…and the “liberty” it protects includes more than the absence of physical restraint. (citations omitted). (Due Process Clause “protects individual liberty against ‘certain government actions regardless of the fairness of the procedures used to implement them’ ”) (quoting *720 Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 665, 88 L.Ed.2d 662 (1986)). The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests. Reno v. Flores, 507 U.S. 292, 301-302, 113 S.Ct. 1439, 1446-1447, 123 L.Ed.2d 1 (1993); Casey, 505 U.S., at 851, 112 S.Ct., at 2806-2807. In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the “liberty” specially protected by the Due Process Clause includes the rights to… to have children, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); [and] to direct the education and upbringing of one’s children, Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925);…
Our established method of substantive-due-process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, *721 “deeply rooted in this Nation’s history and tradition,” id., at 503, 97 S.Ct., at 1938 (plurality opinion); Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934) (“so rooted in the traditions and conscience of our people as to be ranked as fundamental”), and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed,”(citations omitted).
Ask any civil trial lawyer in Florida how many days one has to move for rehearing of an order simply granting a motion for summary judgment, and the odds are good the lawyer will respond, “Ten days.” Pursue the matter further with the lawyer, and ask where this 10-day period is set forth in the Florida Rules of Civil Procedure, and the lawyer will invariably point to Rule 1.530, which by its title governs motions for new trial and rehearing.
Rule 1.530, however, provides that a motion for rehearing must be served no later than 10 days after “the date of filing of the judgment in a non-jury action.”1 An order simply granting a motion for summary judgment is not a final judgment; rather, it is a nonfinal order.2 So, too, are myriad other orders entered by a trial court before final judgment. Attorneys in Florida nevertheless regularly file “motions for rehearing” directed to such nonfinal orders. Often they believe they must do so within 10 days. Sometimes they also believe that such a motion tolls the time to seek appellate review of the nonfinal order.
Motions for rehearing of nonfinal orders are not authorized by the Florida Rules of Civil Procedure.3 Noting that motions for rehearing are exclusively governed by Rule 1.530, the Florida Supreme Court has observed that “[u]nless the filing of a motion for rehearing to an interlocutory order is authorized by a rule of court promulgated by the rule-making authority, then its filing is improper.”4 Indeed, it is not unheard of for an attorney to file a motion for “rehearing” of a nonfinal order and subsequently be confronted with a response from the other side echoing the court’s language and declaring that such motions are unauthorized and improper.
Yet while the rules of civil procedure themselves do not authorize motions for rehearing directed to nonfinal orders, a trial court does have the inherent authority to reconsider and alter or retract such orders prior to the entry of final judgment.5 Rather than constituting a motion for rehearing under Rule 1.530, a motion directed to a nonfinal order is actually a “motion for reconsideration” based upon this inherent and discretionary authority of the trial court.6 Despite this distinct and well-established basis for reconsideration of interlocutory orders, there still exists confusion among many practitioners about the differences between reconsideration and rehearing.
Much of the confusion stems from the fact that parties and the courts frequently use the terms interchangeably, at least in the context of motions directed at nonfinal orders. This is perhaps understandable given the lack of any rule-based authority for reconsideration of nonfinal orders; the articulation of the trial court’s inherent authority has of necessity come through the development of the common law. An attorney will, therefore, only be aware of the basis for reconsideration — as well as its effect on any subsequent appeal — from the case law.
In working to reforming our current system, I meet great people on a daily basis who see unfairness.
I am not alone in this, of course.
Today’s post is from a Division of Child Support case worker in a neighboring state who has contacted me several times concerning South Dakota’s unfair custody laws. She asked to post anonymously as she believes she could lose her job if her superiors knew of her stance. So I post this, humbled she would take that risk and grateful for her insights. I believe you will be too.
This is from the front lines of child support and custody in South Dakota and neighboring states. Our anonymous writer today works with custody and child support on a daily basis.
Here is her unedited letter:
“I am a Division of Child Support Caseworker in a state bordering South Dakota. As such, I speak with other caseworkers in SD and nearly all other states in the US every day, and know there are very few options for “non-custodial” parents who are being denied equal access to their children, unless they are fortunate enough to be able to afford a long and expensive custody battle, which is extremely rare, especially in cases where the parents were never married.
While your group needs to pursue one issue at a time, your particular issue being custody and visitation arrangements after a divorce, I hope that you will also pursue shared parenting and child support arrangements for parents who were never married, as this is an issue that definitely needs to be addressed and rectified.
