Oh! Say, you can see!

yFOR IMMEDIATE RELEASE - 10/27/2018                                               Contact:  Rex E. Russo, attorney
Re-print, re-publish, re-post, or                                                                        Phone:  305-442-7393
quote freely, but give credit.                                                                               Email: [email protected]
                                
                                                                           OH! SAY, YOU CAN SEE!
                                                                                                                    or
                                                 TRY TO PIN THE TAIL ON THE DONKEY

    A blindfolded Lady Justice is emblematic of the concept that the law cares not about the irrelevant characteristics or traits of those appearing before her.  Whether wealthy or poor, politically powerful or common citizen, crony or stranger, educated or ignorant, tall or short, male or female, democrat or republican, black or white, lender or borrower, religious or not, from here or from there, all are endowed with the same rights under the law.  At least, that’s the concept.  But, is that fact or fiction?  Can we do better?

    Many litigants and their attorneys have mused about losses to those with more wealth, greater political connections, personal connections with the judge, reputation of the opposing attorney, unknown reputation of the complaining attorney, family connections of the opposing counsel (i.e. relative is or was a judge or politician) and every combination thereof.  Was there bias by the trial court judge?  If so, did the judge recognize the bias?  After all, judges are subject to the same human frailties as the rest of us.

    It really is not possible to eliminate all elements of bias at the trial court level.  Out of necessity, there must be a face-to-face interaction between the judge, counsel, the parties, and witnesses.  There is simply no other way to present a case and have it tried.  However, at the interim appellate levels (i.e. Florida District Courts) it is definitely possible to significantly reduce factors that could lead to judicial bias by putting a real blindfold on Lady Justice.  Of course, some bias would always peek through because of a judge’s proclivities as to the case presented.  If a judge is viewed as pro-business, and it is a business case, there is no practical way to avoid that potential bias.  

    Does an appellate court panel need to see counsel for the parties face-to-face?  Not likely.  If the appellate court has questions regarding the legal arguments, then it could ask for further briefing in response to those limited points.  That makes much more sense then using oral argument for that “gotcha” moment which a panel member might use to justify a position they hold — perhaps incorrectly.  In fact, there is no reason for an interim appellate court panel to know the names of counsel for the parties, or the names of the parties for that matter.  Briefs could be written in a highly standardized format with mere reference to party labels (appellant - appellee, petitioner - respondent, landlord - tenant, buyer - seller, etc.) and not to the actual parties names, nor the lower court case number, nor the name of the lower court case judge.  Names of counsel, proper names of the parties, and even the name of the lower court judge are all irrelevant, or at least should be, to the appellate decision making process.  Yet, each of those factors could render a potential bias.   Admittedly, although the same factors would apply to the Florida Supreme Court, because of the attention, public awareness and scrutiny given and received to their few decisions, and because their decisions derive for a full panel of seven judges and not three, there is much less reason to mask the parties and counsel appearing before the justices.

    If justice were truly blind at the district court level then only the clerk of the court would be privy to information regarding the names of the parties and their counsel, the lower court case number, and the name of the trial court judge, at least until such time as a final opinion or order was rendered.  Although, some government entities would, of necessity, be made known because of the nature of the case.  For instance, a statute particularly directed to a state agency would make it known that the agency was a party.  The same would be true of county and city codes in dispute.  Verification of the cited statutes and ordinances, and independent research by the court, would be impossible without such exact references.  

    By blindfolding justice in this suggested manner, any tendency of an appellate judge to think favorably toward the position of a crony would be eliminated.  Those who would dare approach an appellate court judge and seek favor, or worse — tempt the judge with lucre, would find it near impossible; that is, provided secrecy and proper decorum is maintained within the appellate court itself.   

    Additionally, judges assigned to the appellate panel should be chosen from across the state instead of from the divisional district.  Divisional districts made sense when judges arrived at court on the back of a horse and needed to meet in a room in order to deliberate.  Today, district court judges could each be located anywhere and deliberate via live video chat.  That would provide another layer of impartiality and separation of potential influence on the panel members.  

    As a more basic measure, and as a first important step, we should insist upon laws, or better — a constitutional amendment, that gives independence to the clerk of the court and requires the clerk to make a random assignment of every case to a panel of appellate judges.  Presently, there is no such assurance.  Clerks of the several district courts in Florida are under the direct control of their district court, and most particularly the chief judge of their district court.  Clerks are not independent. Accordingly, the chief judge could decide to assign a panel of judges to a particular case.  Also, judges within the district could beg, bargain or negotiate their way onto a panel thus leaving the door wide upon for prejudicial influence.  

    As it presently stands, the Florida district courts are very vulnerable to improper influences.  Appellate court judges are, after all, also subject to human frailties like those of the trial court judges.  Yet, there is little oversight.  Instead of maintaining a strong appearance of impartiality, district court judges attend expensive lunches and dinners for free or at a substantial discount.  These events are typically sponsored by very large law firms, and powerful attorney organizations; in other words, those that cultivate influence.  While in attendance the judges hobnob with those who can afford to be there (i.e. politicians, the rich, the powerful, the influential, people who know people).  If a district court judge is very good at hobnobbing then they might even be invited to an event in their honor so that they can be bestowed with an award — just for having done their job.   Maybe (or maybe not) that is why opinions are written that refer to or imply nonexistent facts, or that badly misapply a law or constitutional provision, or are so wholly lacking in substance that further review by the jurisdictionally handcuffed Florida Supreme Court is impossible.
    
    While we are busy thinking about how to keep Lady Justice’s mind more focused on the issues, we should also consider a way to make her more revealing.  After all, obscurantism is not becoming.  Presently, if Joe and Jane Citizen questioned the decision of a Florida District Court of Appeal, they could do a  public docket search over the internet, but their search would provide them nothing more than a list of the documents filed.  Joe and Jane, from their computer, would not be able to read the underlying record nor review the briefs.  Of course, anyone can go to the clerk’s office and ask to see what is in the file.  However, the time that must be taken to go out to the court likely dissuades most from taking that step.  Only the Florida Supreme Court allows everyone computer access to every filed (non-exempted) document.  But, in order to have a full, open, and honest intellectual debate about whether a district appellate court’s decision is savory or unsavory, we must also see what went into their cooking pot.  No one should fully digest a district court’s opinion without a review of the underlying record and a reading of the briefs on file. 

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