ALBANY – To former Chief Judge Sol Wachtler, a case of no great importance first signaled the formidable talents of Judith S. Kaye as a judge and a leader on the state Court of Appeals.
The case – Mr. Wachtler recalls it involved timber-cutting rights in the Adirondacks – had split the court 3-3 before Judith Kaye’s arrival as a novice judge and its first female member in September 1983. The Court took up the matter anew.
“The attorneys reargued the case and Judith had the opportunity to read the briefs,” Mr. Wachtler recalled in a recent interview. “She listened attentively to the other judges. We were waiting for her vote. She went through her analysis of the case on both sides and stated her opinion. The rest of us agreed, and the Court decided the case unanimously. That was tribute not only to her thoughtful approach to cases, but her ability as an advocate at conference and to her collegiality.”
As Judge Kaye begins her last month on the Court, former colleagues, clerks, academics and other observers repeatedly cited the same qualities as Mr. Wachtler did when assessing the jurisprudence of Judge Kaye in a quarter-century on the Court: even-handed, thorough, well-prepared, consensus-minded and, above all, collegial.
“What an extraordinary, unimaginable, unbelievable, incomparable privilege it has been to serve the people, the public, as a judge of this fantastic, great, phenomenal Court of Appeals,” she said on Nov. 20, after hearing oral arguments in her last case on the Court.
Judge Kaye, who turned 70 on Aug. 4, must leave the Court due to a mandatory retirement rule in the state Constitution. But rulings she has authored in the last 25 years – 498 majority decisions and 83 concurrences or dissents, plus a vast number of unsigned rulings – have affected the lives of New Yorkers in a myriad of ways.
Her majority rulings have struck down portions of two death penalty laws, allowed homosexuals to legally adopt their partners’ children and to succeed their partners in rent-stabilized apartments, opened car leasing to drivers as young as 18, made adults who serve alcohol to minors liable for damages caused by drunken party-goers, expanded state liability for injuries suffered by inmates at the hands of other prisoners and decreed that New York City public school children were not getting the “sound, basic education” the state Constitution guarantees them.
Richard Briffault, a professor at Columbia Law School, said there has been a sort of “progressive pragmatism” to her jurisprudence.
“She strikes me in a way as Sandra Day O’Connor, only more liberal,” Mr. Briffault said in an interview. “There is a kind of pragmatism about her. Will it work? How will it work? Will it address the kind of underlying real-world problem? Can it be done?”
One of her first clerks on the Court, Steven C. Krane, said Judge Kaye would ask just those kinds of questions of herself, her clerks, other judges, other judges’ clerks and anyone else she cared to sound out as she reasoned through opinions.
“The most important thing I learned from her was that when you are taking a position, reaching a conclusion, to step back and ask yourself, ‘Does it make sense?’” said Mr. Krane, of Proskauer Rose and a clerk to Judge Kaye in 1984 and 1985. “That should be the ultimate test if you are on the right track. When I was with Judge Kaye, that was the final check and if it didn’t make sense, it was time to take another look. That is when it is time to move the law, when the application of the existing precedents seem to compel a result that seems nonsensical or off the mark.”
People familiar with Judge Kaye’s work on the bench, including her unprecedented 15 years as chief judge, said it has belied easy ideological typecasting.
Her votes against the death penalty and in favor of the rights of gays in housing, adoption and marriage suggest a “liberal” stance as do her staunch condemnation of prosecutors’ dual use of depraved indifference and intentional murder charges against the same defendant.
The incompatibility between depraved indifference and intentional murder has been a particular and enduring theme of Judge Kaye’s jurisprudence and that of her courts, beginning with People v. Register, 60 NY2d 270 (1983). Indeed, she noted in a recent interview that there are still four cases pending before the Court on that issue.
But she also has been a hard-liner on litigants meeting filing deadlines and other procedural rules of the courts. And she acknowledged her preference to extend liability in civil cases only very conservatively.
“I don’t think you can label me,” she said.
Judge Kaye remembered a lesson she learned about when the time is right to consider breaking with precedent. It was early in her tenure as a judge and involved Judge Hugh R. Jones, who along with former Chief Judge Lawrence Cooke, were her leading influences.