Before continuing, I will say that I, and all DCS caseworkers, recognize that the “non-custodial” (and we don’t like that term) parent may be the mother rather than the father. In most cases, however, the NCP is dad and the CP is mom, so please forgive my use of general terms such as “she” and “he”. I use them for the sake of simplicity, not out of a lack of respect or understanding that mothers do sometimes get the raw end of the deal, along with their children.
In every state in this country, the child support system is not only broken, but is in desperate need of repair. It is unbalanced and very often unfair. The child support calculation is based on the income of both parents, in every state, although I will admit there could be a state or two that does not do it this way and I am just not aware.
In most states, if either parent is unemployed but not disabled, they are presumed to be capable of working 40 hours a week at minimum wage, so their income is imputed at $1275 per month. Following this calculation, if mom is willingly unemployed and dad is employed full time, making a mere $10 an hour, dad has a child support obligation of $357 per month for one child. (I got this number from SD’s child support calculator website and it is accurate.)
Every parent, regardless of the relationship (or lack of one) that existed at the time the child was conceived, has a responsibility to provide financial support for their child.
That is a fact. But, should dad, making $10 an hour really be forced to pay $357 to someone who is not willing to work? Where is mom’s responsibility in this? In these situations, mom (unless she is actually working 40 hours a week for minimum wage, which is rare), is receiving food stamps, Medicaid, and housing assistance, so she is sitting back, living a meager life and doing nothing to improve the lives of her children, and not having to lift a finger to do it. In the meantime, dad is working hard and still can’t afford to keep the lights on in his own home.
Most of the dads I speak to are willing to pay the child support, despite the financial stress. They understand that there is a little person out there who needs their help, and they are okay with that. In many of these cases, dad has not seen his child even once since the relationship with his child’s mother demised, and he has no recourse other than to hire a lawyer to get a visitation order. The first problem with this is that dad, making $10 an hour and paying $357 a month in child support has no money left over for to hire a lawyer. The second problem with this is that, even when he does and gets the order, mom can still deny the visitation and there will be no consequences to her for doing so. Sure, dad can take her back to court again, and the judge will tell her to behave, but if she doesn’t, nothing will happen in SD. Dad and the kids are still denied access to one another.
Approximately 2 years ago, the state of Illinois passed legislation that actually puts repercussions in place for CPs that refuse to follow the Illinois State Visitation Guidelines. If the CP denies access to the children to the NCP, her driver’s license can be restricted, and not be reinstated until she complies. What a novel idea. I am beside myself, wondering why every state has not enacted this legislation. We restrict, suspend, or revoke the driver’s licenses (and other licenses) of NCPs when they don’t pay the child support, even when they are unwillingly unemployed, yet we allow CPs to use their children as weapons against NCP, regardless of whether he is paying.
I had two office visits today, both from dads who are doing the best they can and still are being denied access to their children, simply because mom decided she doesn’t like them anymore. The first has a 5 year old daughter that he desperately wants to have a relationship with, but hasn’t been allowed to see since she was 1 year old. At least in that situation, the poor child doesn’t know what she’s missing in not being able to see her dad. The second is much more sad, and it honestly makes me very angry. Dad raised mom’s first child as his own from an infant to 4 years old. In the meantime, they had a child together. They were together for another year or two. For the next several years, dad had BOTH kids – even the one that was not his – for weekend visitation. Not enough, but at least it’s something. Then, mom decided to pull the rug out from underneath dad, with no consideration for her children. Dad has now not seen either child for a year and a half. He and mom were not married, so mom has all the power, unless he can afford an attorney, which he can not possibly afford to do.
As we sat and talked, there were several times that I could see he was struggling not to cry. Ever since mom decided (for what crazy reason no one knows) to withhold visitation, both children, and especially his biological child, have been acting out in school. They’ve been bullying other kids and being defiant to authority. His biological son was finally allowed to see his half sister (that dad had from another relationship) after being denied access to her for a long time.
According to his sister, all he talked about was how much he missed his dad and how he is so happy he has all these things that his dad gave him, because it helps him remember his dad. Mom has the kid in therapy, that dad is paying for, and she is apparently oblivious to the reason why the kid needs therapy. I could tell her, but it would probably result in me being fired. Mom has 3 kids by 3 different dads and I would like to talk to her about that as well. Bottom line is mom is sitting back, collecting child support and state benefits, and not doing a damn thing to support her children, but she will be the first to call if a payment is a day late. This is just one case I am telling you about, and it’s not even the worst one; it’s just the one at the top of my mind.
The bottom line is this. We need to have state agencies that provide free services for NCPs to have fair and equal access to their children. We already have state agencies that help people who make no contribution themselves collect child support, and we are screwing kids and NCPs in the process. That is not acceptable in any state. I hope your legislature – and mine – will figure that out. Good luck and God Bless to you and your children.
