Although not a frequent occurrence at our court, it happens that when we reverse or modify a determination of a trial-level judge, a question arises whether we should direct that the matter be assigned to a different judge. The general custom here has been to remit matters back to the original judge, but as with other customs, there are times when we do not.

The occasions on which the First Department has ordered reassignment to a different judge are sometimes left unexplained, but when explanations have been offered, they have included:

• the judge’s demeaning comments regarding one side (People v. Leggett, 76 AD3d 860, 863, 2010); Minichiello v. Supper Club, 296 AD2d 350, 352-353, 2002);

• the motion court improperly making credibility determinations without a factual hearing ( Housing Works v. City of New York, 255 AD2d 209, 216, 1998);

• an extraordinary level of interference by the judge in counsel’s handling of the trial, resulting in either an obstruction of counsel’s effort to present a defense ( People v. Thorpe, 43 AD3d 672, 673, 2007]) or in an appearance of bias ( Taromina v. Presbyterian Hosp., 242 AD2d 505, 506, 1997);

• the trial court acting in disregard of an earlier order of the appellate court ( Maracina v. Schirrmeister, 152 AD2d 502, 502-503, 1989);

• a possible appearance of impropriety, despite the appellate bench’s asserted belief that the judge would preside fairly and impartially ( Crawford v. Liz Claiborne Inc., 45 AD3d 284, 287, 2007); Fresh Del Monte Produce v. Eastbrook Caribe A.V.V., 40 AD3d 415, 421, 2007).

Reasons given by other departments of the Appellate Division have included:

• the judge’s changing custody or awarding temporary custody without a hearing ( Matter of Odeh v. Assad, 74 AD3d 1345 [2d Dept. 2010]; Christensen v. Christensen, 55 AD3d 1453 [4th Dept. 2008);

• the judge's making a contempt finding without a hearing;

• granting a directed verdict when the evidence could support a contrary finding ( Harris v. Gupta, 57 AD3d 1421 [4th Dept. 2008]; Vito v. North Med. Family Physicians, 16 AD3d 1039 [4th Dept. 2005]);

• reliance by the court on its own independent knowledge or research (see Matter of Simone D., 32 AD3d 931 [2d Dept. 2006]);

• the judge’s excessive intervention, unnecessarily injecting personality issues into the proceedings ( Porcelli v. Northern Westchester Hosp. Ctr., —AD3d—, 2013 NY Slip Op 3467 [2d Dept. 2013]).

An interesting recent example of an appellate decision remitting a matter to a different judge can be found in the Second Department’s decision in HSBC Bank USA, N.A. v. Taher (—AD3d—, 2013 NY Slip Op 1806 [2d Dept., March 20, 2013]). The motion court had dismissed a mortgage foreclosure action sua sponte, holding that the plaintiff bank failed to properly establish standing (see HSBC Bank USA, N.A. v. Taher, 32 Misc 3d 1208(A) [Sup Ct Kings County 2011]); it also sanctioned the plaintiff bank and its attorneys, based on its conclusion that the bank’s complaint was replete with false statements.

In reversing, the Second Department explained that "A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal" and that such extraordinary circumstances were not presented there, since the defense of lack of standing could be, and had been, waived, and since, in any event, "a party’s lack of standing does not constitute a jurisdictional defect and does not warrant sua sponte dismissal of a complaint by the court."

It added that the award of sanctions constituted an abuse of discretion, particularly since the motion court had relied in part on information it gathered from independent research.

The reassignment seems to have been prompted primarily by the motion court’s failure to apply a controlling decision that the Second Department had issued two months before the motion court’s determination, in which another similar determination by the same justice, in which he had used the same reasoning, was reversed ( U.S. Bank, N.A. v. Emmanuel, 83 AD3d 1047 [2d Dept., 2011]). The appellate court rebuked the motion court for failing to cite and apply the prior appellate ruling.

The foregoing cases contain the primary considerations that have formed the basis for reassignment in New York State courts. The main focus of these discussions has been concern with bias or the appearance of bias. However, I believe there are other concerns that at times may warrant consideration, that have not been an explicit part of our analysis. While I neither doubt nor question the result reached in any of the cases, either ordering or denying reassignment, I believe that the adoption and use of a more formal, and a more thorough standard analysis would be desirable, to promote uniformity and fairness and to avoid any possible appearance of arbitrariness.

There seems to be a wide spectrum of views nationwide regarding reassignment on remand, spanning from per se rules both for and against reassignment, to presumptions both for and against reassignment (see generally James A. Worth, "Destigmatizing the Reassignment Power," 17 Geo J Legal Ethics 565, 592-593 [Spring 2004]). Some who have objected to such reassignments in the absence of grounds for disqualification, protest that it unnecessarily, adversely lowers the morale of the trial courts (see Jack B. Weinstein, "The Limited Power of the Federal Courts of Appeals to Order a Case Reassigned to Another District Judge," 120 F.R.D. 267 [1988]).

