Thursday, August 2, 2018

If it is MOOT, what does it Matter

In early June I penned When there is a Different Judge. This outlined the authority of a judge to return to previous decisions of a judge formerly assigned to a case. Just prior to that, this blog documented some "dumb mistakes" at the hands of a law student representing himself in federal court in Miami. That post explains briefly how extraordinary writ jurisdiction of the courts may be invoked. 

Essentially, appellate courts are courts of error. They exist to review the decisions of trial courts. To do so, for the most part, appellate courts follow standards of review. These are parameters within which the law and decisions are analyzed. By sticking to the standards, appellate courts provide two important functions. First, they homogenize the law across great geographic distance. This makes the law the same in Pensacola as it is Jacksonville. Second, they bring consistency to the law; with consistency comes predictability and parties are thus empowered to both predict their outcomes and rationally resolve their disputes. 

That does not mean that courts do not abandon their role periodically. They do. That is discussed in Abuse of Discretion

The upshot of all of this was recently reinforced when the Florida First District Court rendered its decision in Chaviano v, Greater Miami Caterers. This is not an appeal (in which the outcome of a trial is disputed, and errors of the trial court are asserted), but an extraordinary writ. There are three such writs that are worthy of note: mandamus - asking the appellate court to order the trial court to do something; prohibition - asking the appellate court to order the trial court not to do something; and, certiorari - asking the court to review some action prior to conclusion of the trial process or otherwise outside of the standard review process, often because of perceived great need or potential for significant prejudice. 

Chaviano is a case of prohibition. A Judge of Compensation Claims was asked to remove him/herself from three cases by an attorney. The attorney alleged the judge had demonstrated bias against the attorney or the attorney's clients. The assigned judge entered an order denying the disqualification, and the attorney filed the petition for writ of prohibition. These writs are called "extraordinary" for a reason; they seek relief immediately, when relief might nonetheless otherwise come with the passage of time. In other words, it is possible the clients might prevail at trial, despite the attorney or party's perception of bias. If the party prevailed at trial, then that might itself demonstrate that there was not actual prejudice. 

Despite that potential, prohibition is an appropriate procedural course. A judges is removed from a case with a recusal (the judge takes her or himself off of a case with no request from a party) or disqualification (the judge grants some party's motion to remove her or himself from the case). Unfortunately, these two words are often used interchangeably through apathy or shallowness of analysis. The contention in prohibition in this context is the fear of not receiving a fair hearing, and the potential that great resources and time could be invested in trial of a case, only to then appeal the outcome based upon the error alleged in the bias perceived. Thus, prohibition is seen as a less costly methodology of sorting the bias allegation before the feared error occurs. 

In this instance, the prohibition was somewhat unique however. First, three motions were filed seeking the judge to be removed from three cases. The trial judge entered an order denying one. The other two were not addressed by the point in time that this particular trial judge left the bench. The trial judge, whom the client or attorney perceived as biased, ceased to be a judge. As the person was no longer a judge, that person would no longer be presiding over the trial or making decisions. That person, if he or she was biased, would not be able to apply that bias to the party or the attorney.

A great many people would conclude that this departure from the bench was essentially a solution to the attorney and client's perceived problem. Some might posit "I wanted this judge off this case, the judge is now off of this, and all cases, problem solved." But, the attorney in this instance did not. 

Procedurally, after the petition for writ of prohibition had been filed in the District Court, the Court "stayed proceedings." This process, a "stay" made it impossible for the trial judge to proceed further with the case. However, after that trial judge left the bench, seemingly alleviating the potential for prejudice to the party or attorney, that stay remained. Such a stay precludes further proceedings by the "lower tribunal." Though a replacement judge had been appointed that new judge was likewise precluded from proceeding, precluded by that stay.

The petitioning attorney knew, and acknowledged to the Court, that the trial judge had departed. The attorney even went so far as to state "the issue of the prior JCC's refusal to grant Petitioners' motion for disqualification is now moot." However, the attorney did not dismiss the petition for writ. As a result, the stay remained in effect. 

Acknowledging that the disqualification is moot, the attorney nonetheless sought to have the appellate court proceed with its extraordinary review of the case. Essentially, the attorney alleged that various actions or rulings of the (now) prior judge, the bases for the fears of bias or prejudice, should be reviewed by the appellate court on the now-moot petition for writ. Certainly, it is possible for an appellate court to review procedural orders which occur before the conclusion of trial, called "interlocutory orders." The request for such review is by "ceriorari." Admitting the prohibition was moot, the attorney essentially asked the Court to instead review those interlocutory orders by certiorari. 

The attorney asked that the Court review all of the interlocutory orders and decisions and then return the case to the trial level, to the newly assigned judge, and instruct that new judge to begin the process over. The attorney asked the Court to order the new judge to reconsider and rule upon each and every procedural decision made in the case to that point. The request was to reverse and invalidate all procedural decisions and to start over, called "de novo," and so that with such a reversal and instructions "all perceptions of bias and taint is removed for good" in the case. 

The Court found this request for relief worthy of comment. It stated "it is difficult to understand" the lawyer's request. The Court noted the prohibition is moot (as the attorney admitted) and that this "should end the inquiry." (citation omitted). Stating the obvious, perhaps in hopes that blunt can be clear, the court said "the fact that the prior JCC will no longer preside over Petitioners' cases renders a petition to disqualify him unnecessary." Unnecessary, moot, and of no import. 

The Court declined to revisit all of the interlocutory orders. It reminded that prohibition is "preventative, not corrective." The prohibition is to prevent harm from occurring, not to review and correct prior decisions. As the judge had departed and no longer could adjudicate the case, there was no need for any prohibition. The Court reminded prohibition is to prevent future action and "should not be used as a substitute for an appeal." (Citation omitted). 

Finally, the Court reminded that "the current JCC is not bound by orders of the prior JCC." This echoes the discussion in this blog regarding When there is a Different Judge. In so holding, the Court cited different authority than the blog post, but the import is the same:
"[p]rior to fmal judgment, a successor judge has the power to vacate or modify a predecessor's interlocutory rulings"

"a nonfinal or temporary order may be revisited by a judge at any time before the conclusion of the case, even by a successor judge"
Of course, any order or decision of the new judge may nonetheless be reviewed by an appellate court after the case is heard and decided, by "appeal." As certainly, allegations of bias might be raised in a particular case about a newly assigned judge, in a new and separate motion to disqualify or petition for prohibition. But, the prophylactic, prohibition, process is not the appropriate method for proceeding in this factual setting, against a judge who has departed and can no longer adjudicate any issue in the case. 

As an aside, it is worthy noting that in this instance the purpose of prohibition has been frustrated. The point of prohibition is to sort the bias issue without the expense and delay of proceeding through trial. In this instance, the parties have experienced months of delay and the delivery of justice has been frustrated. Money has been spent on appellate process, only to be reminded that moot issues are not adjudicated by appellate courts, and that interlocutory orders can be reviewed by a successor judge. Months and money invested in reminders of what to some may seem obvious. 

The lesson for attorneys, and others may be a simple question. If it is moot, and everyone admits it is moot, then ask yourself "what doe it matter?" If there is no sound answer to that question, it may be time to dismiss the petition and get on with the business of trying the case with the new judge.