Archive for September 6th, 2010

Forcing judges to listen during a “rocket docket”

Foreclosure defense attorneys, consumer advocates, and homeowners are up in arms over the content of this transcript from a recent mass-motion hearing before a Senior Judge in Palm Beach County.  I encourage you to read the entire transcript, but, essentially, the Senior Judge engaged in various acts that I find, quite candidly, utterly reprehsensible, particularly since they’re taking place on such a widespread level, including: 

1.  Referring, in open court, to plaintiff’s attorneys (from Shapiro and Fishman), as “my lawyers.” 

2.  At the start of the mass-motion calendar, telling dozens of pro se homeowners he’s going to try to “help” them (at a summary judgment hearing of foreclosure, mind you), acting like he’s on their side (by pointing out the unemployment rate in Palm Beach and how homeowners have no options), then giving them legal advice (most notably, by telling them that deeds in lieu and short sales usually “don’t work,” suggesting that homeowners not do them). 

3.  Telling everyone in the courtroom that he’s “heard it all” (with respect to arguments like the bank lacks standing and the bank lost the modification paperwork), as if to generate an excuse not to allow homeowners to be heard in opposition to summary judgment.  

4.  Limiting all parties, even attorneys, to sixty seconds of argument in opposition to summary judgment, even going so far as to “count down” when the attorney has 20 seconds and 10 seconds left.  (This countdown is not reflected in the transcript, but I have it on good word from lawyers who participated in a different hearing on that same mass-motion calendar.)   

5.  Not reading any motions, affidavits, objections, or case law from homeowners or their attorneys (which the judge necessarily couldn’t do given his self-imposed 60-second deadline). 

6.  Granting summary judgments of foreclosure without letting defendants and their attorneys be heard and without reading their written filings, even when the law requires that he not.

7.  Telling everyone in the courtroom, before any hearings had begun, that if he denied summary judgment on their case, he would set it for trial within 30 days. 

I recently engaged in a conversation with a fellow foreclosure defense attorney, wherein I wondered “What would I do in this situation?”  The following is not intended as legal advice, as it’s not possible to give advice about any one particular person’s situation without knowing the ins and outs of the case.  That said, I think it’s worth mentioning – here’s what I’d do in such a situation. 

I would be very aggressive and, essentially, try to force the Senior Judge to listen to my arguments and provide ample time for those arguments, and if the Judge refused, move to disqualify him/her. 

In my view, one of the reasons these “rocket dockets” have gotten so far out of control, stomping all over parties’ right to be heard, is that too few lawyers are willing to stand up to some of these judges and call them out on their improper conduct.  (I say “some of these judges” because certainly not every judge needs to be “called out.”)   

To illustrate, if I’m attending a hearing with 50 or 100 other summary judgment motions all being heard at the same , and I saw a judge do what this Senior Judge did, when it got to my hearing, I’d forcefully tell the Judge that I have numerous arguments in opposition to summary judgment, with case law, and my arguments cannot possibly be heard in sixty seconds.   If the Judge refuses to give me more time, I will ask him/her to review my case law and written objections and affidavit in opposition to summary judgment.  When he doesn’t (because he can’t possible do so in sixty seconds), I will ask the Judge: “Are you refusing to read my client’s affidavit in opposition to summary judgment, written objections and case law?”  If he says that he’s read them but he hasn’t, I’d say “Let the record reflect that you have not read my client’s affidavit, written objections, or case law.”  Unless the Judge changes course and agrees to read them all (hence giving me more than sixty seconds to present my argument), I would make an ore tenus motion to disqualify him from presiding as the judge in that case.  I’d envision saying something like this:

“Judge, your refusal to give me more than 60 seconds of hearing time and refusal to read my written filings and case law in opposition to summary judgment causes my client to fear that you have prejudged this matter and are not neutral and detached.  You’re not even giving me a chance to be heard.  Additionally, you referred to opposing counsel as “your” attorneys, showing you’ve taken their side in this lawsuit, and you gave legal advice to all of the defendants in the courtroom, telling them you were trying to “help” them and suggesting that they not to do a deed in lieu.  You also prejudged that this case would be set for trial if summary judgment was denied.  My client hereby moves to disqualify you from presiding over this case.” 

The judge will probably be taken aback initially.  That’s when I’d say “Florida procedure dictates that I file such a motion in writing, which I obviously cannot do right now.  As such, the law provides that I should ask for a continuance of this hearing in order to file the motion to disqualify in written form.” 

