The Appellate Division, First Department is a court divided over the question of whether judges on a panel should convene as a group to discuss cases they will hear later in the day, several sources close to the court report.
Within the last couple of years, some judges have been regularly convening and attending pre-argument meetings at which those in attendance review the cases on their upcoming calendar; others refuse to attend, pointing to varying degrees of discomfort with the meetings, the sources said. The degree of discomfort ranges, they said, from viewing the sessions as an “anathema” to being “agnostic” but nevertheless not joining.
The First Department’s presiding justice, Luis A. Gonzalez, disputed that the pre-arguments were systematic. Based upon discussions with several judges who have met to discuss upcoming cases, Justice Gonzalez said that to the extent pre-argument discussions have taken place, they have been “informal” and convened on an episodic basis to address “particular questions judges have in particular cases.” Their objective, he added, is to develop issues that will be “helpful” in advancing the arguments.
Telephone calls to several judges who are believed to have discussed cases prior to argument were either not returned or elicited no comment.
Justice Gonzalez said that “about four or five” judges will call other judges with questions about issues in upcoming arguments. Those judges consist of both older and newer members of the court, he said. He added that he had heard that one or two members of the court “take issue” with the sessions.
“There is nothing improper or negative” about the consultations, Justice Gonzalez said. “If I thought there were, I would address it.” He added, “anyone who suggests that this is systematic or formal is “exaggerating.”
The sources critical of the meetings agreed that judges have always conferred, and continue to confer, with one another about pending cases on an informal basis, but say that in regularly convening meetings and reviewing a panel’s entire upcoming calendar, the sessions take the practice to a different, and troubling, level.
“Those attending the meetings,” one source said, are “doing before argument what is supposed to happen after argument, at best.” In the pre-argument sessions, the source said, the back and forth of judges testing whether their colleagues agree with them can lead “to a moral commitment to support one and other.”
Another source said, however, that the judges who confer prior argument are “not dug in” and are “flexible if persuaded by the merits of an opposing view.”
In the First Department, the judges convene in conference immediately following the completion of the day’s oral arguments. They proceed to discuss the cases and cast their votes.
On the day of argument, the cases on the panel’s calendar are divvied up among its five members with each judge being designated a lead judge in an equal number of cases. At the post-argument conference, the lead judge states his or her view first. The other members of the panel follow, starting with the most junior judge.
“Huge Cultural Shift” Noted
It is unclear when some of the court’s judges began convening the pre-argument meetings, but several sources said that those participating are mostly judges who joined the court after former Governor Spitzer took office in 2007.
One source said that the convening of pre-argument sessions represented “a huge cultural shift in the court that occurred after [Mr.] Spitzer took office.” Another suggested that the new judges may be using the sessions “to get a better sense of the cases and make sure they aren’t missing anything.”
A third added that some of the newer judges may use the pre-argument sessions “to build a consensus” to foster “a sense of solidarity” when they are asked to state their position in the post-argument conference.
Together, Mr. Spitzer and Governor David A. Paterson who succeeded him, both Democrats, appointed nine of the court’s current judges. Six were appointed by Mr. Spitzer’s predecessor, Governor George E. Pataki, a Republican, and two by former Democratic Governor Mario M. Cuomo. The current governor, Andrew M. Cuomo, a Democrat, has three vacancies to fill. At full strength, the court has 20 judges.
Seven of the court’s judges are female, six of them appointed by either Mr. Spitzer or Mr. Paterson.
At least five judges do not attend the sessions, the sources said.
Controversy over Policy, Not Ethics
Stephen Gillers, an ethics professor at New York University Law School, said pre-argument discussions do not present an issue under New York State’s Rules on Judicial Conduct because judges are free to discuss cases with one and other without the parties or their lawyers present. But, he added, the discussions “raise a legitimate policy question.”
The propriety of the pre-argument sessions has been the subject of debate within the courthouse,” one source said.
The notion that two, three or four judges would gather every time they sit together to run down the calendar of cases they will hear later that day, another source said, “is a departure from past practice.” That practice has drawn “disapproving comments” from some members of the court, the source added. In all, six persons were interviewed on the condition that their anonymity be preserved.
Daniel J. Kornstein, a veteran appellate litigator, said that the pre-argument sessions pose “no problem as long as the judges keep an open mind until after the argument.”
An appellate specialist who often appears before the court, however, said it is troubling that only some judges attend the pre-argument meetings. “They are supposed to decide cases as a panel, and they should be conferencing them as a panel,” the lawyer said.
A second lawyer who often handles appeals in the First Department likewise said “it strikes me as very odd that only some judges on a panel would discuss a case.” The First Department prides itself on being a “collaborative court,” he said, and “you would hope that whatever one judge says about a case would be said before the entire bench.”