Due Process and Don’t Process

I’ve written before about small claims court.  Lawyers don’t get into small claims court often, but I have to confess that I find it fascinating.  Big boy court is expensive enough that it naturally filters out smaller disputes.  But in the small claims world, the unfiltered view can be enlightening.

Small claims courts are simpler by design. By suspending normal rules of evidence, the law allows judges more freedom to ask their own questions.  The judge’s experience typically allows for sorting issues quickly.  Most issues, even in the illumination of small claims court, are not new. The judge has probably seen it before and often knows what each side will say before he says it.

Who makes small claims decisions? The judge, the court reporter, or somebody–wait, is that Alfred Hitchcock?

But the judge still has to show up.  In Reynolds v. Capps, a May 23, 2012 Indiana Court of Appeals case, the Court chastised the trial judge for the practice of apparently allowing the court reporter to conduct court in his absence.  The Reynolds case was an eviction and request for damages–pretty run-of-the-mill stuff. Indiana has a special law that allows a landlord to allege that he shouldn’t have to wait until the whole case is over to get the tenant out, but that law also allows a tenant to oppose the landlord’s request for immediate possession before the court decides it.

At an “Initial Hearing” both the landlord (Capps) and tenant (Reynolds) showed up, and according to the Court of Appeals, some Constitutionally-impaired hijinks ensued:

The court reporter verified the nature of the action, and the parties discussed their allegations, including Reynolds’s concerns about the condition of the premises. The court reporter repeatedly explained that evidence relating to the parties’ allegations would be heard later. In her statement of the evidence, the court reporter explained, “I advised the parties the reason for the Initial Hearing was to set a date for the Defendant to vacate the Plaintiff’s rental property . . . .” . . . According to the court reporter, when Reynolds made statements about the problems with the apartment, the court reporter responded, “all evidence was to be heard at the trial of this matter . . . .”

(P.3). The apparent authority of the court reporter did not end when conducting the hearing, but the reporter also filled out “a pre-signed ‘INITIAL HEARING/JUDGMENT ORDER’ form requiring [tenant] Reynolds to vacate the premises.”  So, not only was the judge not present at the hearing, the court reporter walked in with the judge’s decision already made. The tenant was getting kicked out.  No presentation of evidence, no chance to argue her case–just get out.

This is bad.  Look, I’m no technocrat. I believe that the rules that govern court procedure should be used to clarify and not stifle the evidence.  Courts have difficult caseloads and finding ways to streamline the process is good for judges, litigants, and taxpayers.  But at the risk of sounding picky, courts really do need to hear actual evidence before reaching a decision. Really.

The Court of Appeals was not impressed.  It said that the lower court failed to meet the minimum due process requirements because the tenant had a right to have her side of the case heard by a judge.  Not only is a court reporter not a judge, and not authorized to make judicial decisions, the court reporter repeatedly told Reynolds that no evidence would be taken.  The Court of Appeals then gave the trial court some constructive criticism. Well, more like a judicial smackdown:

Even taking into account the informality of the small claims process, if the hearings on evictions are regularly conducted without a judicial officer present, we pointedly and directly express our concern and expect that situation to be remedied.

(p.6).  It is normal for court staff to help sort out the deluge of small claims cases for a judge.  I practice in a county where a court staff member talks with both parties at the small claims initial hearing to determine whether their agreement will actually require the judge’s participation.  (Surprisingly, many people come to small claims court having never attempted to resolve the dispute themselves first.)  If both sides appear and report they are still in dispute, the court staff will schedule another day for the judge to hear the case.  If only one side appears (typically the Plaintiff), the court staff will advise the judge, who can then enter a default judgment.  From what I know of surrounding counties, this process is pretty typical.

However, the Reynolds case involved (1) a meaningful decision (2) without evidence (3) made by a non-judge.  It’s unclear if the judge was condoning this as a normal small claims procedure, or whether the court reporter misunderstood her role.  Either way, in my opinion the pre-signed judicial order is never a good idea.

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