Chapter 35 Ethical Judicial Writing

• Jurisdiction: New York

Chapter 35 — Ethical Judicial Writing

No judicial function is more important than deciding cases ethically.⁷³⁰ Judges resolve disputes. They create, apply, and enforce rights and obligations.⁷³¹ Judges affect lives. Society trusts judges to rule fairly and impartially, irrespective of issue or litigant. Judges, who must behave with integrity, professionalism, and respect, must be ethical on and off the bench. Judicial ethics are scrutinized in written opinions. Judges leave their mark in written opinions. An unethically written opinion is a black mark that defines a judge, while the honest, just, well-written opinion is celebrated. This three-part article addresses ethical issues that arise in judicial writing, with a New York focus.

Codes, Rules, Commissions, and Beyond

Judges must write within the bounds of the law and the bounds of ethics. They must look for guidance to the law in the jurisdiction where they preside, but no code or rule addresses judicial opinion writing directly.

Federal judges have their own code of judicial conduct. United States Circuit, District, Court of International Trade, Court of Federal Claims, Bankruptcy, and Magistrate judges must comply with the Code of Conduct for United States Judges. ⁷³²

The American Bar Association formulated the Model Code of Judicial Conduct in 1972.⁷³³ The ABA wrote the Model Code, as the preamble explains, so “that judges . . . respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system.”⁷³⁴ The New York State Bar Association has adopted the Model Code, known as the New York Code of Judicial Conduct (CJC). ⁷³⁵

The New York State Constitution provides that “[j]udges and justices . . . shall . . . be subject to such rules of conduct as may be promulgated by the chief administrator of the courts with the approval of the court of appeals.”⁷³⁶ Pursuant to the State Constitution, Judiciary Law § 212(2)(b) directs the Chief Administrator of the Courts to “[p]romulgate rules of conduct for judges and justices of the unified court system with approval of the court of appeals.” The Administrative Board of the Judicial Conference promulgated the Rules Governing Judicial Conduct (RGJC) in 1972.⁷³⁷ New York’s Chief Administrator of the Courts adopted the RGJC with the Court of Appeals’s approval.⁷³⁸

The RGJC and the CJC are nearly parallel. The CJC consists of canons and sections. The canons set out broad standards; the sections, delineated under each canon, set out specific rules. Commentaries after each section explain the purpose and meaning of the canons and sections. The RGJC consists of rules, not canons. The Chief Administrator of the Courts has not adopted the CJC’s commentaries. Where inconsistencies arise between the RGJC and the CJC, the RGJC prevails, except that the CJC prevails regarding a non-judge candidate for elective judicial office. ⁷³⁹

The Advisory Committee on Judicial Ethics (ACJE) advises New York judges who have ethical questions.⁷⁴⁰ A judge who telephones an ACJE member or staff attorney might get some informal, oral guidance, although the member or staff attorney will often recommend that the query be posed in writing. Emailed inquiries are not accepted. A judge who writes to the ACJE will get a written answer from the full Committee.⁷⁴¹ The ACJE issues confidential opinions and publishes them without identifying information. A judge who follows the ACJE’s written advice is presumed to have acted ethically if faced with a complaint to the New York State Commission on Judicial Conduct. ⁷⁴²

The Commission on Judicial Conduct is the agency authorized “to receive and review written complaints of misconduct against judges, initiate complaints on its own motion, conduct investigations, file Formal Written Complaints and conduct formal hearings . . . subpoena witnesses and documents, and make appropriate determinations as to dismissing complaints or disciplining judges.”⁷⁴³ The Commission’s staff investigates complaints about “improper demeanor, conflicts of interest, violations of defendants’ or litigants’ rights, intoxication, bias, prejudice, favoritism, gross neglect, corruption, certain prohibited political activity and other misconduct on or off the bench.” ⁷⁴⁴

The Advisory Committee interprets only the RGJC, not the CJC. The Commission currently considers alleged violations of the RGJC, not the CJC, but the CJC may still be a basis for discipline.

The Commission determines whether to admonish or censure judges publicly, remove them from office, or retire them for disability, subject to about review before the Court of Appeals at the judge’s request. The Commission may also issue a confidential letter of dismissal and caution containing suggestions and recommendations after concluding an investigation and instead of a disciplinary proceeding. The Commission may send a confidential letter of caution to a judge when a disciplinary proceeding is sustained.