Others have expressed concerns about its impact on judges’ willingness to express themselves freely (John D. Feerick, Panel Discussion: Disqualification of Judges ("The Sarokin Matter): Is It a Threat to Judicial Independence?" 58 Brooklyn L Rev 1063, 1065 [Winter 1993]). Those who favor reassignment as the favored approach cite the need "to avoid, on retrial after reversal, any bias or mindset the judge may have developed during first trial," ( Cange v. Stotler & Co., 913 F2d 1204, 1208 [7th Cir. 1990]).

The approach usually taken in New York State appellate courts is a tendency against reassignment. Out of respect for our trial court colleagues, we ordinarily proceed on the assumption that reversal or modification will be accepted in the professional spirit in which it is rendered, and that whatever corrections are required will be applied when the matter comes before them again.

However, we may be ignoring important issues. We should at least acknowledge that despite our professionalism, judges, being human, may experience negative reactions to reversal, either consciously or subconsciously. After all, "most judges are highly sensitive to being reversed," viewing it as a form of criticism (Richard A. Posner, "The Problems of Jurisprudence," 224 [1990]). The statistics of our affirmances, reversals and modifications serve as something of a report card, with reversals as the equivalent of lower marks. Moreover, not only may judges be unable to put their prejudices or biases aside, but they "may not recognize when they fail to do so" (Worth, supra at 572).

Whether rational or not, and whether acknowledged or not, judges will sometimes feel resentment at being reversed, and may even feel some animosity toward the lawyer who successfully appealed the judge’s original determination, particularly if that lawyer suggested on appeal that the matter should be reassigned. At a minimum, a judge who is reversed may feel at least somewhat embarrassed, although the degree of embarrassment will be that much worse if reassignment of the matter to a different judge is ordered.

Another emotional response that may warrant consideration of the option of reassigning on remand is the situation many of us have observed, where there is something about the style of a particular trial attorney that, intentionally or not, elicits so much irritation on the part of the trial judge that it ultimately leads the judge to make errors of judgment in rulings or in the handling of the courtroom, as seems to have occurred in the recent case of Porcelli. This type of personality clash can escalate over the course of a trial. Our general hesitation to cause further embarrassment by reassignment will not serve our trial colleague well in these situations, since a new trial with the same participants can only serve to further escalate these difficulties.

When considering whether anything about the various personalities or the situation might be improved by reassignment on remand, we also need to consider the nature of the case itself, and the work that the judge being reversed performed on the case, before coming to any conclusions regarding possible reassignment.

For instance, when a matrimonial case has been handled by a single, specially-trained judge from the outset, reassignment on remand would likely entail a large amount of extra effort by any judge stepping in to handle the proceedings. Even an apparent personality clash might not warrant reassignment to another trial judge in such a situation.

Finally, we may simply be hesitant to embarrass our trial court colleagues, which may cause us to err by leaving the matter with the judge being reversed when reassignment may be the better option.

When sending a matter back to the trial court, there are many factors to consider in deciding whether to order reassignment. While each case is sui generis, the application of a formal analysis could help to ensure that the relevant concerns are given proper consideration.

The analysis now used by most of the federal circuit courts was articulated by the Second Circuit in United States v. Robin (553 F2d 8, 9-10 [2d Cir. 1977]). It sets out three factors: "(1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness."1 This Robin test has been adopted by the U.S. Courts of Appeals for the First, Fourth, Fifth, Sixth, Ninth, and Eleventh circuits, and cited with approval by the Tenth Circuit and the D.C. Circuit, and it has either been explicitly adopted, or its factors have been applied, in a number of states.2

The Third and Eighth Circuit courts, and Delaware and California state courts, have applied slightly different, but similar tests, examining whether reassignment is necessary to "preserve not only the reality but also the appearance of the proper functioning of the judiciary as a neutral, impartial administrator of justice"3 or whether "impartiality might reasonably be questioned by the average person on the street who knows all the relevant facts of a case,"4 without specifically discussing whether reassignment would entail too much waste or duplication of effort. Of the federal circuit courts, only the Seventh Circuit employs a different approach when a remand is for a new trial. Circuit Rule 36 of the Seventh Circuit establishes a default rule, under which the general procedure is for cases remanded to federal district courts for retrial go to a different judge (Georgis v. Ashcroft, 328 F3d 962, 970 [7th Cir. 2003]). The rule states: "Reassignment of Remanded Cases. Whenever a case tried in a district court is remanded by this court for a new trial, it shall be reassigned by the district court for trial before a judge other than the judge who heard the prior trial unless the remand order directs or all parties request that the same judge retry the case. In appeals which are not subject to this rule by its terms, this court may nevertheless direct in its opinion or order that this rule shall apply on remand."

I would not suggest that we employ anything like the Seventh Circuit’s rule. After all, there is no reason to automatically assume any bias or mindset. Moreover, the trial court judge has often invested an enormous amount of time and effort to become familiar with the facts, allegations, and legal principles in the course of trial. Our experience tells us that generally trial judges accept the reversal or modification in the professional spirit in which it is rendered. In such circumstances, it could be wasteful to make reassignment the general standard.

