Tuesday, December 26, 2006

Lemmon v. People IX

I have reviewed, more or less completely as the case may be, the majority opinions of Judges Denio and Wright and the brief dissents of Chief Judge Comstock and Judge Selden.

The third dissenter, and the only judge who wrote a dissent of any length, was Thomas W. Clerke. Judge Clerke bears a very odd, double role in the case. He seems to have been a Justice of the Supreme Court who was sitting as a Judge of the New York Court of Appeals "ex officio." In all honesty, I'm not sure what this means in this context. Probably, he was a senior judge of the Supreme Court who sat on the Court of Appeals either by virtue of his seniority or by designation.

Judge Clerke's role was particularly unusual, first, because he a member of both the Supreme Court panel whose decision was appealed to the Court of Appeals, and of the Court of Appeals when it heard and decided that appeal. In other words, he sat in review of the decision of the panel of which he himself was a member.

Second, and even more oddly, he voted differently on the two panels. In the Supreme Court, he voted to affirm (and thus in favor of freeing the slaves). At the Court of Appeals, he voted to reverse the Supreme Court panel (including himself)!

In his Court of Appeals dissent, Judge Clerke even mentioned his change of view. He referred to "the judge who decided this case in the first instance (by whose reasoning, I may be permitted here to say, I was erroneously influenced in voting at the general term of the Supreme Court in the first district)."

20 N.Y. at 636.

Very, very strange.

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