The high amount of agreement by pairs made up of the former judges and the low amount of agreement when they are paired with the latter judge tend to confirm that these judges did not have similar approaches in the most divisive cases. When these judges disagreed, they seem to have really disagreed, in contrast to the more moderate voting agreement of most other pairs. Wachtler's influence as chief judge on colleagues who had previous experience in the New York judicial system and were well-steeped in the mores of the court of appeals might well have been at work here. If Wachtler, Simons, and Bellacosa presented a core conservative position, Wachtler's leadership might have provided the element necessary to convince others to vote in agreement and thereby attain a majority. The amount of agreement of Kaye, Alexander and Hancock in pairs with Wachtler and Simons are variable and could have supported this scenario. In this way, Wachtler's leadership, exerted on judges with substantial experience in subordinate roles in the judicial system that emphasize deference to higher judicial authority and who perhaps were influenced by the tradition of deference to the chief judge of the court of appeals, could have been an effective tool in forging the majority necessary to score conservative preferences. Bellacosa's role in this scenario does not lend itself to an easy explanation. On the one hand, Bellacosa offered Wachtler a handy ally who could

218. See Appendix, Table 0 for data revealing voting alignments in judicial federalism cases. 219. See Appendix, Table P for data concerning voting alignments in the Cuomo Agenda cases. 220. See Appendix, Table P. HeinOnline -- 68 Temple L. Rev. 1441 1995 1442 TEMPLE LAW REVIEW [Vol. 68

have assisted in executing Wachtler's leadership roles, as associate justices have enhanced chief justices' leadership capabilities on the U.S. Supreme Court. On the other hand, Bellacosa's independence in opinion writing, as seen in his distinctive separate expressions, might well have undermined this role for him on the court of appeals. Bellacosa did not exhibit particularly high rates of agreement (certainly not as high as Wachtler) with Kaye, Alex- ander, or Hancock. Bellacosa's independent, sometimes acerbic approach to cases might have put off these judges, even if their agreement with Wachtler indicates that they were not consistently put off by a conservative position or by Wachtler's tendency to join Bellacosa. The power and prestige of the chief judge might well have made the difference despite Bellacosa's presence. In this view, Simons might have taken on a particularly important role on the court of appeals. Despite his consistently conservative preferences, Simons shows moderately high, albeit variable, agreement with others, except maybe Titone. Simons might have provided the bridge to the other judges in reaching consensus for the conservative positions. As suggested earlier, he might also have served as a restraining influence on Bellacosa, at least with regard to the harsh tone of some of the latter's opinions. Simons' effect in this regard might be particularly apparent in People v. Scott22 1 and People v. Keta,222 the sharply divided judicial federalism cases in which Bel- lacosa wrote the very terse, belligerent dissent. Simons uncharacteristically concurred in this acerbic dissent, but, the case was decided during the period of deep personal tragedy for Simons when his wife had tragically and unexpectedly died. Simons' probable distraction during this period would explain Bellacosa's diatribe despite the joinder of Simons, whose capacity to restrain Bellacosa already has been mentioned. This episode may well indicate Simons' important role as a moderating influence on the court's opinion writing, which might have provided means for garnering support for particular outcomes in particular cases. Interestingly, Titone and Bellacosa were the most frequent lone voters. In occupying the opposite ends of the court's ideological preferences, these judges developed independent approaches to the court's most contentious cases, much like how the most ideologically charged of the U.S. Supreme Court justices have acted. Even though Titone may have been as dogmatic as Bellacosa, perhaps even more so since he voted alone more often, Bellacosa exercised his prerogatives in a manner distinctive for its disagreeability. The harshness of Bellacosa's opinions stands out in a court atmosphere imbued with consensus, civility, and moderation. The different backgrounds of these judges-Titone as a career jurist and Bellacosa as a neophyte-may explain these different approaches to opinion writing.

