This is the seventh in a series of occasional commentaries on the judicial system from the perspective of a District Court judge.
As I write this, my son is in rehearsal for a high school performance of the rock musical, “Rent!” When I told him at dinner about a case regarding a couple’s effort to recover damages awarded when they were forced from their rental home, he suggested I write an article about it and call it “Lease!”
I had to laugh, but the case presents an effective way to discuss the narrow line judges navigate between neutrality and advocacy. When may a judge participate in a hearing, and when does it violate a judge’s obligation to remain neutral? This is a difficult issue propelled by the conflict that can arise between adherence to rules and the desire to do justice.
The case involved a couple who obtained a $3,000 judgment after their landlord failed to correct housing code violations, forcing the couple and their infant child to move on short notice. The lease at their new home cost more — an amount the couple could ill afford and wouldn’t have incurred if they’d had a reasonable amount of time to seek a new place to live.
Landlord failed to disclose
The case was indistinguishable from many others until the landlord failed to respond to the post judgment discovery sought by the tenants. When a judgment isn’t voluntarily paid, the law provides that a winning party can ask the losing party to identify their assets in a Financial Disclosure Form. The information helps the winning party determine if they can collect on the judgment.
When the landlord failed to respond to the Financial Disclosure Form, the couple asked the court to hold the landlord in contempt. But the landlord didn’t appear at the first two contempt hearings, and as a result I held him in conditional contempt. He could avoid potential incarceration by producing the requested information, or by paying the judgment.
The landlord appeared at the final contempt hearing with a lawyer, and produced a Financial Disclosure Form. But the form provided almost no useful information. The couple, appearing without an attorney, called the landlord as a witness to determine if the information on the Disclosure Form was accurate.
The need for answers
It quickly became apparent that the landlord had not made a full disclosure, but the tenant didn’t know how to follow up on the landlord’s evasive answers. I asked some additional questions.
The landlord’s testimony demonstrated that he failed to provide the requested information. He testified he was one of three principals in a company that owned the property, and that the previous evening the company transferred the couple’s rental property, and two other rental properties. The company now didn’t own any property at all. The witness said he didn’t know to whom the property was transferred, whether the company obtained anything of value for the property, or where any money or other value received for the properties was located. Neither did the witness give the rental company’s correct address, accurately identify the majority members of the company, or give their addresses.
Similarly, the witness couldn’t say what happened to the money that had been in the company’s checking account, or when or to whom the money was transferred, or where the money was now located.
The attorney argued that the landlord fulfilled his obligation: The Disclosure Form was accurately filled out that day, demonstrating that the company didn’t have property or funds. He also argued that the witness couldn’t be held in contempt because he didn’t have the requested information — that information was held by others in the company who weren’t present.
Argument didn’t fly
I rejected the argument. I found that the Disclosure Form didn’t provide meaningful information; it was fraudulent. I held the witness in contempt of court for failing to say to whom the property had been transferred and where anything of value obtained for the property was now located. The witness could avoid the consequences of his contempt, however, by obtaining the requested information, or paying the judgment.
He paid the $3,000 judgment.
Throughout the proceeding, I was aware of the thin line I was walking between impartiality and advocacy. It’s a challenge that judges occasionally face. The Code of Judicial Responsibility begins with the statement that, “An independent, fair, and impartial judiciary is indispensable to our system of justice.” The Code defines the term “impartial” to mean the “absence of bias or prejudice in favor of, or against, particular parties….” Judges are not supposed to favor one party over another.
Even when judges are tempted to examine a witness, we frequently refrain in order to avoid the appearance of bias.
But judges are also charged with promoting fairness. As a result, there are some circumstances where a judge may act to assure that justice is done. The Code on Judicial Conduct includes commentary that says, “It is not a violation of [the] Rule for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard.”
In the case involving the landlord and his tenants, I tried very hard to avoid favoring one party over the other. In the court trial at which the couple obtained their judgment, I held the couple to their burden of proof. Although they claimed they had incurred costs for a U-Haul and for lost time at work as a result of the landlord’s conduct, I found that they had failed to support those claims: They failed to supply evidence of the cost of a U-Haul, or provide testimony for the number of hours they lost at work, or support their claimed hourly wage rate. It wasn’t appropriate for me to examine the tenants regarding items of their claim for which they failed to offer proof.
The other issue
At the contempt hearing, however, there was another issue involved: a fraud on the court. The landlord’s conduct in transferring property and money on the eve of the hearing and then failing to account for the location of the property, or any items of value received for the property, made a mockery of the procedure. A prevailing party has the right to obtain information that will help them try to collect a judgment. But the tenant couple, who were not represented by an attorney, didn’t know all of the questions they could ask. This was a situation where, I concluded, a reasonable accommodation to an unrepresented party was appropriate. I was very low-key with the landlord, but I asked him additional questions an attorney would reasonably have asked on behalf of the tenants.
Judges are faced with far more complicated challenges, forced to struggle with the tension that arises between being impartial and doing justice. What if a lawyer fails to ask a critical question at trial and as a result the client is in danger of losing her cause of action? What happens when a lawyer fails in the elementary task of laying foundation for the admission into evidence of a critical document, but the judge can easily tell the lawyer what to ask, and thereby set the trial back on its proper path? How should a judge assist the mentally ill litigant? How much should a judge help a litigant who isn’t represented by a lawyer, and doesn’t know what questions to ask?
Each case is unique
Each case provides a different set of facts and its own unique challenges. A judge must weigh not only the equities, but also a judge’s obligation not to favor either party. There are often no clear-cut answers. I have no doubt that some of my colleagues would have done exactly as I did, and others would not. It’s difficult to be critical in either case. Sometimes you have to be in court and see and hear the witnesses in order to understand the decision a judge made.
Walking the thin line between neutrality and advocacy can be difficult. But it’s a part of the responsibility judges assume when they accept the position. As we sometimes jokingly say, that’s why we’re paid the big bucks.
Mel Dickstein is a judge in Hennepin County District Court, where he handles a mix of civil and criminal cases. He is a former partner in the law firm Robins Kaplan.
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