Legal Lines #130
With Host Locke Meredith and
Guest Judge Toni Higginbotham
Locke Meredith: Hello, this is Locke Meredith; I would like to invite you to join us on the next Legal Lines. We’re very fortunate to have on the show Judge Toni Higginbotham. She is a first circuit court of appeals judge. She was first, for fifteen years, a judge in family court and didn’t get her law license until age forty. She’s the first female judge elected to the first circuit court of East Baton Rouge Parish. Join us on the next legal lines with Judge Toni Higginbotham.
Locke Meredith: Hello, I’m Locke Meredith, and I’d like to thank you on behalf of our entire staff, for letting us come into your homes for the last ten years via Legal Lines. We hope you’ve come to a greater understanding of how the law works and how the government works for you. So from all of us, thank you.
Locke Meredith: Welcome to Legal Lines, I’m Locke Meredith and I’m very pleased to have on the show today, Judge Toni Higginbotham. She’s a judge with the first circuit court of appeals. Judge, thank you for coming in.
Judge: Nice to see you, thank you for inviting me.
Locke Meredith: Great to have you back, we were just taking about how long it’s been, its crazy. For the folks, just quickly tell them a little personal history. Umm, it’s interesting to kind of learn where folks have been and how they got to where they are.
Judge: Well, I have four children and I’ve been married to my husband for forty-two years.
Locke Meredith: Fantastic
Judge: And believe it or not I have three out of four lawyers. I didn’t do something right, I don’t know. (laughs)
Locke Meredith: I don’t know if that’s fantastic. (laughing)
Judge: That’s what I mean. But I graduated for LSU, I’m from north Louisiana, Lake Providence, and I came to LSU, I became a teacher and I taught at East Ascension and Central Private.
Locke Meredith: Lee High School too!
Judge: And Lee High School too.
Locke Meredith: That’s my alma mater
Judge: Then I began having children and so I stayed home for eleven to twelve years, and then I decided I was going to go to law school, so I went to law school at forty.
Locke Meredith: Fantastic, I love that story.
Judge: And began doing things around the law.
Locke Meredith: Graduated Suma Cum Laude
Judge: I did.
Locke Meredith: High honor. Um, tell the folks, um, my recall is Judge Leo Higginbotham is your husband?
Judge: He is my husband.
Locke Meredith: And he served what?
Judge: Twelve years, I think, on the district bench, he did civil and criminal. And I never really planned on being a judge; I was doing other things. I’ve always been really active with kids in the community and in the community itself.
Locke Meredith: In fact I was reading, uh, a coach of every sport there is to play.
Judge: I did, I did, but when you have four children, someone’s got to step up to the plate, so I usually got called on. Not that I was an expert, but I showed up and you know, I cared about it, so I decided I represented several kinds of clients, as a lawyer.
Locke Meredith: I guess what we call a typical general civil practice, but also kind of handled some criminal stuff?
Judge: I did all of it, but not all the time.
Locke Meredith: Right.
Judge: And this, the family court judgeship came up in nineteen-ninety six and I decided to run, and I was…
Locke Meredith: Tell the folks the story, it’s a great story, it wasn’t really something you were focused on doing as I understand it.
Judge: No, I just happen to think that judges, uh, their temperament is very, very important. You’re knowledge is important, but you know most people that are qualified to run for judge have the requisite knowledge, but it’s other things that make people good judges, I think.
Locke Meredith: I agree.
Judge: And so, I saw this judgeship open up when Judge Tony Graffia retired, and I kept thinking, Ya know, they need somebody in there that has good temperament to deal with these very hard and difficult decisions in family court. And so I went down, the last day of qualifying and qualified myself with no knowledge of how to do this or what was going to be required, but committed to it. And I was successful, and that’s where I served until I was elected last October.
Locke Meredith: So therefore, in family court for fifteen years.
Judge: Right.
Locke Meredith: And it’s interesting too because you really hadn’t focused in it, but you held a lot of positions after you graduated from law school. You were appointed by President Ronald Reagan to the selective service board. Um, appointed by Governor Dave Treen as an assistant secretary for…
Judge: Department of Urban and community affairs, and then I ended up being a council to the Policy Jury Association of Louisiana, and then I ended up being Vice-President of The Louisiana Housing Finance Agency.
Locke Meredith: You had a lot of leadership positions.
Judge: Well, I guess you could call it that, I just sort of volunteered and whatever I could do, I did.
Locke Meredith: It’s interesting that that road, it lead you to running for judge. And then family court wasn’t something, as you indicated, that you’d really done a lot of… um, because It’s very labor intensive and also, you better know what you are doing.
