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Pro se judge shopping

Ever since a local family court judge got defrocked for presiding in a case in which she had an alleged conflict, South Carolina family court judges have often been recusing themselves when there is a claim of conflict, bias, or improper conduct.  This has, unwittingly, led to what I label pro se judge shopping, in which a pro se party’s conduct leads a judge to recuse him or herself rather than remain on the case and sanctioning the pro se’s improper conduct.

I am aware of a couple of cases in which a pro se has filed a lawsuit against a family court judge–with such lawsuits almost always being dismissed early in the proceedings–which led to the judge recusing him or herself from further proceedings on this case.  Since such pro se litigants only file lawsuits against judges whose ruling they are unhappy with, the result is that the pro se litigant eliminates a judge who may be familiar with the case and with the pro se’s conduct, and sympathetic to the opposing party’s position.  In theory the pro se litigant could keep filing lawsuits–and getting judges recused–until he or she gets in front of a more sympathetic judge.  Lately, I have seen family court judges recusing themselves merely because the pro se litigant has sent repeated ex-parte communications to the judge.  This makes it even easier for a pro se litigant to eliminate judges they do not like from considering their cases.

One can sympathize with these judges’ actions.  Canon 3(E)(1)(a) of the South Carolina Code of Judicial Conduct reads:

(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: (a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding…

A judge who has been sued or who has received numerous ex-parte communications from a pro se party is being cautious in recusing him or herself, as the pro se party could plausibly argue that the judge violates this canon by not stepping aside.  The problems with judges doing this is that their recusal rewards conduct that would almost certainly get an attorney sanctioned for violating Rule 8.4(e) of the South Carolina Rules of Professional Conduct, which states: “It is professional misconduct for a lawyer to: … (e) engage in conduct that is prejudicial to the administration of justice.”

Though I would like judges to be brave enough to hold that a pro se party’s mere filing of a lawsuit against them is not sufficient to reasonably question those judges’ partiality, I don’t expect such bravery absent a clear indication from our Supreme Court that the filing of such lawsuits doesn’t necessitate recusal.  However judges have an excellent remedy for pro se parties who send numerous ex-parte communications: civil and then criminal contempt.

Rather than allowing pro se parties to send so many ex-parte communications that judges feel compelled to recuse themselves, such judges could warn such parties that inappropriate ex-parte communications are prejudicial to the administration of justice and that such future communications will result in potential contempt sanctions.  They should then initiate contempt proceedings if the inappropriate ex-parte communications continue.

As the legal culture now stands, family court judges are rewarding pro se parties who engage in acts that would get attorneys sanctioned, and allowing these pro se parties to eliminate judges they don’t like and shop for judges they do.  I might suggest that judges even violate Canon 3(B)(1)–“A judge shall hear and decide matters assigned to the judge except those in which disqualification is required”– when they recuse themselves based on an pro se litigant’s inappropriate conduct.  Advantaging unethical conduct is hardly the way to insure justice.  Family court judges need to show some fortitude and stop rewarding–and begin punishing–pro se parties for this behavior.

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