New York Court of Appeals building. New York Court of Appeals building. Photo by Rick Kopstein

There was a time when a judge of an appellate court could review the very case he presided over when he was a trial judge. The New York Court of Appeals allowed, even applauded, the practice, but thanks to a recent decision of that same court (People v. Novak) that will no longer be tolerated.

The New York Court of Appeals became New York’s highest court by virtue of the New York State Constitution of 1847. Several of the judges appointed to that newly established court had served on lower courts as trial judges, so the very first question raised by the court “Under the new Constitution of the State was whether a Judge of the Court of Appeals (could) take part in the determination of causes brought up for review from a subordinate court of which he was a member, and in the decision of which he took part in the court below.”

The case was Pierce v. Delamater, 1 N.Y. 17, decided in September 1847. We don’t know the facts of the case, because the opinion’s sole concern was whether Justice Greene Bronson, a judge on the brand new Court of Appeals could sit and participate in reviewing the very case he presided over while a trial judge in the court below. As is noted in the official report: “The case involved no other questions which seemed of sufficient importance to be reported.”

The first matter the judges had to determine in Pierce was whether there were any Constitutional provisions that would prohibit their considering appeals from their own judgements. They did find one provision in the New York Constitution of 1821 which said that the Judges of the Court of Corrections and Errors “were forbidden to take part in the affirmance or reversal of their own decrees or judgments.” However, inasmuch as their new court had replaced that Court of Corrections and Errors, and since there was no such prohibition attached to the new Court of Appeals, they felt that this prohibition did not apply to them.

There was also a troublesome statute which said: “No judge of any appellate court, or of any court to which a writ of certiorari or of error shall be returnable, shall decide, or take part in the decision of any cause or matter which shall have been determined by him when sitting as a judge of any other court.” The new Court of Appeals swept aside that seeming impenetrable barrier as being irrelevant by holding that: “In the case of judicial officers deriving their authority from the Constitution, it is settled, that the legislature cannot add any disqualification to those which are found in the Constitution itself.”

The Constitutional and statutory obstacles having been removed, the court set itself to the task of deciding whether Judge Bronson could participate in the court’s deliberations and decide how well he did as a trial judge in the same case.

Not only did the court hold that Judge Bronson can sit on the case, it went on to hold that, far from being wrong, this is the best method of conducting business. Let me quote: “There is nothing in the nature of the thing which makes it improper for a judge to sit in review upon his own judgments. If he is what a judge ought to be—wise enough to know that he is fallible, and therefore ever ready to learn; great and honest enough to discard all mere pride of opinion, and follow truth wherever it may lead; and courageous enough to acknowledge his errors”—and here’s the kicker—”he is then the very best man to sit in review upon his own judgments. He will have the benefit of a double discussion. If right at first, he will be confirmed in his opinion; and if wrong, he will be quite as likely to find it out as anyone else.”

Incidentally, you have probably guessed who wrote the opinion. Yes, it was Judge Bronson. I might add that he affirmed the court below. If he didn’t he probably wouldn’t have been able to live with himself. I can only imagine the chagrin of poor Mr. Pierce, after going through the trouble and expense of taking an appeal to the new court of last resort only to be greeted by the same judge who had ruled against him in the trial court. He may have entertained seeking certiorari on a further appeal, but was fearful that such action would provoke Judge Bronson’s appointment to the U.S. Supreme Court.

Last month, Judge Paul G. Feinman, (who is the newest member of the New York Court of Appeals), wrote an excellent opinion for a unanimous court which in essence reversed Pierce (the oldest decision written by the court.) In People v. Novak, the Court of Appeals held that “under principles of due process … a judge may not act as appellate decision-maker in a case of which the judge previously presided at trial.” Although not noted, after 170 years, Pierce v. Delamater was overruled and Judge Bronson’s wisdom as a jurist brought into serious question.

Sol Wachtler, a former chief judge of the New York State Court of Appeals, is a distinguished adjunct professor at Touro College Jacob D. Fuchsberg Law Center.