Judge: Well, it’s a very concentrated area of the law, but ya know, my whole life, I have done the things I’ve done because of our families and our communities are so important.
Locke Meredith: They are. I agree one hundred percent.
Judge: And so that was just another way I thought that I could serve and bring to the table my experiences as teaching, raising a family, as working with kids in our community, and my legal Judge con’t: background, and my temperament. I thought I could give something back, and I think I did. I hope I did.
Locke Meredith: Judge and we’ve talked about this before, ya know, when you’re dealing with family court issues you’re dealing with, frankly in my opinion, the most important issues that human beings deal with, and that is a relationship between a husband and wife, a relationship between parents and their children, and sometimes grandparents and their grandchildren. You’re dealing with custody of the children, and support. It’s just real serious stuff.
Judge: It’s where the rubber hits the road. Its where, ya know, people, the decisions are so important because they hopefully figure out a way that they’re going to be fed, and they’re going to be nurtured, and taken care of when somebody’s going through a very emotional split. And so, most of our people, in our community, if you ask them where their association or experience with courts are… they are going to say, “family court”. So it’s very important that our judges be committed to doing a very good job and representing the judiciary in a good way.
Locke Meredith: And making wise, fair decisions. Because you’re dealing preeminent relationships in the counter of human beings, the other big issue that you’re dealing with when the family unit is dissolving is how the property will be split up, and how the debt’s going to be paid off. It’s, um, serious stuff.
Judge: And how they’re going from one house to two, and still maintaining a family in different form. That’s the goal.
Locke Meredith: And explain to the folks, because you were there for fifteen years, and I think of it as the front lines, being a trial court judge, you’re on the front lines, you’re seeing live human beings. Explain to the folks what a typical family case was like.
Judge: Well, I mean, they take different forms, but basically, the main difference in a family case and a civil case like you mainly do, is that we don’t have beginnings and ends of cases in a fashion that’s a year or two years like that. We have jurisdiction over children until they turn eighteen. So you can be…
Locke Meredith: I hadn’t thought about that judge.
Judge: So depending on when they first appeared in our court, we have a relationship with those people in deciding issues that they ask us to decide maybe up to eighteen years or longer if the children are staggered.
Locke Meredith: Remarkable.
Judge: And so, you know, you have to be the kind of person that receives evidence. I think what you were alluding to is like a trial bench. This is where people come, and the present their facts, their stories, their testimony, and the trial judge sits there and decided what to give great weight to, and what decisions should be made based on the law and the facts that are ascertained from the trial. So you are on the bench daily, having people present evidence, and seeing these people first hand so you can decide if they have credibility or don’t have credibility, you know, if this is a fact or if that’s a fact, and then you use the law and make a decision.
Locke Meredith: And the bottom line is, it often times it can’t be more acrimonious. I mean if one wants the custody and the other one does too, somebody’s not going to get what they want, Or the property’s going to get split up, or the child support, and so often times when you make a decision and it’s in favor of one, it’s to the detriment, so to speak, of the other.
Judge: We sort of have a saying in family court, “If everyone leaves not happy, we probably have done a good job.”
Locke Meredith: It’s a fair settlement.
Judge: So in other words, We have to educate them, that’s part of our job to say “this is what the law can do for you, I can’t repair something that’s happened before, or make you feel better about it, but this is why we’re here and this is what I can do. So let’s limit it to those facts.”
Locke Meredith: well, let’s continue this on the next segment. Let’s move into how you decided to run for the first circuit court of appeals. This is Locke Meredith with Legal Lines with Judge Higginbotham, we’ll be right back.
*** Thank you message from Locke Meredith and staff***
Locke Meredith: Welcome back. This is Locke Meredith and again we are very pleased to have on the show today Judge Toni Higginbotham. She is a first circuit court of appeals. Judge, again, thanks so much for coming back.
Judge: Thanks for inviting me.
Locke Meredith: Let’s shift gears a little bit, because you have talked about what it was like to try a case as the Judge, making huge decisions at the trial level and then you decided to run for the court of appeals. What inspired that?
Judge: Well, I think anytime you’re involved in a profession you always think if you have an opportunity and if the timing is right, that you would like to go on to another level and give whatever talents you have to that. We haven’t had a lot of family court background judges. We’ve had general jurisdiction judges that did family court cases but we haven’t really had a lot of those run. In fact, one of the first ones of those was Judge Sanders, who came to family court in Baton Rouge and ended up on the supreme court. But Judge Downing called me and said he wasn’t going to run. He had always told me that if he wasn’t going to he would tell me…
Locke Meredith: He was true to his word, huh?
