Since the resignation of Court of Appeals Chief Judge Sol Wachtler, the state's highest tribunal has undergone dramatic change in membership and direction.
 

Make no mistake, there has been dramatic change at the state's high court. The seven-member Court of Appeals has a new chief judge, Judith Kaye, three new associate judges, George Bundy Smith, Howard Levine and Carmen Beauchamp Ciparick, and an evident new direction. Not only is Sol Wachtler gone, but so is the Wachtler Court, and so is the patently pro-government/pro-prosecution bent that increasingly marked the last few years of the Wachtler-era (see ESR, June, 1992, "Tilting the Scales of Justice"). In short, the Court that has the last word on virtually all issues of fundamental rights and liberties and government power in New York State is a very different institution than it was just 15 months ago.

 Kaye's appointment as chief judge together with Associate Judge Richard Simons' leadership in the profoundly difficult interim period—was the ideal remedy for what ailed the Court following Wachtler's disgrace. Moreover, as the first among equals on the Court, Kaye could be expected to influence some adjustment in the tribunal's Wachtler-era direction. In numerous opinions in previous years, she objected to the Court's "about face" and "break[ing] with its proud tradition" of ensuring protection of fundamental rights. As chief judge, Kaye would likely try to put the tribunal back on track. As shall be seen below, the Court has in fact been considerably more sympathetic to individual liberties in the Kaye—or post-Wachtler—era.

 In its most critical work, defining and applying New York's fundamental law, the Court of Appeals has already adjusted its course. In rendering decisions about the constitutional rights and liberties of New Yorkers and the powers and responsibilities of the state government and localities, the Court has changed direction. And the change has been swift and substantial.

 Studies of the Court's decisions, and its members' voting, have shown that it became discernibly unsympathetic to claims of individual rights during the last several years of Wachtler's tenure. The Court of Appeals has long been a national leader in protecting constitutional liberties. In fact, that leadership is a venerable part of the Court's history and tradition. But the Court's record had become lopsidedly pro-government. In close constitutional cases, where both sides had strong positions and where legitimate decisions could thus be rendered either way, the Court seemed excessively one-sided for the government and against the individual. To be sure, there were occasional headlines about the Court's "liberal" decisions. But as studies of all the Court's constitutional decisions have demonstrated, these were exceptions to the rule.

 A review of the final three years of Wachtler's chief judgeship shows that the Court sided with the government or prosecution in nearly 80 percent of the cases where a substantial constitutional question was presented. Stated differently, New York's highest tribunal ruled in favor of the individual only 23 percent of the time that the decision between constitutional right and government authority was close enough to divide the judges. At one end of the Court's unmistakable philosophical spectrum was Judge Joseph Bellacosa; he voted for the individual a scant nine percent of the time. By sharp contrast, Judge Vito Titone voted to uphold the constitutional claim—the individual's case against the government—in 77 percent of the cases.

 One is left to wonder whether the two judges were reviewing the same cases or applying the same law! But what these figures reflect is a simple truism. These judges, like all others, bring their own experiences, perspectives, learning and wisdom to the task of deciding the fundamental legal issues before them. That is why, of course, it does matter who sits on the high court, and why it especially matters who occupies the chief's position.

 So, for example, Wachtler's voting during his last three years on the Court was 16 percent pro-individual, or 84 percent pro-government. That is nearly identical to the record of the Court as a whole for that period. If Wachtler's reputation as a persuasive Chief Judge is accurate—and by all accounts it appears to be—these figures certainly seem to confirm that he succeeded in shaping the Court's overall direction. Likewise, the record of the high tribunal in the post-Wachtler era seems clearly to reflect that a different view of fundamental issues is how swaying the Court.

 An examination of the decisions since Wachtler's departure indicates that his former colleagues are much more likely than before to rule in favor of individual liberties—twice as likely, in fact.

 In the first 15 months following his resignation in November 1992, the Court of Appeals has been siding equally with the government and the individual. In terms of enforcing claims of constitutional rights, this represents a change from 23 percent to 50 percent.

 The mix of cases does not seem to have changed. They have involved the same kinds of issues: right to counsel, search and seizure, right to be let alone, and fair trial among others. But the decisions have been typically more protective of these rights. A look at some cases from both the Wachtler and post-Wachtler era, is instructive.

 In the area of right to counsel, the Court of Appeals over a long period of time developed stringent rules to protect criminal suspects from coercive interrogations, unreliable confessions, and unfair government tactics generally. During the Wachtler years those rules were whittled, diluted and otherwise weakened.

