Colony Square Co., In re

• Decision Date: 12 June 1987
• Docket Number: No. 86-8464,86-8464
• Citation: 819 F.2d 272
• Parties: In re COLONY SQUARE COMPANY, Debtor. COLONY SQUARE COMPANY, Plaintiff-Appellant, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 272

819 F.2d 272

In re COLONY SQUARE COMPANY, Debtor.

COLONY SQUARE COMPANY, Plaintiff-Appellant, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant-Appellee.

No. 86-8464.

United States Court of Appeals, Eleventh Circuit.

June 12, 1987.

Nickolas P. Chilivis, Gary G. Grindler, B. Thomas Cook, Jr., Larry I. Bogart, Powell, Goldstein, Frazer & Murphy, Kenneth A. Shapiro, Jerry B. Blackstock, Atlanta, Ga., Thomas R. Johnson, Kirkpatrick & Lockhart, Pittsburgh, Pa., Monroe H. Freedman, Hofstra University Law School, Hempstead, N.Y., for plaintiff-appellant.

Robert E. Hicks, Hicks, Maloof & Campbell, Charles E. Campbell, Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before VANCE and KRAVITCH, Circuit Judges, and BROWN ^*, Senior Circuit Judge.

VANCE, Circuit Judge:

Appellant Colony Square Company contends that certain orders issued in this case should be vacated and asks that the bankruptcy judge be disqualified because of improprieties in the manner in which he prepared these orders. ¹ Although we strongly disapprove of the bankruptcy judge's methods, the record in this case does not warrant overturning the lower court's judgment.

I.

The relevant facts, as found by the district court, are not in dispute. Colony Square Company (Colony) has been in bankruptcy proceedings in the United States District Court for the Northern District of Georgia since 1975. This matter was presided over in the Bankruptcy Court by Judge Hugh Robinson. The central issue in the bankruptcy proceedings concerned the right to ownership and control of the Colony Square Complex (the Complex), a large multi-use Atlanta real estate development with a fair market value substantially in excess of $100,000,000.

In 1984, appellee Prudential Insurance Company of America (Prudential) moved to compel Colony's compliance with the Chapter XII Plan under which Prudential would obtain title to the Complex. This motion was extensively briefed by both parties. A final hearing on Prudential's motion to enforce the Plan was held by Judge Robinson on June 22, 1984. The hearing lasted for almost two and one-half hours. Later that day, Judge Robinson telephoned Francis M. Bird, Jr., lead counsel for Prudential. The judge told Bird that he intended to rule in favor of Prudential. Judge Robinson outlined what he wished his order to say and asked Bird to draft it. That evening a lawyer from Mr. Bird's law firm, Alston & Bird, delivered a proposed order to Judge Robinson. Following some minor typographical corrections, Judge Robinson signed the order drafted by Prudential's counsel. Colony was not notified of these ex parte contacts between Prudential's lawyers and Judge Robinson. Colony also was not informed that Prudential's lawyers had drafted the opinion issued by the court.

The court's orders were 'ghostwritten' on at least two other occasions. In August 1984, Colony filed a written motion to disqualify Judge Robinson on the grounds of alleged bias. ² A hearing was held on September 17, 1984. On October 19, 1984, Judge Robinson called Frank Bird and requested that his firm prepare an opinion denying this motion. During their conversation, Mr. Bird took notes as to what the judge indicated should be covered in the decision. Based on these instructions, Alston & Bird prepared a lengthy opinion, which the judge signed. Alston & Bird also was contacted in mid-November by Judge Robinson to draft the denial of Colony's motion for reconsideration of the judge's award of attorneys' fees to Prudential. Once again, neither Judge Robinson nor Prudential notified Colony of the ex parte communications or the role played by Alston & Bird in drafting these opinions. It was not until months later that Colony's lawyers first learned that Judge Robinson had not drafted these three orders.

On learning that Alston & Bird had drafted these orders, Colony reasserted its motion for disqualification and the other relief sought here. The district court permitted Colony to undertake expedited discovery on this motion, and required Judge Robinson to answer written interrogatories. A five day evidentiary hearing was then conducted by the district court. The court also directed the parties to submit pre- and post-hearing briefs. On May 9, 1986, 60 B.R. 1003, the district court issued a fifty-one page opinion denying Colony's motion for relief. In this opinion the district court made detailed findings concerning the facts surrounding the issuing of the bankruptcy judge's orders and their discovery by Colony's lawyers. ³ The district court then ruled that Colony had not been denied due process, noting that Colony was given notice of pending issues and an adequate opportunity to present its arguments prior to a decision being made by Judge Robinson. The district court dismissed as contrary to the evidence Colony's contentions that it had been prejudiced by Alston & Bird's preparation of orders for Judge Robinson. The district court emphasized that it believed the orders were correct as a matter of law when it had originally reviewed them and that, after examining them anew in light of Colony's motion, it "continues to hold this belief." ⁴

II.

