“Fairness is what justice really is.”
— Justice Potter Stewart
“Auditur et altera pars. (The other side shall be heard as well.)”
Construction of the county’s new judicial building is proceeding well and is on pace for completion in about a year. The planning process for that building took months and had to balance a number of concerns. Among them were sufficient space, parking, the flow of people through the building, and the safe transportation of prisoners.
Another concern, however, was allowing the judges and magistrates who will use the building to be able to get around from their offices to the courtrooms without having to go through the public areas of the building where litigants will be meeting and waiting for their court hearings. The judicial officers aren’t being rude or trying to be hermits, but rather responding to the realities of the rules of professionalism that require them to maintain neutrality and impartiality in the cases that they’re presiding over.
The Probate/Juvenile Court is currently housed in the Hayes Building, but our previous space, further south on Sandusky Street, 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.
I spent a couple of days this week in Akron as the summer meetings and education seminars of the Ohio Associations of Probate, Juvenile and Domestic Relations Judges. A substantial portion of one day was dedicated to reviewing the judicial ethics requirements. 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 himself or herself 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 himself/herself 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. A few years later, in Buffalo, New York, a judge 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.”
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 ensure the fairness of the proceedings for everyone.
David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Common Pleas Court.