Judge Kaye said she shared a certain kinship with Judge Jones, the two then being the only members of the bench without prior judicial experience. Judge Jones used to joke privately with Judge Kaye that the two were the only judges not to have worn the “black shroud” before joining the Court, she said.
Judge Kaye recalled preparing extensively for the Court conference on Bovsun v. Sanperi, 16 NY2d 219 (1984), where she urged her new colleagues to follow the principle of stare decisis – “to stand by that which is decided” – and not let a mother sue for emotional damages suffered when seeing her child injured in an accident. Judge Jones, she soon discovered, was on the other side.
“I was so smug and I went through a litany of all the Court of Appeals’ cases denying damages for pure emotional injuries with no physical contact,” Judge Kaye said. “I gave a very extensive report. Then Judge Jones responded, ‘Well, I know that’s the law, but I think we should change the law.’”
Judge Kaye wrote for the dissent in a 4-3 decision in which Judge Jones, for the majority, was careful to limit the extension of the ability to collect for emotional damages to people who witnessed injuries to close family members.
“We three sticks in the mud refused to budge,” Judge Kaye said of herself, Mr. Wachtler and former Judge Richard Simons, the three least-senior members of the Court. “Hugh R. Jones was absolutely right. There were absolutely no floodgates [of litigation] opened. It was a very wise and sensible thing to do.”
Proceed With Caution
To the fledgling judge, Bovsun was a lesson that the law must move, albeit carefully and with ever-present respect for stare decisis.
“That is our responsibility, to look to the next step, but also to do it very cautiously,” Judge Kaye said. “The law moves very cautiously. But it does move.”
Former Judge Albert Rosenblatt likened Judge Kaye’s approach to cases as that of a driver wary of jarring either the litigants before her or the legal community with sudden judicial twists and turns.
“Obey the rules of the road: Proceed with prudence, don’t race around corners, and if you are putting on the brakes, don’t do it in a way that will throw the passengers out of the car,” said Mr. Rosenblatt, an associate judge on the Court from 1998-2006. “Judge Kaye is a first-class driver. Her logic is impeccable and her prose matchless.”
The Court moved the law significantly in Matter of Jacob, 86 NY2d 651 (1995), which allowed gays to adopt the children of their partners. In her 4-3 majority ruling, Judge Kaye wrote that ultimately it is the children in such households who benefit the most by the creation of a “measure of permanency with both parent figures” that would be absent by prohibiting gay partners to adopt.
Judge Kaye said Matter of Jacob is the opinion she has gotten the most response to personally in her judicial career. “People come up to me and comment on that case more than any other,” she said. “It’s usually somebody who has adopted a child. So it stands out for that.”
Of more recent vintage, Judge Kaye’s dissent in the combined decision in Hernandez v. Robles, 7 NY3d 338 (2006), will be one of the most-quoted rulings from her later years on the Court, predicted Roberta A. Kaplan, lawyer for the plaintiffs in Hernandez and law clerk to Judge Kaye in 1994 and 1995. A 4-2 majority in that case held that same-sex couples have no right to marry in New York under the state Constitution.
Judge Kaye wrote about the significance in a human being’s life of finding a mate and the unfairness of being unable to wed that person simply because he or she happens to be of the same gender.
“Solely because of their sexual orientation, however – that is, because of who they love – plaintiffs are denied the rights and responsibilities of civil marriage,” Judge Kaye wrote in a dissent joined by her most frequent ally on the Court, Judge Carmen Beauchamp Ciparick. “This state has a proud tradition of affording equal rights to all New Yorkers. Sadly, the Court today retreats from that proud tradition.”
Subsequently, Judge Kaye’s dissent was cited by the majorities in decisions by the top courts in California [In re Marriage Cases, 43 Cal.4th 757 (2008)] and Connecticut [Kerrigan v. Commissioner of Public Health, SC 17716 (2008)] in recognizing same-sex marriage as legal in those states.
A Reluctance to Dissent
Judge Kaye’s departure from the majority in Hernandez was rare and ran counter to her general reluctance to dissent. She has had a long-standing preference on the Court, something she said she learned from Judges Wachtler, Jones, Simons and others, that her colleagues find consensus on rulings whenever feasible.