221. 593 N.E.2d 1328 (N.Y. 1992). 222. Id. HeinOnline -- 68 Temple L. Rev. 1442 1995 19951 NEW YORK COURT OF APPEALS 1443

B. Voting Blocs Voting blocs can be identified in the overall plenary caseload2 23 and in the criminal caseload2 2 4 during these terms. In the overall caseload, only three blocs seem to exist. At a level of moderate cohesiveness are blocs consisting of Wachtler and Bellacosa and of Alexander and Titone. Alexander, Titone, and Hancock comprised a bloc of low cohesiveness.2 2 5 In the criminal caseload, more blocs emerge. Wachtler and Bellacosa exhibit a bloc of high cohesiveness; of medium cohesion are blocs of Alexander and Titone and of Alexander, Titone, and Hancock. Blocs of low cohesion consist of Wachtler and Simons; Wachtler, Simons, and Bellacosa; Kaye, Alexander, Titone, and Hancock; Kaye and Titone; and Titone and Hancock.2 26 These blocs seem to support several of the observations already made. Wachtler and Bellacosa presented a formidable alliance because of their high cohesiveness and the opportunities for influence available to the chief judge. Simons' inclusion in blocs with these judges, even at low cohesiveness, further reveals his importance to the conservative wing of the court. Although the blocs consisting of Kaye, Alexander, Titone, and Hancock might have succeeded in swaying the court, these blocs exhibited lower cohesiveness that allowed for the more variable voting patterns and alignments seen with these judges. Moreover, the preferences of three of these four (excluding Titone) were less emphatic than those of Wachtler, Simons, and Bellacosa, so that these judges, even in voting together, might well have moved to join the conservative judges. Again, the chief judge's influence on a court with judges of common backgrounds and shared experiences, including deference to those in higher office, should not be underestimated.

VI. CONCLUSION Shortly before she became chief judge of the New York Court of Ap- peals, Judith Kaye recognized that state constitutional law cases divided the court like no others but she left for later consideration whether "this is a consequence of the 'new' judicial federalism and a process of hammering out approaches and methodologies to accommodate it, or the consequence of other factors. '22 7 Perhaps recognizing the importance of Kaye's challenge, there has been no shortage of scholarly criticism of the manner in which state courts have begun developing state consititutional jurisprudence,22 8 including that occurring in New York. 22 9 This article provides a different perspective

223. See Appendix, Table Q for data on voting blocs evidenced on the overall caseload. 224. See Appendix, Table R for data revealing voting blocs in criminal cases. 225. See Appendix, Table Q. 226. See Appendix, Table R. 227. People v. Scott, 593 N.E.2d 1328, 1346 (Kaye, J., concurring). 228. See, e.g., Gardner, supra note 9, at 763-64 (criticizing court's failure to clearly develop state constitutional law); Tarr, supra note 3, at 843 (surveying two eras of state constitutional decision-making). 229. See Cary & Falk, supra note 173, at 1279 (criticizing absence of discussion of methodology of state constitutional adjudications in two New York Court of Appeals cases). HeinOnline -- 68 Temple L. Rev. 1443 1995 1444 TEMPLE LAW REVIEW [Vol. 68

on this problem, by drawing on the work of judicial process scholars to try to explain the dynamics of how an important state court approaches its judicial federalism cases. In examining state constitutional decision-making by the New York Court of Appeals and comparing it to the court's other decision- making contexts, this article has attempted a broader understanding of the motivations and factors affecting state constitutionalism. The judges of the New York Court of Appeals seem to approach their cases in remarkably similar ways. The judges generally agree about the party who should prevail, which translates into few cases decided with concurrences and dissents; this markedly contrasts with the prevailing habit of the U.S. Supreme Court. This divergence from the nation's high court, despite similarities in the modes of selecting judges and of choosing cases for plenary review, suggests that other factors affect the court of appeals judges' voting propensities. In recognizing that the court of appeals judges share backgrounds in a state judicial system that promotes civility, consensus, and deference as the appropriate modi operandi, the influence of socialization on the judges' voting behavior is apparent. The distinctive tone of Bellacosa's separate writings stands in contrast to the usually civil expressions by court of appeals judges, and Bellacosa's unique career path to New York's high court provides some explanation for his different exercise of certain opinion writing responsibilities. In cases raising specific issues such as state constitutional questions, the court of appeals judges exhibit a greater propensity toward disagreement. The judges' utilization of conflicting approaches to resolve judicial federalism issues is a most obvious explanation for the court's uncharacteristic lack of consensus, but the effects of the factors motivating the court's more general decision-making are also evident. Bellacosa's strong dissent in Scott and Keta and the response it provoked reflect aspects of decision-making that were apparent in other cases. The dynamics of state constitutional decision- making by the judges of the New York Court of Appeals seem infected by socialization; the prevailing patterns of conduct and the expected modes of expression reflect the effects of socialization. Although the mix of the decision-making factors may be different in these judicial federalism cases, their presence is reflected in the decision-making propensities and thus must be accommodated when considering how to address state constitutional jurisprudence. And, of course, the need to develop firmly grounded jurisprudential rationales for state constitutional decision-making remains. Growth and development of state constitutional adjudication must have some secure doctrinal bases. A mature understanding of the not so "New Judicial Federalism," however, cannot ignore the motivations underlying judicial voting behavior. These complementary approaches must be developed and integrated if state constitutionalism is to reach responsible and meaningful adulthood.