All that being said, I hope all the NCPs (I really hate that term) understand that your CS case worker is not against you. We are forced to support the order, whatever that may entail. We have no power to help you with anything else, but we really would like to. God bless and God speed to you and your children.”
The father’s rights movement isn’t an anti-mom or anti-woman movement; it’s an anti-unfairness movement. Our aim is to champion the cause of equal parenting, family law reform and equal contact for divorced/separated parents with their children. The fathers’ rights movement is a movement whose members are primarily interested in issues related to family law, including child custody and child support that affect fathers and their children. Many of its members are fathers who desire to share the parenting of their children equally with their children’s mother—either after divorce or as unwed fathers, and the children of the terminated marriage. The movement includes women as well as men, often the second wives of divorced fathers or other family members of men who have had some engagement with family law. Most of the members of the fathers’ rights movement had little prior interest in the law or politics. However, as they felt that their goal of equal shared parenting was being frustrated by the family courts, many took an interest in family law, including child custody and child support.
Though it has been described as a social movement, members of the movement believe their actions are better described as part of a civil rights movement. Objections to the characterizations of the movement as a social movement are related to the belief that discrimination against fathers moves beyond the social sciences and originates in government intervention into family life. The movement has received international press coverage as a result of high profile activism of their members, has become increasingly vocal, visible and organised, and has played a powerful role in family law debates.
The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” – Pierce v. Society of Sisters, 268 U.S. 510 (1925)
“It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder…. It is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter.” – Prince v. Commonwealth of Massachusetts, 321 U.S. 158 (1944)
“The Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a ‘better’ decision could be made.” – Troxel v. Granville, 530 U.S. 57 (2000)
Every year, millions of parents and children in America are negatively affected by “family” courts and the Departments of Children and Families (DCF) all across this nation, government institutions that actively participate in custody interference for profit at a massive scale.
As a family physician who deals with children, and adults on a daily basis, I am very concerned because I believe that these federal incentives are being misused to cause great harm to the American family, actually leading to a mental health crisis of pandemic proportions.
Every 3 minute that passes a youth in America is attempting suicide, and 1 of them actually dies in the attempt every 2 hours. Nearly 2 out of 3 of these suicides are associated with these federal incentives, misused to intentionally interfere with the custody of children for profit. Custodial interference in the past year is associated with an increased risk for suicidal ideation of up to 4.5 times the norm, a 350% increase vs children without this history.
Making custodial interference, a.k.a. Parental Alienation, one of the most important preventable factors to decrease suicides in our youths. “Suicide is the SECOND leading cause of death for ages 10-24. (2013 CDC WISQARS). More teenagers and young adults die from suicide than from cancer, heart disease, AIDS, birth defects, stroke, pneumonia, influenza, and chronic lung disease, COMBINED.”
A similar picture presents with our veterans, who are committing suicide at an incredibly alarming rate of almost 1 suicide every hour. Some studies estimate that anywhere between 1 to 2 of every 3 of these suicides are associated with custodial interference which are motivated by these financial Federal incentives. Many of these victims have not even seen active combat, so they can not be attributed to war.
According to the USA Today, “suicide surpassed war as the military’s leading cause of death…suicide outranked war, cancer, heart disease, homicide, transportation accidents and other causes as the leading killer, accounting for about three in 10 military deaths” in 2013 and 2014.Suicide Research
This is a totally preventable mental health crisis, which is costing Americans at least $444 billion a year, and which is the 4th leading cause of death among 10 to 54 years old in America as of 2016.
Please, join us in rallies all over this nation on July 22, 2016, Parents’ Day Weekend. We need your help putting a stop to state-sponsored custodial interference incentives known as Title IV-D and Title IV-E of the social security, which are behind the destruction of our families today:
Thanks for your time and attention!
Regards, Mario Jimenez, M.D., B.S.E.E. The Grace of the Lord Jesus be with you.
