Judges: Discretion Gone Wild

Judges: Discretion Gone Wild

Posted By Michael Manely || 1-Dec-2015

Judges get to make decisions.  Oftentimes those decisions have some discretion to them such as, who is telling the truth. However, discretion never goes so far as to decide to ignore the law. Tonight's post is two cases studies of when judges decided that they had the discretion to blow off the law in favor of what they wanted to do.

CASE STUDY ONE:

Opposing Party was ordered to pay our client $12,000 in timed payments. Opposing Party had decided he could do what he pleased and that was nothing.  He paid nothing.  Zero, nada, zip.  We took him back to Court some eight months later and the Judge Ordered him to pay $4,500 immediately and timed payments thereafter.  Opposing Party was unmoved.  Still nothing, zero, nada, zip.

We filed again.  This time, Opposing Party went to ground.  He hid and hid and hid. Eventually our process server found Opposing Party's live in girlfriend at home.  She came to the door.  The process server explained what he was there to do and offered the live in girlfriend the service of process.  She declined.  He placed it at her feet.  His affidavit laid all of this out.

Georgia law is exceptionally clear on this point.  You may serve a defendant by serving someone who lives in his household so long as that person is of suitable age and discretion.  Further, the Supreme Court of Georgia has twice ruled that when a process server announces himself, even if the resident slams the door in his face and won't come back out, if the process server leaves the paperwork at the door and announces that he has done so, then process has been perfected.  The Defendant has been served.

Our case came on for a hearing.  We didn't get the Judge assigned to the case.  We got his judicial officer. The opposing party did not show. The judicial officer took it upon herself to decide that service of process had not been perfected.  No reasoning.  No law to support her. No one to even request it, but that's what she decided to do.  And so a mother who is trying to raise her son was sent home empty handed and we are strategizing how to deal with this rogue judicial officer.

CASE STUDY TWO

Opposing Counsel on a different case found an attorney to write an affidavit complaining about something in our client's case. The problem is, client had hired this affidavit writing attorney to consult with her about the very case he has now written an affidavit about.  In the hearing, we moved to strike the affidavit because of the attorney's conflict of interest. It is against Georgia Bar rules to take a position adverse to your client. 

But the judge in this case had other ideas.  Apparently the State Bar Rules just don't apply in her courtroom. She ruled that a paid consultation does not constitute representation so the affidavit writing attorney is not conflicted from taking a position adverse to his client. 

Imagine what this means. This means that a divorce attorney could consult with both the husband and the wife and then decide which one to take as a client. This means that all the conflict checks that attorneys do to ensure that they have never represented a potential client's adverse party, are completely unnecessary.  This judge's ruling pushes the whole notion of conflicts off the cliff.

While judges going wild doesn't happen often, it happens often enough.  Rogue judges go wild because to fix the problem, a party has to appeal the ruling or, worse yet, complain to the Judicial Qualifications Commission (JQC).  These are expensive.  Further, both the appeals court and the JQC are way overworked and do not have the staff to investigate and obtain justice on each issue raised before it.  So the rogue judge will blatantly rule against law and dare the party to do anything about it.

One time, years ago, one Superior Court judge told me that Georgia's Uniform Rules of Superior Court did not apply in her courtroom.  The problem for her was that I didn't have to appeal or bring her before the JQC.  The case was a major news story so the local news crew were in the courtroom taping the hearing.  They caught the illustrious judge in all her technicolor glory.  By 6:00 that night, all her constituents knew what she thought of the law. That Judge is no longer on the bench.

Bad judges, like bad cops, like bad attorneys, happen.  First, we need good judges to set and keep a very high standard of adherence to law and to engage in a little peer policing.  Next, we need attorneys who will stand up to the rogue judges.  The judges aren't gods. They aren't the makers of law. They are servants of the law and servants of the public. 

Judges for whom discretion has gone wild must be called to account and stripped of their post, lest the heavens fall.

Michael Manely

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