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TABLE A VOTING PREFERENCES-CRIMINAL CASES

Outcome 87-88 88-89 89-90 90-91 91-92

Court of Appeals Prosecution 89 70 79 49 58 72% 63% 67% 59% 50% Defendant 35 41 39 34 57 28% 37% 33% 41% 50% Total 124 111 118 83 115 Wachtler Prosecution 91 72 80 51 60 73% 65% 68% 61% 52% Defendant 33 39 38 32 55 27% 35% 32% 39% 48% Simons Prosecution 88 73 80 52 59 71% 66% 68% 63% 51% Defendant 36 38 38 31 56 29% 34% 32% 37% 49% Kaye Prosecution 85 68 70 46 54 69% 62% 59% 55% 47% Defendant 39 42 48 37 61 31% 38% 41% 45% 53% Alexander Prosecution 88 75 67 46 52 71% 68% 59% 55% 49% Defendant 36 36 47 37 55 29% 32% 41% 45% 51% Titone Prosecution 84 61 70 43 53 68% 56% 59% 52% 46% Defendant 40 48 48 40 62 32% 44% 41% 48% 54% Hancock

Prosecution 85 67 74 49 54 69% 60% 63% 59% 47% Defendant 39 44 44 34 60 31% 40% 37% 41% 53% Bellacosa Prosecution 91 72 83 52 64 73% 65% 70% 63% 56% Defendant 33 39 35 31 51 27% 35% 30% 37% 44%

NOTE: Not all judges participated in all cases and percentages are of total for judge.

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TABLE B VOTING PREFERENCES-SPECIFIC SUBJECT CATEGORIES

Outcome CT W S K A T H B

Civil Rights & Liberties Conservative 39 38 40 29 27 27 36 39 53% 56% 55% 41% 38% 38% 50% 55% Liberal 35 30 33 41 45 44 36 32 47% 44% 45% 59% 62% 62% 50% 45% Judicial Federalism Federal 18 22 23 9 12 6 14 22 60% 73% 77% 31% 44% 23% 47% 73% State 12 8 7 20 15 20 16 8 40% 27% 23% 69% 56% 77% 53% 27% Cuomo Agenda Anti-Cuomo 13 9 14 12 19 20 16 8 37% 29% 40% 36% 58% 59% 52% 24% Cuomo 22 22 21 21 14 14 15 26 62% 71% 60% 64% 42% 41% 48% 76%

NOTE: Not all judges participated in all cases and percentages are of total for judge.

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TABLE C CONCURRENCES AND DISSENTS PER CATEGORY Total Cases Cases w/Concur Cases w/ Cases w/ Category Cases All Agree and/or Dissent Concur Dissent

87-88 Civil 206 176 30 4 27 85% 15% 2% 13% Criminal 124 112 12 3 9 90% 10% 2% 7% Total 330 288 42 7 36 87% 13% 2% 11% 88-89 Civil 180 147 33 6 31 82% 18% 3% 17% Criminal 111 80 31 11 23 72% 28% 10% 21% Total 291 227 64 17 54 78% 22% 6% 19% 89-90 Civil 172 144 28 10 22 84% 16% 6% 13% Criminal 118 88 30 8 24 75% 25% 7% 20% Total 290 232 58 18 46 80% 20% 6% 16% 90-91 Civil 170 142 28 2 26 84% 16% 1% 15% Criminal 83 65 18 4 16 78% 22% 5% 19% Total 253 207 46 6 42 82% 18% 2% 17% 91-92 Civil 158 135 23 1 22 85% 15% 0% 14% Criminal 115 89 26 8 20 77% 23% 7% 17% Total 273 224 49 9 42 82% 18% 3% 15% Civil 74 39 35 8 27 Rights 53% 47% 11% 36% Judicial 30 8 22 6 19 Federalism 27% 73% 20% 63% Cuomo 35 16 19 3 18 Agenda 46% 54% 9% 51%

NOTES: Percentages are of total cases. Because some cases had both concurrences and dissents, the sum of columns "Cases w/ Concur" and "Cases w/ Dissent" may not total column "Cases w/ Concur and/or Dissent."

