Text, intent, and purpose. Judges rely on one or more of these tools whenever they begin to construe a statute with ambiguous language. (1) But what do judges do when, on occasion, these tools fail to resolve the ambiguity? Judges must of course resort to some method or methods in order to apply the law and decide difficult cases. Although it is typical to start with one of the three interpretive touchstones stated above, the ensuing process and decision can vary greatly from judge to judge and case to case. As Judge Cardozo once said, a judge interpreting a statute is like "a wise pharmacist who from a recipe so general can compound a fitting remedy." (2)
This article is an attempt to gauge the method of statutory interpretation employed by Associate Judge Susan P. Read of the New York Court of Appeals. This article will consider--among other subjects--Read's interpretive tendencies, whether she uses a method consistently, and her view on the proper role of the courts with regard to the separation of powers. Why is this subject important? For one thing, New York's high court resolves dozens of questions of statutory and constitutional law every year, and these decisions have a great impact on virtually every aspect of life for New Yorkers. (3) Second, attorneys want to win cases. Understanding how judges reach interpretive decisions is important for any attorney arguing before a court. Finally, Judge Read makes for an interesting study since she herself is a student of statutory interpretation and has in fact written on the subject. (4)
Part II of this article summarizes the background surrounding Judge Read's nomination and confirmation to the Court of Appeals. Part III briefly introduces several methods of statutory interpretation that have developed over time. The goal is not to get over-involved in theory, but rather to provide a backdrop before considering some examples of Judge Read's own method of interpretation. Only the more established and recognized theories of construction will be introduced. Part IV of this article examines several of Judge Read's opinions in various areas of law. Included are analyses of cases involving rent regulation, administrative agency action, limited liability companies, criminal procedure, and workers' compensation. Ultimately, through a synthesis of these opinions, Part V strives (1) to develop at least a few common trends in Judge Read's method of interpretation and (2) to determine whether her method fits into one or more of the recognized theories--not for an extensive trek down a path of theoretical analysis, but to provide practitioners and advocates before the Court of Appeals with a better idea of how to win her vote.
A foreword should be made about the method of analysis in this article. The focus is on dissenting opinions. Judge Read has sat on the Court of Appeals for approximately seven years and has written many dissents. Among those dissents are several that involve a lengthy discussion of statutory interpretation. For this article, five of Judge Read's more prominent dissents have been selected for study.
Lost in majority opinions--of which Judge Read has obviously also written many--is a judge's pure analytical or theoretical viewpoint. This is naturally so because the majority opinion writer must draft it in a way that holds the votes of her colleagues. By contrast, with a dissent--particularly a one-judge dissent--there is no such constraint. This article will show that Judge Read has a well-developed method of statutory interpretation in which she places much confidence and conviction--illustrated by her willingness to write dissenting opinions.
II. APPOINTMENT AND CONFIRMATION
On January 22, 2003, the New York State Senate confirmed Susan Phillips Read as an associate judge of the New York Court of Appeals. (5) Before her confirmation, Judge Read was a legal adviser to Governor George E. …