Obviously, depending on what the Judge says, this may not play out exactly like I’ve typed it.  The key, though, in my view, is to ensure I make the motion to disqualify before the judge rules on the summary judgment motion.  If I were to wait until after the Judge grants summary judgment, the motion to disqualify would look like sour grapes, and there’s legions of cases that hold that a judge cannot be disqualified merely because he ruled against you.  On the right fact pattern, though, such as the one set forth above, I strongly believe a motion to disqualify the judge would and should be granted.  (To illustrate, the Motion to Disqualify that I discussed, below, was granted.)  Of course, I can’t make the Judge grant the motion, even if the law requires that he do so.  However, I could go to the appellate court, as I’ve done before when a judge improperly denied a motion to disqualify.  See Case No. 09-1278 in Florida’s Second District Court of Appeal (granting petition for writ of mandamus, directing judge to disqualify himself).

Many lawyers refrain from going down this path out of fear of upsetting the judge.  I’m not oblivious to that argument, particularly if it’s a judge you will appear before on a regular basis.  However, if it’s clear to me that the judge isn’t giving homeowners a chance to be heard, and is granting summary judgments that shouldn’t be granted, then, the way I see it, I’m not losing anything even if the motion to disqualify upsets him because he wasn’t going to rule in my favor regardless.  If more people were willing to “call out” judges on these facts, then maybe these judges would get out of their comfort zone and start to realize the extent of their improprieties.    

What is the right fact pattern to seek a judge’s disqualification?  There are legions of reasons why a judge should properly be disqualified from a case.  Given what’s happening in Florida courtrooms today, particularly in foreclosure cases, it’s worth discussing a few:

1.  Prejudging a case and/or refusing to let a party be heard.  What is most irritating to me about the Senior Judge’s conduct, above, was the fact that he had obviously prejudged the case.  He all but admitted it at the start of the hearing, telling everyone he’s “heard it all,” then limiting all defendants and their attorneys to sixty seconds of hearing time.  If a judge refuses to allow a party to be heard, or has prejudged the outcome of the case, a timely motion to disqualify should be granted.  See Marvin v. State, 804 So. 2d 360, 363 (Fla. 4th DCA 2001) (“A trial judge’s announced intention before a scheduled hearing to make a specific ruling, regardless of any evidence or argument to the contrary, is the paradigm of judicial bias and prejudice.  We could not imagine a more telling basis for a party to fear that he will not receive a fair hearing.”); Barnett v. Barnett, 727 So. 2d 311 (Fla. 2d DCA 1999) (requiring judicial disqualification where the judge’s comments during trial created the impression that he had prejudged the case); Wargo v. Wargo, 669 So. 2d 1123 (Fla. 4th DCA 1996) (Writ of Prohibition issued where the judge began to rule without giving a party a chance to be heard). 

The most obvious example of how the Senior Judge had prejudged the foreclosure cases before him was when he said that if he denied summary judgment that the case would be set for trial within 30 days.  Though some may think that was a benign problem in light of everything else that transpired (and in a sense I’d agree), the setting of trial is not governed by the denial of a summary judgment motion – and it certainly isn’t automatic upon the denial of summary judgment.  In fact, a judge is precluded from setting a case for trial unless it is “at issue,” as defined by Fla.R.Civ.P. 1.440.  Here, the Senior Judge was openly telling everyone in the courtroom that he was going to set a case for trial (even if it was not “at issue”), if summary judgment was denied.  That’s wrong.  If, for example, a motion to dismiss had yet to be adjudicated, and the defendant had yet to file an Answer, such a case should certainly not be set for trial.  As the Fourth District has noted, “strict compliance with Rule 1.440 is mandatory.”  See Bennett v. Continental Chemicals, Inc., 492 So. 2d 724 (Fla. 4th DCA 1986) (en banc) (reversing a final judgment where trial was set prematurely); see also Precision Constructors, Inc. v. Valtec Construction Corp., 825 So. 2d 1062 (Fla. 3d DCA 2002) (“Failure to adhere strictly to the mandates of Rule 1.440 is reversible error.  Accordingly, the judgment is vacated and the cause is remanded for a new trial.”). 

The fact that the Judge had predetermined the propriety of a trial date, without regard to Rule 1.440 and without regard to the facts of each particular case, should have, upon timely motion, required his disqualification.  The judge’s actions also illustrate a far larger problem – that some of these senior judges are willing to do anything to “push cases through,” even if it means disregarding the law.  (It just so happens, in this instance, that most people don’t know the law about 1.440, so nobody was in a position to call him out on what he was doing, but that doesn’t make the misconduct right.)  Personally,  I don’t know this particular Senior Judge, but I have little doubt that he knows the requirements of Rule 1.440 – any judge who had been on the bench for any period of time would.  Hence, it’s clear to me that this judge knows the requirements for setting a case for trial but was disregarding them to “push cases through.”  Again, that’s wrong.