United States of America Of the Lawyers, By The Lawyers, & For The Lawyers… – Just The Facts –
– Lawyers Write the Laws – Lawyers use their legalese to construct laws that generally only a lawyer can understand or interpret – Lawyers Make the Laws – Lawyers comprise the majority of local, state and federal legislative bodies. – 1 Lawyer for EVERY 200 Adults in America!! – 1,143,358 lawyers. Law Schools are graduating 40,000 new lawyers each year as they have over the last 20 years. We are being overrun by lawyers, who not being subject to the normal laws of supply and demand, simply create work for themselves at an increasing cost to each of us. – Your Civic Duty – Work and your life are secondary to – Your Civic Duty – at about $8.00 PER DAY while the Lawyers & Judges are making HUNDREDS of DOLLARS PER HOUR! But you understand, after all the lawyers and judges do tell us that it is ‘the best system in the world…’ – All About Billable Hours – Confusion and conflict produce billable hours. Simple common sense decisions and solutions are almost extinct because they are in conflict with the billable hours required to support the ever growing legal profession. – Taxation Without Representation – Lawyers represent 3/10th of 1 percent of the population yet have an 80% representation in our government. Translation: The taxation of 99.997% of the American people is created, implemented, controlled, and enforced by .003% of the people: indeed a privileged class. – Lawyers & Government – Any wonder why the government is so wasteful and inefficient? The majority of lawyers in government have never had any experience in the operation or budgeting of a real business in the real world. And, in the world they did work in, they could earn more in a few hours than most people can earn in a week or a month and sometimes even a year! – 2 More Lawyers in the White House – Remember the Clintons? Remember the Scandals? Remember the National & Worldwide Disgrace America was Subjected to? Remember How Bin Laden Killed Americans at will BUT there was not enough evidence to bring him to Court!! – 9 Lawyers Decide How All American’s Live! – Nine Lawyers on the Supreme Court decide the laws, the morals, and the culture of 300 million FREE Americans? Arguably The Founding Fathers Biggest Mistake! – The U.S. Constitution – The Founding Fathers never had a clue how their masterpiece, The Constitution, would be a Cash Cow for the lawyers…
Ethics and practicing law have a fascinating relationship. I posted last week about how it’s silly to suggest that ethics requires lawyers (or anyone) to always tell the truth. In the comments, I wrote the following in a reply to a comment by Scott Greenfield:
I think the lawyer’s biggest moral (as opposed to “ethical” re the rules) conundrum is the question of whether the lawyer is lying to himself that what’s good for the lawyer is good for the client. Self-deception is the real problem, because it makes our lies to others feel like the truth.
Scott suggested that was an idea for a post. I agreed, so here goes.
Lawyering, despite the efforts of those who write the ethics rules, has a conflict of interest built in: what’s good for the client is often the exact opposite of what’s good for the lawyer. And lawyers, being mere mortals, are morally fallible, and they know it.
They have to get past that knowledge if they are going to at least sometimes choose to do what’s best for themselves instead of what’s best for the client. To cope with making that choice, they lie to themselves in order to believe that what’s good for themselves is in fact what’s best for the client.
Judges merely redirect the dysfunction of one parent as a means to achieve an equitable settlement without regard for children. Prospective lawyers to become judges practice under a code of ethics where they are only allowed to have regard their clients and not the children. A prospect practices under these rules of engagement for 20-30m years before a simple letter of appointment to the bench. They can in no way be expected to have regard for children after this indoctrination.
The code of ethics for those lawyers practicing family law needs to change before anything gets better for children.
Just know the enemy of your children are the lawyers and judges themselves.
The Children’s Rights Facebook Group now has over 18,000 Members. We’re here for Parents who need morale support, information, and more. Come check us out!
Antone (D-Orlando), Avila (R-Hialeah), Berman (D-Boynton Beach), Bileca (R-Miami), Bracy (D-Ocoee), Campbell (D–Miami-Shores), Clarke-Reed (D-Pompano Beach), Cortes, J. (D-Kissimmee), Cruz (D-Tampa), Cummings (R-Orange Park), Dudley (D-St. Petersburg), Edwards (D-Sunrise), Fitzenhagen (R-Fort Meyers), Geller (D-Dania Beach), Ingoglia (R-Spring Hill), Jacobs (D-Coconut Creek), Jenne (D-Hollywood), Jones, M. (D-Jacksonville), Jones, S. (D-West Park), Kerner (D-Palm Springs), Lee, L (D-Ft. Pierce), Mayfield (R-Vero Beach, moved to Brevard), McGhee (D-Cutler Bay), Moskowitz (D-Coral Springs), Murphy (D-New Port Richey), Narain (D-Tampa), Pafford (D-West Palm), Powell (D-West Palm), Pritchett (D-Miramar), Rader (D-Boca Raton), Rehwinkel Vasilinda (D-Tallahassee), Richardson (D-Miami Beach), Rodriguez, J (D-Miami), Rouson (D-St. Petersburg), Slosberg (D-Delray Beach), Stafford (D-Opa Locka), Stark (D-Weston), Steube (R-Sarasota), Torres (D-Orlando), Trujillo (R-Doral), Van Zant (R-Palatka), Watson, B. (D-Miami Gardens), Watson, C. (D-Gainesville), Williams (D-Tallahassee)
Remember to vote in the August primary and November general election!
