Judges Cannot Resort to Coercion to Settle the Case

 W.W. v. D.S. (HSC March 12, 2021)

Background. In a bench trial before the family court, with the Hon. Judge Douglas Sameshima presiding, between Mother and Father, a heavily contest issue centered around custody and visitation rights for the parents. Father wanted overnight visits with his son. At trial, Father called the court-appointed custody evaluator as an expert witness. Court was adjourned for the lunch recess. When the parties returned in the afternoon, they told the family court they reached an agreement. Mother’s counsel recited the terms of the agreement with Father’s counsel and evaluator chiming in on certain points. The family court agreed and asked to reduce the terms to writing. Mother submitted written terms and Father filed a written objection. The family court adopted the agreement without acknowledging the objection. Counsel for the parties did not sign it.

 

Father filed a motion for reconsideration and argued that the terms did not reflect what was on the agreement announced in court. The parties submitted declarations about what happened. In Mother’s declaration, counsel returned from lunch and were called into chambers. The family court urged settlement using Mother’s proposed order template.

 

Father’s declaration agreed that settlement talks started during breaks in the trial and it was initiated by the family court. Father, however, included this:

 

At one point, I was invited into judge’s chambers to conference with him. I was alone with the judge. He told me that he knew I was a good father but that he thought my overnights with my four-year-old should be introduced more gradually. He strongly recommended one overnight a week for six months, then adding a second overnight.

 

I did not agree with the judge. I thought I was perfectly capable of having our son on as many overnights as I could have. I have taken parenting class, I went through co-parenting counseling with [Mother] for about five months and I co-parented our son when I was living with [Mother]. I’ve taken care of him when he was sick. I’ve taken care of him when he was an infant and was completed dependent on me. But because I realized that the judge was adamant and, of course, that the decision was ultimately his, I agreed to his recommendation.

 

There was no evidence that the parties agreed to one-on-one talks alone with the judge without counsel present. The family court denied the motion. Father appealed pro se. The ICA vacated the settlement order on the grounds that no one signed it and that the findings of fact issued by the family court were clearly erroneous. Father petitioned for a writ of certiorari because he wanted to reopen the issue of visitation.

 

Plain Error in Civil Cases. The HSC first determined if the issue of whether the family court coerced the parties could be examined for plain error.

 

In civil cases, the plain error rule is only invoked when “justice so requires.” We have taken three factors in account in deciding whether our discretionary power to notice plain error ought to be exercised in civil cases: (1) whether consideration of the issue not raised at trial requires additional facts; (2) whether its resolution will affect the integrity of the trial court’s finding of fact; and (3) whether the issue is of great public import.

 

U.S. Bank Nat’l Ass’n v. Castro, 131 Hawai'i 28, 42, 313 P.3d 717, 731 (2013). The HSC held all three pointed toward noticing plain error. No additional facts were necessary to review the issue. Resolving the issue would not impact the lower court’s finding of fact—the ICA already held they were clearly erroneous. Finally, the issue is of great importance. “Ex parte communications deprive the absent party of the right to respond and be heard. They suggest bias or partiality on the part of the judge.” Moran v. Guerreiro, 97 Hawai'i 354, 357, 37 P.3d 603, 622 (App. 2001).

 

Active, not Coercive. “A judge may encourage settlement of disputed matters in a proceeding but shall not act in a manner that coerces any party into settlement.” Hawai'i Revised Code of Judicial Conduct Rule 2.6(b). In determining coercion here, the court examines “the totality of the circumstances surrounding the making of the agreement.” Associates Financial Services Co. of Hawai'i v. Mijo, 87 Hawai'i 19, 31, 950 P.2d 1219, 1229 (1998). “[T]he judge must guard against indirectly coercing a settlement by ‘nudging’ or ‘shoving’ the parties toward settlement.” Id. at 28, 950 P.2d at 1228. Then again, “a judge who is conducting a settlement conference acts within the bounds of propriety when he or she offers his or her assessment of a case as he or she understands it and recommends a settlement.” Id.

 

The HSC encourages judges to be active in settlement:

 

[T]he judge who is likely to contribute most to the settlement dynamic is active rather than passive, analytical rather than emotional or coercive, learns the facts and law involved in the dispute instead of relying on superficial formulas or simplistic compromises, and, after listening and learning with an open mind, offers explicit assessments of parties’ positions and specific suggestions for ways to reach solutions.

 

Kamaunu v. Kaaea, 99 Hawai'i 503, 507, 57 P.3d 428, 432 (2002).

 

The Family Court Crossed the Line Here. The HSC agreed with Father that the family court’s tactics in settling were coercive. The family court initiated settlement discussions while remaining the finder of fact in the middle of trial. The family court then met with the parties without counsel and without consent to do so. It also appeared to direct settlement based on Mother’s template. These moves “when considered in the totality, were improper and created the appearance of partiality, as well as an impermissible risk of coercing the parties to settle.”

 

The HSC surveyed the few jurisdictions that have addressed ex parte settlement discussions and adopted a new rule:

 

[T]rial courts should rarely meet with parties to discuss settlement when counsel is not present. While there may be cases in which doing so is appropriate due to special circumstances, in those cases, the judge must ensure counsel for both parties have consented to the ex parte communications, and the judge speaking to the parties should not preside over the trial.

 

The HSC also urged trial courts where possible to document when counsel has consented to ex parte communications for settlement purposes. It was possible here because the settlement took place in the courtroom and proceedings were on the record throughout the negotiations.