This concern with the potential wastefulness of reassignment helps to illustrate why the Robin test provides the most viable framework for analysis. It offers an objective test for impartiality, with a secondary, related concern for the possible appearance of partiality—even where the appellate court is certain of the trial court’s impartiality—while ensuring that the appellate court does not ignore the possibility that reassignment would involve a disproportionate waste and duplication of effort. The first factor, the objective test, may in some cases be straightforward, such as where the trial judge made comments demeaning one side, as in Leggett and Supper Club. Another circumstance in which the first factor could prompt reassignment is suggested by the Robin decision itself: "Where a judge has made detailed findings based on evidence erroneously admitted or factors erroneously considered, the circumstances sometimes are such that upon remand he or she either cannot reasonably be expected to erase the earlier impressions from his or her mind or may tend to lean over backwards or overreact in an effort to be fair and impartial. A new fact-finder would not labor under any such handicap."

There are competing possibilities and considerations that arise in this part of the analysis. Several of them were pointed out by U.S. Supreme Court Justice Anthony Kennedy in a somewhat different context, in his concurring opinion in Liteky v. United States (510 US 540, 562-563 [1994]). He observed that "we accept the notion that the ‘conscientious judge will, as far as possible, make himself aware of his biases of this character, and, by that very self-knowledge, nullify their effect,’" but also acknowledged that "a judge may feel the ‘motivation to vindicate a prior conclusion’ when confronted with a question for the second…time," or "may find it difficult to put aside views formed during some earlier proceeding…[whether] through obduracy, honest mistake, or simple inability to attain self-knowledge."

Although these observations were made in the context of a motion for disqualification of a district court judge under 28 USC §455, based on the assertion that the judge’s conduct and remarks during previous trials might reasonably permit his impartiality to be questioned, nevertheless, his comments illustrate the conflicting possibilities that can arise when considering the first prong of the Robin analysis. Kennedy’s assertion that a conscientious judge will be able to nullify the effect of his or her biases may be debatable. It also increases the stigma of reassignment, by creating the implication that the first judge is not "conscientious."

But, whatever one thinks of the merits of the competing possibilities, the use of the Robin analysis can only serve to help us articulate the questions to be asked and the facts to be considered, clarifying how we reach and justify our result. Assuming we do not perceive any basis for finding that the judge being reversed will have "substantial difficulty in putting out of his or her mind previously-expressed views or findings," the next question is whether any appearance of impropriety will result if the matter goes back to the same judge. This is a question we have dealt with previously, and should pose no new difficulty (Liz Claiborne, Fresh Del Monte Produce).

Finally, assuming that a possible appearance of partiality is discerned, the Robin test’s third factor, whether reassignment to a new judge would "entail waste and duplication out of proportion to any gain in preserving the appearance of fairness," expresses an important concern that is well worth considering. Indeed, the avoidance of unnecessary duplication of effort may have been a major, if implicit, component of our preference for leaving remanded matters with the original judge. It seems likely that our more informal approach may have actually incorporated the concerns and factors that are explicitly considered in the course of the Robin analysis. Nevertheless, I submit that the step-by-step formal approach would serve the interests of promoting uniformity and fairness and avoiding any possible appearance of arbitrariness.

David B. Saxe is an associate justice of the Appellate Division, First Department.

Endnotes:

1. Recently, the Second Circuit majority, in reversing a grant of summary judgment by Eastern District Judge Nicholas Garaufis, in favor of the Vulcan Society and against the New York City Fire Department on a claim of intentional racial discrimination, took the unusual step of directing the matter be reassigned for trial of the liability issue to a different trial judge, although Judge Garaufis could handle the remaining matters. The circuit explained that although it believed Garaufis would be able to impartially handle the bench trial on the liability issue, "a reasonable observer would have substantial doubts whether the judge, having branded the City’s evidence ‘incredible,’ could thereafter be impartial in assessing the truth of conflicting evidence at a bench trial" ( United States v. City of New York, 2013 US App LEXIS 9671 [2d Cir. 5/14/13]). Although the circuit cited Robin, its focus was essentially limited to the second prong of the Robin factors.

2. See Margaret Tarkington, A Free Speech Right to Impugn Judicial Integrity in Court Proceedings, 51 Boston College R Rev 363, 377-378, n.88 [March 2010]), and cases cited therein.

3. See Alexander v. Primerica Holdings, 10 F.3d 155, 167 [3d Cir. 1993].

4. See Sentis Group v. Shell Oil, 559 F.3d 888, 904 [8th Cir. 2009]. See also People v. Enriquez, 160 Cal App 4th 230, 244 [Ct App 2008] ["[I]f a reasonable man would entertain doubts concerning the judge’s impartiality, disqualification is mandated"]; Wright v. Moore, 953 A2d 223, 227 n.13 [Del 2008] ["In considering whether to reassign a case on remand, ‘we review the merits of the issue objectively and determine whether there is an appearance of bias sufficient to cause doubt about the judge’s impartiality.’"