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TABLE D VOTING PATTERNS-OVERALL CASES

Vote W S K A T H B

87-88 Majority 314 319 319 318 294 310 310 97% 97% 97% 97% 95% 95% 95% Concur 1 1 2 0 1 1 5 1% 0% 1% 0% 1% 1% 2% Dissent 8 9 7 11 13 14 11 2% 3% 2% 3% 4% 4% 3% 88-89 Majority 270 274 265 265 250 263 260 96% 95% 95% 93% 90% 93% 91% Concur 3 1 1 4 5 6 6 1% 0% 0% 1% 2% 2% 2% Dissent 9 13 14 17 23 15 19 3% 5% 5% 6% 8% 5% 7% 89-90 Majority 271 278 269 255 260 267 269 96% 96% 93% 94% 91% 94% 95% Concur 3 4 4 3 7 6 4 1% 1% 2% 1% 2% 2% 1% Dissent 7 8 15 14 19 12 10 2% 3% 5% 5% 7% 4% 4% 90-91 Majority 240 237 236 241 216 237 235 97% 94% 95% 95% 90% 94% 96% Concur 0 3 0 0 3 2 3 0% 2% 0% 0% 2% 1% 1% Dissent 7 11 12 12 20 13 8 3% 4% 5% 5% 8% 5% 3% 91-92 Majority 258 249 258 164 242 251 257 97% 96% 96% 91% 90% 94% 95% Concur 2 2 2 2 4 3 2 1% 1% 0% 1% 2% 1% 1% Dissent 6 9 10 15 22 14 11 2% 3% 4% 8% 8% 5% 4%

NOTE: Not all judges participated in all cases and percentages are of total for judge.

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TABLE E VOTING PATTERNS-CIVIL CASES

Vote W S K A T H B 87-88 Majority 192 196 199 198 182 191 190 96% 96% 98% 96% 96% 95% 94% Concur 1 1 2 0 0 0 3 0% 0% 1% 0% 0% 0% 1% Dissent 6 8 3 8 8 10 9 3% 4% 1% 4% 4% % 4% 88-89 Majority 163 169 161 167 161 163 163 95% 96% 94% 95% 94% 94% 92% Concur 1 0 1 1 1 2 3 1% 0% 0% 0% 0% 1% 2% Dissent 7 8 10 8 10 8 11 4% 4% 6% 5% 6% 5% 6% 89-90 Majority 156 165 162 163 158 156 159 96% 96% 95% 96% 94% 93% 96% Concur 1 2 2 0 2 4 2 0% 1% 1% 0% 1% 3% 1% Dissent 6 5 6 6 8 7 4 4% 3% 4% 4% 5% 4% 2% 90-91 Majority 159 159 156 163 144 157 157 97% 95% 95% 96% 92% 93% 96% Concur 0 1 0 0 1 1 1 0% 0% 0% 0% 1% 1% 1% Dissent 5 8 9 7 12 11 5 3% 5% 5% 4% 7% 6% 3% 91-92 Majority 147 147 148 103 141 143 150 97% 97% 95% 91% 92% 93% 97% Concur 0 0 1 1 0 0 0 0% 0% 1% 1% 0% 0% 0% Dissent 4 4 6 10 13 11 5 3% 3% 4% 9% 8% 7% 3%

NOTE: Not all judges participated in all cases and percentages are of total for judge.

