Judge Presides Over His Own Divorce Case

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How would you feel if your jurist husband filed for divorce and coincidentally had his divorce petition assigned to his courtroom?  Hard to believe, but that is exactly what occurred with Texas Judge Miguel (Mike) Herrara.

 

In Judge Herrara’s discipline hearing he acknowledged that the same day he filed his divorce petition he learned it had been assigned to his courtroom. He didn’t think it was a problem because he and his wife, Melissa Carrasco were “trying to save the marriage and he did not want to do anything on the case”. (In my 28 years of practicing family law I have never seen a litigant file a divorce petition, while seriously “trying to save the marriage”).

He explained that he saw his role in the divorce as that of a husband, not an attorney or judge and justified his behaviour, saying:

“I did not care to place my family in the same position as other litigants find themselves, in conflicts and court hearings, which, for the most part only benefit the attorneys financially. It is really sad and embarrassing to see the reputation of some of the litigants being dragged in the mud in these court proceedings.”

Judge Herrara’s breach of ethics may have escaped scrutiny if he and his wife reconciled, but that didn’t happen. Instead, she retained lawyer Angelica Carreon who filed a counter-petition for divorce against Judge Herrara.

This did not please the judge who asked his wife why she was involving Ms. Carreon  who he alleged did not like  him. In his testimony he admitted that he refused to recognize the “legitimacy” of Ms. Carreon’s representation because she had improperly solicited his wife as her client, had campaigned against him during judicial elections, and was “dishonest, unethical and unreasonable”.

Several months after the judge’s original filing he terminated his divorce petition, leaving his wife’s counter-petition to be determined. At this stage, Ms.  Carrasco’s lawyer filed a motion requesting the judge to produce certain documents. Judge Herrara responded by filing a motion in his court for an order to extend the time beyond the normal time-frame for responding to the document request. He also filed a motion for a protective order.

Again, Judge Herrara did not recognize the absurdity of filing motions in his own court, saying that he did nothing wrong as he did not rule on the motions. But that wasn’t the end of his problems. His wife’s lawyer began filing motions requesting that he recuse himself from officiating over a number of other cases that were scheduled to be heard in his courtroom. Ms. Carreon alleged that Judge Herrara could not be fair and unbiased, because of the difficult professional relationship that had developed between them over her representation of Ms. Carrasco.

Many of the recusal motions were resolved by moving the cases to another judge, but several others remained in his courtroom and were not referred out. But, Herrara wasn’t done yet. He filed yet another motion to intervene in certain recusal cases because he wanted his views to be heard by the court. He testified that if he agreed to recuse himself he would be admitting the truth of Ms. Carreon’s allegations and would suffer at the polls in the next election.

The Texas Discipline Commission found that Judge Herrara failed to comply with the law, demonstrated a lack of professional competence, and engaged in wilful and persistent conduct that was inconsistent with his judicial duties.

They also determined that Judge Herrara showed no genuine remorse and continued to believe his conduct was justified.

His discipline? Six hours of instruction with a “mentor”. In 2016 he was re-elected for an additional four-year term.

Lawdiva aka Georgialee Lang

Supreme Court of Canada Refuses to Hear Lawyers Who Argue “Gonzo Logic”

GeorgiaLeeLang025While President Trump’s opponent are having a large-scale melt-down over his recent appointments, perhaps the most consequential of these appointments is his nomination of Justice  Neil Grosuch to replace the late Justice Scalia on the United States Supreme Court.

But lest you think that Canada’s judicial appointments lack the intensity and angst of our American friends, you need only refer back to Prime Minister Stephen Harper’s appointment of Federal Court of Appeal Justice Marc Nadon to the Supreme Court of Canada in 2013.

You may also recall that Ontario lawyer, Rocco Galati, challenged Mr. Harper’s appointment by filing a lawsuit against Mr. Harper, the Governor-General, Justice Nadon, the Attorney-General, and the Minister of Justice, which undoubtedly prompted the government’s prompt action to have the Supreme Court of Canada issue a ruling on Justice Nadon’s eligibility for our highest court, this after he had already been appointed.

