Judge Shopping Is Bad

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

That is the take home message from the Appellate Division’s recent decision in Goldfarb v. Solimine.

In Goldfarb, defendant promised to hire plaintiff to manage defendant’s family’s assets. Before getting written confirmation of defendant’s offer, plaintiff quit his job with an investment firm. Defendant then reneged on the promise, and plaintiff sued. At trial, the jury sided with plaintiff and awarded him damages based on the difference between the base salary defendant promised and what plaintiff actually earned at a new job he found after defendant reneged on that promise.

Both sides appealed on a number of issues, the most interesting of which had nothing to do with the underlying facts of the case. Plaintiff appealed the denial of his motion to recuse the trial judge, which plaintiff filed “after learning that a defense attorney, in an ex parte communication, sought the judge’s assignment to the case, and the judge responded by specifically requesting the assignment from the presiding judge.” The Appellate Division agreed with plaintiff and reversed the trial court’s decision on the motion to recuse.

The judge who presided over the trial in Goldfarb had no prior connection to the case. She had not handled any of the “significant” pre-trial motion practice. But when the case was ready for trial, one of the judge’s former clerks, then an associate at the law firm representing defendant, texted the judge and asked if she was available to preside over the trial. After receiving the text, the judge “spoke to the presiding judge and, relying on her seniority, secured assignment of the case.”

The judge disclosed the ex parte communication to plaintiff’s counsel in chambers. Not surprisingly, plaintiff then moved to recuse the judge.  At the outset of the colloquy on that motion, the judge “reproached” plaintiff’s counsel for relying on statements made in chambers, commenting: “I am appalled that what had been the bedrock of practice, that what a judge tells you in chambers stays in chambers[,] seems no longer to be the rule.”

The judge then confirmed the ex parte communications on the record, but tried to minimize it.

First the trial judge said that there was nothing improper about her requesting the case from the presiding judge, describing her conversation with the presiding judge as follows: “I stopped in this morning and said, ‘You got a case around here, because I’m a senior judge, I don’t like doing car accident cases.’ So in some ways I get my pick . . . because that’s what 25 years on the bench will get you.”  

Then the judge claimed that it was common practice for attorneys to ask about her availability to try cases, claiming that it happened “all the time,” and that there was “nothing untoward about a judge telling a lawyer, I’m going to be open . . . bring your case my way.” She further noted that she believed attorneys sought her out because of her experience and reputation, and denied ever acting out of bias or favoritism. Not surprisingly, the judge then denied plaintiff’s motion.

The Appellate Division reversed this decision. It observed that judges must “act in a way that promotes public confidence in the independence, integrity and impartiality of the judiciary,” and must “avoid impropriety and the appearance of impropriety.” The latter is created when “a reasonable, fully informed person observing the judge’s conduct would have doubts about the judge’s impartiality.” “In other words, judges must avoid acting in a biased way or in a manner that may be perceived as partial” (emphasis in original).

The Appellate Division also addressed “judge shopping” directly, observing: “Judge-shopping – an attorney’s attempt to have a particular judge try his or her case – may undermine public confidence in the impartial administration of justice.”  The Appellate Division held that judge shopping was problematic for two reasons: (1) it could influence a case in a way that is “unfair to the non-shopping party;” and (2) it could “create[ ] a perception of partiality that undermines the legitimacy and credibility of the courts.”

The Appellate Division applied these principles to the facts of Goldfarb and concluded that the trial judge abused her discretion in denying plaintiff’s recusal motion. The Appellate Division noted that the ex parte communications by defense counsel with the judge were not “routine and customary scheduling communications” – which might not be problematic – but were instead improper “communications for the purpose of having a matter assigned to a particular judge.” The Appellate Division held: “[T]he judge’s consideration of the ex parte communication, and her active participation in ensuring the case was assigned to her, compounded the usual concerns of judge-shopping and tainted the proceedings with the appearance of impropriety.” Interestingly, the Appellate Division held that the “source of the ex parte communication,” a text from counsel to the judge’s cell phone, “exacerbated the improper appearance that one party had exploited a prior relationship with the judge.”

Finally, the Appellate Division noted that the record failed to disclose whether, as the trial judge claimed, it was common practice for attorneys to inquire directly of judges about their availability. But it did note that there was “a significant difference between ascertaining whether a judge will be available and inquiring whether the judge would agree to preside over a particular case.” And, in Goldfarb, the trial judge’s decision to actively seek out the case assignment after receiving the ex parte communication only exacerbated the situation.

The Appellate Division ultimately reversed the trial judge’s decision to deny plaintiff’s motion to recuse. But it did not remand the case for a new trial, choosing instead to leave the jury’s verdict on liability in place, reverse the trial court’s decision on certain damages issues that plaintiff challenged, and remand the case for a new trial on damages alone. The Appellate Division held that this remedy could both “restore the public confidence in the integrity of the judicial proceedings while fairly and efficiently resolving the particular dispute.”

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