Judge: He was. So that if I wanted to consider it I would, and I had overnight to decide if I was going to do this. It was not on the horizon. I loved what I did, but you know sometimes you have to take opportunities that are presented to you and so I made that decision. Last July, I think it was, I qualified and thankfully for me and my family and my supporters after a lot of hard work we were successful.
Locke Meredith: Well as I understand it, and correct me if I’m wrong, you’re the first female judge on the first circuit court of appeals from East Baton Rouge Parish.
Judge: From East Baton Rouge Parish.
Locke Meredith: And there’s what? Three women now?
Judge: There’s three women now. I joined two others, one from what we call the Florida Parishes and the other one came from the river parishes down the river.
Locke Meredith: And that’s Judge Whipple and McClennan.
Judge: Judge McClennan
Locke Meredith: Fantastic, umm, Give the folks, kind of a big picture of how our system works, because we have the local governments like East Baton Rouge Parish and the metro council and the mayor, and you got the state government with Governor Jindal, and the legislature and you hear about that stuff and then you have the Federal Government, President Obama and Congress and all that. But the government is broken up into, frankly, all those levels into three branches, explain to the folks.
Judge: And the third branch that we haven’t mentioned yet is the judiciary and it’s supposed to be an independent branch to be able to follow the constitution and protect people’s rights. So our court system is part of the state judiciary and the court of appeal that sits in East Baton Rouge Parish is called the first circuit. We have five circuits in the state of Louisiana and our circuit is over sixteen parishes.
Locke Meredith: Huge territory
Judge: It’s a huge territory, and we have judges elected throughout the sixteen parish area.
Locke Meredith: And you also have the most populated district.
Judge: We have the highest case load, a lot of that has to do with Katrina. A lot of people came here and increased our numbers but it also has to do with us being the base of state government so a lot of cases originate here.
Locke Meredith: And that also result, I presume, from the criminal side of litigation, they’re going to sue the attorney general Buddy Caldwell and so it falls in the nineteenth J. D. C. and then the first circuit.
Judge: And then it comes to us.
Locke Meredith: Explain to the folks what it was like to run for the first circuit. What do you have to do?
Judge: You just have to ask every person you make some kind of contact with if they would consider voting for you after you tell them a little bit about yourself. Now, East Baton Rouge Parish, It wasn’t the whole parish, but it was two hundred and thirty thousand voters. We found this out sometime in July, I can’t remember the date of qualifying and the election was in October, the second I believe, of last year. So, it was a compressed period of time and it’s a combination of as much personal contact as you can do but also media and through organizations I was everywhere, anywhere I could be this time was different I had a web page that followed what I was doing and I was shocked at the following…
Locke Meredith: I saw you had a twitter too.
Judge: I did, I had a twitter. And I was shocked at the people that follow you and decide they want to ask you questions or support you because of that. So I called in every friend, every family member I could, and we did a huge sign campaign. We were the underdog as far as money is concerned but you know, one good thing about family court is how many people you touch.
Locke Meredith: I think I read thirty thousand proceedings! You handled thirty thousand proceedings in family court. That’s remarkable.
Judge: Now, you have to explain that so nobody thinks you saw thirty thousand people going through a divorce. In family court there are so many different proceedings in each case that that’s how many I heard.
Locke Meredith: But you deal with a lot of folks and the bottom line is, and not all states are like this, we elect our judges.
Judge: Absolutely
Locke Meredith: You and I were talking before the show, I think it’s a great thing because it provides accountability for the judiciary. We elect the executive, the governor, and the mayor and congress folks.
Judge: Well, I think you tend to like what system you come from. Next year, well this year, I’m the president elect of the American Judges Association so in October of next year I will be sworn in as president. So I have relationships in working with judges from all over the country, some of them are appointed and they all think that is the greatest way to do it, and we are elected and we think that. But what I do like about elected judges is that you know, we have a big parish here, by the fact that you run, you go to parts of the parish that if you were appointed and had an office in a downtown, high rise building, you might not even know where Pride is, or Chenneyville, or places in south Baton Rouge. By running you get to know people and understand what they are talking about or where places are or what issues are in your community.
Locke Meredith: Now the terms of the appellant court judge are ten years. That’s a long time so I guess the reason it’s so long is to remove the folks from having to run often say like a congressman who runs every two years. You guys get to settle in and not worry so much about say the political aspect of it and focus on applying the law.
