ACM Panel Divides on “Irregularity” Under Rule 2-535
When more than 30 days have passed since the entry of a judgment, it’s tough to challenge. To revisit the judgment that late, there needs to be one of three things set forth in Md. Rule 2-535: “fraud, mistake, or irregularity.” The vaguest of those terms, “irregularity,” covers failures by the court and its employees and agents (but not attorneys) to follow proper practices and procedures.
The grounds for an “irregularity” are more clear when it is a judge or the clerk’s office making a mistake (say, by not sending a required notice), but for other personnel involved in the judicial system it can be murky — as was evident earlier this year in the split Appellate Court decision in Howes v. Howes. The case demonstrates that, while new policies and methods for dispute resolution evolve to become part of the “regular” court system, they may create pitfalls for unwary litigations that are impermissibly “irregular.”
Concurrent Criminal and Civil Cases
Gary Howes was charged with misdemeanor negligence that allegedly contributed to his father’s death. (The opinion doesn’t detail exactly what the alleged negligence was, though it’s also not relevant to the decision.) Soon after in a Circuit Court civil case, Stephen Howes, the personal representative of the father’s estate, sued Gary on the grounds that his negligence barred him from collecting an inheritance or otherwise benefitting.
The court granted a temporary restraining order that prevented Gary from withdrawing money from his father’s bank account. Gary was told to get an attorney, but, at the next hearing, he appeared without one. The court again advised him to get a lawyer, and granted a continuance so he could try again.
At the postponed hearing, however, Gary still didn’t have representation. The court permitted one more continuance, but warned that Gary wouldn’t get any more extensions. So when he showed up at the next court date with no attorney, the hearing proceeded.
A “Private” Mediation Designated by the Court
The court ordered that Gary was enjoined from taking his father’s money, property, or documents, but that he could “file a motion with the Court to invade the identified accounts by Court Order and upon a showing of good cause.” That meant that he could ask the Court to let him get funds for a lawyer, but he never did that. (Who knows whether he understood what filing a motion “to invade the identified accounts … upon a showing of good cause” meant, but he never argued he was confused.)
After that, a court’s senior judges coordinator emailed Gary’s public defenders to notify them that mediation had been ordered with a senior judge. The senior judge, as the majority described it, was working “in a private, not a judicial, capacity.”
This seems like a correct assumption: Any judge working as a mediator is not doing so in a judicial capacity; mediation and the role of mediators are described in Rules 17-102(g) and 17-103, and it’s not judging. Rule 18-103.9(a), moreover, states that, unless “expressly authorized by law,” a judge can’t act as a mediator “apart from the judge’s official duties.” There’s no authority making mediation an official duty of a judge.
The remaining permission for a judge to be a mediator is when it is “expressly authorized by law,” and the only provision like that for a senior judge is in Rule 18-103.9(b): A senior judge may conduct alternative dispute resolution proceedings — that includes mediation, see Rule 17-102(d) — “in a private capacity” only if certain conditions are met. So, the only allowance for a senior judge to be a mediator is “in a private capacity.”
The court’s order didn’t specify that the senior judge was operating in a private capacity. From there on, communication with the senior judge — or through the coordinator on the senior judge’s behalf — referenced the judicial title, was through a governmental email address, and provided a courthouse address and telephone number. Also worth noting, as contemplated by both the Rules and the court’s required “differentiated case management” plan (which establishes procedural tracks for various categories of cases), and consistent with common sense, mediation is meant to occur before judgment.
Delay and Default
The public defenders responded to the senior judges coordinator that Gary shouldn’t be participating in mediation while his criminal charges were pending. They requested that he not be transported to mediation, and advised that they were not his attorneys in the civil matter. The senior judge excused Gary from the mediation and said he would tell the Court’s administrative judge it was postponed.
The coordinator then tried to reschedule through the public defenders, who reiterated that Gary shouldn’t be participating and they weren’t his civil attorneys. The senior judge told them that, because the mediation was court-ordered, Gary would have to attend — but he could ask the court to stay the civil case until after the criminal case. The public defender wrote back that she intended to file that for him, but she never did.
Meanwhile, counsel for Stephen obtained an order of default based on Gary’s failure to answer an amended complaint. The order notified Gary that he had 30 days to respond, but the public defender told Gary the case was going to be stayed and he didn’t have to do anything. When no timely response was received, plaintiffs moved for a default judgment, which was granted and entered — thereby disqualifying Gary from receiving any funds from his father’s estate or otherwise benefitting from it.
When he learned of this, Gary moved to vacate the default judgment on the grounds that he was still attempting to find counsel, but the motion was denied. Gary then finally got himself a civil attorney, who moved for reconsideration. That motion recounted Gary’s misunderstandings about his case being stayed, about the possibility of judgment being entered before mediation, and about his need to respond to the default order, arguing that this all amounted to an “irregularity” pursuant to Rule 2-535. The court denied the motion, finding that the default order was clear that Gary was supposed to respond, and he didn’t do it.
Divided Appellate Panel on “Irregularity”
The split panel’s majority agreed with Gary’s counsel. (Disclosure: The majority opinion was authored by Judge Robert McDonald, whom I clerked for and much admire as a formative mentor.) The majority believed that the senior judge mediating the case “had every appearance of being a judicial officer” or an agent of the court, which Gary reasonably failed to understand.
