Dear Pinky and Spike:
Jennifer returned to the courthouse as quickly as she could with Ralph in tow. There was no conversation. At the entrance to Judge Maryland’s chambers, Jennifer knocked on the door and positioned herself in front of the peephole. The judge’s assistant recognized her but followed security protocol and asked for her name, business and photo ID. Jennifer complied; she and Ralph entered. The assistant said, “You can go into chambers. The judge is waiting for you.”
Jennifer entered the judge’s chambers and stood tall at the front and center of the judge’s desk, just as she would have done if she were in the military and reporting to a superior officer — but without the salute.
“What is it, Ms. Ah …?”
“Jennifer Gaunt your honor. And this is my client Ralph Robertson. He was a party in one of this afternoon’s hearings.”
“Ms. Jennifer Gaunt, that hearing was slightly more than an hour ago; you don’t have to tell me what I did.”
“Yes, your honor. What I’m concerned about is that Ms. Heep drafted an order that says the opposite of what you said in court. There was no place on the document for me to either approve or disapprove it, so I feared that it would come directly to you.”
“My judicial assistant is wonderfully effective. That order has been signed and filed. So what’s your problem?”
“At the hearing, Ms. Heep requested a restraining order that keeps my client 500 yards away from the family home. You found that there was no evidence to justify such an order.”
“Didn’t Ms. Heep say that her client was afraid that your client would murder her and, if he did, it wouldn’t be on Ms. Heep? It would be on me?”
“Yes, she did, your honor. You explained to her that her client’s feelings aren’t evidence.”
Ralph felt like the potted plant as the colloquy between his lawyer and the judge played out, so he was startled when the judge said, “Mr. Ahh…” He knew his own name and finished her thought, “Robertson, your Honor, Ralph Robertson.”
“OK, Mr. Ralph Robertson, do you have any desire or reason for going within 500 feet of the house your wife is living in?”
“No, I don’t.”
“So, Ms. Jennifer Gaunt, what’s the problem? The order tells your client to stay away from a place where he isn’t going to be. What’s wrong with that?”
Jennifer, feeling as though she was slipping into an alternate reality, was still able to think of her legal authority, “Your Honor, Monterroso v. Moran is a case that still receives a lot of attention. The husband was a wife beater and the wife sought a restraining order. Instead of hearing the evidence, the trial judge followed widespread practice and issued mutual restraining orders on the assumption mutuality would keep either party from complaining. But Ms. Moran did complain to the Court of Appeal on the grounds that she had done nothing to deserve a restraining order. The Court of Appeal agreed with her. No restraining orders without evidence. That’s what you held less than an hour ago.”
Jennifer thought she had made a valid point until Judge Maryland said, “In Monterroso there was no threat of murder.”
“Your Honor, Moran beat his estranged wife and threatened to kill her.”
“But did the record show that the wife was actually afraid of being murdered?”
“She was beaten and threatened with death — how could she not be afraid of being murdered?”
“Please, Ms. Jennifer Gaunt, do not be rude to the court. It won’t be tolerated. I understand your statement to be an admission that, in the Moran case, the record doesn’t show the wife said, explicitly, that she was afraid of being murdered. Accordingly, Moran is distinguishable from this case. In this case, the restraining order has been executed by me, microfilmed, filed and whatever else the Clerk does with the things I sign. So, Ms. Jennifer Gaunt, if you made a proper request for an order, it’s denied.”
Before Jennifer could protest, the judge continued, “On my own motion I will take up your use of the ex parte procedure. I see that Ms. Heep is not here. Did you give her notice?”
“I called her office to say we were going to court to tell you about the corrupt order and that we were going immediately. I also sent her a fax.”
“You heard me warn Ms. Heep about the misuse of the ex parte procedure?”
“Yes, your honor.”
“Apparently, you heard but you didn’t listen. Ms. Jennifer Gaunt, you have interrupted one of the few afternoons a month when I have time to catch up on cases I’ve taken under submission. You’ve interrupted me in an attempt to vacate a restraining order one party wants very much while the other party doesn’t or shouldn’t care, and who happens to be your own client. Tell me, Ms. Jennifer Gaunt, what is the urgency that requires an immediate ex parte hearing?”
“Your Honor, it was my belief you would want to be informed that you were going to be presented with a written order different from the oral order you made in court.”
“And that’s it?”
“No. The written form of the order was illegal for the reason you gave when you denied it in court.”
“But, Ms. Jennifer Gaunt, I’ve just held that the law you cite is distinguishable from this case, the order is otherwise inoffensive, and the person asking for it feels safer. You haven’t made a showing that justifies resort to an ex parte hearing; I fine you $500.”
“You are fining me?”
“There you go again, hearing without listening. Yes, $500. When can you pay it?”
“This has never happened to me before.”
“Well, by all means, seek a writ from the Court of Appeal, be my guest. Seek an order that will defer your payment if you don’t have the money.”
“Of course we have the money to pay a $500 fine. I’d write a check right now if I had my checkbook with me. It will be delivered tomorrow morning.”
“Make it 8 a.m.”
Judge Maryland gestures to the door and says to Jennifer, “That will be all, Ms. Jennifer Gaunt. Please take your client with you.”
On the way out of the courthouse Ralph observes, “She doesn’t like you.”
Jennifer, feeling queasy after her experience in Judge Maryland’s chambers, almost told Ralph to go to hell, but she focused on keeping her temper under control. Ashley was waiting for them when they got back to the office. “How did it go?” she asked. Jennifer provided a nearly word-for-word replay.
“I can’t get my head around that,” Ashley said. “If you can’t count on her to apply a simple rule to a case where it clearly applies, how can you possibly anticipate what she’ll do in a situation that’s more complicated?”
“This is bad,” Jennifer groaned. “Why go to law school, why have laws — and why have lawyers if judges pay no attention to the law?”
Ralph said, “I liked the part about, ‘Why have lawyers?’ Are you charging me for what you did this afternoon? If so, what good did you do me? What did you do that I couldn’t have done for myself?”
Jennifer and Ashley looked at each other to decide who was going to respond. Each knew the other would tell Ralph he was being charged for the work done that afternoon, but after that, neither knew what the other would say in defense of their roles as lawyers in Ralph’s case.
Your friend,
Bucky
— Brian H. Burke is a certified family law specialist practicing family law and mediation in Santa Barbara. A researcher and educator in the field of divorce and family conflicts, he is also the creator of the Legal Road Map™. Click here for more information, call 805.965.2888 or e-mail info@burkefamilylaw.com.