I guess it boils down to the subjective question of whether the judge is raising an argument because he is a thorough and thoughtful judge or because he has a horse in the race. Judge Sankovitz in Milwaukee County is a great example of a judge who thinks of arguments that the attorneys don't think of because he's smarter than any of us. Even when I'm on the losing end, I don't have a problem with that. Unfortunately, I've seen too many examples of judges who raise new arguments for the other reason, i.e., by judges who might as well be Of Counsel to the corporate law firm or hometown firm that I'm going up against. The Court of Appeals shouldn't naively believe that this kind of bias doesn't exist.
Comment By rude dog
Friday, June 20, 2008 at 12:58 PM
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Judges have duty to do independent research
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What should an attorney do when a trial judge rests his decision on a case that the parties did not cite, but which he discovered doing independent research?
An attorney could file a motion for reconsideration, addressing the case or cases on which the court relied.
However, the attorney should not argue on appeal that the circuit court lacked authority to do its own research.
Rejecting that claim, Judge Daniel Anderson wrote for the Court of Appeals, “A competent judge is not so naive to believe that briefs will always summarize the relevant facts and the applicable law in an accurate fashion. A competent judge uses the briefs as a starting line and not the finish line for his or her own independent research.”
Boundary Dispute
Thomas and Josephine Camacho brought suit against their neighbors, the Trimble Irrevocable Trust, over title to a strip of land. The Camachos claimed they gained title to the property via adverse possession.
The Camachos moved for summary judgment, and the Trust responded.
Waukesha County Circuit Court Judge James R. Kieffer ruled in favor of the Camachos, after doing his own research on adverse possession law.
The Trust appealed, but the Court of Appeals affirmed.
The Trust argued that the circuit court should not have conducted independent research, did not give sufficient notice to permit it to refute the case cited by the court, and that the research was biased on behalf of the Camachos.
The Trust contended, “The trial court judge is supposed to be a neutral arbiter of the dispute. A difficult situation is created when the trial court does the legal research for one party. It is more difficult when the legal research is not timely disclosed. It is a most difficult situation when the court announces its decision based upon its own legal research, and then by name and citation only, without any relevant rationale.”
The Court of Appeals disagreed.
Anderson wrote, “Not only does a good judge confirm that the authorities cited actually support the legal propositions in the briefs, a good judge also makes sure that the authorities continue to represent a correct statement of the law. A member of the bench who fails to independently develop his or her own legal rationale does so at his or her own peril and the peril of the litigants.”
The court also quoted Judge Frank H. Easterbrook of the Seventh Circuit as follows: “That the [judge] did some research beyond the boundaries set by the briefs shows industry rather than the sort of indolence that might deprive the parties of a fair hearing…. [I]t is the sleepwalking judge, not the diligent one, who deprives the litigant of the personal right to careful, individual consideration.
“Any time a judge does independent research there is a risk of error, but judges with some initiative probably err at lower rates than judges who naively believe that the briefs cover everything worth considering. Courts frequently decide cases on lines of reasoning that can’t be found in the briefs.” Hampton v. Wyant, 296 F.3d 560, 564-65 (7th Cir. 2002).
Rejecting the Trust’s argument that the research was biased, the court stated that, while it does not know the circuit court’s research trail, it would presume the court considered many cases and chose the case it believed best represented the correct statement of the law.
The court stated that, by doing independent research, and applying the law to the facts, a court does not show preference for one party over the other, but merely fulfills its duty.
Turning to the merits, the court found that the circuit court applied the law correctly.
A fence had been erected in 1980 between the properties, and until 2006, the Trust never contended that the fence did not mark the property line.
Because the Camachos exercised possession for more than 20 years, the court concluded they obtained ownership pursuant to sec. 893.25(1).
5 Comments on This Article
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Hey Rude Dog, good question. Yes, a judge could do that if he/she gives notice an and opportunity to be heard before dismissing a case. If a case has no merit, what difference does it make how it is dismissed if it ultimately will be dismissed? What we are really talking about is winning because nobody puts up a fight or winning because the law commands it.
I would rather judges not go find case law on their own, but if they do and reach the correct result, then justice is done. Judges finding cases on their own is very rare anyway but they have inherent authority to apply the law whenever they want. Where we agree is they should not do it for specious reasons and I say they must always give the parties a chance to respond. Remember, the Court of Appeals does this do, it's not just a trial court problem. Sometimes COA judges give notice they are going beyond the cases in the briefs and ask for comments and sometimes they do not. They should always seek comment when deciding a case on grounds not cited or argued by the parties, because then they absolve the other side from the doctrine of waiver. Judges should apply the law in the proper case, but not do so to bail out incompetent parties who waived arguments and authorities by not making them. In other words, judges must tread lightly when making arguments not made and thus giving a negligent party a benefit. Can judges do this? Yes. Should they? Rarely, and only when necessary to avoid a miscarriage of justice. Comment By Nick Zales Friday, June 20, 2008 at 12:09 PM |
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So under your theory, a judge could just independently decide (based on controlling law) that a case has no merit and should be dismissed? Without any motion from the defendant?
Comment By rude dog Friday, June 20, 2008 at 12:01 PM |
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It is self-evident that judges have an obligation to apply the controlling law, whether the parties raise it or not. Usually, the parties are competent and cite the controlling authorities but often they do not. So a judge applying the correct law is doing the right thing for the public as a whole.
However, when judges do this they should, in the proper case, provide notice to the parties and allow them to argue on this uncited authority. If judges cite their own law to reach a result then they must give the parties an opportunity to be heard. Comment By Nick Zales Friday, June 20, 2008 at 11:36 AM |
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The issue I have is when the judge grants summary judgment on grounds not argued by the moving party. A party moving for summary judgment (or any other order) has to state its grounds for relief with particularity at the time that it files its motion. 802.01(2)(a). This is clearly intended to prevent the moving party from sandbagging the non-moving party at the motion hearing. Judges cross the line when they play advocate and throw out cases on grounds not argued by the moving party. There is no authority allowing judges to essentially file their own motions for summary judgment or otherwise use summary judgment procedure for "gatekeeping" purposes.
Comment By rude dog Friday, June 20, 2008 at 7:23 AM |
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