Given the communications with and representations from the senior judge, the majority found it understandable for Gary to assume that his civil case was going to be stayed, or, at least, that the court-ordered mediation had to be completed before judgment. This all amounted to an “irregularity” sufficient to vacate the judgment.
In dissent, Judge Shaw didn’t see any irregularity. To her, Gary had multiple chances to engage the court and raise all these objections, and he didn’t. He was repeatedly advised to get civil counsel and told the proceedings were continuing regardless. He could have gotten money out of the estate to pay for an attorney, but he didn’t do that either.
Judge Shaw read the senior judge’s communications as making clear that he had no authority in the civil case and no independent power to stay it. It didn’t matter that the senior judge used his court email address to correspond with counsel because there was no indication that the lawyers thought the judge was acting in an official capacity. Nor did she see a problem with the public defenders providing “informal limited representation.”
To the extent that Gary believed from the public defender that the postponement of mediation would stay his case, or that the public defender was going to file a motion to do that, those were just mistakes by the attorney, which are not grounds for an “irregularity.” The dissent would have let the default judgment stand.
ADR and Agents of the Court
I agree with the majority that the involvement of the senior judge caused enough confusion for a Rule 2-535 “irregularity.” In the majority’s view, the senior judge reasonably appeared to be acting as a judge, or at least an agent of the court. Looking over the Rules and the facts here, I think there’s a strong argument that the senior judge — as the court’s “designee” — actually was an agent of the court.
ADR practitioners in these circumstances are “designated by the court” to play a court-monitored, court-controlled, Rules-based role in the judicial process. I don’t see any reason why their actions — regardless of whether they are senior judges or not, or whether they are technically in a “private capacity” or not — wouldn’t be sufficient to find an “irregularity” for the purposes of Rule 2-535.
Putting aside the specific Rule 18-103.9 limitation that applies to a senior judge, the ADR scheme in the Rules otherwise doesn’t clearly define when the process is a court or private function. (That the distinction isn’t cleanly made may itself have contributed to the senior judge’s lack of vigilance in sticking to his “private capacity.”) Indeed, the word “private” doesn’t appear anywhere in the entire ADR title.
Rule 17-202(b) permits the court to refer an action to an “ADR practitioner,” which, as the majority notes, can include an active or senior judge conducting a settlement conference as part of their official duties, see Rule 2-706(b). The court uses its “discretion” to designate a specific mediator considering, “any special training, background, experience, expertise, or temperament” of the mediator. Rule 17-202(d). That court designee has met particularized qualifications set out in the Rules, see Rule 17-205, and is kept on a list that the court is required to maintain, see Rule 17-207. At least for the limited purpose of facilitating resolution of disputes, why aren’t they actual (and not just apparent) agents of the court?
I don’t see why the analysis would drastically change because the ADR practitioner charges a fee. Courts charge lots of fees and costs, including for services by individuals who aren’t court employees; for example, when the court appoints its own expert pursuant to Rule 5-706, the fee is paid by the litigants. It’s also worth noting the level of control the court has of the mediator’s fees: “An order to a fee-for-service ADR shall also specify the hourly rate that may be charged for ADR services in the action, which may not exceed the maximum stated in the applicable fee schedule. … During any extension of ADR, the ADR practitioner may not increase the practitioner’s hourly rate for providing services relating to the action.” Not exactly a purely private arrangement.
The process established by the Rules is court-directed and court-controlled. Litigants and their attorneys alike are unlikely to regard the Rule 17-202 procedures the same as a private mediation that they have privately arranged with no direction from a court. When a mediator is a designee of the court with a court-ordered role in the judicial proceedings, I don’t see why the “irregularity” analysis should apply any differently than it would for the actions and representations of a regular court employee.
Dual Processes and Procedural Confusion
I do agree with Judge Shaw that a lot of this could have been cleared up if Gary had just gotten a civil attorney like he was advised to do. But the problem is that, when he didn’t, the senior judge then treated the public defenders as Gary’s civil attorneys. That’s understandable as a practical matter — the senior judge was just trying to move things along and get to the proper outcome — but as soon as the public defenders said they weren’t Gary’s civil attorneys, communications should have gone directly to Gary until he formally got civil counsel.
That a court designee, personally and through a coordinator employed by the court, all of whom are using court resources and email addresses, would continue to schedule and confer on court matters with counsel who has specifically disclaimed representation seems pretty irregular to me. The dissent may not take issue with the public defenders’ “informal” representation, but I would think the court might adhere to more formality given the consequences Gary faced — the default judgment essentially stripped him of his entire inheritance. Judge Shaw attributes the mistakes here to the public defenders and correctly notes that mistakes by a party’s attorney aren’t an “irregularity,” but I still come back to the fact that they weren’t his civil attorneys.
As alternative dispute resolution continues to become an entrenched part of the judicial system, the lines between it and litigation continue to blur — especially when those in the courthouse play both roles. There are abundant reasons why judicial promotion and incorporation of alternative dispute resolution is a good thing. But, as Howes demonstrates, the more intertwined the two processes become in the courthouse, the more opportunities there are for confusion and error. If that creates broader grounds to reopen a judgment on the basis of “irregularity,” perhaps that is just a necessary and tolerable consequence.
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