“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.)”
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.