This circuit and other appellate courts have repeatedly condemned the ghostwriting of judicial orders by litigants. See, e.g., Keystone Plastics, Inc. v. C & P Plastics, Inc., 506 F.2d 960 (5th Cir.1975); Bradley v. Maryland Casualty Co., 382 F.2d 415 (8th Cir.1967); Chicopee Mfg. Corp. v. Kendall Co., 288 F.2d 719 (4th Cir.), cert. denied, 368 U.S. 825, 82 S.Ct. 44, 7 L.Ed.2d 29 (1961). The cases admonishing trial courts for the verbatim adoption of proposed orders drafted by litigants are legion. See, e.g., Anderson v. City of Bessemer, N.C., 470 U.S. 564, 105 S.Ct. 1504, 1510-11, 84 L.Ed.2d 518 (1985); Keystone Plastics, Inc. v. C & P Plastics, Inc., 506 F.2d at 962; Louis Dreyfus & Cie. v. Panama Canal Co., 298 F.2d 733, 737 (5th Cir.1962); Cuthbertson v. Biggers Bros., Inc., 702 F.2d 454, 458-59 (4th Cir.1983); In re Las Colinas, Inc., 426 F.2d 1005, 1009 & n. 4 (1st Cir.1970), cert. denied, 405 U.S. 1067, 92 S.Ct. 1502, 31 L.Ed.2d 797 (1972). The bankruptcy judge here compounded this error by failing to give Colony an opportunity to respond to Prudential's proposed orders. See Keystone Plastics, Inc. v. C & P Plastics, Inc., 506 F.2d at 962 & n. 4; Home Box Office, Inc. v. FCC, 567 F.2d 9, 55-59 (D.C.Cir.), cert. denied, 434 U.S. 829, 98 S.Ct. 111, 54 L.Ed.2d 89 (1977). ⁵

The dangers inherent in litigants ghostwriting opinions are readily apparent. When an interested party is permitted to draft a judicial order without response by or notice to the opposing side, the temptation to overreach and exaggerate is overwhelming. See Anderson v. City of Bessemer City, N.C., 105 S.Ct. at 1511; ⁶ Cuthbertson v. Biggers Bros., Inc., 702 F.2d at 459. ⁷ The proposed order or opinion serves as an additional opportunity for a party to brief and argue its case and thus is unfair to the party not accorded an opportunity to respond. See In re Wisconsin Steel Corp., 48 B.R. 753, 761 (N.D.Ill.1985). ⁸ The quality of judicial decisionmaking suffers when a judge delegates the drafting of orders to a party; the writing process requires a judge to wrestle with the difficult issues before him and thereby leads to stronger, sounder judicial rulings. See James v. Stockham Valves & Fittings Co., 559 F.2d 310, 314 n. 1 (5th Cir.1977), cert. denied, 434 U.S. 1034, 98 S.Ct. 767, 54 L.Ed.2d 781 (1978); ⁹ Keystone Plastics, Inc. v. C & P Plastics, Inc., 506 F.2d at 962; ¹⁰ Louis Dreyfus & Cie. v. Panama Canal Co., 298 F.2d at 737. ¹¹ In addition, the ex parte communications occasioned by this practice create an obvious potential for abuse. See In re Paradyne Corp., 803 F.2d 604, 612 (11th Cir.1986); ¹² In re Wisconsin Steel Corp., 48 B.R. at 760-61. ¹³

III.

The fact that a judge allowed a litigant to draft the court's orders without notice to the opposing party does not automatically invalidate these orders, however. See, e.g., Rushen v. Spain, 464 U.S. 114, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983) (ex parte communication between trial judge and juror held to be harmless error); United States v. Adams, 785 F.2d 917, 920-21 (11th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 650, 93 L.Ed.2d 706 (1986) (ex parte conference between judge, witness and government held constitutional); Kaspar Wire Works, Inc. v. Leco Engineering & Mach., 575 F.2d 530, 543 (5th Cir.1978) (trial court's verbatim adoption of litigant's proposed findings subject to "clearly erroneous" standard of review); Keystone Plastics, Inc. v. C & P Plastics, Inc., 506 F.2d at 963 (trial court's adoption of findings and conclusions drafted by litigant without notice to opposing party did not mandate a different standard of review); Simer v. Rios, 661 F.2d 655, 679-81 (7th Cir.1981), cert. denied, 456 U.S. 917, 102 S.Ct. 1773, 72 L.Ed.2d 177 (1982) (ex parte contacts between judge and litigant held not to violate due process). ¹⁴ Such orders will be vacated only if a party can demonstrate that the process by which the judge arrived at them was fundamentally unfair. Margoles v. Johns, 660 F.2d 291, 296 (7th Cir.1981), cert. denied, 455 U.S. 909, 102 S.Ct. 1256, 71 L.Ed.2d 447 (1982); see generally Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 106 S.Ct. 1580, 1584-85, 89 L.Ed.2d 823 (1986).

Having reviewed the record in this case, we conclude that Colony was not denied due process. ¹⁵ This result is compelled by two salient facts. First, Judge Robinson was found to have already reached a firm decision before asking Alston & Bird to draft the proposed orders. ¹⁶ Judge Robinson's decision followed a number of hearings on these issues where the judge played an active and inquiring role. He was not swayed or influenced by Prudential's proposed orders; rather, Judge Robinson directed the Alston & Bird lawyers to draft orders...