Last contact

“Fair­ness is not an atti­tude, it’s a pro­fes­sional skill that must be devel­oped and exercised.”

— Brit Hume 

“Audi­tur et altera pars. (The other side shall be heard as well.)”

— Seneca

Sev­eral years ago, when the county deter­mined that it was nec­es­sary to relo­cate the juve­nile court they hired bril­liant local archi­tect Bruce Gard­ner. Bruce got famil­iar with our exist­ing space and then set out to deter­mine what worked and what didn’t work before he began to draft new plans for the ground level and part of the third floor of the Hayes Building.

The judge and mag­is­trates told him that we absolutely, pos­i­tively had to have a sec­ondary, pri­vate way to get from the court­rooms to the clerk’s office. We weren’t being rude or try­ing to be her­mits, but rather respond­ing to the real­i­ties of the rules of pro­fes­sion­al­ism that require us to main­tain neu­tral­ity and impar­tial­ity in the cases that we’re pre­sid­ing over.

Our pre­vi­ous space, located at 88 N. San­dusky St. (and later ren­dered unin­hab­it­able by the Sept. 11, 2010 fire that destroyed the build­ing imme­di­ately to the north) required any­one try­ing to get from the court­rooms or the judge’s cham­bers up to the clerk’s office to walk through the small wait­ing room that served the court. On a near daily basis, when walk­ing through the wait­ing room, the judge or one of the mag­is­trates would be approached by a lit­i­gant who would begin the con­ver­sa­tion with, “I know you can’t talk to me about my case, but…” They would then pro­ceed to attempt to do exactly what they had just acknowl­edged was improper.

In their sim­plest form, the judi­cial canons pre­vent a judge or mag­is­trate from hav­ing any con­ver­sa­tion about the sub­ject mat­ter of a case with any one of the par­ties to the case when all of the par­ties to the case are not present. This is what is known as an ‘ex parte’ con­ver­sa­tion. It sim­ply isn’t fair to allow one side of a case to have pri­vate access to the per­son who is ulti­mately going to deter­mine the outcome.

These rules extend to pri­vate rela­tion­ships as well. If one of the par­tic­i­pants in the case is a rel­a­tive or a close friend then a judi­cial offi­cer must remove them­selves from the case. If the vic­tim of the offense is related to an employee at the court then a vis­it­ing judge must come in to pre­side over the mat­ter. Sim­i­larly, if a judge is being asked to hear a case involv­ing a busi­ness in which they have a per­sonal inter­est as an owner, investor or stock­holder, then the judge must at least dis­close that inter­est to the par­ties, if not remove them­selves from the case entirely.

At times these rules, intended to make the pro­ceed­ings fair, instead make the judges and mag­is­trates pre­sid­ing over the cases seem aloof, cold or uncar­ing. Sev­eral years ago an Ohio judge was rep­ri­manded for giv­ing a ride to a per­son walk­ing on a cold win­ter day when it turned out that the per­son was a lit­i­gant in a case pend­ing before the judge.

Just this week a fam­ily court judge in my home town of Buf­falo, N.Y., was sanc­tioned by the New York State court sys­tem for going to visit a juve­nile in a men­tal hos­pi­tal. The girl had a case pend­ing before the judge. Accord­ing to news reports she had been hos­pi­tal­ized fol­low­ing a sui­cide attempt. The judge went to visit her and gave her a book and some cook­ies and told her that she, “had a lot to live for.”

The New York State Com­mis­sion on Judi­cial Con­duct deter­mined that, “such an unau­tho­rized, pri­vate visit, how­ever well-intentioned, would cre­ate an appear­ance of impro­pri­ety and com­pro­mise his impar­tial­ity.” The com­mis­sion found that the action was “incon­sis­tent with the proper role of a judge.”

The final plans that Bruce Gard­ner pre­pared for the new probate/juvenile court space were spec­tac­u­lar and gave us our back hall­way to move from the clerk’s office into the court­rooms with­out hav­ing to go through the wait­ing room. If you find your­self involved in a legal action and are turned away when try­ing to see the judge pri­vately, or if a judge or mag­is­trate politely tells you that they can’t dis­cuss your case with you, they’re not try­ing to be rude, but rather try­ing to insure the fair­ness of the pro­ceed­ings for everyone.

David Hej­manowski is a Mag­is­trate and Court Admin­is­tra­tor at the Delaware County Juve­nile Court and a for­mer Assis­tant Pros­e­cut­ing Attorney.

Posted by Dave Hejmanowski on Jan 3 2013. You can follow any responses to this entry through the RSS Feed. Comments can be made below.