First Husbands Advocacy Group – Florida Alimony and Custody Laws Reform
BRAVO and CONGRATULATIONS to this man. He is FREE of his alimony tether. We applaud your good fortune and wish you all the best in life and love. You are an inspiration to all other reformers.
As we had predicted … What a bunch of crap. No…we NEVER will respect nor “honor” any of you who are stealing from us via lifetime alimony.
Honor and respect has to be earned. Ya’ll are and will be pieces of shit to us…and the kids will know that forever and ever and ever.
When Margaret Besen, a 51-year-old nurse from East Northport, Long Island, filed for divorce from her husband in March of 2010, she believed justice was on her side.
Judge William Kent’s preliminary ruling seemed like a first step toward compromise. Margaret and Stuart Besen, who agreed their marriage was beyond repair, would remain in their suburban Suffolk County house, living in separate rooms – and keeping away from each other – while sharing custody until a resolution could be reached.
But within weeks, the situation deteriorated. Stuart Besen, a politically connected attorney for the town of Huntington, had an anger problem, Margaret told authorities. The couple’s screaming matches left Margaret feeling intimidated and their children – a daughter, 11, and son, 7 – terrified, she said. So in August of that year she obtained an order of protection prohibiting Stuart from harassing her. Three weeks later, Stuart entered Margaret’s bedroom and hovered over her as she slept, she told police. They arrested him for violating the order, reporting that Stuart had stared down at Margaret with his arms folded on three consecutive nights. She got temporary possession of the family home.
In the years that followed, Besen’s hopes for an equitable settlement dwindled as she battled a series of harsh and hard-to-explain decisions against her. Though she could never prove anything, she suspected that the scales had tipped for reasons unrelated to the evidence in her case. If true, Besen faced what experts say is one of the most troubling threats to our nation’s system of justice: judges, who, through incompetence, bias or outright corruption, prevent the wronged from getting a fair hearing in our courts.
“The decorum and bias and the perfectly unethical behavior of the judges is really rampant,” said Amanda Lundergan, a defense attorney in Royal Palm Beach, Florida, who confronted a nest of judicial conflicts in her state’s rapid-fire foreclosure rulings – dubbed the “rocket-docket” – following the housing market collapse. “It’s judicial bullying.”
Judges in local, state and federal courts across the country routinely hide their connections to litigants and their lawyers. These links can be social – they may have been law school classmates or share common friends – political, financial or ideological. In some instances the two may have mutual investment interests. They might be in-laws. Occasionally they are literally in bed together. While it’s unavoidable that such relationships will occur, when they do create a perception of bias, a judge is duty-bound to at the very least disclose that information, and if it is creates an actual bias, allow a different judge to take over.
All too often, however, the conflicted jurist says nothing and proceeds to rule in favor of the connected party, while the loser goes off without realizing an undisclosed bias doomed her case.
“Everybody should have the right to ensure the judge sitting on their case doesn’t have a conflict,” said Mary McQueen, executive director of the National Council on State Courts.
“It’s absolutely imperative that people have full faith and confidence in the judicial process.”
‘Explain, defend or apologize’
Hundreds of judicial transgressions have been uncovered during the last decade, with results that cost the defeated litigants their home, business, custody, health or freedom.
Some of the best-known cases involve judges who ultimately did suffer consequences for their behavior, including Texas judge Christopher Dupuy, who bullied four lawyers who filed conflict-of-interest recusal motions between 2011 and 2013. Attorney Lori Laird asked that Dupuy bow out in 2013 because she’d represented Dupuy’s ex-wife in the couple’s custody battle in Galveston. The judge responded by slapping her with 37 counts of contempt, demanding that she “explain, defend or apologize” for her motion. He later sentenced her to 220 days in jail, although she didn’t serve any time.
“It was the most ridiculous thing you’ve ever seen,” Laird told Contently.org. “It also caused great damage to both of my clients.” Dupuy was admonished in November – after he’d already retired and was sentenced to two years’ probation for pleading guilty to misdemeanor counts of perjury and misuse of government property.
But court critics say that one reason judicial violations are common is because they frequently go unpunished. When litigants ask a judge to back away because of a conflict, they risk being told no, then face possible retaliation, so many don’t bother. If a litigant or an attorney files a complaint with an oversight body, there’s only about a 10% chance that state court authorities will properly investigate the allegation, according to a Contently.org analysis of data from 12 states.
The analysis shows that a dozen of these commissions collectively dismissed out of hand 90% of the complaints filed during the last five years, tossing 33,613 of 37,216 grievances without conducting any substantive inquiry. When they did take a look – 3,693 times between 2010 and 2014 – investigators found wrongdoing almost half the time, issuing disciplinary actions in 1,751 cases, about 47%.
