There are times when litigants, parties, and even witnesses do not like what the judge’s order says (or even what the judge says at trial). The judge is charged with several important roles in a trial, foremost among them maintaining order and decorum. But in administrative proceedings and other “bench” trials, the judge also has an obligation to both decide the case, and to explain how that decision was made.
In Florida workers' compensation, that means drafting of a “compensation order,” which is mandated by statute. Other states affix different labels, but the process remains similar. The case outcome is stated, and explanation is provided as to why. And, in the process, the judge may have to accept the word of one witness and discount the word of another(s). The judge may have to critical of various claims or defenses, and explain how evidence does or does not support them. In explaining why a witness, or particular evidence, was discounted, there lies the potential to hurt feelings, offend, or anger.
Judges are not alone in this. Attorneys in litigation pursue with vigor their theme or theory. They are trained to build substantiation for their own case, and to undermine the foundations of their opponent’s. That is their job. In doing that job, attorneys may be critical of a witness’ perspective or perception, bias or prejudice, diligence or (in)experience. In doing so, the attorney may potentially be perceived as insulting, demeaning, or condescending.
The law facilitates, perhaps encourages, zealous representation by attorneys. Attorney statements during judicial proceedings are ensconced in a litigation privilege. That privilege likewise applies to the statements (oral and written) of judges, whose statements are likewise protected by judicial independence. Periodically, I hear someone suggest that some trial or order statement is “slanderous.” That statements might be perceived as defamatory, either in written (libel) or spoken (slander) forms is troubling.
Almost as old as law itself, there is a litigation privilege that attaches to most of what occurs in legal proceedings. This shields attorneys and others in the litigation process from liability for defamation (libel or slander). According to Louise Hill in the Hofstra Law Review, courts have concluded that “the integrity of the adversary system outweighs any monetary interest,” and thus the privilege prevents most comments from being actionable defamation. Louise Hill, The Litigation Privilege: Its Place in Contemporary Jurisprudence, Hofstra Law Review, Vol. 44:401, (2016).
According to Ms. Hill, this “absolute privilege” applies to “any communication” in litigation, including in a “quasi-judicial proceeding” (such as an administrative hearing by an executive branch judge, like the Florida Judges of Compensation Claims). It protects those comments by attorneys and by “other participants authorized by law,” if they “achieve the objects of the litigation” and “have some connection or logical relationship to the action.” This “other participants” language is very broad and would logically include judges. Ms. Hill contends that “privilege should only be denied if the statement is so palpably irrelevant to the subject matter of the action that no reasonable person can doubt its irrelevancy.”
According to T. Leigh Anenson, writing in the Pepperdine Law Review, the “litigation privilege” dates to the eleventh century, and precludes civil liability for statements, but does not preclude the imposition of “sanctions that can be imposed by the court,” including “the potential for disciplinary proceedings through state and local bar associations.” She notes that such “professional grievance proceedings subject litigators to a jury of peers in the legal community,” and thus assures a professional demeanor even absent any threat of tort liability for defamation. Ms. Anenson’s conclusions regarding the application of this privilege in quasi-judicial proceedings are strikingly similar to Ms. Hill’s. T. Leigh Anenson, Absolute Immunity from Civil Liability: Lessons for Litigation Lawyers, 31 Pepp.L.Rev. (2004)
Thus, statements on the record and in orders are likely not grounds for a claim of defamation.
However, that a statement is not defamation does not render it immune from consideration or review. Several authorities have noted the constraints of professionalism rules and tribunal rules are nonetheless pertinent, despite the preclusion of liability for the torts of defamation. Administrative tribunals have concluded that statements are actionable under such rules. An interesting example is Gonzalez v. Lasercard Corp., Case No. ADJ8343116 (California Workers’ Compensation Appeals Board, 2014). There, an attorney was accused of intemperate remarks, belittling opposing counsel and witnesses, and making statement that were “insults and provocations.”
The trial judge found the behavior concerning. At one status conference, the judge requested the presence of the California Highway Patrol “to insure that the attorneys behaved appropriately.” The judge's order meticulously documented various statements attributed to one of the attorneys, and ordered the attorney to pay a $1,000 sanction for the behavior and words. And, the judge granted the opposing attorney’s request that a future deposition in the case be videotaped.
It is not uncommon today for depositions to be videotaped. But, the videotaping in this instance was not to be of the witness, but of the opposing attorney (the one the judge sanctioned), “to encourage ________’s demeanor to be civil and professional.” That behavior or words are shielded from tort liability for defamation does not mean that the behavior or words are shielded from sanction, acceptable, or to be condoned.
It is logical that the Code of Judicial Conduct is similarly such a professionalism standard, which applies regarding judicial behavior and comments despite any conclusion that statements were not actionable defamation.
Florida Judges of Compensation Claims are subject to the Code of Judicial Conduct, section 440.442, Fla. Stat. Any complaint regarding conduct or words of a Judge of Compensation Claims is cognizable by “the director of the Division of Administrative Hearings, who “may recommend the discipline of a judge whose conduct” warrants same. Section 440.45(2)(e) Fla. Stat. And, as mentioned above, Judges of Compensation Claims are obligated, following trial, to issue a “compensation order,” which is to “set forth the findings of ultimate facts and the mandate;” such order “need not include any other reason or justification for such mandate.” Section 440.24(4)(e), Fla. Stat.