 The Court's retrenchment on the right to counsel became explicit in its 1990 decision in People v. Bing. There, the Court overruled outright an earlier landmark which forbade police questioning of a suspect without counsel whenever the suspect had a lawyer on any criminal matter, even if unrelated to the questioning. Speaking through Simons, the majority in Bing decided that such questioning would henceforth be allowed. The prior rule, the majority explained, was based on a "fictional attorney-client relationship" and lacked "common sense." Kaye, dissenting, decried the Court's abandonment of its earlier more protective position.

 Shortly after her elevation to chief judge, however, Kaye had the majority, and Simons was dissenting. In People v. West, in a revealing turn of direction from Bing and other Wachtler-era decisions, the Kaye Court held that New York's right to counsel still forbade police questioning of a suspect who once had an attorney on the same criminal matter, even if that was long ago. Judge Simons disagreed, arguing that the questioning should be allowed because three years had passed and there was no proof that the suspect still had a lawyer. But this time, Simons' "common sense" complaint against the presumed attorney-client relationship could not overcome the Court's insistence that the right to counsel be jealously safeguarded.

 Whatever the merits of these decisions, the philosophical change they reveal is also reflected in the area of fair trial. For example, in the 1991 decision in People v. Jackson, a deeply divided Court sharply cut back the so-called Rosario rule. In short, that rule entitles a criminal defendant to see the prior statements of prosecution witnesses; a violation of that entitlement traditionally required that a conviction be reversed and a new trial ordered. In Jackson, however, the Wachtler court carved a substantial exception to this automatic reversal rule. More importantly, the Wachtlerauthored majority opinion undermined the very foundation of the Rosario entitlement itself. Rosario was never "based on the state or federal Constitution," declared Wachtler; it was only a rule of "simple fairness."

 Not suprisingly, the three member dissent written by Titone took Wachtler to task on that point. And the month following Wachtler's departure, the Court, speaking through Chief-Judge-to-be Kaye, with only Bellacosa in dissent, refortified Rosario. The majority in People v. Banch held that the Rosario violation in question automatically required a new suppression hearing; it also took pains to recharacterize the Rosario rule in constitutional terms. The rule was not merely a quaint judge-made notion of fairness, readily disregarded when inconvenient and subject to repeal by the Legislature or its judicial creators. Rather it was—once again, as Kaye put it—a "fundamental precept of the state's criminal jurisprudence."

 This Wachtler-era "deconstitutionalizing" of precedents and the subsequent Kaye-era "refortification" is not a single instance oddity. The final case to illustrate the post-Wachtler change at the Court involves the same phenomena in the area of personal autonomy. In 1976, the Court outlined rules restricting government questioning of individuals not amounting to interrogation or to actual detention. It was clear, in the DeBour opinion authored by then-associate judge Wachtler, that these restrictions were based on constitutional protections against arbitrary government interference with personal freedom and against unreasonable searches and seizures.

 But in its 1992 decision in People v Hollman, the court stripped the New York rules of their constitutional underpinnings. While ostensibly reaffirming the DeBour decision, the Court's opinion —again authored by Wachtler—now said that some of the safeguards outlined in that precedent were in fact "not compelled" by the federal or state constitution. They only "reflected our judgment," Wachtler added, thus representing only "common-law," i.e., judge-made, "guidelines."

 Although there were no dissenters In Hollman, the Court took plainly corrective action in People v. May, decided a few short weeks after Wachtler's resignation. There, the Court declared that the police-initiated questioning and intrusion at issue violated the fundamental "right to be let alone:" the majority relied on precedents establishing that right as the most precious of constitutional liberties. Bellacosa, the sole dissenter, applied the "common-law" framework of Hollman and reached the opposite result. Several months later, in People v. Holmes, the Kaye court issued an identical constitutionally-based decision; and the same dissenter, relying on Wachtler's common-law framework, disagreed.

 The Court's ideological spectrum has not changed, nor has the voting at the spectrum's end. Bellacosa's record during the post-Wachtler period has been seven percent for the individual (an insignificant difference from his former 9 percent); and Titone's has been 82 percent (compared to 77 percent before). Also, Chief Judge Kaye has been voting to uphold constitutional claims 59 percent of the time; that record too is virtually unchanged from her 54 percent during the Wachtler years. The difference today is that she is in the 1eadership position, and, as the overall figures show, her colleagues as a group are voting more like her.

 It is likely that a judge without strong leanings in a given case will sometimes throw his support to a persuasive chief judge. This may well account for the apparent change in the voting patterns of some of the those on the bench. With Wachtler at the helm, the pull on the undecided judges would have been pro-government or prosecution in most cases. With Kaye, the tug is surely more supportive of individual rights. Thus, one would expect to see a change, especially among those judges whose voting records evince a case by case or flexible ideological approach. Of course most judges take such an approach, but some more than others.

