Opinion 23-128
October 26, 2023
Digest: A judge may consult with another judge on a matter over which the other judge has appellate jurisdiction without violating the Rules Governing Judicial Conduct, but the practice is ill-advised.
Rules: Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.3(B)(6); 100.3(B)(6)(c); 100.3(B)(8); 100.3(B)(11); 100.3(E)(1); Opinions 19-08; 18-104; People v Novak, 30 NY3d 222 (2017).
Opinion:
The inquiring part-time judge would like to discuss cases and seek input and guidance from other “actively sitting” judges. In particular, the judge asks if it is ethically permissible to request “input from a higher-level court Judge that could potentially have the case before them if it [were] appealed.”
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not make any public comment about “a pending or impending proceeding in any court within the United States or its territories” (22 NYCRR 100.3[B][8]) and must not disclose or use nonpublic information acquired in a judicial capacity (see 22 NYCRR 100.3[B][11]). Further, a judge must not initiate, permit, or consider ex parte communications, or consider other communications made outside the presence of the parties or their lawyers concerning a pending or impending proceeding, unless an exception applies (see 22 NYCRR 100.3[B][6]). One such exception permits a judge to “consult with court personnel whose function is to aid the judge in carrying out the judge’s adjudicative responsibilities or with other judges” (22 NYCRR 100.3[B][6][c]).
The Rules Governing Judicial Conduct contain no explicit limitation or restriction on a judge’s ability to consult with “other judges” about matters before him/her. Indeed, we have interpreted “other judges” expansively to include “duly elected or appointed judges who preside in other state courts, in the federal courts, or in tribal courts” (Opinion 19-08).
In general, the consultation exception encourages judges to seek advice from more experienced colleagues, expands the resources available to judges and serves to enhance judicial performance. Nonetheless, in our view, some inherent prudential limitations do exist. The inquirer’s proposed consultation raises potential appearance and impartiality issues for the appellate judge, with possible consequences for the parties, that warn against the practice.[1] In effect, the inquirer could potentially jeopardize the other judge’s ability to preside over a subsequent appeal in the matter because of the very fact that the judge was consulted (cf. People v Novak, 30 NY3d 222 [2017]).
In discussing these risks, we emphasize that we cannot comment on legal questions, or on the ethical obligations of individuals other than the inquirer. Nor do we in any way suggest that an appellate judge who is consulted on a pending matter would necessarily be disqualified by virtue of an exchange of information with the “lower court” judge.[2]
However, we share an extended excerpt from People v Novak to help underscore why we find the inquirer’s proposed consultation ill-advised. The facts there were unusual, in that the judge who presided over a criminal case in City Court was subsequently elected to County Court in time to hear that defendant’s appeal from his conviction. The same judge then “proceeded to adjudicate defendant’s single-judge appeal and upheld defendant’s judgment of conviction and sentence” (30 NY3d at 225). The Court of Appeals reversed and remitted the appeal to be heard by another judge, stating (id. at 226-7 [footnote and citations omitted]):
[W]hile there currently exists no explicit statutory or constitutional provision in New York prohibiting judges from reviewing their own judgments on appeal, our laws and court rules have long sought to purge actual bias and the possibility of bias from our courtrooms. Although there was no evidence of partiality here, due process must still safeguard the appearance of impartiality to promote public confidence in the courts.
To be clear, as we have previously held, facts that are learned in the adjudicative process do not preclude nisi prius from deciding issues that arise at various stages of a criminal proceeding, including pretrial motions. For example, as we have held, it is not an abuse of discretion for the same judge to conduct a pretrial hearing, such as a Sandoval hearing, and then later preside over a bench trial; or for a judge to rule on the validity of a search warrant issued by that same judge; or for a judge to preside over a trial and subsequently rule upon a defendant’s CPL article 440 motion. In each of these examples, further independent appellate review remains available, and accordingly, a defendant’s “constitutional right to a fair appellate procedure” remains inviolate. However, where there is no opportunity for independent scrutiny by a new decision-maker, the appellate process is compromised, and due process has been violated.
Clearly, considerations of fairness and impartiality must be respected and preserved. If the inquiring judge’s detailed consultation about a specific case with an appellate judge undermines that judge’s confidence in their own ability to be fair and impartial on appeal, it could at the very least cause delays while the appellate judge seeks ethical advice, and it could potentially interfere with the other judge’s work obligations and the parties’ rights. Therefore, we conclude that although consultation in these circumstances is ethically permissible, it is nonetheless ill-advised.
[1] Interestingly, the ABA’s equivalent rule likewise broadly permits consultation “with other judges” (Annotated Model Code of Judicial Conduct [2016] Rule 2.9[A][3]), but the commentary excludes consultation with “judges who have appellate jurisdiction over the matter” (Rule 2.9 comment [5]).
[2] As we have explained, “there is no per se requirement for disqualification of a judge based on the judge’s having learned facts about a matter in a judicial capacity. We have recognized that a judge, due to specialized learning, experience and judicial discipline, is uniquely capable of distinguishing the issues and of making an objective determination based upon appropriate legal criteria, despite his/her awareness of facts that cannot properly be relied upon in making the decision” (Opinion 18-104 [internal citations, brackets, and quotation marks omitted]). Whether an appellate judge is disqualified, therefore, will depend on the particular circumstances.