Lack of knowledge that an act or omission is improper is no defense.⁷⁴⁵ But guidance is available. New York advisory opinions can be accessed on Westlaw’s NYETH-EO database. New York disciplinary determinations can be obtained from the NYETH-DISP database. New York advisory opinions are inaccessible on LEXIS, but New York disciplinary opinions can be obtained on LEXIS by clicking “States Legal—U.S.,” “New York,” “Agency & Administrative Materials,” and “New York Commission on Judicial Conduct Opinions.” Judges and the public may also access ACJE advisory opinions for free on New York’s Unified Court System website⁷⁴⁶ and Commission information, including determinations, on the Commission’s website. ⁷⁴⁷

Timeliness

Judges should render justice, but not at the expense of making litigants wait. The RGJC requires judges to “dispose of all judicial matters promptly, efficiently and fairly.”⁷⁴⁸ In New York, all judges must report to the Chief Administrator of the Courts all cases undecided within 60 days after final submission and any undecided motion for interim maintenance or child support within 30 days after final submission.⁷⁴⁹ In summary proceedings like matters in the New York City Civil Court’s Housing Part, judges must resolve within 30 days after final submission cases involving nonhazardous or hazardous violations and within 15 days after final submission cases involving immediately hazardous violations or injunctions. ⁷⁵⁰

Administrators must remind Supreme Court justices to resolve motions. The deputy chief administrative judge for courts inside and outside New York City must tell the justice that a motion “has been pending for 60 days after final submission.”⁷⁵¹ If a motion is “unusually complex,” the justice may apply to the local administrative judge no later than 20 days after final submission to designate the motion “complex.”⁷⁵² If the administrative judge agrees, the justice has 120 days to decide the motion. ⁷⁵³

In one case, In re Greenfield, a New York State Supreme Court justice delayed issuing opinions between seven months and nine years.⁷⁵⁴ Some litigants were forced to begin proceedings against the justice to compel him to render decisions. Despite a strong dissent, the Court of Appeals declined to sanction him. The court noted that imposing sanctions under the RGJC would be appropriate if a judge purposely concealed delays or failed to cooperate with an administrative judge’s efforts to assure that decisions are rendered timely.⁷⁵⁵ The court found that the justice’s actions were not a “persistent or deliberate” neglect of judicial duties that would warrant formal penalties. When Greenfield was decided, the rules requiring judges to report late decisions had been promulgated only recently and were loosely enforced.⁷⁵⁶ Numerous courts have since disagreed with Greenfield.⁷⁵⁷ Most commentators believe that judges who issue decisions late act unethically.

Today, the rules requiring judges to report cases are enforced strictly. Court administrators keep close track of undecided cases, remind judges about undecided cases, and adjust judges’ caseloads to enable judges to dispose of undecided matters promptly. Were Greenfield decided today, the court might render a different decision.

Candor

Candid judges give real reasons for their decisions. A judge uncomfortable with doing so should decide the case differently or on different grounds.⁷⁵⁸ A judge who recognizes that the real reason for deciding a case is inappropriate should use the occasion to reconsider.

Our democratic process requires reasoned opinions.⁷⁵⁹ But reasoned opinions aren’t necessarily candid. Candid opinions help readers—litigants, lawyers, law students, appellate judges, and the public—understand precedent and outcomes and decide for themselves whether judges are doing their jobs.⁷⁶⁰ A lack of candor reveals a lack of integrity.⁷⁶¹

Candor has its limits, however. Precedent, collegiality, the lawyers’ and litigants’ personalities, and politics test those limits, and judges should avoid revealing their personal thoughts in the guise of candor. ⁷⁶²

An opinion isn’t easy to write.⁷⁶³ The result isn’t always pleasant. The law can be complex. It can lead to peculiar results. A judge shouldn’t talk about the opinion in the opinion. Judges shouldn’t state how difficult the opinion was to write, how much the judge worked on the opinion, or the effort the judge made to ensure a fair opinion. Justice Oliver Wendell Holmes made an ethical appeal to his readers when he wrote in his dissent in Lochner v. New York that “[t]his case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should study it further and long before making up my mind.” ⁷⁶⁴

Judges who say how deliberate, conscientious, hard-working, honest, or smart they are will leave readers unpersuaded. An opinion should resolve issues, not be a vehicle for self-congratulation.

Judges might also be...