The actions taken ranged from a letter of warning to censure, a formal sanction that indicates a judge is guilty of misconduct but does not merit suspension or removal.
Actually removing a judge was a rarity. Just 19 jurists in 12 states were ordered off the bench for malfeasance, which is about three per decade for each state. And even that result is becoming less common, with only one removal in 2014 and three in 2013 among all 12 states.
The states examined – California, Texas, New York, Pennsylvania, Connecticut, Wisconsin, Indiana, Minnesota, Colorado, Washington, Georgia and South Carolina – were chosen because they comprise a representative sample from different populations and areas of the country and because they had matching data for the years 2010 through 2014.
California, which created the first judicial disciplinary body in the country in 1960, had a dismissal rate of 98%. It did not suspend or remove a single judge in 2013 or 2014 and acted just once over the last five years, removing a sitting judge in 2012. Colorado’s lone judicial action since 2010 was a suspension in 2013. Texas has not removed a judge in five years, though it has suspended 23 for varying lengths of time.
One discouraging factor is the secrecy under which these commissions operate. Allegations against a judge are commonly kept confidential unless a sanction of some kind is imposed. New York’s CJC, for example, is prevented by law from disclosing whether anyone has complained about a judge, discussing specific allegations, revealing what evidence might have been presented or what steps, if any, it took to investigative.
When conduct boards do act, the sanctions usually amount to an admonishment that may be embarrassing but costs the judge little.
Among those still on the bench after ethical violations are Louisiana judge Robin Free. Free oversaw a personal injury claim in 2010 by a man and his wife, Israel and Leslie Robles, who were hurt in an oil field run by Houston-based fracking contractor Integration Production Services, Inc. The trial had begun when the two sides agreed to a $1.2m settlement. As he mulled signing off on the deal, Free arranged for some post-trial R&R at Casa Bonita, a hunting and fishing ranch in George West, Texas, owned by the victims’ lawyer, David Rumley. He flew there aboard the Rumley firm’s private jet.
It wasn’t Free’s first ethical blunder. In 2001 he presided over a fouled-water case against Dow Chemical, trying to resolve the matter even as his mother was a member of the plaintiff’s class. Free is still serving on the bench after being docked 30 days pay in December and forking over a $6,723.64 fine.
Raoul Felder, the well-known New York divorce attorney, served as a CJC board member between 2004 and 2008, helping the commission sift through thousands of complaints. He came away from the experience perplexed by its decision-making.
“I wouldn’t say [the CJC] is toothless, but it’s arbitrary,” Felder said. “It can be unreasonably tough on judges who commit trivial offenses while going easy on judges who are really bizarrely out of the mainstream, doing things they shouldn’t be doing.”
Judicial discipline at the federal level is almost non-existent. A Contently.org examination of the most recent five years of complaint data shows that 5,228 grievances were lodged against federal jurists between 2010 and 2014, including 2,561 that specifically alleged bias or conflict of interest. But only three judges were disciplined during those years and each got the mildest rebuke on the books: censure or reprimand. None was suspended or removed.
The numbers suggest that at least some of these judges’ rulings did not pass the smell test: 4,168 of the dismissed complaints were tossed due to a lack of sufficient evidence, bringing up the possibility that some litigants raised valid concerns but failed to find definitive proof.
‘I’m on food stamps’ and he makes more than $500,000 a year
In the Besen divorce, judge Kent’s initial decisions were fairly typical for a couple in their situation. He imposed financial obligations on Stuart, the moneyed spouse, including $200 in weekly child support and $500 in monthly car payments. But when Stuart didn’t make the payments and the vehicle was repossessed, the judge did nothing. Nor did he act when Stuart honored only part of the support he owed, leaving Margaret, who was then unemployed, struggling to provide for her kids.
“Occasionally he paid $200 a week, sometimes $175, sometimes $120,” she recalled. “The church had given me vouchers for gas, and I was getting food from the food pantry. I couldn’t cash checks. One year I found on his tax returns he had made $528,000, and I am getting food stamps and trying to get groceries home on a bicycle. It was extremely humiliating.”
Margaret and Stuart accused one another of mistreating their children. Police and child protection service workers became involved. Kent ordered her to undergo a psychological evaluation, which slammed Margaret as a danger to her children as she was allegedly alienating them from their father. No abuse by either parent was substantiated.