 So, for example, it is not surprising that the voting records of Simons and Hancock did change somewhat following Wachtler's departure. Nor is it surprising that their voting records became noticeably more pro-individual rights. Simons' voting changed from 21 to 41 percent pro-individual; Hancock's from 46 to 57 percent. These figures, as well as those of the Court as a whole. would certainly seem to indicate that as chief judge, Kaye has begun to exert an influence, and a much different one than her predecessor.

 The Court's record in the post Wachtler era, nevertheless, does not suggest that it is veering sharply to the left. The high tribunal is still siding with the government or prosecution in 50 percent of the cases where a substantial constitutional challenge has been raised. But its record is no longer lopsided.

 When compared to the Wachtler era, the current Court is "liberal," i.e., more protective of individual rights and liberties. But more than anything else, it appears to be much more balanced. It is probably accurate to characterize the Court's post-Wachtler record, in common parlance, as moderately liberal. But certainly not radically or excessively so. In short, the tribunal's record today is much like Chief Judge Kaye's has been for many years.

 It is still very early in the Kaye era, and the most recent additions to the Court have yet to make their mark. Only time will tell for certain whether Kaye has the vision, tenacity, self-assurance, and will—and other intangibles of judicial leadership—to influence the Court. and therefore the fundamental law of New York, over the long haul. But the voting patterns for the last 15 months do provide stark evidence of the switch from a Wachtler court to a Kaye court. In both membership and philosophy, a significant transformation seems well under way. 

Vincent Martin Bonventre is an associate professor at Albany Law School. He is a frequent writer and commentator on the Court of Appeals where he previously served as a law clerk.

 John Powell a student at Albany Law School assisted in the preparation of this article.

 The High Court Remade: New Judges Leave Their Marks

 The personnel changes alone have substantially remade the Court. Four positions –more than half the tribunal— have been refilled. In chronological order, George Bwe Smith has replaced Fritz Ale:* * Kaye was elevated to Chief Judge;~Noward Levine has filled the vacancy created by Kaye's elevation; and Cannen Beauchatnp Ciparick has replaced Stewart Hancock, Jr.

 ILike his predecessor, Smith carne from the Appellate Division, First Depatnents the intennediate appeals court ~at sits in Manhattan. Also like his Hessor, Smtth earned a reputation asSan especiapy conscientious and thoughtfill jurist who, although difficult to pigeonhole ideologically, has been sensitiveXto the rights of the accused and to claims of discrimination. Moreover Judge Smith's record revealed a willingness to register disagreement with his colleagMes throuBh dissenting opinions. He has already demonstrated that same indepplence in his short tenure on the Courti Appeals.

 did so last year, for example, in Fletokerfv. Kidder, Peabody & Co., a crucial unployrnent law case for imestment0gfirms trading on the fNew York Stock Exchange. Smith1s colleagues approved an Exchange rule requiring employees of trading organizations to submit any claim of racial discrimination to arbitration, effectlArely barring those employees from seeking remedy

 in the courts. But Smith, in lone dissent, forcefully complained that equality of employment opportunity, an explicit state constitutional guarantee in New York, ought not to be subordinated to the general federal—or state—policy favoring dispute resolution through arbitration. Absent an "unequivocal ruling from the [United States] Supreme Court" requiring arbitration in such cases, Smith protested, "this Court [of Appeals] should hesitate before forcing victims of discrimination into a single remedy, chosen by those who allegedly discriminated against them."

 Likewise, in Matter of Schalz v. State of New YSrk, where the Court held that voters have a right to challenge the constitutionality of state borrowing practices, Smith objected to his colleagues' somewhat Hitchcockian dismissal of just such a lawsuit. The majority concluded that it would be impractical and unfair to permit the voter lawsuit in question because the state had already facted upon its debtincurring practices—however unconstitutional those practices might be. Smith, again in solitary dissent, argued that the majority's concerns ought not to preclude so serious a challenge. The "alleged consat tional violations . . . are continuing in nature," noted Smith, and they have "long term fiscal impact." Moreover, he complained, it was the state's own "efforts to delay a decision"

 in the case that caused whatever impracticality and unfairness the Coutt was now relying upon to save the state from the lawsuit.

 If dissents such as these, as well as his reputation at the Appellate Division, are any indication, Srruth is a bold, hnk voice that his colleagues on the Court will not be able to take for granted.

 Next of the personal changes was, of course, Sol Wachtler's resignation in November 1992 and Govemor Cuomo's selection of Kaye to fill the Court's center seat the following March.

