Informal Opinion 98-10

June 30, 1998

A trial court judge has asked the Ethics Advisory Committee about the ethical duty of a judge when an appellate court order directs the judge to take actions which the judge perceives to be in conflict with statutory law or applicable rules.

By way of example, an appellate court might direct, without explanation or citation of authority, that the trial court proceed immediately with an evidentiary hearing. The trial court judge might conclude that this directive is in obvious conflict with statutes or rules which allow for dispositive motions before a hearing. The dilemma for the trial court judge is whether to follow the statutes and rules or the directive of the appellate court.

Canon 2A states that "a judge shall respect and comply with the law." Canon 3B(2) requires a judge to "apply the law." The difficulty results from determining what law to apply when an appellate court's directive appears to be squarely inconsistent with statutory or procedural law. It is the Committee's opinion that the appellate court's directive should be followed.

The Supreme Court creates rules of procedure and is the final arbiter on the meaning of statutes. The Supreme Court has comprehensive supervisory authority over the trial courts. The Court of Appeals also has supervisory authority over trial courts and determines the meaning of rules and statutes. Because of these factors and this authority, a trial court judge must follow the mandates of an appellate court even if the trial judge believes that the appellate court is wrong and that "the law," in an ultimate sense, requires otherwise.(1)

An analogy can be drawn between this situation and contempt proceedings. A person must obey a court's order, even if it is wrong, or be subject to contempt sanctions. The order could subsequently be reversed on appeal, but the reversal would not excuse the previous contempt. Similarly, a trial court judge must follow a higher court's order, even if it is wrong.

The law that binds trial judges is not the law in some abstract sense, but the law as implemented by the appellate courts. And as a purely practical matter, it is difficult to see how a trial court judge could be faulted under the canons of judicial ethics for following an appellate court's order, although a judge could be faulted for a willful refusal to follow such an order.

The Committee notes that if the appellate court is in obvious error, the parties involved can usually be counted on to petition for rehearing or certiorari. Also, the trial court judge can memorialize any concerns about the appellate court's directives through orders and findings made while implementing the appellate court's mandate, which will facilitate reassessment in the event of further appellate review and make a record of the judge's personal disavowal of the rationale of the appellate decision. This course is preferable to a trial court judge choosing to follow his or her own view of the law, rules, and Code of Judicial Conduct in the face of an inconsistent appellate court directive.

Finally, the Committee notes that if the trial court judge's opinions about the case are so seriously affected by the appellate court's directive that the judge can no longer objectively preside over the case, the judge should enter disqualification. While judges are frequently required to set aside their personal opinions about the law in order to decide the case, the Committee recognizes that there may be particular circumstances in which an appellate court directive engenders such strong feelings that presiding over the case is no longer feasible.

In conclusion, a trial court judge must follow a mandate of an appellate court even if the trial court judge believes that the appellate court's mandate is in error.

1. The Committee is sensitive to the concern that "just following orders" is not an adequate defense to all ethical situations, such as those typified by Dachau and My Lai. When governments run amok, ethical dilemmas are presented which transcend the usual notions of duty. The Committee in this opinion does not address horrors such as an appellate court becoming an arm of a tyrannical government and ordering trial judges to deviate from civilized norms. We consider here the circumstance of an appellate court erring on a point of statutory interpretation or procedure and a trial judge who can see the mistake and would prefer to do what the statute calls for rather than what the higher court has directed.