For understanding the implication of judicial independence, some Florida appellate cases are instructive. One excellent example of the height of acrimony in a judicial proceeding has roots in Childers v. State, 936 So.2d 585 (Fla. 1st DCA 2006), an en banc (the whole court as opposed to a panel) plurality decision. There, Judge Allen concurred specially, writing “only to offer some brief observations.” Judge Kahn dissented “vigorously” to the en banc review. A litigant thereafter sought certification to the Supreme Court, which was denied. Judge Allen wrote another concurrence in that denial. In it, he took issue with Judge Kahn’s dissent in the original plurality opinion.
A complaint was filed with the Judicial Qualifications Commission (JQC), which recommended to The Florida Supreme Court that sanctions be imposed. The Court rendered In Re Allen, 998 So.2d 557 (Fla. 2008). The JQC and Supreme Court concluded that Judge Allen had attacked Judge Kahn in that opinion. Judge Allen defended his opinion and contended that any disciplinary proceeding “based upon a judge’s written opinion violates the principles of judicial independence.”
The Supreme Court concluded that Judge Allen’s concurring opinion was “motivated by his animus toward Judge Kahn,” and was a personal attack and accusation of corruption. The Court found Judge Allen’s accusations to be “based on unverified facts that came from outside the record (news articles) and were not a part of the Childers case.” The Court concluded that Judge Allen’s actions violated the Code of Judicial Conduct.
Thus, despite being within the litigation privilege, the words were still actionable under the Code. The Court conceded Judge Allen’s argument that judicial independence is “critical to the functioning of the judiciary,” but cautioned independence “is not unlimited.” The Court reiterated that the “duties, responsibilities and powers entrusted to judges are awesome.” Those duties require independence, but “such authority should never be autocratic or abusive.” As Uncle Ben reminded us, in the comics of our youth, “with great power comes great responsibility” (Spider Man, Marvel Comics, also attributed to a variety of perhaps more noteworthy sources).
The Allen Court went on to say that “generally, appellate judges are free to write almost anything in their opinions regarding the decision of the case.” The Court cautioned only that “the discussion must be germane to the case at bar and the facts within the record of the case.” The Court faulted Judge Allen not necessarily for his criticism of Judge Kahn, or that dissent, but for his use of “extra record materials to personally attack Judge Kahn.” That, the Court concluded “cannot be condoned, nor can it be protected by judicial independence.”
The Court cautioned that its decision in In re Allen “should not be viewed as a license for the JQC to judge and evaluate judicial opinions.” The Court noted that “often judges use intemperate or colorful language in their evaluation of fellow judge’s opinion or reasoning. The choice of language used in such instances may not be subject to scrutiny.” Thus, it is not the language or criticism that led to sanction. It was the “falsely accusing Judge Kahn of corruption and using unverified statements from materials outside the record” that “crossed the line.”
The Supreme Court later rendered In re Eriksson, 36 So.3d 580 (Fla. 2010). Judge Eriksson “repeatedly refer(red) to In re Allen, in defending the allegations against him, without specifically referencing “judicial independence.” The Court concluded however, that essentially judicial independence was Judge Erikkson’s defense. It reiterated the holding of Allen and authorities cited therein regarding the responsibilities of the judge.
The Court rejected Judge Eriksson’s defense, essentially, that as long as the judge remains within the record, then s/he cannot be disciplined, in keeping with judicial independence. That was clearly a misinterpretation of In Re Allen. There, Judge Eriksson admitted to raising a criminal defendant’s bond because the defendant had moved to disqualify him. He was accused of being rigid in some rulings and dismissed actions on his personal interpretations of hearsay, when no objection was made. Those actions and statements remained within the record. Those statements remained within the litigation privilege. They nonetheless were found by the Court to violate the Code of Judicial Conduct.
Thus, the authorities support that the litigation privilege precludes tort liability for statements of lawyers and judges, even though they may be uncomfortable, insulting or hurt feelings. Judicial independence further protects the expressions of the judge. These thoughts may be “almost anything,” may be “intemperate or colorful,” but must be “germane to the case at bar and the facts within the record of the case.”
If a judge ventures outside the record, or is demonstrated to be proceeding out of a sense of “animus” or a purpose of personal attack, then those actions may violate the Code of Judicial Conduct, and subject the judge to punishment. Further, In re Erikkson illuminates that comments or actions, even in the context of the case and its record may nonetheless exceed the bounds of judicial propriety, and likewise subject the judge to sanction.
Judges have a duty to adjudicate the cases brought before them, and make sufficient findings to both edify the parties and facilitate meaningful appellate review. See e.g. University of Miami v. West, 8 So.3d 1193 (Fla 1st DCA 2009); Lee County Parks & Recreation v. Fifer, 996 So.2d 229 (Fla. 1st DCA 2008). In Florida workers’ compensation, that requirement is statutory. The statutory requirement of finding merely “ultimate facts” means that a Judge must make enough findings, and what is “enough,” may be subject to interpretation and debate. This standard of “enough” is one with which the Court itself has struggled. See Chavarria v. Selugal Clothing, Inc., 840 So.2d 1071 (Fla. 1st DCA 2003).
This illustrates a few points worth repeating, yet again. First, Judges are obligated to decide the case, and they must provide enough explanation that the parties understand the “why” of the outcome. Second, attorneys are trained to undermine the foundation of evidence; they may not be kind in that effort. Third, the words of attorneys and judges may lead to hurt, disappointment, and even anger. Fourth, those words are likely not a basis for claims of defamation in a tort construct. But, finally, both attorneys and judges should remain conscious of the bounds of professionalism and the codes, rules, and guidelines that define them.