 The new chief judge, the first woman to hold that fposilion as well as the first woman to sit on the high tribunal, had established a record of considerable distinclion during her previous ten years on the Court. Those close to Kaye know her as a bright and devoted jurist, and as an exwptionalb capable problem solver and consensus builder. She is a national figure highly regarded for her commitment; to irnproving the law, the courts and dleVlegalprofession, and forfher scholarly presentations and writings especially in the area of state constitutional law abd women's rights. She is admired, and illdeed beloved, for her dignified presenee and personal warmth and generosity. It is not too much an overstatement to say that virtually every aspiring woman lawyff wants to be her, and so do most of the men.

 Having thus elevated Kaye, Cuomo next elevated Levine several months later from the Appellate Division, Third Departrnent. Levine, who had sat on that intermediate appeals court in Albany for 11 years, was a Court of Appeals nominee six times before. The bipartisan Comrnission on Judicial Nomination had placed him on the short list of candidates for each of six prior Court vacancies. To many familiar with New York's judiciary, he was the state's finest appellate judge. Indeed, there was a strong consensus growing among Court of Appeals watchers, regardless of ideological stripe or partisan affiliation, that the Republican Levine belonged on that tribunal.

 Levine's ultimate selection, however belated, was no less welcomed by those who study New York's judicial opinions. His writings show extraordinary care and consideration, insight and acumen. They evince sensitivity and common sense, fairness and fidelity to fundamental principles. A review of Levine's work at the Appellate Division suggests a somewhat pro-prosecution record in criminal cases and a somewhat pro-individual liberties one in civil decisions. Though his tenure at the Court has been brief, Levine's voting has been noticeably pro-prosecution in the several constitutional criminal justice cases he hasfparticipated in to date. But if there is anyXpartisan or political bent to his opinions it is difficult to detect.

 Finally, to replace the 70 year old Hanzk—who left the court in December asfthe most recent victim of the state's mandatory age retirement—the

 govemor apwl Cipatick. A 15-year veteran of the XI bench in Manhattan, Ciparick is <<y the second wornan ever to sit on the Court of Appeals. A more significant fWr in her selection, howeverf was likelySher ethnic heritage. Ciparick's Pu~XWan descent makes her the first I~*ember of Ihe Court. (Depending=tupson hiSw such ~ings are viewed, Judge ok Smay not in fact be the Coutt's fttst0>nic. That honor may well go to thei Court's revered Chief Judge RenJamn Nathan Cardozo, a Sephardic JewL whose family derived from the Iberian Peninsula.)

 Ciparick hai a leputation as personable, considerate,0gutsy and principled. Members of ithe bench and bar who know her speak warmly of her as a "good and decent person," "a terrific human being", qualities which should ease her entree into the Court of Appeals. And her record, albeit on the trial level alone, does disclose a courage and even "disconcerting independence," as the Gove*w has put it, that should help prevent her bemg swallowedXby her new institution.

 For example, in the 1989 case of Mercury Bay:Boating Club v. San Diego Yacht Club, she withstood the national media attention and nationalistic chauvinism surrounding the dispute over the 1988 America's Cup competition. Although aX deeply divided Court of Appeals subsequently disagreed with her decision, Ciparick ruled that the American team from San Diego had played dirty when it won the yacht race

 by sailing a twin hulled catamaran. Despite a patriotic (of sorls) ugar, she directed the trophy be retuined to the New Zealand tearn that had chaLlenged San Diego's victory.

 Theffollowing year Cipjrii, from her trial bench, issued a landnic apinion on the nght to privacy. In Hope v. Perales, she recognized and dE]ineated;0a woman's right to choose an abortion underthe state constitution. Ciparick ruledfspeically that New York's PrenaX Asshance Program for the working poor aluld not, consistent with the New Ybqk constitution, exclude abortions from Ihe Ireatments it otherwise provided 1ixZegnant women. Judge CiparickXs0—has since been affirmed by;Xpate Division, and the case is * on the Court of Appeals' Vdocket.0If thesezhvo decisions are indeed lfie of Ciparick'sXjm*, she too illbeavoice to be reckoned with on the state's highest tribunaL

 How, if at all, have these appointments affected the Court? Do the personnel changes mean a changed court, with changed views, resulting in changed decisions? To be sure, the appointments of Levine and Ciparick are too recent to gauge their impacts with any confidence. On the other hand, the effects of the earlier personnel changes are already becoming evidenL Particularly, the departure of Sol Wachtler and his replacement by Kaye seem quite clearly to have made a significant difference.

 —Vincent Martin Bonventre