Have you Suffered at the Whim of Judicial Discretion?

“Judging requires adherence to the constitution or statutory provision at hand.” Justice ElenaKagan, to Senate Judiciary Committee, 2010

The above quote from Associate Justice of the US Supreme Court, Elena Kagan, says it all. Judges need to follow the law, like anyone else. Or... we would add, the law is in danger of becoming meaningless, with confusion and chaos reigning in the court room and “users” of the courts having no “true North” to follow. In its most favorable interpretation, judicial discretion may be considered an aspect of judicial independence, fitting a law to the actual situation at hand, but where there are clear constraints set down, they should be followed, or the court may be abusing its discretion and undermining the rule of law. Some law scholars claim that the absence of a jury in family courts, and therefore, absent a source of  “oversight” of judges  -  may enable an abuse of judicial discretion. “Judicial discretion”, when applied to the Maine Rules for Guardians ad litem, leads to confusion for users of these courts and huge bad feeling.  Do Rules for Guardians ad litem mean anything or not?  Does Judicial Discretion, when randomly ignoring or mis-applying Rules for Guardians ad litem, benefit anyone?  Does it not undermine confidence in the process and lead to suspicions of judicial corruption?

By reports “from the front”, we hear that many judges appear to have only a general knowledge of the Rules for Guardians ad litem.  Many Guardians ad litem, likewise, seem to have limited knowledge of their Rules.  But the users of Guardians ad litem services depend on these Rules for help in understanding the boundaries of permissible Guardians ad litem functioning in their case. It commonly happens that ‘Prose’ (and other) users of a Guardian ad litem's services know the Rules for Guardians ad litem better than the “Officers of the Court”!  But... to what end, if these officers, using “discretion”, throw Rules to the wind and run things on raw power? It is “because we are the mommie!” thinking.

The recent precedent-setting case, Dalton v. Dalton, raises troubling questions about the use of judicial discretion in family courts and how/whether the current Rules for Guardians ad litem are just words on paper? Or - whether - Rules be damned - Guardian ad litem activities may be any old thing - defended by ‘ad lib’ reasons. In effect, this places a Guardian ad litem's actions at the whim or caprice of the judge. To lay persons watching this performance, it suggests that the judge has historical powers - in an extreme form - of an absolute monarch. He may authorize a Guardian ad litem to do whatever he/she wants. Even more ominous in the Dalton case is the danger faced by the attorney who challenges this extremely broad Judicial Discretion. There is the risks of being in contempt of court. Truly, l’etat c’est moi! With unlimited discretion, a lawyer is reduced to the role of polite courtier or court flunky in this situation. A robust defense of a client is dangerous. A challenge of this “abused discretion” may result in serious sanctions (reprimand or loss of license).

A lawless Guardian who orders a mother out of her own home is acting with NO visible “Rule for Guardians ad litem” to back her. A Guardian who orders professionally unrecognized, “junk treatment”, scream therapy for a child has NO Rule to back her. These actions and others strike members of the public as being outrageous and way outside of the Rules for Guardians ad litem. Some would say that it is frank bullying, a gross abuse of power- and feel it is outside of the rule of law! But these actions (and more) were supported by the judge in the Dalton case. And... they - the Guardian ad litem and the Judge - were supported by the Maine Supreme Court in an appeal. The lawyer making the appeal was sternly condemned in the appeal decision. And faces possible sanctions from the Ba

Is the Court saying: A Guardian ad litem can do anything? Guardians ad litem are not required to follow their Rules? The Rules are just suggestions with absolutely no consequences whether they are followed or not? Is the court saying: the judge is an absolute monarch in his/her courtroom? Judicial discretion is the absolute, actual Rule?

It also appears that they are saying, “Woe betide any lawyer who dares to challenge this brand of judicial discretion in a family court?  Judicial Discretion as a ‘de facto’, idiosyncratic super Rules for Guardians ad litem” would appear to take precedence over any published Rules for Guardians ad litem on the Judicial Branch web site. One has to ask, what then are the Rules for? Are they a sort of bureaucratic “window dressing” for the benefit of the Legislature and the Executive Branches?

One also has to ask, is this sort of apparently, ‘ad lib’ rule-making by a judge in the best interest of families who use our courts, lawyers who work in them and for the well-being of Maine citizens, who want to trust and believe in  our courts!

We need a law that tells judges that if there are Rules for Guardians ad litem they cannot be dispensed with on the basis of “discretion”. They must be followed! Judges need to give a leadership example of respect for the written constraints set down.

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