In a recent article ("Thoughts on Standards and Goals for the First Department," NYLJ, July 15) I discussed the possibility of establishing formal goals and standards for the preparation of our written work. The following is a proposal of such a rule.
In the interest of ensuring the timely disposition of appeals and disciplinary matters before the Appellate Division, First Department:
A. Preparation of Writing
1. Following the hearing or submission of an appeal, if the proposed memorandum decision prepared by the reporting court attorney1 is not agreed upon at conference, the justice charged with writing first pursuant to the rules of this court (see Clerk's Manual A16, p 26-27) must circulate a signed opinion or dissent within 60 days of the date of argument or submission. A writing in the form of a memorandum decision must be circulated within 30 days. An opinion in a disciplinary matter must be circulated within 30 days of the vote at conference.
2. Any opposing writing must be circulated within 30 days of the date the first writing was circulated. In the event a third justice prepares a concurring opinion, it must be circulated within 15 days thereafter.
3. All modifications to all writings must be completed within 30 days after circulation of the opposing writing.
4. The foregoing time limits shall be tolled where the bench requests or permits supplemental briefs, where the parties are engaged in settlement negotiations, or where it is appropriate to await determination of a related or controlling case.
1. The non-writing justices on the panel must indicate their votes on the respective writings within 15 days of receipt of the completed writings, or at the next agenda conference following that date.
2. If the reporting justice is "in abeyance" when an appeal is conferenced on its calendar date or, in the case of a disciplinary matter, when the matter is first voted on, that justice shall indicate to the rest of the panel his or her intended result within 15 days of that conference or vote, to ensure that any member of the panel taking a different position is made aware of the potential need to prepare a separate writing. Any writing necessitated by that vote must be circulated in accordance with Rule II(A)(1), supra.
1. It shall be the obligation of the justice presiding2 of each panel to foster compliance with these rules.
2. A justice who needs additional time to complete a writing must consult with the justice presiding of the panel regarding the nature and extent of the difficulty. It is the duty of the justice presiding to then consult with the presiding justice regarding the disposition of the request for an extension.
3. Upon a demonstration of good cause, the presiding justice shall have the discretion to extend the foregoing deadlines for additional periods of time, or to adopt other appropriate procedures to address unforeseen difficulties in deciding particular appeals, upon application by the justice presiding of the panel in question.
B. Mechanisms for Enforcement
1. The presiding justice shall require each justice to prepare, on a quarterly basis, a report listing each matter for which a writing by that justice is overdue under Rule II(a) above, providing a brief explanation for that delay.
2. The presiding justice shall have the authority and discretion to deem as forfeited the right of a justice to prepare a writing when the foregoing time frame is not followed. The reassignment of a writing shall be made in accordance with the extant rules regarding assignment of writings, as if the previously-assigned justice had become incapacitated.
3. The previously-assigned justice will retain the right to vote on the appeal once writings are completed.
4. If no other justice is in agreement with the position taken by the justice whose right to file a writing was forfeited, that justice may choose to file a brief dissent containing merely a broad statement of disagreement with the prevailing view.
5. A justice who remains unwilling to vote on the prepared and circulated writing(s) on an appeal within the time frame of Rule II(a) may, in the discretion of the presiding justice, be removed from that panel.
The weekly agenda conference3 calendar shall reflect the dates of circulation of each writing, in order to ensure clarity regarding application of these timetables.
The presiding justice shall have the authority to modify and amend the foregoing rules from time to time, after consultation with the court.
David B. Saxe is an associate justice at the Appellate Division, First Department.
1. A court attorney is one of the pool of attorneys in our law department whose primary function in the court is the preparation of bench memos for upcoming appeals, called reports, along with a draft of a short memorandum decision disposing of the appeal along the lines recommended in the report.
2. The justice presiding, or "J.P.," is the senior member of any panel, and sits in the center chair. The only possibility that the J.P. is not the senior member of a panel is when a more senior member is vouched in after a member of the original panel recuses himself/herself. If the Presiding Justice sits on the panel, he or she is always the justice presiding (see David B. Saxe, "How We Operate: An Inside Look at the Appellate Division, First Department," NYLJ, May 13, 2009, p. 6; revised and republished as "How We Operate at the Appellate Division, First Department: An Insider's View," NYLJ, Oct. 26, 2012, online edition).
3. The weekly agenda is a compendium of our work in progress, listing all open appeals, motions, disciplinary matters and administrative matters. It is updated prior to each weekly conference, to reflect any writings circulated that week, and serves as the framework for the conference (see Saxe, "How We Operate," supra).