Margaret won a court order of protection barring Stuart from contact with her children for a year. But when Kent issued his final decree less than six weeks later, he awarded Stuart full custody, while Margaret was allowed only supervised visits. And he ordered Margaret to pay back half the cost of her nursing degree and to sell her diamond engagement ring and split the proceeds with Stuart. The judge also reversed the support arrangements. While Stuart would pay $1,500 a month in maintenance to Margaret, she now owed Stuart $153.90 a week for the children, even though she was earning about $13,000 a year as a part-time aide in an assisted-living facility.
Margaret began to look into her husband’s dealings and discovered, through searching public records, that he and judge Kent had possible connections. In 2010, Stuart was appointed as the Suffolk County representative on a statewide commission for vetting local judicial candidates. That same year, an organization based at Stuart Besen’s Garden City law office, the Long Island Coalition for Responsible Government, donated $7,500 to candidate Richard Ambro, who got elected and became one of Kent’s fellow Supreme Court judges in Suffolk’s 10th district. In his role as Huntington’s town lawyer, Besen argued cases before these very judges. He’d entered a circle of judicial insiders.
“I’m in the middle of a large group of people who’ve got money and influence and who are all connected,” said Margaret Besen. “I’m not being afforded an opportunity to get a fair shake.”
Margaret had no way of knowing whether the connections she uncovered played any role in how Kent ruled in her case. But her concern deepened when she made an additional discovery about her house. Kent had ordered the Besen home, the most valuable marital asset, to be sold and the proceeds divided, putting Margaret in line to receive possibly hundreds of thousands of dollars. Then she found an online listing offering the property for sale – with the judge’s wife, Patricia Kent, as broker. The home, which was listed for $749,999 with Patricia Kent’s photo and contact information on Realty Connect USA, is currently more than $15,000 in arrears on its property taxes and no longer appears to be actively offered. Margaret was evicted from the house in 2013 and lives in a modest apartment a few miles away. She has yet to receive a penny for her interest in the property.
Patricia Kent claimed she had never represented any of the properties her husband had ordered sold in divorce or other cases. “I have never been a broker for any of his houses; we’re very clear about that,” Patricia Kent said in a phone interview.
A reporter informed her of the agency listing with her information attached to the Besen property. She said her photo could have appeared because she was a broker with the same firm as the agent who did have the listing. “The only person who gets the commission is the listing agent that listed the property,” she said.
Patricia said William Kent was unlikely to comment. “I’m not so sure that he’d want to speak with you,” she said, adding: “When I see him, I’ll let him know, and if he’s interested he’ll give you a call.”
Kent didn’t call. And Stuart Besen did not respond to messages left at his office.
Scott L Cummings, a professor of legal ethics at UCLA law school, said the case raised “significant ethical red flags”, because of the judge’s wife’s alleged involvement in offering the Besen family home for sale. “Not knowing the details of how his spouse might have been assigned as broker, the idea that a judge might benefit financially from the sale of a property in dispute in a pending matter seems to raise a serious question of impartiality.”
Ronald Rotunda, a professor at Chapman University law school in Orange, California, said: “What judge Kent did here seems odd. The husband makes over a half million a year, she makes $13,000 a year, and the judge orders her to pay child support (which is tax free to him and not deductible for her).”
But when Margaret Besen protested, she found no relief. When she asked Kent to recuse himself, he refused. When she complained to the state watchdog responsible for investigating judicial wrongdoing, writing two letters, they blew her off. In a terse response this June, the New York Commission for Judicial Conduct reiterated its initial decision, stating that “there was insufficient indication of judicial misconduct to justify discipline”. When a panel such as the CJC declines to get involved, the plaintiff has little recourse.
This was not the first time a litigant raised questions about Kent’s integrity.
Donna Schuler, also a divorcing mother in Suffolk County, asked that judge Kent recuse himself from her case in 2011 after claiming his unwarranted delays and stalling had drained her financially. Schuler was also rebuffed when she asked the commission to step in and remove Judge Kent from her case.
A culture of judicial impunity
Critics of the Suffolk supreme court claim a culture of rule-breaking exists, pointing to a red-faced moment in 2007 when Marion McNulty, then the county’s top matrimonial judge, was admonished by the state’s disciplinary panel for aggressively fund-raising for her favorite charity, a women’s nonprofit, while on the job. McNulty went so far as to hit up attorneys for checks in the courthouse, a blatant violation of ethical rules.
But a culture of judicial impunity extends far beyond Long Island’s county courts. Indeed, even the US supreme court has been tarnished on this issue.
Justice Steven Breyer owned $215,000 in health-care stocks when deciding on the legality of the Affordable Care Act in 2012. Justice Samuel Alito’s portfolio included $2,000 in stock in The Walt Disney Co. in 2008, the year the court heard Disney, FCC v. Fox Television Stations. And perhaps most famously, justice Antonin Scalia has participated in the Bush v. Gore case, even though his son Eugene’s law firm represented one of the parties. In another case, Scalia remained in the panel despite having gone on a duck hunting trip with former Vice-President Dick Cheney while he was being sued to reveal the details of secret meetings he held with oil company executives in the run-up to the 2003 invasion of Iraq.
