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Equal Protection for Judgment Debtors

Equal Protection for Judgment Debtors by Wayne Greenwald

We represent all the players in the debtor-creditor spectrum. So, we've developed some perspective. Sometimes the view is disheartening. A concern arises in defending the enforcement of money judgments.

When representing judgment debtors, judges have said to us "this is a federal judgment and it must be paid," or "it may not be today, it may not be tomorrow, but this judgment will be paid," or one judge thundered "a judgment should be paid."[1] These sentiments are echoed in reported decisions.[2]

We also enforce judgments. So, we appreciate what they are. They are the right to use the force of law, to lawfully take a judgment debtor's available property to pay an established debt. It's not the right to have the debt paid because the court says you owe it, dammit.

We've found that judges ruling in enforcement proceedings for money judgments they issued often show a proprietary interest in those judgments. This plays out in those quotes and a less even-handed application of debtor-creditor law and judgment enforcement remedies.

In contrast, we've found judges ruling on enforcement proceedings for money judgments issued by other judges generally apply the law more evenhandedly. There is less of a sense of, "I said you owe the money, pay it." It's more "the law offers protections and remedies to both creditors and debtors. Show me what you're entitled to and you'll have it. If there are conflicting entitlements, we'll find a lawful, fair balance."

This is not critical of judges. A conscious bias is not suggested. This recognizes that judges are human.[3] However, that humanity jeopardizes the right to an impartial court.[4] Plus, there's an easy remedy for the problem: the judge ruling on enforcement proceedings shouldn't be the judge that issued the money judgment.

This remedy isn't hard to implement. Many courts have one judge or magistrate supervising pre-trial proceedings with another trying the case. We're suggesting a third judge for post-judgment proceedings. That judge is untainted by opinions generated by the facts shown at trial, where the post-trial issues can differ significantly.[5]

We've raised this issue with elected officials. No doubt, there are more pressing equal protection issues than this. We also believe that empirical research can define the problem better and maybe reveal other remedies. Again, it's not an exciting area for academic or policy research.

However, someone may be adventurous enough to raise this constitutional issue in a case or bump into a social scientist with nothing else to do. We've lacked the opportunity to do either. If you do, please let us know. We're happy to help.


[1] To his credit, that judge apologized later.

[2] E.g. "The bankruptcy judges and district judges of this Circuit have no interest in seeing our judgments flouted." Silver Sage Ptnrs., Ltd. v. City of Desert Hot Springs (In re City of Desert Hot Springs), 327 F.3d 930, 937 (9th Cir. 2003), "Connecticut courts would have a valid interest in enforcing a valid judgment."Inv. Assocs. v. Lancia, 2008 Conn. Super. LEXIS 1112 (Conn. Super. Ct.), "Similarly, California has a significant interest in enforcing and interpreting judgments of the courts of this state." Sulzer Pumps v. Superior Court, 2010 Cal. App. Unpub. LEXIS 3757 (Cal. App. 2d Dist.).

[3] Courts recognize this, too. E.g. "Most judges do their utmost to maintain a poker face, an unperturbable mind and a noncommittal attitude during a contested trial, but judges are human and their emotions are influenced by the same human feelings as other people. Perhaps no judge during a hard-fought trial can remain completely indifferent, especially if the case is one which he thinks ought not to be tried. . ." Breunig v. American Family Ins. Co., 45 Wis. 2d 536, 547-548 (Wis. 1970), "[I]t is important to bear in mind that judges are human and that they are not devoid of opinion or emotion. People v. Hall, 1997 Mich. App. LEXIS 2018 (Mich. Ct. App. Dec. 19, 1997), "[I]mmigration judges are human, subject to varying biases, and ... it is inevitable that some judges would have approached their evaluations with more sympathy and compassion than others" United States v. Peters, 751 F. Supp. 2d 404, 412 (E.D.N.Y. 2010), "Judges are human; like all humans, their outlooks are shaped by their lives' experiences. It would be unrealistic to suppose that judges do not bring to the bench those experiences and the attendant biases they may create." Del Vecchio v. Illinois Dep't of Corrections, 31 F.3d 1363, 1372 (7th Cir. Ill. 1994).

[4] As was recently opined:

"[T]he Due Process Clause clearly requires a 'fair trial in a fair tribunal,' before a judge with no actual bias against the defendant or interest in the outcome of his particular case." Bracy v. Gramley, 520 U.S. 899, 904-05, 117 S. Ct. 1793, 138 L. Ed. 2d 97 (1997) (citation omitted); In re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 99 L. Ed. 942 (1955); see also Ungar v. Sarafite, 376 U.S. 575, 584, 84 S. Ct. 841, 11 L. Ed. 2d 921 (1964) (A petitioner has a "right to be tried by an unbiased and impartial judge without a direct personal interest in the outcome of the hearing."). "Fairness, of course, requires an absence of actual bias[.]" Murchison, 349 U.S. at 136. "Not only is a biased decisionmaker constitutionally unacceptable but 'our system of law has always endeavored to prevent even the probability of unfairness.'" Withrow v. Larkin, 421 U.S. 35, 47, 95 S. Ct. 1456, 43 L. Ed. 2d 712 (1975) (citation omitted).

Flores v. Long, 2014 U.S. Dist. LEXIS 80785 (C.D. Cal.)

[5] E.g. "Yes, he's a !@#$%^&* fraud (money judgment). But, his homestead exemption and family limited partnership are valid (judgment enforcement)."

Wayne M. Greenwald Wayne M. Greenwald
Phone: 212-983-1922 & 888-496-1553 (Toll Free)
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