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ALBANY � With a series of blockbuster rulings on educational funding, casino gambling, telecommuting and judicial conduct, the Court of Appeals broke for the summer leaving no cases undecided, but with questions over where New York’s top legal tribunal is headed. The 2002-2003 session was noteworthy not only for the cases that were decided, but the manner in which they were decided and growing evidence of a shifting jurisprudential dynamic. The judges seemed to disagree increasingly over methodology, suggesting perhaps a breach in the veneer of unanimity cultivated by Chief Judge Judith S. Kaye, observers say. For example, in the casino gambling cases, Saratoga County v. Pataki and Wright v. Pataki, 42, there were three different writings in a matter where the Court ultimately said the governor lacks the authority to enter into Indian gaming compacts without legislative approval. Three judges said an agreement between the state and the St. Regis Mohawks was unenforceable but curable through legislative action, one said it was unenforceable but not curable, and three said the compact was enforceable. Additionally, one said the type of gambling at issue here is unconstitutional, where three said it is not. The plurality expressly declined to reach that central issue, which will almost certainly come before the Court next year. That type of public discourse, which is so common with the U.S. Supreme Court and so rare with the Court of Appeals, has prompted attorneys and judges to question whether Chief Judge Kaye can maintain the level of consensus that has in the past defined her Court. While the unanimity rate dipped somewhat between 2001 and 2002, however, it remains extraordinarily high at 87 percent. The newest member of the Court, Judge Susan Phillips Read, has exhibited an independent streak and a willingness to write separately, virtually always advancing a conservative position. On the other hand, the Court’s lead dissenter, Judge George Bundy Smith, continues to voice his concerns, usually in solo dissents and frequently from a liberal perspective. Publicly aired disagreements remain unusual, and even when the judges disagree they respect the opinions of their colleagues, in contrast somewhat to the nation’s highest court, observers say. Vitriol is almost unheard from the Court of Appeals, and disagreements do not devolve into personal attacks, even though the current Court is a diverse mix of appointees: Republicans and Democrats, men and women, upstaters and downstaters, conservatives and liberals. Commentators agree that in 2003 the Court basically stayed the course, issuing opinions that were restrained, non-ideological, clear and cautious, and evincing a strong respect for the separation of powers, a discomfort with per se rules, and a reluctance to intrude on legislative and political matters. In a major educational funding case, for instance, the Court found that the state Constitution entitles New York children to the equivalent of a meaningful high school education. But it did not define “meaningful high school education,” nor did it provide any direction on how that mandate should be reached, or even how the state will know when it has complied with the Court’s directive. Rather, the Court, through Chief Judge Kaye, stressed that the judiciary has “neither the authority, nor the ability, nor the will to micromanage education funding,” and left that huge task for the Legislature and Governor George E. Pataki. “I think the Court essentially views itself as [being] there to decide cases, and not to determine major issues of policy,” said Stewart E. Sterk, a professor at the Benjamin N. Cardozo School of Law who served as clerk to then-Chief Judge Charles Breitel. “I don’t think this has been a year of great ideological division.” Short-Handed Court At the moment, the Court is shorthanded, since Judge Richard C. Wesley left to accept an appointment to the U.S. Court of Appeals for the Second Circuit. It is unclear who will replace Judge Wesley, a forceful and persuasive presence, but what is clear is that over the past year the Court has lost two of its most respected members: Judge Wesley and Judge Howard A. Levine, whose retirement at the end of last year resulted in Judge Read’s appointment. “I think it is a solid court, but I think the loss of Judge Wesley will hurt unless he is replaced by somebody of comparable stature and ability,” said Professor Sterk. Professor Sterk said Judge Read, who previously served as a counsel to the governor, has demonstrated an interest in salvaging the position of the government when possible. But he said it is really far too early to discern if that will be her pattern. One observer suggested that Judge Read, after only several months on the Court, is emerging as a leader. “I think it is quite clear that Judge Read is going to be the leader of the Republican-Pataki group,” said a Manhattan litigator. “She works and she works hard and her opinions are comprehensive. She is going to be a significant force, both from a political angle and more generally because I think she is endeavoring to make her mark.” The longtime Court watcher also cites a growing confidence on the part of Judge Albert M. Rosenblatt and his increasing role as “a leader, intellectually and academically.” Judge Rosenblatt is also a Republican and Pataki appointee, but one whose votes are less predictable than those of the governor’s other candidates, Judges Read and Victoria A. Graffeo. Conventional wisdom holds that the Court has become more conservative in recent years as the Pataki appointees display a pro-prosecution mindset in criminal cases and a pro-defendant position in civil matters. But David B. Hamm of Herzfeld & Rubin in Manhattan disputes that characterization, at least in part, and perceives a liberalization of the Court in torts. Mr. Hamm, who primarily defends personal injury cases, said the Court seems more inclined to expand opportunities for plaintiffs, even when it finds the result offensive. He points to Desiderio v. Ochs, 29, where the Court said the structured settlement required what it deemed a repugnant inflation of damages. “My impression is that over the last few years the Court of Appeals has liberalized its approach to tort law,” Mr. Hamm said. “In a number of areas it has seemingly loosened the reigns and allowed recovery under circumstances where one might have expected otherwise.”

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