The argument against his appointment was that Mr. Justice Nadon, as a  Federal Court judge, was not qualified to represent Quebec on the Supreme Court of Canada, despite his long tenure as a lawyer in Quebec.

The eventual outcome confirmed Mr. Galati’s position that Judge Nadon was not eligible, a surprise to the Harper government who had contrary opinions from two retired Supreme Court of Canada justices and several constitutional experts.

Most of this has been long forgotten by Canadians, but Mr. Galati’s 2016 application to the Federal Court of Appeal to be paid $800.00 per hour by Canadian taxpayers for his legal work in bringing this challenge has brought this case back to media scrutiny, particularly in light of the Supreme Court of Canada’s decision this week to refuse to hear the case.

Mr. Galati claimed the sum of $51,706.00 and his co-counsel, Paul Slansky, wished to be paid $16,769.oo, again at a rate of $800.00 per hour.

Both counsel admitted that this is not the hourly rate they normally charge, but this amount reflects their years at the bar and their expertise, a proposition that was soundly rejected by the Federal Court of Appeal in their Reasons.

The Court found that Mr. Galati’s and Mr. Slansky’s request for full indemnity for their legal services, called “special costs” was unwarranted for a variety of sensible reasons. For starters, their litigation did not decide the outcome of the Nadon issue, as shortly after they filed their action, the Supreme Court of Canada stepped in, thus ousting their private action. They were not successful litigants.

As well, “special costs”are only awarded when the opposing litigant’s behaviour has been egregious, even outrageous. Short of that, a costs tariff comes into play, a tariff that is far from reimbursement for all legal costs. Additionally, Mr. Galati and his colleague were representing themselves and were actually in-person litigants, not entitled to costs.

The Federal Court also remarked that experienced counsel would know that if costs were to be awarded, the tariff rules would govern. But the court’s ire was raised in response to Mr. Galati’s argument that the constitution supported his request for special costs and that to deny his claim was to be evidence that the Federal Court was “in bed” with the federal government.  To this audacious statement the court replied:

“It is therefore unnecessary for me to deal with the argument as to constitutional entitlement as it does not arise on these facts. That said, it sometimes occurs that a party makes an argument that is so scandalous that it deserves to be condemned, whether it arises on the facts of the case or not. This is such a case.”

The Court found that Mr. Galati’s  allegation of collusion between the court and the government was “reminiscent of the Gonzo logic of the Vietnam War era, where entire villages were destroyed to save them from the enemy…this argument deserves to be condemned without reservation.”

Regrettably, it is cases like this that lower the reputation of lawyers to right-thinking members of the Canadian public. But “gonzo” aptly describes arguments that are “weird, eccentric and crazy”.

Lawdiva aka Georgialee Lang

 

 

 

 

When Will Our Judges Speak Out Forcefully Against Perjury?

_DSC4851In yet another British Columbia family law decision, the court fails to denounce, in the strongest terms, a litigant whose testimony is rife with lies. Yes, this judge addresses credibility, but in the same anemic way that permeates most family law cases, namely ” I accept the evidence of the claimant where it differs from the evidence of the respondent.”

That’s it, no rebuke, no censure, not even an award of special costs, despite the litigant’s devious conduct requiring untold extra preparation and court time to present a narrative that is flagrantly false, requiring a robust defence….yes, a rebuttal to a pack of lies.

Ngo v. Do 2017 BCSC 83 focuses on the breakdown of the marriage of a Vietnamese couple who agreed they married and immigrated to Canada in 1994. From that point on the parties’ evidence is sharply divergent.

He said their marriage ended two years later, in 1996, while she maintained they lived together as husband and wife in the family home in East Vancouver until their separation in 2012. When asked where he lived after 1996, since he alleged he did not live with his wife and children,  he was unable to provide a single address, except to say that he lived in East Vancouver with a friend.

When asked to explain how it was that he and his wife added three additional children to their union after his alleged departure in 1996, he acknowledged that despite the shattering of the bonds of matrimony, they remained intimate with one another.

