Reversing Linda Morrissey
To err is human. Mistakes will be made. Nobody's perfect.
But when a district judge errs, it's a costly mistake. The wronged party, who has already paid for attorneys in a case, must pay even more for the cost of an appeal. There are additional court costs. If the case goes to the State Supreme Court, Tulsa County residents bear the additional burden and cost of travel to Oklahoma City. Then there's the stress of waiting months or years for the final resolution of the case. If the district judge is reversed, the case will likely be remanded -- sent back to the original judge to fix the mistake and reconsider the decision. More delays, more lawyers' fees, more anxiety.
A search through the Oklahoma Bar Journal reveals District Judge Linda Morrissey, running for re-election, has committed a long list of errors that have been reversed by Oklahoma's higher courts. In at least one case, the appeals court goes so far as to say that Linda Morrissey abused her discretion.
Here are just a few of Linda Morrissey's reversals (all emphasis mine). The summaries and paraphrasing are my own; please click the links to review the original information on which my summaries are based.
Court of Civil Appeals DF - 106739: In a foreclosure case, the defendant's attorney pulls a surprise during preliminary proceedings in Linda Morrissey's chambers: He contested, for the first time, the authenticity of the note and mortgage. The bank requested a continuance, because it wasn't prepared to respond to this previously undisclosed accusation. Linda Morrissey said no. The bank offered to present a copy. Judge Morrissey said no; the bank had to have the original note. The bank said it had the original note, where it normally keeps such documents, just not in the courtroom. Morrissey awarded the defendants -- the people who didn't pay their mortgage -- $55,172.51 in court costs and attorney's fees.
The Court of Civil Appeals unanimously ruled that Linda Morrissey "abused [her] discretion" in the case. Linda Morrissey's abuse of discretion took 17 months to correct.
(Details on the case from the April 24, 2010, issue of the Oklahoma Bar Journal, Vol. 81, No. 12, p. 1106.)
In two criminal cases, State of Oklahoma vs. James Ricky Ezell III and State of Oklahoma vs. Robert Mark Stephens, the Court of Criminal Appeals ruled that Linda Morrissey's "'policy' of running sentences consecutively" constituted "an abuse of discretion as it incumbent upon a trial court to consider all sentencing options available."
2007 OK CIV APP 120: This involved a couple who left a sum of money to their two children, a son and a daughter, in the form of a trust. The son, who was trustee, borrowed $200,000 from the trust for himself and a business partner, with no documentation of the loans, and he concealed his share of the debt.
The son sought to get himself named personal representative of his parents' estates; and his sister, a beneficiary of the trust, objected that he was unfit "due to serious and substantial conflicts of interest, breaches of trust and self-dealing involving the sole asset of the estates," namely the $200,000 loan. He had also delegated check-writing privileges to his wife, who paid "her sister-in-law a large sum of money...." All of this was in the district court record, according to the decision of the Court of Civil Appeals.
Morrissey even denied the daughter "the opportunity to present rebuttal evidence and closing arguments."
Linda Morrissey appointed the son as personal representative, over the daughter's objection, despite "express[ing]... concern about Appellee's obligation to the Trust and his delegation of trust administration duties to his wife." The appeals court ruled: "This was error" on Morrissey's part. The evidence "clearly demonstrated [the son's] lack of integrity as that term is defined" in 58 O.S. 102. The appeals court reversed Morrissey's decision.
In this case, it took nine months to fix Linda Morrissey's mistake, from the date of her erroneous decision to the appeals court's reversal.
2008 OK CIV APP 73: A mother put a child up for adoption and relinquished her parental rights in writing. The father objected to the termination of his parental rights and although his attorney had announced at a hearing that he would agree to give up his rights if he would be allowed visitation, the father withdrew his consent to such an arrangement and never signed a permanent relinquishment. Judge Linda Morrissey went ahead and issued an order terminating the father's parental rights despite the lack of a permanent relinquishment. The appeals court unanimously ruled that Morrissey "erred as a matter of law" in issuing a termination order without the father's signed permanent relinquishment. Morrissey's error took about a year to fix.
2006 OK CIV APP 90: A man designated the adult children from his first marriage as beneficiaries of his IRA. Upon his death, his surviving spouse from a later marriage sought an injunction to keep the money from going to the children, and Linda Morrissey granted the injunction, basing her decision on Michigan law. The Court of Civil Appeals concluded that Morrissey's "grant of the preliminary injunction was erroneous as a matter of law and is VACATED." Fixing Linda Morrissey's mistake took 17 months, from the date of the erroneous injunction to the appeals court's decision.
Court of Civil Appeals DF - 106937: The Court of Civil Appeals ruled that Linda Morrissey "erred when [she] entered judgment in favor of Plaintiff after finding that Defendants' defense of lack of contract was not encompassed within the court's pre-trial conference order listing claims and defenses of the parties."
It took 17 months to correct Linda Morrissey's error.
(Details on the case from the August 21, 2010, issue of the Oklahoma Bar Journal, Vol. 81, No. 22, p. 1832.)
Court of Civil Appeals IN - 100409: The Court of Civil Appeals ruled that Linda Morrissey erroneously granted summary judgment when there were contested issues of material fact to be resolved regarding a revocable trust and will. This Morrissey mistake took 13 months to fix.
(Details on the case from the February 19, 2005, issue of the Oklahoma Bar Journal, Vol. 76, No. 7, p. 567.)
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You should not place too much weight of a COCA opinion finding error or that the judge "abused her discretion," as if she committed a grave injustice. Abuse of discretion is a commonly-employed legal standard used by appellate courts, and does not carry the same moral tinge that the phrase implies in everday usage. I would be greatly surprised if there were any district judges who have served as long as Judge Morrisey who have not been reversed on this standard at some point in their career.
