The Superior Court of New Jersey recently rendered McGory v. SLS Landscaping, DOCKET NO. A-4837-18T2. It is a decision about due process and the impartiality of adjudicators. It is many miles from Florida, but it is a good reminder of the constraints presented by the right to be heard. Adjudicators anywhere would benefit from a review of this case. It may also be instructive on the positive attributes of veracity and the potential downsides and complications of misrepresentation(s).
For whatever reason, the employee in this case "jumped from a loft" at the employer. The event was not witnessed by any owner or his supervisor, Ms. Caruso. She did hear his landing from the jump, and investigated. She asked Mr. McGory if he was hurt, but Mr. McGory declined care. After he returned home, he concluded the injury required treatment and texted Ms. Caruso to inform her he was seeking care at a hospital, though he expressed an intent to cover the expense with his "health insurance." He noted that Ms. Caruso did not object to his intentions, nor did she specifically tell him that failing to tell the truth "was improper." (As I typed that, I thought of Robert Fulghum for some reason).
Mr. McGory visited "two health care providers, an urgent care center(,) and then a hospital." he provided a history "to each": that he "injured [his] foot when [he] fell off a roof while cleaning gutters at [his] home." This may cause some concern to some. First a misrepresentation, but reiterated multiple times. He later explained that he made those statements because he did not understand workers' compensation and feared punishment at work if he sought care. He was diagnosed with a fracture and received medical care.
Returning home thereafter, Mr. McGory testified, his parents educated him regarding workers' compensation and recommended that he report the injury accurately. He therefore contacted the Employer and the medical providers "to correct his record." The Employer then provided some additional medical care but "later denied his claim" based upon his untruthful initial representations regarding the facts.
Mr. McGory then filed a petition seeking both medical care and indemnity benefits. This was "supported by his affidavit" providing an additional explanation as to how he was injured. He explained his declining the initial offer of care and described being embarrassed (apparently of his jumping action). The employer denied the benefits asserting that his "injuries (occurred) while jumping off a ladder at his home." Some, at this point, may question whether that is disingenuous when the supervisor (1) heard the landing, (2) investigated, and (3) thought it was serious enough to offer medical care initially.
Thus, the situation presented an employee seeking benefits, and an employer denying them. The matter proceeded before a judge. And, at a preliminary motion hearing, the case took an interesting turn. Some may perceive that there the umpire (judge) became a coach or even a pinch hitter for the employer or even the employee. After hearing why the employer was denying the claims, the judge spontaneously raised the issue of "fraud," but the Employer expressed no desire to pursue that defense. Despite that pass, the Judge decided Mr. McGory should "remain silent," (pinch hitting?), limiting thereby both due process and free will, and ordered the employer to produce Ms. Caruso (supervisor) to testify.
Concluding that the petition/affidavit might alone carry Mr. McGory's burden of proof, the judge essentially seems to have rested the Claimant's case for him (pinch hitting?) and to have allowed the defense to proceed. One defense witness testified as to what others told him of the injury (hearsay perhaps), and that when he returned to the premises Mr. McGory had departed (not an eye witness). Ms. Caruso testified, describing her hearing the event and conversation with Mr. McGory including the offer of medical care he declined.
The judge then expressed his lack of understanding as to "why the petitioner would jump from the loft." The judge asked if Mr. McGory would explain that in testimony, and renewed his questioning about investigating "fraud" (coaching?), which the employer again declined to assert. It remains unclear how his reasoning of why to jump would be either relevant or important. And, the record does not seem to indicate such an inquiry was raised by the parties.
The appellate Court noted that a later review of the record demonstrated the judge said "fraud" more than a dozen times that day. At this motion hearing stage, the judge vacillated on how to move forward, now expressing uncertainty about "whether (Mr. McGory) presented a prima facie" case with his affidavit, having already prevented him from testifying, and moving to the defense case first. The judge editorialized further as to his perceptions, raising and suggesting some potential defenses, and concluded that more evidence was needed (coaching?).
Before the case reconvened, the Employer sought a judgment through a motion, essentially arguing the misstatements Mr. McGory made, and asserting that his actions were "willfully negligent, or constituted horseplay," which defenses the judge had previously suggested (coach?). Counsel for Mr. McGory reminded that the Claimant had not yet testified and argued dismissal was therefore premature. The judge returned again to the word "fraud," but reassured the parties he was "not rushing to judgment." He directed the Claimant's counsel to file a response to the dismissal motion (coaching?) and instructed regarding the details he wanted included in the response (coaching?).
Ultimately, the judge advised the parties he had decided "to have an all-out hearing," where he would "get to the bottom of this." (side note, the judge's role is to hold a hearing). However, he did concede that he had yet to hear from Mr. McGory. Despite his announced perception of a hearing being needed, the judge then "proceeded to make findings concerning" the affidavit, such as the statements to medical providers which "reveals a lie," and his statement to the employer about using his health insurance "was a lie" (as it was Medicaid and not "personal health insurance"). The appellate court characterized the judge's comments in this regard as "commentary."
Then, before Mr. McGory was allowed to testify, the judge made "credibility determinations and factual findings" about the accident and injury. These included that the Claimant was "a multiple liar." Reversing his prior conclusion to hold "an all-out hearing," the judge instead dismissed the petition (pinch hit?), but "without prejudice" (meaning it could be filed again). The judge suggested it could be reinstated (coaching?) if Mr. McGory proved "he is honest." On that showing, the judge concluded the Claimant could then present his case.
