Justice David Saxe
Justice David Saxe (NYLJ/Rick Kopstein)

First Department Rule [22 NYCRR] §600.1(c), a somewhat murky and obtuse rule of practice in the Appellate Division, First Department, has recently been covered in an article in the Law Journal (“PBA Invokes Obscure Rule to Win New Panel Hearing,” Jan. 30, 2014).

The rule provides that: “When a cause is argued or submitted to the court with four justices present, it shall, whenever necessary, be deemed submitted also to any other duly qualified justice of the court, unless objection is noted at the time of argument or submission.”

Similar provisions are included in the rules of the Second, Third, and Fourth Departments (see 22 NYCRR §§670.1[c], 800.1, 1000.11[e]).

The question is: What is required of the court when, prior to argument or submission before a four-justice bench, an attorney notes an objection as contemplated by this rule?

The application of the rule came up recently in Patrolmen’s Benevolent Assoc. v City of New York (__ AD3d __, 2014 NY Slip Op 3464). When the matter was called for argument, the justice presiding announced the recusal of one of the five justices on that day’s bench, and continued that in the event of a tie vote, a fifth judge would be vouched in. This is the standard recitation of justices presiding at a four-judge bench after a justice has recused at the call of the calendar.

But something different happened this time. Upon hearing the standard proclamation, counsel for the petitioners stated, “I would like to reserve our right to re-argue in the event that a fifth judge is assigned.” The appeal was then argued, and ultimately, the four-justice panel was evenly divided in its vote. A fifth justice was vouched in, provided with the briefs, record and opposing writings. The vouched-in justice cast a vote breaking the tie and the decision was issued on Dec. 3, 2013. At no time were counsel apprised of the identity of the fifth justice until after the vote was finalized and the decision issued.

The petitioners then moved to vacate the decision, on the ground that their rights under §600.1(c) had been violated. The petitioners asserted that the clear purpose of §600.1(c) was that in the event of such an objection, the objecting party was entitled to argue the matter before the entire bench, including the vouched-in fifth justice.

On Jan. 23, 2014, the panel granted the motion to vacate the order, and the matter was rescheduled for oral argument on April 23, 2014, after which the court issued its decision, unaltered.

I believe that the motion was based on a misunderstanding of Rule 600.1(c), and the bench accepted that misunderstanding. Review of related rules and court materials leads to the conclusion that the right to note an objection to a possible future vouching-in of a fifth justice was never intended to give the objector the right to have oral argument held anew in the event of a 2-2 vote and a resulting need to vouch in a fifth justice.

First, Rule 600.1(c) refers to “argument or submission” of an appeal. Its reference to an objection cannot be properly understood to be intended to protect a right to argue the matter before all members of the panel. If the vote on a submitted matter is 2-2, the necessity for a fifth justice to break the tie would not result in a right to argue before that justice. The right to object, which applies equally to submitted cases, necessarily has some other purpose.

Second, attorneys do not have a right to be heard at argument by all five justices deciding the matter. Judiciary Law §21 provides that “[a] judge other than a judge of the court of appeals, or of the appellate division of the supreme court, shall not decide or take part in the decision of a question, which was argued orally in the court, when he was not present and sitting therein as a judge.” By implication, the statute allows an appellate justice who did not attend argument to nevertheless take part in the decision of the appeal.

Third, our court’s own procedures, as documented in our clerk’s manual, require only three of the panel’s justices to be present on the bench for argument to proceed. If one, or even two justices excuse themselves during argument, the arguing attorney has no right to insist that all the justices sit there and listen.

Fourth, our clerk’s manual interprets § 600.1(c) to mean that when an appeal is scheduled before a four-justice panel, and an attorney objects at the time of argument or submission, the court will vouch in a fifth justice for that appeal immediately (“another justice must be vouched in if … counsel requests that an appeal be considered by a five-justice panel pursuant to 22 NYCRR 600.1″). Does that mean that the fifth justice will be required to join the remaining four on the bench for argument of that case? Clearly not, since, as established above, the assigned justices are not required to all be on the bench for oral argument, as long as three are there.

In any event, if, at a later date, any of the justices wants to hear the argument that was made on the calendar date, whether they were later vouched in or missed all or part of the argument for other reasons, they have the ability to watch and listen to the entire argument on a digitally recorded computer file maintained within the court.

Since the purpose of §600.1(c) is not to give counsel the right to argue the matter before all the justices ultimately deciding their appeal, what is the purpose of the right to note an objection? I suggest that it is best understood as a means to ensure that attorneys will be able to raise objections to the vouching-in of a justice who will cast the deciding vote, in the event they believe they have grounds to challenge that particular justice.

Most attorneys and parties have no basis on which to seek the disqualification of any of the Appellate Division’s justices. Even those few who believe they have a meritorious claim for the disqualification may not necessarily make any objection when that justice is one of five assigned to the bench hearing their case; they may assume that any animus that particular judge may feel cannot impact a decision by the panel. However, that same attorney will be far more concerned about the potential impact of any such perceived animus if that same justice will be casting the deciding vote. For that reason, any attorney or party who believes they have legitimate grounds to challenge a particular justice’s sitting on their case should have the opportunity to make an application for that judge’s disqualification when that justice is vouched in to break a tie.

Of course, basic principles of fairness and transparency dictate our informing the parties and counsel in advance of the identities of the members of a bench. Ordinarily, that information is made public at 3 p.m. on the day before argument or submission; counsel has the option, if so advised, to contact the clerk of the court before or shortly after the calendar to express their concerns and make the appropriate application.

But if the original panel is reconstituted in some way, that fundamental information remains unknown until the matter is decided, when it is too late to seek the disqualification of the vouched-in justice. And, again, while that information is of no real consequence to the majority of parties and attorneys, for the benefit of those few who believe they have a valid basis to object to a particular justice, it is vitally important to be informed, especially when that particular justice will be the tie-breaking vote.

Some of the uncertainty regarding the purpose and intent of rule 600.1(c)’s objection provision may arise because the problem of subsequent vouching-in of justices can arise in a number of other situations, not just when the original bench is comprised of only four justices; yet, no rule covers those situations.

Justices may be vouched in after argument or submission, without counsel having had the opportunity to note any objection, in situations where appeals begin with five-justice panels, but one justice thereafter recuses or retires before the decision is issued. In such circumstances, the prospect of a four-justice bench was not discussed on its calendar date, even though the resulting situation is the same in the event of a tie.

Why would our rules create a right to note an objection to a subsequent vouching-in of a fifth justice in one of these situations and not in the others? Possibly because the need became apparent first in the four-justice-bench situation, and its use was never extended to its logical conclusion.

I suggest that we have two options. One is that we simply eliminate from the rule the clause creating the right to object, i.e. “unless objection is noted at the time of argument or submission.”

The other, better option, that more closely comports with principles of fairness and transparency, is that we provide notice to counsel whenever a justice is vouched in, or whenever the bench is re-constituted in any way, after argument or submission. If the bench actually deciding the matter is other than that which was announced the day before at 3 p.m., it is reasonable for counsel to be notified of that fact before the decision is issued.

Although requests for justices’ recusal are rare, they do occur (albeit sometimes informally, by letter to the clerk of the court). The parties and counsel should have the opportunity to make such requests when the matter is taken up by the court, rather than be surprised by the makeup of the bench when the decision is issued.

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