Judge: Well, you know once we become elected we can’t really be involved in politics. So I think that’s one of the reasons for that but I think its also that we are put in the position of making decisions sometimes that are not popular with what the public perceives it is that they want or like at the time and they forget that we have to follow the law. Now if they want to go have the law changed through their representatives or their legislators or their congressman, they can do that. But we don’t do that. But I think it insulates people or judges from having to respond to those hot button issues sometimes, you can just apply the law. Of course, I’m just in the middle, I mean if we make a mistake you still can go to the Supreme Court and you’ve got somebody else to look at your case. It’s a check and balance thing to where people get justice and get treated right. If they don’t think they got it on the trial court level then they’ve got the opportunity to appeal to us and we look at the whole case and decide whether we think it was a correct ruling or not.
Locke Meredith: Now we talked about the different branches of government, you got the executive, the legislative and the judiciary. The legislative is the one that writes the laws, they are supposed to be connected to the folks, the executive branch, the Mayor, President, Governor, supposed to be implementing the laws and the judiciaries job as you were saying is to interpret the laws based on the facts that come to the judges.
Judge: Absolutely
Locke Meredith: And that’s why you have the system set up the way you have it. Let’s talk about the first circuit court of appeals, because you were on the front lines and now you’re at the appellate level. What are the big differences that you are seeing now?
Judge: Well the big difference from where I came from is that I miss litigants and lawyers, because almost everything we do is about grading papers, because it’s on paper. We do have oral arguments where the lawyers can come in but the clients don’t usually come. And they’re arguing whether a judge made a mistake legally.
Locke Meredith: Well, let’s continue this on the next segment. This is Locke Meredith with legal lines and Judge Toni Higginbotham, We’ll be right back.
****** Thank You Message from Locke Meredith and the staff of legal lines.****
Locke Meredith: Welcome back to legal lines, I’m Locke Meredith and again we’re very pleased to have on the show today Judge Toni Higginbotham. She’s a judge on the first circuit court of appeals. Judge, we were talking about basically what you did at the trial level and why the government is set up the way it is and particularly why the judiciary is set up the way it is. Explain to the folks, as you started to, the difference between the trial level and the appellate level.
Judge: Well the trial level, which is where I served before is where everybody comes, whether they are representing themselves or with lawyers, to present their evidence and the judge receives their evidence according to the rules of evidence and makes a decision, hopefully applying the law, after all of that evidence is presented. Its long arduous days on the bench to hear all of this and to come to a decision. My new position, on the court of appeal, we are actually being asked to look over something that a trial judge has already decided. So we are presented a written record, sometimes audio too, but basically a written record and we have to go through the whole record, without people talking to us and without seeing first hand, and without being able to assess credibility and we’re having to make a decision whether this case should be upheld as the judge ruled or if it should be overturned. There is a lack of litigants and there is a lack of lawyers. It’s a lot of reading.
Locke Meredith: Some people would say that’s great.
Judge: Well I like all my litigants and my lawyers, I might be different, but I miss that part of it, but I also relish the fact that I’m getting to see so many issues and make decisions that I think really effect people’s lives.
Locke Meredith: You know it’s interesting because I’ve heard the statistic bounced around that about ten percent of communication is words actually spoken and ninety percent is all the non-verbal stuff. At the trial level, you get to see all that.
Judge: Absolutely
Locke Meredith: At the appellate level you see that black and white word and that’s it.
Judge: Absolutely, I miss that.
Locke Meredith: That’s the reason, is it not, for the great deference that the appellate courts give to the trial judge?
Judge: Yes, under our law scheme, we have to give great deference because they are there, they are looking at these people, they can see their body English, they can put all the different witnesses together, their stories and see how they jive. We can’t see that so our law is very strict that there should be manifest error. We don’t decide if I might have would have made a different decision on that case, that’s not the standard. You have to keep telling yourself, ” Okay, I’m looking at this but I have to give great deference to what the trial court judge decided.”
Locke Meredith: Again, so the folks understand, at the appellate court, nobody’s coming up there to testify again, nobody is giving photographs or any of that stuff that might come in via the record.
Judge: We have the record but we don’t have witnesses we see testify.
Locke Meredith: And the manifest error is basically saying “we recognize as a judicial system that the trial court was there to recognize that stuff and our review is going to be limited to, uniquely for Louisiana Appellate Courts both law: Did the judge apply the law to the facts?
Judge: And facts.
Locke Meredith: Explain to the folks why we have review at the appellate level of both law and facts.