In her 25 years on the Court, Judge Kaye herself has written just 65 dissenting opinions.
“I like there to be a strong statement of the law that is clear,” she said.
Mr. Simons, who was forced into mandatory retirement from the Court in 1997, said the Court is not “open to second-guessing” when it speaks with one voice.
“If you water down the results with two or three different writings, they begin to lose their authority because no one knows how strongly the Court feels about this,” said Mr. Simons, now of counsel to McMahon & Grow in Rome, N.Y. “You get people asking, ‘If I get another law suit with a little different slant, will this hold up?’”
Roy L. Reardon, a partner with Simpson Thatcher & Bartlett and a Law Journal columnist, said practitioners appreciate the certainty unanimous rulings bring to the law.
“What is the significance to me as a practicing lawyer?” Mr. Reardon asked. “The law in New York becomes clear and I can advise clients on it and I can be confident because seven judges decided that is what the law means.”
On the other hand, former Court of Appeals Judge George Bundy Smith said he never saw a problem with dissents. Unanimous rulings do not always settle legal questions, he noted.
“Brown v. Board of Education was 9-0 and the fact is, our education facilities are as segregated, and more segregated, as they were in 1954,” said Mr. Smith, a partner with Chadbourne & Parke who was an associate judge from 1992 to 2006. “Miranda was a 5-4 decision and that has pretty much gained acceptance in the United States. I am not a person who thinks that you always have to have a unanimous opinion.”
Richard Wesley, an associate judge on the Kaye Court from 1997 to 2003, said the chief judge would frequently mediate disputes among judges in an effort to head off dissents and produce unanimous rulings.
“She was terrific behind the scenes in trying to find common ground,” said Judge Wesley, who now sits on the U.S. Court of Appeals for the Second Circuit.
He said he dissented just eight times in his 6 1/2 years on the state Court of Appeals, often accepting some aspects of opinions he did not fully favor to maintain a consensus.
The frequent unanimity of the Wachtler years and the first decade of Judge Kaye’s tenure faded as nominees of former Governor George E. Pataki became a majority on the Court.
Mr. Pataki’s selections became a majority when Judge Susan Phillips Read was sworn in on Jan. 6, 2003.
According to statistics compiled by Albany Law School Professor Vincent Bonventre, in the five terms between July 2003 and July 2008, there were 162 dissents in Court decisions. By contrast, in the previous five terms beginning in July 1998, there were 69 dissents.
Judge Kaye acknowledged the more public disagreements in opinions by her Court, but said the judges still rule unanimously most of the time. About 85 percent of the Court’s rulings are unanimous.
“But our divided opinions, even though they have increased in number, they are not rancorous because that’s often what you see in dissenting opinions or separate opinions,” the chief judge said. “So, even though we’ve had more than we used to have, I cannot recall a bitter note in them or anything that would bring disrespect on the Court.”
Stewart E. Sterk, a professor at Benjamin N. Cardozo School of Law, said Judge Kaye has been wise in seeing to it that if the judges are going to disagree among themselves more frequently, that they do so with civility.
“I think there is a lot of disagreement and dispute, but it is almost always civil so that what you get is intelligent displays of very different viewpoints,” Mr. Sterk said. “She has taken a leadership role in that way in making dissent both respectable and civil.”
Despite more public differences among judges, observers say there has been relatively little change philosophically on the Court of Appeals, even though four new judges have joined the bench since January 2003.
The Court continues to accept relatively few criminal cases, rules for the prosecution most of the time, often defers to the political branches of government, and is reluctant to identify new causes of action in civil cases, the experts say.
Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers and former president of the New York County Lawyers’ Association, credits Judge Kaye as a champion of using the state Constitution to establish protections for New Yorkers beyond those the U.S. Supreme Court has recognized under the U.S. Constitution. However, cases in which the Court appeals to the state charter of rights, common in the 1970s and 1980s, have become less and less frequent in recent years.
“I think New York retains its reputation as having one of the more impressive and respected high courts in the country,” Mr. Reimer said. “It’s by no means on the cutting edge any more. A lot of that is a reflection of the different appointments that have come down over the years, but it is still a very highly regarded Court.”
