Judge In One’s Pocket? Seems So.
You’ll recall last week’s story about Gooch and Tudor. Gooch put up a fence on Tudor’s property, Tudor couldn’t pay the entire bill, so Gooch took out a warrant for the arrest of Tudor. It went south for Gooch, he ended up losing $24,115 in the process as Tudor was awarded compensatory and punitive damages.
But how can that be? The magistrate judge found “probable cause” to issue the warrant. Isn’t that enough to protect Gooch? “[W]here a person acting in good faith truthfully communicates facts to officers of the court, he cannot be held liable for any subsequent prosecution of an individual, even if that prosecution ended in an acquittal.” Gooch v. Tudor,296 Ga. App. 414 (2009).
Sounds good for Gooch, no? Well, it turns out that rule only applies if the judge is “a neutral, disinterested third party.” If you’ve got the judge in your hip pocket, all bets are off.
The record in this case shows that the magistrate was working to assist Gooch in collecting his debts. It turns out that Gooch had used this judge on two prior occasions to collect debts according to the appellate court. The magistrate advised Gooch not to take the $10,000 check first offered. That was my first clue there was trouble in paradise. That Gooch knew to send a letter to Tudor saying that if she didn’t pay the judge would arrange a meeting in his office, that was a clue that the judge had overstepped his authority.
“In his brief, Gooch argues that he was entitled to rely on the advice of the magistrate “in much the same way as one may rely on the advice of counsel.” It is axiomatic, however, that it is not the function of a judicial officer to dispense advice to one party as to how to best proceed against another party, particularly where such advice is being dispensed via ex parte communications with the court.” pg. 420.
The fact that Gooch never had to get a police report mattered to the appellate court, but not so much to me. Just because a police officer writes down “civil matter” doesn’t make it so. Tying up the police to do a report all the time seems wasteful to me, but the appellate court disagrees with me a lot, so I’m probably wrong on that.
The judge testified in a hearing that “Basically, Mr. Gooch was just trying to – of course, he wanted to get paid for it.” Before the probable cause hearing, the district attorney told the magistrate it was a civil matter. DA’s aren’t the final legal authority, but generally they do know the difference between a civil and criminal case. And that fact that the magistrate allowed the parties to “mediate” their dispute before the criminal hearing was indicative of this being a civil matter.
“The constitution of Georgia provides that “There shall be no imprisonment for debt.” The gravamen of the offense chargeable under [the criminal fraud statutes] is the fraud perpetrated, and these sections have for their purpose solely the punishment of fraud, and not the creation of a remedy for the collection of debts or the compelling of the performance of contracts.” Bullard v. State. We are a state founded on debtors after all.
Morale of story. Judge keeps his judge job, but gave advice which is against the rules. Gooch paid the price for taking the bad advice, but it sounds like he’d been saving money for several years on legal fees since he had the judge on his side. Tudor got a fence for almost nothing. Everybody wins.
Kelly Burke, master attorney, former district attorney and magistrate judge, is engaged in private practice. He focuses on personal injury cases and corporate litigation. These articles are not designed to give legal advice, but are designed to inform the public about how the law affects their daily lives. Contact Kelly at firstname.lastname@example.org to comment on this article or suggest articles about the law that you’d like to see