Friday, July 01, 2011

Roger the Judge

Roger the Judge

On 30 January 2011, having asked people to attend Jesse Toca's administrative law court hearing,  I wrote about how he works to "Roger the Judge"

I heard through the grapevine that 13 people showed up as supporting observers (at the Jesse Toca hearing on Frida), which I called for last week.
I thank all of you who attended for your spirit and verve.  We need all of it possible in our dark days of declining justice in courts.
What happened there?  Well, here comes the short version:  
Jesse did "Roger the Judge" - he cited Rogers v State, 630 So.2d 513 (Fla 1993) in support of his effort to disqualify the judge.
And now the longer version:
If you read any of his case documents, you see that Jesse's dispute with the judge on Friday had to do with his effort to get her to disqualify herself or start behaving ethically and not blatantly favor his opponent, an assistant Florida Attorney General.  She refused, so he demanded the right to stop the proceedings to prepare a motion for her disqualification on the basis of her demonstrating prejudice sufficient to make  him fear he could not get a fair trial. 
ALL three of the following citations require the judge to disqualify self in the event a litigant fears the court will not conduct a fair hearing because of judicial prejudice:
  • Law - Florida Statute 38.10 
  • Court Rule - Florida Rule of Judicial Administration 2.330
  • Legal precedent - Rogers v. State, 630 So. 2d 513 (Fla. 1993)
See all three in the attached document.  [following this]
Note this:
Jesse served notice of the INTENT to file the motion for disqualification.  One ought to take such a step advisedly, carefully considering the danger of the judge.  I have heard of udges waiving bailiffs to wrestle a litigant to the ground and pepper spray him to make him submit to the arrogance of that judge (google the case of former Oregon prosecutor Roger Weidner),  The notice constitutes a kind of warning shot across the bow of a judge tending toward rogue, prejudiced behavior.  If the judge seems halfway decent and honorable, but seems inclined toward your opponent without giving you a fair shot a relief and remedy, then you have a prejudiced judge.  The notice might make the judge rethink and retreat.
The first judge, upon receiving notice, recused himself before Jesse could prepare the disqualification motion.  The second (current) judge tried to block Jesse's effort to disqualify her by claiming he had already gotten one judge disqualified, and the rule gives her the prerogative as the second judge.  Jesse pointed out that the first judge had recused himself sua sponte, but had not disqualified himself as a result of the motion because Jesse had never submitted that motion.  Therefore, he gets a brand new initial disqualification motion opportunity with the current judge.  That must have upset her terribly.
But it clearly shows the power of serving notice of intent to file the disqualification motion, doesn't it?  Semi-HONEST judges will go ahead and recuse themselves when you hold the gun of righteous disqualification fo prejudice to their heads.
Jesse Rogered the current judge orally once, and she seemed to back off and start behaving honorably.  She started behaving prejudicially against Jesse as though she had already made up her mind to rule against him.  She started blocking his evidence, a typical ploy.  And so he slammed her honor honorably with another Roger, and this time with finality.
Thus, usually, where you find smoke, you'll find fire.  If a judge starts showing signs of prejudice against you, you won't generally convince the judge otherwise, so you might as well Roger the judge.  One uses Rogers like a hammer to get that judge out of the case and start on the track to relief, remedy, and justice.
Yes, you can get a new judge who shows prejudice even worse than the first.  If evidence of prejudice becomes clear, Roger that one too.
I do not have additional case law at hand to show how to handle subsequent motions to disqualify.  The rule and law say you get one free disqualification for prejudice if you do it the right way, but subsequent efforts will fail because you take it up as you would any other error to appeal.
This part of the law itself smacks of prejudice against your right of access to the court and to justice:
Florida Constitution Article I Section 21.Access to courts.The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay. 
I personally consider that part of the law a blatant expectoration of vile sputum into the face of the Constitution.  And so I would fight it tooth and nail as utterly crooked.  Why?  Because the court can, through prejudice, do massive damage to a litigant's case and reputation before the litigant gets the opportunity to take the matter to interlocutory or other appeal.  Furthermore, appeals take a lot of time, cost a lot of money, and risk further unjust loss.  That constitutes the precise reason the legislature enacted the disqualification law to begin with.  They just didn't want people to abuse it by demanding successive disqualifications frivolously.  
The court ethically MUST grant every legitimate motion for disqualification.  Nevertheless, in actual practice, the court typically puts up huge opposition to second and succeeding efforts to disqualify the judge, regardless of the merit of the effort.  No judge wants to admit to behaving prejudicially.  But many behave that way anyhow.
I personally believe that regardless of any other consideration, you battle for your life, liberty, money, and reputation in every court you enter as a litigant, and you have no excuse for going to that battle in any frame of mind other than that of a consummate, dedicated, steely-eyed warrior of unbending intent.  Such a warrior will hammer that intent and intolerance for injustice home to the judge and opposing counsel at every hint of a breach of rights or dignity, of of the propriety of an honorable court.  
YOU, in other words, MUST keep the court honest because you cannot count on anyone else doing it.  If you don't, the judge or your opponent will run over you like a speeding dumptruck full of beach sand. And they will do it like lightning, frying your case before you know what hit you.
From watching Jesse Toca IN ACTION, I have learned:
  • HAMMER your rights home explosively, repeatedly, and loudly, and NEVER let up, not EVER, till you get what you want.  
  • NEVER waive any rights.  
  • ALWAYS demand respect for your rights.
  • NEVER drop your guard against abuses of your rights in any legal environment, particularly court
  • NEVER stop protecting your rights in the above manner. 

In legal battles, he who quits first loses, and he who never quits, though he may lose temporarily, will ultimately win or die in the process.  I can think of only one BETTER way to exit from this planet...  
We'll save that discussion for a future e-mail.

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