The date of separation was critical to a determination of the wife’s interest in two homes, a crab boat, and a license to catch crab. Ms. Ngo testified their first home was purchased in 2000 and became the family home where she and her husband raised the children, for all but one year of their marriage.  She believed the home was registered in her husband’s name. Not so, said Mr. Do. He testified that the home’s owner was Mr. Den Van Ta, who he said he barely knew, although he had earlier said Den Van Ta was”like a brother” to him.

A second home in Maple Ridge was purchased in 2004, however, Mr. Do said it was purchased by his cousin, Kevin Phan. He testified that he lived with the children in the home from 2004 to 2008 rent-free and that Ms. Ngo was not permitted to live there. Ms. Ngo gave evidence that her husband told her the second home was rented out, but in 2006 he moved the family to the second home for a year, advising her that it was a more convenient location to travel to his employment in Maple Ridge.

Eventually the Maple Ridge home was registered in Mr. Do’s name. He explained that his cousin took pity on him and gifted the property to him in 2007. However, land title documents described the transaction as a cash sale for $445,000, subject to his cousin’s existing mortgage. Mr. Do sold the Maple Ridge home in 2009 netting $145,000 in profit.

Mr. Do’s lucky streak continued. He advised the court that the first home in East Vancouver was later gifted to him by Mr. Den Van Ta. The statement of adjustments described the transfer as a “gift of equity from the seller to the buyer in the amount of $269,000.” He also purchased a vessel and crab license sharing the cost equally with Mr. Den Van Ta, who, no surprise here, later gifted his one-half interest in their crab business to Mr. Do, gratis, for free.

The parties’ two eldest children corroborated Ms. Ngo’s evidence, while Mr. Den Van Ta was called to back up Mr. Do’s version of events with respect to the first home and the crab business. He was less than impressive. Mr. Phan was not called to testify leaving the court to draw an adverse inference.

The outcome? Mr. Do’s evidence was rejected and all the family property was shared equally. However, nowhere does the court suggest that Mr. Do’s perjured testimony is an abuse of process or of such a character as to bring the administration of justice into disrepute. Can anybody reason why Ms. Ngo was not awarded special costs, which is a full reimbursement of every penny she paid to her lawyer to respond to her husband’s pernicious lies? The court’s apparent trivialization of perjury by failing to award  special costs to Ms. Ngo sends a strong message to litigants that perjury is acceptable.

Pulitzer prize-winning author James B. Stewart succinctly writes in “Tangled Webs: How False Statements are Undermining America”: “Our judicial system rests on an honor code: “I swear to tell the truth, the whole truth and nothing but the truth.” Perjury is not acceptable behaviour.”

Lawdiva aka Georgialee Lang

Christmas Parenting Conflicts

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Christmas is supposed to be the happiest time of the year, but we know that for some it is a lonely, regretful time, remembering the sorrows of seasons past.

In homes divided by separation and divorce, the areas of conflict arise from the dynamics of struggling to ensure you see your children, and the difficult discussions between former spouses about sharing their children’s holiday time.

When former spouses remarry and introduce new partners into the family, it is not unusual to hear complaints of resentment and  recrimination focused on the new stepmother or stepfather.

Perhaps one of the most annoying irritants is hearing  8-year-old Johnny call his father’s new partner “Mom”.  An unkinder cut is hard to imagine for newly divorced parents.

One parent was so disturbed she asked a judge to intervene to stop her young son from calling her ex-husband’s fiancee “Mom”.  She was also opposed to her ex’s girlfriend having increased input into her son’s life.

In this case the parents shared legal custody but Johnny lived primarily with his father. New Jersey Judge Lawrence Jones found that both parents and father’s fiancee contributed to Johnny’s well-being, but noted that while the fiancee’s opinions were welcome, it was up to Johnny’s biological parents to make decisions for Johnny.

However,  the Judge declared that it was up to Johnny to decide how he wished to refer to his parents and his father’s fiancee, mainly because the young boy was mature enough to decide for himself. The Court said:

“At this challenging point in his growth and development, he certainly does not need his parents, or a stepparent, or the court, hoisting further unnecessary burdens upon his fragile shoulders by micromanaging his words and thoughts, or commanding him how to address his stepparent in order to please his mother or father.”