All trial judges err. Unlike some professions, a judge's error is not always indicative of incompetence. Many matters of law are unsettled, and in such cases, a reversal indicates only that the appellate court disagrees, not that the district court should have known better.
I was expecting this kind of lawyerly response -- abuse of discretion is no big deal -- and not surprised to see it coming from an IP address associated with Rosenstein, Fist, and Ringold.
I don't buy the excuse, and neither should the voters. In only one of the cases I looked at was there anything unsettled in the law, and in that case Morrissey went entirely in the wrong direction, looking to Michigan law and precedent rather than Oklahoma precedent, and in so doing, she went against the express wish of the decedent to give his IRA to his children. In all the other cases, Morrissey went against clear law and facts. In the civil case where Morrissey abused her discretion, it appears that she was blatantly unfair to one of the parties in the lawsuit. In the two criminal cases, Morrissey set up and followed her own sentencing policy, contrary to law. From the facts of the cases presented in the appeals court rulings, it appears that Morrissey's rulings were also contrary to common sense.
Maybe Judge Morrissey should be re-named as Judge Boo-Boo.
But didn't we have already have a local Judge Boo-boo?
Judge Bubenick......the courthouse lawyers referred to her as Judge Boo-Boo.
How many of the judges on the COCA that issued appellate rulings in the cases you cite do you endorse on the retention ballot?
Michael -
I couldn't agree more with "Mike" above . . . despite his IP address. "Abuse of discretion" sounds bad, but simply means another (higher) court, with more time to deliberate, second-guessed your call. This happens to all judges who serve for any significant period of time.
Unfortunately this piece just does not meet the usually high Batesline standard of excellence. What would have been truly enlightening for me and other voters is a COMPARISON of Morrissey's reversal RATE with that of other judges with a similar tenure in office. Then we would know if eight reversals in 15 years is good, bad or mediocre.
I suspect if you polled a group of 100 attorneys and told them that a busy trial judge who had been sitting for 15 years had only been reversed only once every two years, 99 or more would agree that such a record was highly commendable.
Also, since you are endorsing judges this year on a partisan basis (in non-partisan elections), I find it odd that you criticize Judge Morrissey's "errors" of being TOO TOUGH on criminals! I would expect you to be applauding her willingness to push the law to its limit to keep a violent criminal like Ezzell behind bars for the rest of his life. Appellate Judge Lumpkin's dissent in that case is an eloquent defense of Morrissey's "policy". Would Eagleton, or any other "Republican" judge, have gone lighter on Ezzell? I hope not.
So then, to my ear, your criticism of an "Independent" judge for implementing "Republican" policy makes your advocacy for Eagleton sound more like a personal favor or hollow partisan act than principled support of conservative judicial philosophy.
Mark (with a capital M): Gabbard and Joplin are the only Court of Civil Appeals judges who are on this year's retention ballot and who were involved in these eight cases. Both were listed only as concurring in decisions. It may be that their performance is stellar and they deserve retention; I vote no on retention in the absence of a compelling case for voting yes on a given judge or justice
Lower-case mark: I love it when we have a political disagreement, and you accuse me of being disingenuous or operating from base motives. No, strike that -- actually, I don't love that. As I noted above, Morrissey has more than eight reversals. The eight summarized here were some of the cases that I found during the course of a few hours searching through bar journal back issues. This involved using a search engine to find mentions of her name, downloading the issue to determine whether the mention was significant or only in passing, and then, if the case seemed significant, summarizing the case and the reason for the reversal.
If I could download a database of all appeals court cases, with a field for "affirmed" or "rejected" and another field for trial judge, I would gladly have presented a table showing the number of reversals for each District 14 judge. As it stands, generating those kinds of statistics would require going one-by-one through each of the appellate decisions released for publication (over 100 so far this year), plus all the other cases that went from District 14 to an appeal. The end result of such research would be me alienated from my family, fired from my job, and/or dead from exhaustion.
The heart of the conservative view of the judiciary is that a judge should be faithful to the law and the Constitution. I'm all for being tough on criminals, but I'm not for a judge being tougher than the law allows. If the max sentence for a traffic offense is 30 days or a $500 fine, the judge should not signal the bailiff to break out the nutcutters. In this case, the appeals court said the law requires the judge to consider the range of sentencing options, including the possibility of concurrent sentences. Morrissey could have followed the law and still sentenced Ezzell to consecutive sentences.
Judge Lumpkin did not defend Morrissey's "policy" in his dissent. He wrote that the policy, as described by the majority, would be wrong: "No judge should decide as a matter of course that a defendant's sentences will run consecutively simply because he or she exercised their Constitutional right to a jury trial." He questioned the majority's characterization of her policy: "We have only one brief statement from the judge, consisting of a few words, without explanation." And given the defendant's criminal record and the nature of his offense, he felt that any error resulting from Morrissey's policy was harmless, and remanding was pointless. Note, however, that when the issue of Morrissey's policy came back to the appeals court in the Stephens case a year later, Lumpkin concurred with the finding that "the record indicates the trial judge declined to consider all possible sentencing options based upon a 'policy' of running sentences consecutively." Whatever doubt Lumpkin had in the Ezzell case about the intent of Morrissey's "policy" appears to have been resolved.
Note, too, that in late 2002, Morrissey was reassigned, removed from the criminal docket and given a probate docket.
The reason I ask is because your argument is based on how the COCA has treated a select number of Judge Morrissey's decisions. If you do not think the appellate judges that rendered those decisions should be retained on this ballot or when they next come up for retention, then I don't think anyone should find your argument particularly compelling.