The judge then instructed the employer that it "might" have its dismissal with prejudice motion granted if "it's based on fraud." (Coaching?). But, the claimant did not seek to reinstate the petition nor did he testify. Mr. McGory instead elected to appeal, and the Judge was informed that had been filed when the parties appeared at a subsequent hearing. There, despite there having been no filing by either party to resurrect the petition, the judge announced "'There is a new motion,' referring to respondent's" previous motion to dismiss (already granted in part). The Court noted that the parties exhibited confusion in response to the judge's pronouncement, and that "the judge then scheduled a hearing on" that dismissal motion (directed at a petition already dismissed). If you are confused, in calm retrospect, imagine the parties striving to keep up in real-time).
The judge then proceeded with a July 10, 2019 hearing on the motion to dismiss (despite the fact Mr. McGory had never filed any motion to restore the petition, and despite the fact that it was already dismissed). Additionally, Mr. McGory had filed an appeal the day before that hearing (the judge had no jurisdiction). No testimony was taken at this hearing, and the judge then "rendered a decision on the merits of" the dismissal motion (which he had already essentially granted). He concluded Mr. McGory lied to the medical care providers and that he "was injured at work." Then, without Claimant testifying to tell his side, the judge concluded that "the injuries were not compensable because they resulted from petitioner's willful conduct - jumping." (Pinch hitting?).
The appellate Court noted that of course, the judge had no jurisdiction as the matter was the subject of an appeal. Further, since the petition had not been refiled nor any motion to restore been filed, the argument was made that the judge further lacked jurisdiction (even in the absence of the appeal). It found curious the judge's conclusion that he had "'reopened' the case in June and thereafter afforded the petitioner (McGory) the opportunity to testify, which petitioner declined." Though the trial judge might perceive that history, it seems at odds with his ordering the Claimant not to testify, his vacillation over the weight of the affidavit, his promise of a hearing, commentary without hearing, and later return to the premise of hearing after the case was appealed.
Mr. McGory contended on appeal that his due process rights had been violated. He complained of the "initial dismissal order" and the deprivation of any opportunity to testify, and the dismissal that followed the final (and tardy) opportunity for hearing while the appeal was underway.
Acknowledging that "[d]ue process is not a fixed concept . . . but a flexible one that depends on the particular circumstances," the Court reminded that "due process" "includes not only the right to cross-examine the adversary's witnesses but also the right to present witnesses." It concluded therefore that the May 29 dismissal "without prejudice violated petitioner's fundamental due process right to present evidence supporting his claim." The Court was critical of the judge's promise of a hearing, followed by denial of a hearing. It noted that
"the notion that a case where the credibility of the witnesses is an issue and the underlying facts are disputed can be decided without the need to "hear the evidence" is inconsistent with the fundamental fairness to which every litigant in every litigated matter is entitled."
The Court held that
"no court or administrative agency is so knowledgeable that they can make fair findings of fact without providing both sides the opportunity to be heard."
The judge's dismissal was presumptuous, based on less than a full opportunity to be heard, and based upon the judge's assumptions and conclusions that "petitioner was a liar." The Court was critical of the judge's imposition of a litmus test (prove you are honest) as a foundation to reinstate the petition, concluding "there is no requirement a petitioner first establish he or she is honest before obtaining a hearing on a claim petition." I reiterate that the judge's obligation is to afford all parties a fair and open hearing. Conclusions and decisions should wait until after that opportunity, after the parties themselves choose what to present as evidence and then rest their respective cases.
In short, "the judge predetermined the issue of petitioner's credibility at the outset of the matter, and throughout the proceedings, he oft-repeated his determination petitioner was dishonest and not credible." The judge thus "demonstrated he could not fairly consider" the testimony." The judge's statements were "inconsistent with the fair and impartial consideration of evidence by a fair and impartial judge to which petitioner was entitled." The Court reversed the dismissal and returned the case to the trial level with directions that the matter be assigned to a different trial judge for further proceedings. Such an instruction is rare in appellate decisions.
In litigation, some party bears the burden of proof. That party should be afforded the opportunity to present their claims or defenses (picture a presumption case where the law says the worker wins unless something is disproven). The opposing party should have the same opportunity. The judge should not predetermine any fact, form any opinion, or express any advice on appearances, perceptions, or how any party might or should proceed. The selection of claims is for one party and the selection of defenses for the other. The choice, timing, and manner (live, deposition, etc.) of the witnesses is up to the parties to pursue. Judges are there to perceive and to judge not to suggest (coach), direct (coach), or provide commentary (coach).
The judge's job is to be the referee as the parties find friction with each other. As disputes over those claims, defenses, and choices occur, the judge is the umpire. She or he should never leave that role and don the uniform of either team on the field, or suggest to them plays or strategies. The parties bring the case, the judge hears what they elect to present, and then a decision is rendered. Does that mean that the parties are always effective? No. Usually, at least one party loses in every trial. That does not mean the party was wrong or ineffective. It just means the other party was more effective that day, with those facts, in that case.
Judges owe to the parties and to the adjudicatory system to remain in their appropriate role. When they venture from that referee or umpire role, it damages the rights of the parties. But, as importantly, it damages the adjudicatory process, all judges, and the public that are supposed to be served. Unprofessional, advocate behavior damages the public perception, erodes the public faith, and creates problems. Judges should allow parties to try their case, make their decisions, and then decide the case based on what is presented and the law.