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TABLE F VOTING PATrERNS-CRIMINAL CASES

Vote A S K A T H B

87-88 Majority 122 123 120 120 112 119 120 98% 99% 97% 98% 95% 96% 97% Concur 0 0 0 0 1 1 2 0% 0% 0% 0% 1% 1% 2% Dissent 2 1 4 3 5 4 2 2% 1% 3% 2% 4% 3% 2% 88-89 Majority 107 105 104 98 89 100 97 96% 95% 96% 89% 84% 90% 90% Concur 2 1 0 3 4 4 3 2% 1% 0% 3% 4% 4% 3% Dissent 2 5 4 9 13 7 8 2% 4% 4% 8% 12% 6% 7% 89-90 Majority 115 113 107 92 102 111 110 97% 96% 91% 90% 87% 94% 93% Concur 2 2 2 3 5 2 2 2% 2% 2% 2% 4% 2% 2% Dissent 1 3 9 8 11 5 6 1% 2% 7% 8% 9% 4% 5% 90-91 Majority 81 78 80 78 72 80 78 98% 94% 96% 94% 88% 96% 94% Concur 0 2 0 0 2 1 2 0% 2% 0% 0% 2% 1% 3% Dissent 2 3 3 5 8 2 3 2% 4% 4% 6% 10% 3% 4% 91-92 Majority 111 102 110 61 101 108 107 97% 94% 96% 91% 89% 95% 93% Concur 2 2 1 1 4 3 2 2% 2% 1% 2% 4% 3% 2% Dissent 2 5 4 5 9 3 6 2% 4% 4% 7% 7% 3% 5%

NOTE: Not all judges participated in all cases and percentages are of total for judge.

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TABLE G VOTING PATTERNS-SPECIFIC SUBJECT CATEGORIES

Vote W S K A T H B Civil Rights & Liberties Majority 60 65 59 62 56 63 60 88% 89% 84% 86% 79% 88% 85% Concur 1 3 3 1 2 2 4 1% 4% 4% 1% 2% 2% 6% Dissent 7 5 8 9 13 7 7 11% 7% 12% 13% 19% 10% 11% Judicial Federalism Majority 26 25 19 23 15 23 20 87% 83% 66% 82% 58% 80% 67% Concur 1 3 5 3 5 1 5 3% 10% 17% 11% 19% 3% 17% Dissent 3 2 5 2 6 5 5 10% 7% 17% 7% 23% 17% 17% Cuomo Agenda Majority 30 32 31 27 23 23 28 97% 91% 94% 82% 68% 74% 82% Concur 0 0 1 0 0 1 2 0% 0% 3% 0% 0% 3% 6% Dissent 1 3 1 6 11 7 4 3% 9% 3% 18% 32% 23% 12% NOTE: Not all judges participated in all cases and percentages are of total for judge.

TABLE H VOTING PAIRS-1987-1988 OVERALL CASES WITH CONCURRENCE AND/OR DISSENT

Total Votes W S K A T H B W 41 (2%) 63% 58% 59% 51% 51% 73% S 42 (5%) 63% 57% 40% 58% 48% K 41 (2%) 71% 56% 59% 51% A 42 (2%) 58% 60% 48% T 40 (13%) 45% 45% H 40 (3%) 28% B 42 (19%) NOTES: Percentage is proportion of cases in which pair of judges participated that judges joined in same opinion. Percentage in parenthesis is proportion of cases in which judge participated that judge was not joined by any other judge.

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TABLE I VOTING PAIRS-1988-1989 OVERALL CASES WITH CONCURRENCE AND/OR DISSENT

Total Votes W S K A T H B W 63 (0%) 73% 67% 49% 37% 52% 71% S 63 (2%) 58% 65% 38% 68% 46% K 61 (0%) 52% 50% 59% 54% A 64 (6%) 52% 53% 38% T 61 (15%) 49% 23% H 64 (5%) 33% B 64 (17%)

NOTES: Percentage is proportion of cases in which pair of judges participated that judges joined in same opinion. Percentage in parenthesis is proportion of cases in which judge participated that judge was not joined by any other judge.

TABLE J VOTING PAIRS-1989-1990 OVERALL CASES WITH CONCURRENCE AND/OR DISSENT

Total Votes W S K A T H B W 55 (4%) 78% 62% 49% 40% 64% 71% S 58 (5%) 56% 56% 36% 68% 67% K 57 (4%) 59% 47% 53% 49% A 54 (7%) 50% 50% 47% T 58 (21%) 46% 32% H 56 (5%) 44% B 57 (16%)

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TABLE K VOTING PAIRS-1990-1991 OVERALL CASES WITH CONCURRENCE AND/OR DISSENT Total Votes W S K A T H B W 45 (0%) 62% 70% 67% 36% 62% 75% S 46 (2%) 49% 57% 38% 59% 56% K 45 (4%) 64% 36% 53% 57% A 46 (0%) 51% 52% 53% T 45 (18%) 47% 34% H 46 (2%) 49% B 45 (7%)

