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So Much Depends on the Power to Dissent

By: Joseph D. Nohavicka, Partner 

"The dissent “batting-average” rationale imposed upon our intermediate appellate courts in New York is computed using the devil’s arithmetic; it is flawed and dangerous."

Read an exclusive excerpt below:

"How can anyone not read with concern Justice Saxe’s report of the new “batting average” metric relating to dissenting opinions recently imposed upon members of the First Department judiciary for purposes of re-certification? David Saxe, Chief Judge’s Inquiry Into Dissents Intrudes on Judicial Independence, NYLJ (1/23/19) (“When David Saxe, then age 74, wanted to continue as an associate justice at the Appellate Division, First Department, he was asked for his batting average.”)"

The “batting-average” metric is computed by examining the performance of a dissenting opinion: if the dissent was adopted by the Court of Appeals, whether by affirmance or reversal, then the dissent was meritorious. If the dissent was ignored, then it was an unnecessary waste of the court system’s time. The dissent “batting-average” rationale imposed upon our intermediate appellate courts in New York is computed using the devil’s arithmetic; it is flawed and dangerous.

First, the optics: The ability to dissent assures and is proof of, an independent judiciary. Rolando T. Acosta, presiding justice, Appellate Division, First Department, recently wrote in the NYLJ that “dissents are often beneficial, in part because they provide the public with a window through which to view the checks and balances that serve as the foundation of our democracy, and they give a voice to those who hold minority views. (“Iron Sharpens Iron: The Value of Dissent, and Collegiality, in Appellate Courts,” 1/11/19). 

Second, the utility: A dissenting opinion alongside a majority opinion shows why the law is not settled. In Bryan A. Garner’s (et al), The Law of Judicial Precedent, p. 192 (Thomson-Reuters 2016), the reader is cautioned as follows: “Dissents can be important so it’s dangerous to say that they’re legally irrelevant and you can safely skip them.”

Justice Scalia wrote that “he most important internal effect of a system permitting dissents and concurrences is to improve the majority opinion. Antonin Scalia, The Dissenting Opinion, 1994 J. SUP. CT. HIST. 33, 41 (1994). The dissent provides the next-tier court with the opportunity to dispose of the questions raised by the dissenter and therefore give crystallization to the issues decided.

Just a few years ago, David B. Saxe reminded the bar that “an intermediate appellate court should be a place where the legal issues in a case can be thrashed out in clear opposing writings.” Riding the Learning Curve as a New Appellate Division Judge, 88 N.Y. St. B.J. 45 (February 2016), at 46. Justice Acosta’s rhetorical question should serve as a reminder of the profound negative impact of the recent actions of the “new sheriff.” The question is this: “If chief judges and presiding justices were to seek to silence dissenting opinions, what would that say about the value of speaking out in a democracy?” (“Iron Sharpens Iron,” supra.)

As Justice Scalia pointed out, “Even the most successful of our dissenters—Oliver Wendell Holmes, who acquired the sobriquet ‘The Great Dissenter’—had somewhat less than 10 percent of his dissenting views ultimately vindicated by later overruling. Most dissenters are much less successful than that.” “The Dissenting Opinion,” supra, at 37.

The “batting-average” metric is indicative of nothing. For the sake of judicial independence; for the sake of public confidence; and, for the sake of future guidance, the appellate division must continue in its capacity as the center stage for significant legal debate, independently.

Joseph Nohavicka is one of the name attorneys at Pardalis and Nohavicka. He focuses on employment, commercial, insurance, ethics, criminal and general appellate work.

Click to read the full article: https://www.law.com/newyorklawjournal/2019/01/24/so-much-depends-on-the-power-to-dissent/