Death Penalty Controversy
It is not easy to find outspoken critics of Judge Kaye’s jurisprudence as a whole, though she has been taken to task for individual decisions.
Judge Kaye acknowledged receiving “vile” invective after she wrote People v. Smith, 63 NY2d 41 (1984), which struck down the last workable piece of the state’s 1960s-era death penalty statute. The ruling spared the life of Lemuel Smith, a serial killer and prisoner for life convicted of slaying Donna Payant, a corrections officer.
The death penalty statute adopted at the behest of Mr. Pataki 11 years later fared no better before the Court, now headed by Chief Judge Kaye.
She wrote the first opinion, Matter of Hynes v. Tomei; Matter of Relin v. Connell, 92 NY2d 613 (1998), in which the Court recognized constitutional infirmities with the sentencing provisions of the new death penalty statute. The chief judge also joined the 4-3 majority in the opinion that rendered the death penalty statute inoperable in People v. LaValle, 3 NY3d 88 (2004).
She was again in the 4-3 majority in invalidating the last pending death penalty under the statute, in People v. Taylor, 9 NY3d 129 (2007).
State Senator Dale Volker, a long-time capital punishment advocate, said the majorities in the Kaye Court exhibited “poor judicial reasoning” in the death penalty rulings. He contended the opinions were really an expression of the personal opposition to capital punishment by Judge Kaye and her colleagues.
Still, Mr. Volker called Judge Kaye “gracious,” “bright” and “articulate” and said he has learned to live with their differences on the death penalty.
“We’ve come to an accommodation, Judith and I,” Mr. Volker, a Republican from suburban Buffalo, said in an interview. “She is a brilliant woman, no question. I have great admiration for her. This is a difficult period to be chief judge.”
One prosecutor grumbled about what he called the tendency of Judge Kaye and the courts she has been on to be too “nice, as in, ‘Wouldn’t it be nice if this is the way things were?’”
He used as an example a ruling Judge Kaye joined, People v. Antommarchi, 80 NY2d 247 (1992), and a subsequent series of related decisions in which the Court upheld the “fundamental” right of a defendant to be present at all sidebar conferences between their attorneys, prosecutors and judges.
“This was never a problem before Antommarchi,” said the prosecutor, who asked not to be identified because his office regularly argues before the Court. “The defendant would stay at the table and the lawyer would come up.”
To the prosecutor, this irritating requirement in trial procedure is an instance where “niceness honeyed over common sense.”
Judge Kaye said criticism is inevitable, especially over so long a judicial career, and that she has tried to take it in stride.
“Over these past 25 years there has been so much criticism about so many things,” Judge Kaye said. “If I lost it every time somebody said an opinion was ridiculous or an initiative was foolish or we shouldn’t do what we were doing, then I would be swamped and dragged down. There is no point in doing that. You have to keep your head up and go on.”
Even before she became a judge, she got a taste of the harsh spotlight that is often trained on the Court of Appeals. When the name of Judith S. Kaye, commercial litigator at Olwine, Connelly, Chase, O’Donnell & Weyher, was before then-Governor Mario Cuomo in 1983 as a possibility for the Court, the Women’s Bar Association deemed her “not recommended.”
“I have put it behind me,” Judge Kaye said of the snub that Mr. Cuomo ultimately ignored to fulfill his 1982 campaign pledge and select the first woman to the Court. “They were wrong.”
Judge Kaye’s obvious gifts as a jurist helped erase any initial doubts about her qualifications, said Kathleen Peratis of Outten & Golden. But Ms. Peratis said Judge Kaye also benefited from the times of the mid-1980s, when women were beginning to take higher-profile positions in many fields that were hitherto held by men.
“The times have really changed,” Ms. Peratis said in an interview. “It is true that she is so good at her job that her gender stopped being the most important thing that we saw, but I think that is kind of a common story now with women who were ‘the first’ 20 years ago. Their accomplishments caused that to stop being the first thing you say about them.”
Judge Kaye remained the only woman on the Court of Appeals until Jan. 4, 1994, when Judge Ciparick joined the bench.
Victoria A. Graffeo became a Court of Appeals judge on Nov. 29, 2000, and when Judge Read arrived in January 2003, the Court had a female majority for the first time in its history.