After his vacation with Cheney was revealed, Scalia scoffed at the suggestion he was compromised and defended his decision to remain on the case. “I do not believe my impartiality can reasonably be questioned,” he said in a 21-page memo. “If it is reasonable to think that a supreme court justice can be bought so cheap, the nation is in deeper trouble than I had imagined.” But Sen Patrick Leahy, the Vermont Democrat, implored Scalia to withdraw. “Instead of strengthening public confidence in our court system, Justice Scalia’s decision risks undermining it,” he stated.
In fact, US supreme court justices enjoy a special privilege: they are the only judges exempt from the federal Code of Conduct, which demands judicial impartiality and prohibits a jurist from presiding when he or she has “a personal bias concerning a party to the case”.
Recusal issues often spur judicial complaints. But the watchdog panels that evaluate them, both on the state and federal level, are not courts and therefore lack the authority to review the merits of a litigant’s case. Even a substantiated charge of misconduct won’t change the outcome of a ruling or verdict; it merely opens the door for a new appeal to be filed, which for beleaguered litigants can be costly, time-consuming and often not worth it. Many do continue to fight. Others simply vent.
The online vitriol directed at unscrupulous judges, which began in the mid- 2000s, has built to a howling digital crescendo. Websites including The Robe Probe, The Judiciary Report and The Robing Room, which rate judges the way Yelp rates restaurants, are rife with railing as embittered, mostly anonymous plaintiffs rip into judicial decisions they feel were biased or corrupt.
Mounting criticism led to a remarkable development last year. The chief justices of each state gathered and declared that something had to be done. They implored lawmakers to enact legislation that might restore their courts’ battered integrity by forcing more transparency on their systems and holding judges accountable when they engaged in unethical behavior.
“Fair and impartial justice requires that judges act without regard to the identity of parties or their attorneys, the judge’s own interests or likely criticism,” said the resolution of the Conference of Chief Justices in January 2014. A judge should step away when there is “actual conflict or bias or other impropriety…or when a reasonable disinterested person would conclude that an appearance of impropriety exists.”
The decree was set in motion by a precedent-setting 2009 Supreme Court decision involving a dispute between two West Virginia coal companies that had done business with each other for years – until one went bankrupt – leading to a judicial scandal that inspired a John Grisham novel.
In an appeal of a case in West Virginia court, A.T. Massey Coal Co. CEO Don Blankenship spent $3m to elect Brent Benjamin, who ultimately provided the swing vote that overturned a $50m judgment against his company. Benjamin rebuffed repeated demands that the newly elected justice recuse himself because of his obvious conflict.
The US Supreme Court ruled that Benjamin’s bias was so extreme that his failure to step aside violated Caperton’s right to due process under the Constitution’s Fourteenth Amendment. The case, which spawned Grisham’s 2008 best-seller, “The Appeal,” underscored the kind of underhanded dealing that has stained the judiciary.
A further nudge for reform came last year when the Center for Public Integrity published a report on financial conflicts of interest. Among its findings: on 26 occasions in the preceding three years, federal appellate judges ruled on cases involving companies in which they owned stock or where they had a financial tie to an attorney appearing before them.
It also created a grading system to gauge how diligent each state was in collecting personal financial information from its judges, including stock ownership and outside sources of income, and how accessible that data was to the public. The center said that 42 states, plus the District of Columbia, failed its test. Six others earned a D grade, while two – California and Maryland – got Cs. California’s score, 77, the highest of any state, was seven points below the federal government’s grade of 84.
The report highlighted the type of conflict that can be most readily identified and that doing so requires full disclosure from the judges. Stock ownership, even if minimal, should automatically disqualify a judge from hearing a case, many experts believe. “If a judge owns a single share in a company involved in a case, he should recuse himself instantly,” says Rotunda, a leading law scholar.
It’s been more than two years since Margaret Besen has seen her children, who are now 12 and 16. There’s no money to pay the court supervisor, so they can’t visit. Nor does Besen have the funds to continue fighting. Kent retired shortly after making his decision.
“The hardest thing in my life is that I can’t be with my children and I can’t have an impact on my children’s upbringing,” Besen said over coffee at a Long Island diner. “A lot of people do not have any idea how the judicial system works or doesn’t work until you’re in it. We think we’re in a democratic society. We think we’re run by rules. But they are not being upheld by the court at all.”