I’m sure Johnny’s mother thought the decision was unfair to her, but the reality is that it is not about her feelings, it’s about her son’s self-determination and development.

Lawdiva aka Georgialee Lang

 

 

 

 

 

 

 

Judge’s Decision Results in Tragedy

BarristerHave you ever thought about how judges make decisions? Frankly, I rarely think about this as my focus is simply on persuading a judge to see it my way. But learned scholars have studied and researched the psychology of judicial decision-making with interesting results.

The authors of “Blinking on the Bench: How Judges Make Decisions”* say that judges are predominantly intuitive decision makers, a characteristic that unfortunately can lead to flawed decisions. Of course, some intuitive decisions are accurate, but as between those kind of decisions and  the more academically rigorous “deliberation” method,  acting on gut feelings or hunches can be a dangerous way to adjudicate matters of critical importance to participants in the justice system.

A case this week out of Madison, Kentucky highlights the impact of judges’ “getting it right”.

Local prosecutor Chad Lewis was in court in Madison on October 6, 2016 seeking an arrest warrant against Laura Russell’s husband, Anthony Russell, age 51. The couple was divorcing and it was going far from well. Charged in August 2016 with strangulation and domestic battery for allegedly attacking his wife on several occasions. Mr. Russell was out on bond of $500.00 and subject to a restraining order, that he apparently ignored.

This court appearance was scheduled after Ms. Russell advised the police that her husband was continuously stalking her. She was upset, intimidated and frightened.

Judge Michael Hensley presided at the hearing, however, he refused to issue a warrant for Mr. Russell’s arrest and instead issued a summons requiring Mr. Russell to attend court on  October 11, 2016 after the three-day long weekend.

Mr. Russell did not show up at court on October 11 and neither did his estranged wife. They were both dead. Mr. Russell went to Ms. Russell’s home on October 7 and stabbed her multiple times. He then  committed suicide, blowing his head off with a pistol…a tragedy that devastated Judge Hensley.

The judge released a statement to the press expressing his condolences to Ms. Russell’s family, saying he felt “horrible about her death” and understood that his sincere regret would not “bring her back”. He explained that he didn’t believe there was “probable cause” to issue a warrant and said “I made what I thought to be the correct legal decision…obviously I made a decision that had the most tragic result possible”.

Prosecutor Lewis criticized Judge Hensley for failing to accede to his request for a warrant for stalking. Meanwhile, Ms. Russell’s lawyer suggested that it was Mr. Lewis’ fault as he could have asked for a warrant for multiple breaches of the restraining order, instead of seeking a probable cause hearing for a new charge of stalking.

Judge Hensley also announced that he would institute a new procedure in respect of arrest warrants, by ensuring that a hearing be scheduled for the day the warrant request is made.

 Lawdiva aka Georgialee Lang

*Chris Guthrie,  Jeffrey J. Rachlinski & Andrew J. Wistrich

Another Crazy American Judge Story

DSC00507 (2)There will always be debates about what it is like to be a judge. Some say it’s a highly stressful position, while others argue it is a “cushy” power job, with no one looking over your shoulder as you command your courtroom. When a judge directs a lawyer or a litigant to “jump”, they jump, no ifs, ands or buts!

I lean towards the view that a judge’s job is very stressful. They deal with the most important issues in society: where should a child live? how much jail time should a convicted offender receive? and, how much money do innocent victims  of a car accident need to reclaim their lives?

Of course, there is much anecdotal evidence about the stressful nature of the judicial role, often used as a reason to excuse bad behaviour. Or does unprofessional conduct  abound because  some judges begin to believe they are untouchable, simply because they are judges?  A recent case of a “runaway” judge tends to support the “arrogant judge” theory.

Judge Arnette Hubbard, age 81 (yes, still sitting at 81!)is a silver-haired African-American jurist who presides in Chicago. One sunny July morning Judge Hubbard left the court building to smoke a cigarette in Daley Plaza, adjacent to the court facilities. Businessman David Nicosia was nearby using his cell phone and became annoyed at the second-hand smoke wafting in his direction.

