Monday, May 11, 2009

Denied With An Explanation

While not an everyday occurrence, it is not unusual to read an opinion of a Justice of the United States Supreme Court dissenting from the denial of the petition for a writ of certiorari. These opinions not only provide insight into that Justice's thinking, but they sometimes provide a roadmap for how cases like it may garner the four votes needed for the writ to be granted.

I do not recall ever seeing an opinion of a Judge of the New York Court of Appeals dissenting from the Court's denial of a motion for leave to appeal to that court in a civil case. When the Court denies the motion on jurisdictional grounds such as lack of finality, the Court will so state, but members of the Bar will complain that these brief statements often shed little light on such arcane matters as finality.

In criminal cases the application goes to one judge. Each judge considers more than 350 applications each year, so it is unreasonable to expect an explanation for the over 98% which are denied.

It therefore came as a pleasant surprise last week when Judge Robert Smith issued an opinion explaining why he was denying the application in a criminal case (People v. Sevencan). The opinion states, "Publication authorized by the Court," which implies that it reflects the views of the other members of the Court. The opinion addresses a particular class of criminal appellants, and is a useful explanation for why the Court is unlikely to accept their cases for review. Whether other judges on the Court will follow Judge Smith's example remains to be seen, but it is a welcome development.

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