2.  Ex parte communications.  When a judge communicates with one party or his/her attorney about a pending case outside the presence of the other party and/or his attorney, that’s called an ex parte communication.  Given how these foreclosure hearings are set up nowadays, I suspect this happens more often than anyone could imagine.  It happened to me recently, and I discussed that situation in detail, below.  Anyway, think about the setting – the judge has a lawyer from Shapiro & Fishman, Florida Default, or some other foreclosure mill in his/her chambers for an hour or two, hearing one case after another, but the defendant and/or counsel are present for just a small portion of that time.  Is it crazy to think the Judge is talking to the plaintiff’s attorney about the case outside the presence of the homeowner and/or his attorney?  Certainly not.  That said, a motion to disqualify cannot be based on a suspicion of impropriety – the homeowner or counsel has to know that an ex parte communication took place.  If it did, a timely motion to disqualify should be granted.  See State v. Riechmann, 777 So. 2d 342 (Fla. 2000) (“Canon 3B(7) of the Code of Judicial Conduct provides that a judge shall not initiate, permit, or consider ex parte communications … We are not concerned with whether an ex parte communication actually prejudices one party at the expense of the other.  The most insidious result of ex parte communications is their effect on the appearance of the impartiality of the tribunal.  The impartiality of the trial judge must be beyond question.”); see also Smith v. State, 708 So. 2d 253 (Fla. 1998); Pearson v. Pearson, 870 So. 2d 248 (Fla. 2d DCA 2004) (“Petitioner’s allegation of an ex parte communication alone established a reasonable basis to fear she would not receive a fair hearing in subsequent proceedings.”).

3.  Giving legal advice to parties or their counsel.  Judges are supposed to be neutral and detached arbiters.  They are absolutely precluded from giving legal advice to one side or the other.  If they do, a legally sufficient motion to disqualify should be granted.  That’s why, in my opinion, the Senior Judge’s conduct, above, in telling homeowners he was going to “help” them and suggesting that they not do a deed in lieu of foreclosure would have, upon timely motion, required his disqualifiaction.  See Blackpool Associates, Ltd. v. SM-106, Ltd., 839 So. 2d 837, 838 (Fla. 4th DCA 2003) (“We grant relief in connection with the trial court’s order that denied disqualification as the trial court provided Blackpool/Kevin Murphy with legal advice and suggestions.”); Cammarata v. Jones, 763 So. 2d 552, 553 (Fla. 4th DCA 2000) (“we conclude the trial judge’s suggestions to the Respondent’s counsel caused the Petitioners to have a well-rounded fear that they would not have a fair trial); Shore Mariner Condo. Ass’n, Inc. v. Antonious, 722 So. 2d 247, 248 (Fla. 2d DCA 1998) (“[t]rial judges must studiously avoid the appearance of favoring one party in a lawsuit, and suggesting to counsel or a party how to proceed strategically constitutes a breach of this principle.”); Chastine v. Broome, 629 So. 2d 293 (Fla. 4th DCA 1993).

4.  Filing a JQC Complaint.  On a fact pattern such as that provided above, I feel like I’d have no choice but to report the judge to the Judicial Qualifications Committee (particularly if the judge denied the motion to disqualify and entered summary judgment).  This is, essentially, a grievance against the judge.  I realize this is an extreme measure, but, in my opinion, this judge’s conduct was just that bad. If lawyers and homeowners started filing JQC complaints upon egregious conduct such as this, perhaps judges would start to “get it” and change their conduct.

If I had a JQC Complaint filed against a judge, and had another hearing before that same judge, I’d move to disqualify that judge on the basis that the JQC Complaint was pending.  Florida law does not “automatically require” that the motion to disqualify be granted merely because of the pending JQC Complaint.  See In re Code of Judicial Conduct, 659 So. 2d 692 (Fla. 1995).  However, if the JQC Complaint was predicated on the judge’s predetermination of the case and refusal to let me be heard, and the judge was about to begin another hearing with the same format, I firmly believe that Florida law would require his disqualification.  After all, I’d be complaining about the very conduct that gave rise to the JQC Complaint, and I don’t see how any judge could be neutral and detached when that same issue is coming up over and over again. 

This is not meant to be an exhaustive list, and as explained above, it’s not meant to be legal advice.  That said, when discussing a motion to disqualify a judge, a few things bear mentioning: (1) motions to disqualify must be brought within 10 days of the party learning of the conduct that gave rise to the motion or the argument is waived and must be denied; (2) the motion must be signed by the party, under oath, and if there’s an attorney on the case, he/she must sign a certificate of good faith, and (3) the motion must be brought to the attention of the judge, ensuring that the judge knows about the motion and has a chance to rule.  It sounds daunting that the judge for whom disqualification is sought gets to rule on the motion, but the good part is that the judge must accept all facts in the motion as true and can only rule on the legal sufficiency of the motion.  That’s also why appellate courts review the motion de novo

The issues set forth herein are complex.  Essentially, it’s another example why it’s a good idea to retain an experienced foreclosure defense attorney to help with your case.  Meanwhile, my point in writing this blog is to make people realize that when judges act like this Senior Judge acted, he shouldn’t be able to get away with it.  

Such conduct needs to be “called out” by everyone to help ensure a fair judicial process for everyone involved.

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