TABLE L VOTING PAIRS-1991-1992 OVERALL CASES WITH CONCURRENCES AND/OR DISSENT Total Votes W S K A T H B W 49 (0%) 73% 66% 36% 45% 54% 78% S 49 (2%) 60% 44% 37% 52% 67% K 47 (6%) 37% 40% 50% 51% A 36 (6%) 56% 57% 33% T 49 (12%) 46% 43% H 48 (10%) 42% B 49 (6%)

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TABLE M VOTING PAIRS-FIVE TERM TOTAL OVERALL CASES WITH CONCURRENCE AND/OR DISSENT Total Votes W S K A T H B

W 253 (1%) 71% 64% 52% 41% 57% 73% S 258 (3%) 57% 57% 38% 62% 57% K 251 (3%) 58% 46% 55% 52% A 242 (5%) 53% 54% 44% T 253 (16%) 47% 34% H 254 (5%) 39% B 257 (13%)

TABLE N VOTING PAIRS-CIVIL RIGHTS AND LIBERTIES CASES CASES WITH CONCURRENCE AND/OR DISSENT

Total Votes W S K A T H B

W 34 (3%) 64% 63% 47% 36% 66% 74% S 34 (9%) 47% 50% 36% 70% 50% K 33 (9%) 58% 44% 52% 45% A 33 (3%) 53% 55% 45% T 34 (18%) 41% 41% H 33 (9%) 48% B 35 (14%)

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TABLE 0 VOTING PAIRS-JUDICIAL FEDERALISM CASES CASES WITH CONCURRENCE AND/OR DISSENT

Total Votes W S K A T H B W 22 (0%) 86% 45% 55% 26% 55% 68% S 22 (5%) 41% 50% 21% 55% 68% K 22 (14%) 80% 47% 55% 23% A 20 (5%) 59% 50% 30% T 19 (21%) 53% 11% H 22 (5%) 27% B 22 (23%)

TABLE P VOTING PAIRS-CUOMO AGENDA CASES CASES WITH CONCURRENCE AND/OR DISSENT Total Votes W S K A T H B W 16 (0%) 88% 75% 50% 27% 60% 65% S 19 (5%) 76% 59% 22% 56% 61% K 17 (0%) 53% 31% 50% 63% A 17 (0%) 63% 63% 25% T 18 (28%) 53% 6% H 18 (0%) 35% B 18 (22%)

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TABLE Q VOTING BLOCS-OVERALL CASES WITH CONCURRENCE AND/OR DISSENT

Total Votes T A H K S W B

Titone 108 (40) 37 33 21 8 6 11 Alexander 78 37 (11) 24 20 15 4 7 Hancock 116 33 24 (13) 19 21 9 1 Kaye 67 21 20 19 (8) 9 11 10 Simons 61 8 15 21 9 (9) 14 11 Wachtler 48 6 4 9 11 14 (3) 26 Bellacosa 79 11 7 1 10 11 26 (34)

Indices of Cohesion Wachtler, Bellacosa .41 (Medium) Alexander, Titone .40 (Medium) Alexander, Titone, Hancock .31 (Low)

TABLE R VOTING BLOCS-CRIMINAL CASES WITH CONCURRENCE AND/OR DISSENT Total Votes T K H A S B W

Titone 62 (20) 14 17 20 4 4 2 Kaye 25 14 (5) 5 13 3 1 0 Hancock 32 17 5 (4) 10 6 0 0 Alexander 37 20 13 10 (3) 7 2 1 Simons 24 3 3 6 7 (3) 7 6 Bellacosa 36 4 1 0 2 7 (15) 14 Wachtler 15 2 0 0 1 6 14 (0)

Indices of Cohesion Wachtler, Bellacosa .54 (High) Kaye, Alexander .42 (Medium) Alexander, Titone .40 (Medium) Wachtler, Simons, Bellacosa .36 (Low) Titone, Hancock .36 (Low) Alexander, Titone, Hancock .36 (Low) Kaye, Alexander, Titone, Hancock .33 (Low) Wachtler, Simons .31 (Low) Kaye, Titone .31 (Low)

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