New York, Wisconsin and Tennessee have the only state supreme courts on which women now outnumber their male counterparts.
Ms. Peratis, who once succeeded Ruth Bader Ginsburg as director of the Women’s Rights Project at the American Civil Liberties Union, said she thought a comparison of Judge Kaye to Sandra Day O’Connor, the first woman on the U.S. Supreme Court, was an apt one.
“They share a real political acumen and a no-nonsense, no-drama kind of approach to what they do,” Ms. Peratis said.
Judge Kaye demurred when asked to compare her work on the Court of Appeals with Judge O’Connor’s on the U.S. Supreme Court. But the two have appeared in recent years at many of the same events sponsored by the American Bar Association and other groups and Judge Kaye said they have developed a personal bond.
Judge Kaye said she considers Judge O’Connor the “grandmother” of justice, a joking takeoff on the letter Judge Kaye received from a state prison inmate that began “Dear Mother of Justice.”
“Particularly since her husband’s illness and my husband, she’s been so nice to me,” Judge Kaye said. “I have felt a kindred spirit with her.”
Judge Kaye’s husband, Stephen Rackow Kaye, a partner at Proskauer Rose, died in October 2006. They were married 42 years. Judge O’Connor resigned from the Supreme Court in 2005 to spend more time caring for her husband, John, who has Alzheimer’s.
Judge Kaye said she has no regrets about pulling her name out of consideration by then-President Bill Clinton for a 1993 opening on the U.S. Supreme Court, where she could have been Judge O’Connor’s colleague. Reports that she might be considered for the opening created by the retirement of Byron White came too soon after her appointment as chief judge and the upheaval created by the arrest for harassing an ex-girlfriend and resignation of Mr. Wachtler as chief judge to allow her to pursue a Supreme Court judgeship in good conscience, she said.
“Oh, goodness, I have had such a great life [on the Court of Appeals] and I will have another one,” she said in a recent interview.
‘A Nice Person’
Judge Kaye has “great gifts of sensitivity” that have both informed her work as judge and chief administrative judge and caused her personal grief in both roles, one former judge said.
“There is a little bit of the idealist and naiveté involved in this,” said the judge, who asked not to be identified. “She probably is a little bit thin-skinned. She doesn’t like not to be loved by all the judges and she’s suffered in the last few years from that. She takes it so to heart and so personally. That’s about as close to a criticism about her as you can get, but, in a sense, it’s also a compliment.”
Judge Kaye acknowledged hearing the “thin-skin” talk, even around the conference table on Eagle Street in Albany. But she said she cannot change.
“I think when you’re a judge, especially, you have to not have a thick skin,” she said. “You do what’s right and you suffer and it’s agony when people are thoughtlessly critical. But you just have to take that in. It is part of the privilege of being a judge. I never want to be hard. I never want to just have a thick skin.”
Along with the intellectual challenge of dealing year after year with the diverse caseload the Court of Appeals takes up, Judge Kaye said she will miss most the collegiality of the Court. It is a closeness that has been generated by the countless hours the judges spend hearing arguments, trading opinion drafts, conferencing cases or unwinding over dinners at Jack’s, Lombardo’s and other Albany haunts favored by the Court’s members for decades.
“She has a charming personality, as tough as she is,” former Judge Joseph Bellacosa said in an interview. “Don’t minimize her intellectual toughness. But even with the strong spine of intellectual rigor, you can still be a nice person. Even an extraordinarily nice person.”
Judge Kaye worked hard to forge close relations among the members of the Court.
“The ease with which Judith Kaye talks about the lovely things in life – your family, what books are you reading, what opera have you seen, what do you do with your religious observances and let me tell you what my family does,” Mr. Bellacosa said. “Those conversations are so binding in terms of people responding to each other in a collegial way. She was very intelligent in using all those skills, which are very innate with her, to have people not only respect her but like her.”
Judge Kaye said she is all too aware of what she will lose when her historic career on the Court ends.
“These will always be my friends, I have no question,” she said. “But we will never again be across the table from one another. On the telephone. Marking up drafts. Trying to figure out what the best resolution is. We will never again be doing that and that is something that I will miss tremendously. Boy, it chokes me up to think about it.”