Judge: I think it’s because we were not a common law state and we have written laws and so therefore errors can be made on that as well as on the way the judge handles something or whatever. So we want to see if there were mistakes on both of those things.
Locke Meredith: The beauty is that you’re not messing with either unless they’re way more that fifty one percent. You’re not coming in and saying I believe them more than them because you weren’t there and you recognize the judge was, and that’s just the bottom line.
Judge: Absolutely
Locke Meredith: Explain to the folks how the appellate court works, it has panels of judges that are put together and explain the process of how the judges deal with it.
Judge: The first circuit has twelve judges, and we are assigned to a panel of three judges for a year at a time.
Locke Meredith: So there are four panels.
Judge: Yes, there are four panels, When somebody goes to the clerk of court and files a suit it is allocated to a judge and to a panel first, and ultimately to a judge to be primary on it randomly, we have no idea what cases we are going to get or anything like that.
Locke Meredith: There’s no preferential treatment or bias.
Judge: I don’t get to choose what I would like or anything like that.
Locke Meredith: In fact, you’ve talked about prior to our show that you have to recuse yourself, everybody does.
Judge: I have standard recusals because I have three children that are lawyers and a husband that’s a lawyer.
Locke Meredith: So if they’re involved, you’re out.
Judge: I don’t do that case at all. Then the other thing with me that’s a big deal is that I was on the family court bench for so long and family cases keep coming back is that I don’t make a decision on any case that I’ve ever done anything on… so they know that immediately when they come into the clerk of court and they try to catch all those and I don’t get those cases. But it’s a random allotment and we’re given the cases and we have a cycle where we do all the research, try to read all the evidence, read the transcripts, and then if they request it they can have oral argument before us. And then the three judges decide how they are going to rule on this case.
Locke Meredith: Its not really a majority decision rules is it at the appellate level?
Judge: Initially it’s not really majority, but if you’re going to overturn a judge (decision) it takes three votes.
Locke Meredith: A unanimous decision of the panel.
Judge: Right, and so if its just upholding a judge, it just takes a majority. So if you’re saying what the judge did was correct, two votes is enough, but if you’re going to overturn that judge, it takes three votes. So if you don’t have that three out of three, the next step is it goes to a five person panel. Two more judges are added, they hear the case and they come back for oral argument, they research, they look at our research, and then they vote and hopefully there is a resolution. But it could go to seven, then nine and ultimately to all twelve, but that doesn’t happen very often.
Locke Meredith: I think you indicated primarily that that’s going to happen in a sitting when you have really unique issues where you’re trying to overrule a previous decision.
Judge: Normally.
Locke Meredith: Explain to the folks how the argument process goes, I mean you have the lawyers, they get up and answer the questions that the judges are peppering them with but once everybody leaves how do the judges communicate between themselves about what they think should happen?
Judge: Well, we’re there that day at oral argument, we’ve read the research, we’ve read their briefs, we’ve read the transcripts, we know what the issues are and that might be our first inkling after heard the two sides argue about how do you feel about this and how do you feel about that. But there really isn’t the big picture of argument, it’s done on paper and somebody says, “I think this is the correct way to go,” and someone else says “I think that’s the correct way to go,” but its all done in writing. I thank goodness today it’s done by email and internet, so we can do it instantaneously very fast, and then we hope to come to a decision. Sometimes it’s two and one decent, and they write their own decent, sometimes it goes to the five or seven panel. We try to persuade somebody if we think very strongly about something but everybody’s an independent thinker and they get to vote what they think.
Locke Meredith: How is it decided what judge is going to write the opinion?
Judge: It’s allotted randomly.
Locke Meredith: So is that allotted in advance of the case?
Judge: Yes, when the case is assigned to our panel we don’t talk about that because we don’t want to ever open up somebody trying to influence a judge or whatever. We just work as a unit only, but obviously we get about thirty six cases every cycle and we couldn’t possibly read and research thirty six cases so we divide them up into thirds to be primarily responsible, then we share information with each other.
Locke Meredith: The decision is rendered.
Judge: And somebody ends up writing twelve of them and somebody else writes twelve and somebody else writes twelve.
Locke Meredith: Judge, thank you so much for being on the show today.
Judge: If you ever want to know any more about how we work, I really want the public to understand us.
Locke Meredith: Go to the webpage.
Judge: I’ll be glad to come back or you can go to the webpage.
Locke Meredith: For sure we’re going to have you back. Thanks for being with us today this is Locke Meredith with legal lines and Judge Toni Higginbotham, until next time.
