Supplementary Statement of Reasons by a Trial Level Judge, Redux

Abdelkader v. Hosny, 2018 WL 3579897 (App. Div. July 26, 2018).  In State in Interest of N.P., 453 N.J. Super. 480 (App. Div. 2018), discussed here, Judge Messano discussed the purpose of Rule 2:5-6(c).  That rule, which allows a trial judge to produce a supplementary statement of reasons for his or her decision following the filing of a motion for leave to appeal, permits the judge to “permit the trial judge to alert [the Appellate Division] to an issue that would benefit from our early intervention, not argue against our involvement.”  As Judge Messano also noted there, the judge’s original opinion presumably already contained reasons supporting the issuance of his or her ruling, so that no additional advocacy in support of that decision was necessary or appropriate.

Today, in an unpublished per curiam opinion, a panel headed by Judge Messano (Judges O’Connor and Vernoia also participated) expressed a similar view regarding Rule 2:5-1(b).  That rule allows a trial judge to issue “an amplification of a prior statement, opinion or memorandum made either in writing or orally” in connection with a final judgment (as opposed to an interlocutory ruling of the type involved in N.P.).  In this appeal from the Family Part, the trial level judge submitted a letter to the Appellate Division, after all the parties’ briefs were filed, “ostensibly pursuant to Rule 2:5-1(b), supplementing her lengthy written opinion.”  Plaintiff urged the Appellate Division to disregard the letter.  The panel agreed, stating that the Rule’s “intent is not to permit the judge to respond to arguments made by counsel on appeal.”  The opinion cited N.P. for that proposition.

The rules permitting trial judges to supplement their prior rulings after a motion for leave to appeal or a notice of appeal have been filed are intended to ensure that those judges have the opportunity to lay out all reasons for their rulings if they did not already do so.  The rules were not, however, meant to allow trial judges to become advocates in the Appellate Division.  That may be a fine distinction, but Judge Messano’s N.P. opinion, and his panel’s decision today, make clear that the distinction is an important one.  If a trial judge steps over the line, appellant’s counsel should do as counsel did here and seek to prevent the Appellate Division from considering an improper submission by the trial judge.