Tuesday, June 26, 2018

Commenting by the Judge

Judges must be judicious, impartial, and more. This is a requirement interwoven in the Code of Judicial Conduct. The Code began as a reaction of lawyers, produced by a committee of the American Bar Association (ABA). The ABA promulgated a "Model Code" and various states have adopted a Code, some in more conformity with the Model than others.

The Florida Supreme Court has adopted a Code of Judicial Conduct. A seemingly straightforward set of aspirations and requirements. But, the Code supports that old adage that looks can be deceiving. That is evidenced by the many challenges that confront judges, and the plethora of occasions upon which either the Court or the Judicial Ethics Advisory Committee has needed to issue an interpretation of the Code over the decades.

The Florida Code says that an "independent and honorable judiciary is indispensable to justice." In furtherance of that, the Code requires a judge "personally observe" "high standards of conduct," such that "the integrity and independence of the judiciary may be preserved." Canon 1. But impartiality is critical to this independence. Impartiality and diligence share the title to Canon 3 of the Florida Code. 

In paragraph (5), the Code states 
"A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status" 
In paragraph (4), the Code states 
"A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals" 
And, thus the combination of Canon 1 and Canon3 set the tone for the role of adjudicator. 

I thought of these two when I recently ran across a couple of appellate cases that I had long forgotten. The first is TAK Communications v. Gerasimchik, 588 So.2d 305 (Fla. 1st DCA 1991). In it, the Court recited from the record to illustrate an exchange between counsel and the presiding judge. There are two or three instances in which it appears the judge rudely cut-off the attorney in mid sentence. 

Worse, one of those examples illustrates inappropriate language in a judicial setting. Perhaps the reader will disagree, but I find coarse language an unwelcome distraction during hearings. The attorney was explaining a physicians refusal to use the Guides to Permanent Impairment when the judge interrupted with: 
"Counsel, I really don't give a damn what he says. I awarded the benefits and I'm going to stick with my award, and if you don't like it, appeal it. That's all I can tell you." 
This is followed by brief discussion by each counsel, but the judge again interrupts the same attorney with "The motion is denied, and you can appeal it if you would like." 

Reasonably clear. This judge had decided the pending issue, and expressed an unwillingness to listen to contrary argument. And then, the second shoe drops. The Judge threatens counsel: "It will only cost you a lot of money, because they won't reverse me, and if they do reverse me, you're still going to have to pay a lot of money, because when it comes around to attorneys fees, bingo, I will lay it on you." 

The District Court heard the case upon appeal. An attorney might take issue with an assigned judge through moving to disqualify the judge. If that motion were denied by the judge, then an appellate relief might be available through the "extraordinary writ" of prohibition (the Court removing the judge from the case). But in this instance, counsel filed an appeal of the order, just as the assigned judge had suggested. 

The Court affirmed the underlying ruling regarding impairment, that is the benefits for the injured worker. But, the Court noticed the untoward exchange between counsel and judge. The Court concluded that the exchange was inappropriate, and said that "Statements such as those above quoted indicate that the judge has already made up his mind and has determined to award fees as a sanction." Despite its conclusion that the judge was inappropriate, the Court took no action to remove the judge from the case. Instead, it affirmed the judges' award of benefits and cautioned the judge "should continue in this case only if he can do so with an open mind and award attorney fees based on proper criteria."

Some will see this as ineffectual appellate process. It is unlikely that behavior will change when there is no correction or action even in the face of a conclusion of inappropriateness. 

In another case, an employee was injured in a shooting at work, Mobil v. Trask, 463 So.2d 389 (Fla. 1st DCA 1985). This case came to the Court on a writ of prohibition after the trial judge denied a motion for disqualification. That the injury was serious is perhaps inferred from the fact that it was a shooting. But the Court noted that there was a factual dispute regarding "whether the shooting was related to claimant's employment or was the result of a personal dispute." 

During a trial, but while on a recess (no recording being made), the trial judge remarked on the case. At the time, the injured worker had not finished presenting his case, and thus no witnesses for the Employer/Carrier had yet testified. The proof of the judge's comment was an affidavit by a court reporter who was present at the time, despite being "off the record." The reporter said the judge's statement was 
"I don't see how you can't find this accident compensable. If I was sitting at my desk and a man came in here with a gun and shot me, it is an on-the-job accident." 
Counsel for the defense moved to disqualify, and the matter proceeded to the Court. The Court declined to remove the judge from the case. It concluded that the statement was not, itself, proof "that he had pre-judged the case or was prejudiced against petitioner." Instead, the Court concluded this was the 
"variety of statement or question not infrequently posed to counsel in order to stimulate a response which would better enable the judge or deputy to adjudicate the compensability of the claim" 
The Court compared this judge's comment from those in LeBruno Aluminum v. Lane, 436 So.2d 1039 (Fla. 1st DCA 1983), in which the judge was more committal regarding having made up his mind. That distinction may be a fine line that is hard to discern, and therefore best simply avoided completely.

In each instance, the impartiality of the adjudicator might reasonably be called into question. Any of the comments might be deemed to "manifest bias or prejudice." And, at least some of the interrupting and colorful language might certainly fail the tests of "patient, dignified, and courteous." Brought to the attention of the appellate court, however, these instances were mentioned and yet ignored. 

I contend that despite the lack of enforcement by the Courts demonstrated in these examples, a trial judge has a duty to be courteous, dignified, patient, unbiased, and fair. I consistently caution judges to avoid commenting upon the evidence, credibility, or their perceptions of the law. The Judge's opportunity for such comments is of sacrosanct, but it should be reserved for the ruling upon the case. At that time, following the presentation of all evidence, the rendition of all argument, it is appropriate for the judge to comment upon credibility, to find facts, and to provide interpretation of the applicable law. Commenting before that point is inappropriate.

That the District Court is disappointing in its enforcement of the Code in these two cases is unfortunate. That litigants and attorneys were subjected to rudeness, doubts of bias, and profanity is regrettable. But, adjudicators should not interpret such tacit endorsement as license or encouragement for such behavior. Adjudicators must strive for the best, challenge themselves to perform in an exemplary fashion. In the end, the question for the judge, the goal, is to fulfill the aspirations of the Code, not to perform just well enough to avoid prohibition or sanction. 

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