Monday, April 19, 2010

Civil Duty Judge

By John DiMotto

This week, in addition to my normal caseload, I will be the Daytime Civil Duty Judge. It is the responsibility of the Duty Judge to handle miscellaneous matters that don't fit neatly into the system. The judges in the Civil Division and the Family Division serve in this capacity on a rotating basis which means each judge fills this role once every 14 weeks. There is a schedule that is set every August that is in effect for one year so each judge knows far in advance when he/she is the Duty Judge. This is important because the assigned judge is asked to calendar lightly so that the Duty Judge work can be given first priority.

The types of matters that come before the Duty Judge are varied. However, the one matter we see on a daily basis (more like three or four times a day) are requests to correct mistakes on birth certificates. This usually is a situation where a person needs to get a copy of their birth certificate and they discover that their name or a parent's name is misspelled. These errors can be corrected administratively if caught within one year of the execution of the document. If it is outside one year, a court order must be obtained and filed with the Register of Deeds and the State Department of Vital Statistics. The party seeking the change must be an interested person (ie. the individual named in the document or a parent) and must present some proof that the change requested is to correct a mistake. It cannot be a change of heart. Also, information cannot be added (ie. put the name of a father on a birth certificate). Substantive changes need a more formal hearing with notice to the public.

The second type of matter that is most prevalent involve handling small claims matters. Every day in the afternoon, the small claims commissioners handle MANY eviction cases. If a landlord or tenant disagrees with the decision of the commissioner he/she can ask for an immediate review before the small claims judge. If the small claims judge is on vacation or otherwise unavailable, the Duty Judge will go to the small claims courtroom and handle the matter. Priority must be given to these cases because of their volatility. They are done on the record. They are a court trial. Usually the only witnesses are the landlord and the tenant. The burden of proof is on the landlord -- preponderance of the evidence. If the Duty Judge finds that an eviction is warranted, he/she must then determine if the tenant must vacate forthwith or if the tenant will be given some time to move out. The Duty Judge can grant a stay on the writ of restitution (eviction order) up to 28 days.

There is never a dull moment in small claims court. Most people have seen the TV show "The People's Court" and some believe they can act out just like the people on the show act out. It can be so problematic that the Small Claims court has a bailiff to keep order. Since eviction cases are handled each afternoon five days a week, it keeps the Duty Judge hopping back and forth between his/her courtroom and the small claims courtroom.

While the Duty Judge assignment does impact the judge's ordinary calendar, it is a much needed position in order to ensure that people get proper attention to their limited legal quandary.

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