Judge Hubbard and Mr. Nicosia, a white man, had an unpleasant exchange that resulted in Mr. Nicosia’s arrest for aggravated battery and a hate crime. Mr. Nicosia was at the law courts that morning to obtain a marriage license. Instead he ended up in jail, cancelled the wedding plans, and awaited his day in court.

His trial last month turned into the ever popular “He said/She said”.  Judge Hubbard testified that when Mr. Nicosia asked her to stop smoking she replied that she wasn’t permitted to smoke indoors. She said that Mr. Nicosia then spat in her face and yelled “Rosa Parks move!”. She cried out to nearby deputy sheriffs and tried to stop Mr. Nicosia from leaving the scene, whereupon she alleged he flung her off and slapped her.

Mr. Nicosia described a different series of events. He testified that after he complained the judge intentionally blew smoke in his face and said she could smoke wherever she liked. He replied “It’s not like you’re the Rosa Parks of smoking”. At that point an angry Judge Hubbard said she had something for him. She opened her mouth and delivered a projectile of tobacco-laced spittle that landed in his mouth, on his glasses, and on his shirt.  He quickly spit out the nasty “goober” which inadvertently landed on Judge Hubbard. He testified that the slap was accidental and occurred when the judge moved toward him to stop him from leaving.

Trial Judge James Obbish acquitted Mr. Nicosia of all charges, saying he believed that Mr. Nicosia would never have faced the felony charges if the alleged victim had not been a judge. He said that Judge Hubbard ought to have moved away from Mr. Nicosia once he complained. He also added that Mr. Nicosia  didn’t deserve a medal as he “didn’t act in a way that a man should act to a lady”.

Clearly the court did not believe Judge Hubbard’s version of the truth and her credibility was also damaged after she testified she had to take 17 months off work  after the “assault” for post-concussion syndrome, although she presented no medical evidence to support her claim.

Judge Hubbard has a civil lawsuit against Mr. Nicosia pending. As for me,  I think she should retire from the bench, drop her civil suit,  and pay back the 17-month salary she milked  from the citizens of Chicago.

Lawdiva aka Georgialee Lang

 

 

 

Lawyer Jailed for Refusing to Remove “Black Lives Matter” Pin

GeorgiaLeeLang100Ohio lawyer, Andrea Burton, was handcuffed and led out of a courtroom by an attending sheriff when she refused to comply with Judge Robert Milich’s  multiple requests that she remove her Black Lives Matter pin.  After her refusal, the Judge and Ms. Burton  adjourned to his chambers to discuss the impasse created by Ms. Burton’s position. She argued that the Court’s ruling was an unjustified infringement on her First Amendment right of free speech.

Judge Robert Milich reminded Ms. Burton  that based on Supreme Court case law, he had authority to prohibit any symbolic political expression in his courtroom. He later spoke to the media declaring, “There’s a difference between a flag, a pin from your church or the Eagles and having a pin that’s on a political issue”.

Judge Milich emphasized that his personal opinions had nothing to do with his decision.

“A judge doesn’t support either side, a judge is objective and tries to make sure everyone has an opportunity to have a fair hearing, and it was a situation where it was just in violation of the law.”

Burton was sentenced to five days in jail for contempt of court, although she was later released and her jail sentence “stayed” pending her appeal of the Judge’s contempt finding and  jail sentence.

Upon her release she told the local media that she believed that her First Amendment right overruled the Supreme Court law and Judge Milich’s discretion, and that she ignored the judge’s instructions because she didn’t want to remain neutral to injustice.  “To remain neutral becomes an accomplice to oppression, ” she remarked. She also said:

“It’s an act of civil disobedience, I understand that. I’m not anti-police, I work with law enforcement and I hold them in the highest regard, and just to say for the record I do believe all lives matter. But at this point they don’t all matter equally, and that’s the problem in the justice system.”

Not surprisingly, the National Association for the Advancement of Colored People announced they would be following Burton’s case and believe her civil rights may have been violated.

My view is that judges have full authority and discretion to determine what is said and what is worn in their courtrooms. They  have jurisdiction to make findings of contempt for behaviour that does not comport with the required decorum and solemnity of our courts of law.

Lawdiva aka Georgialee Lang