THE GENDERLESS TRIAL COURT JUDGE
Why do appellate opinions refer to the trial judge whose rulings are attacked with the pronoun ”it”?
To me that’s a question deserving of a good answer, and I freely admit that I don’t have one. Perhaps there is no good answer, the implication being that the practice should stop. But I may just be betraying my own ignorance. Not that I have not pondered the question for some time, and cast out for a satisfactory answer.
Satisfactory one I have not encountered, but here are a couple of candidates:
Judges are "its" because that makes them gender-neutral, and gender-neutrality is a good thing
At first glance that may sound like a plausible explanation, but it is really not. For good reason: Each appeal typically involves only a single case, unless appeals were consolidated for appeal, and what’s being appealed will, in almost all cases, be the ruling or multiple rulings, of a single identified judge. As for final judgment, the general rule in Texas is that there can only be one, and there will only be one judge’s John Hancock on it. -- Oops, the John Hancock reference was not gender-neutral, but I leave that for another day.
With rare exceptions, trial court judges don’t sit and hear cases in panels. Each one is typically the king or queen in his or her court. Calling them “it” makes it unnecessary to ascertain their sex and refer to the royal that made the ruling by the gendered pronoun. But even assuming everyone shares a commitment to gender-neutrality these days, why would it be necessary to use a gender-neutral terms to refer to a specific judge in a specific case, as opposed to making generalizing statements about classes of persons, e.g. plaintiffs, defendants, litigants, lawyers, clients, and other collectivities of people that all come as adults, both male and female?
After all, what’s at issue in the appeal is whether one particular judge committed reversible error. That determination is entirely case-specific. No need to generalize. Ergo, no need to use gender-specific pronouns in the interest of inclusion or to avoid sex-based stereotypes.
The practice of referring to the trial court judge as “it” becomes even more questionable when considering mandamus proceedings, when the complaint about error is directed at a named judge, rather than the judge presiding over a particular court acting in his or her official capacity for that court. Even the shortest of opinions in a mandamus case – a one-page denial - will identify the judge by name in a footnote. But even in regular appeals, whether interlocutory or from a final judgment, the identity of judge is no secret. Nor is it hard to ascertain. It is shown on the online docket for each case.
Is there a meaningful distinction between a trial court judge having committed error that can be attacked by mandamus, as opposed to interlocutory appeal, or appeal from a final judgment? Before the Texas Legislature authorized interlocutory appeals of denial of arbitration under the TAA, savvy lawyers would file arbitration-related complaints in the courts appeals both as mandamus proceedings and as interlocutory appeals under the FAA. The purpose of the appellate maneuver was the same regardless of the form: to get the judge’s denial of a motion to compel arbitration overturned when it was not clear whether TAA or FAA applies, or both.
Judges act in their official capacity for courts, and are therefore properly referred to as “it” because a court is an institution
True enough, each court is a public institution, and the judge is merely an office-holder. So this explanation seems logical too. But it does not hold up under closer examination. After all, the whole point of the appeal is to convince the court of appeals that the trial judge committed error, and thus did not follow the law, and -- as the person holding office -- did not properly perform the role, acting for the court, that the court should have performed. So, the error, if any, is that of the office holder.
Further, if another judge had filled in on that day and heard the matter, or tried the case, the error presumably would not have happened, or perhaps a different error would have been committed because the visiting judge made a mistake, and thus did not act in the manner consistent with the way the court as an institution should have applied the law, and dispensed justice.
If there was error, it was error of the court only in the derivative sense, i.e. the judge’s error is error of the trial court only to the extent judge and court are equated. Ultimately, if there was error, it what error on the part of a particular judge who did not follow the law, or abused his or her discretion as judge. A trial court has no discretion to not follow the law, or to re-interpret it, and to the extent the trial court judge has discretion (i.e. leeway to rule as he or she sees fit), it is within the parameters of what the courts of appeals say are the limits of such judicial discretion.
The key issue that the courts of appeals are called upon to decide is whether the trial-court judge committed reversible error. If they conclude that the judge made such error and reverse, by definition, the erroneous ruling (or erroneous judgment) does not survive as an official valid act of the court below. The court of appeals may say that the “trial court” erred, but it is the individual acting for that particular trial court that erred. So why not refer to the judge as he or she, him or her, when the identity of the reversed judge is no secret in any event. Not even a semi-secret since appellate docket information is these days available on the web for the whole world to view.
Why do appellate opinions refer to the trial judge whose rulings are attacked with the pronoun ”it”?
To me that’s a question deserving of a good answer, and I freely admit that I don’t have one. Perhaps there is no good answer, the implication being that the practice should stop. But I may just be betraying my own ignorance. Not that I have not pondered the question for some time, and cast out for a satisfactory answer.
Satisfactory one I have not encountered, but here are a couple of candidates:
Judges are "its" because that makes them gender-neutral, and gender-neutrality is a good thing
At first glance that may sound like a plausible explanation, but it is really not. For good reason: Each appeal typically involves only a single case, unless appeals were consolidated for appeal, and what’s being appealed will, in almost all cases, be the ruling or multiple rulings, of a single identified judge. As for final judgment, the general rule in Texas is that there can only be one, and there will only be one judge’s John Hancock on it. -- Oops, the John Hancock reference was not gender-neutral, but I leave that for another day.
With rare exceptions, trial court judges don’t sit and hear cases in panels. Each one is typically the king or queen in his or her court. Calling them “it” makes it unnecessary to ascertain their sex and refer to the royal that made the ruling by the gendered pronoun. But even assuming everyone shares a commitment to gender-neutrality these days, why would it be necessary to use a gender-neutral terms to refer to a specific judge in a specific case, as opposed to making generalizing statements about classes of persons, e.g. plaintiffs, defendants, litigants, lawyers, clients, and other collectivities of people that all come as adults, both male and female?
After all, what’s at issue in the appeal is whether one particular judge committed reversible error. That determination is entirely case-specific. No need to generalize. Ergo, no need to use gender-specific pronouns in the interest of inclusion or to avoid sex-based stereotypes.
The practice of referring to the trial court judge as “it” becomes even more questionable when considering mandamus proceedings, when the complaint about error is directed at a named judge, rather than the judge presiding over a particular court acting in his or her official capacity for that court. Even the shortest of opinions in a mandamus case – a one-page denial - will identify the judge by name in a footnote. But even in regular appeals, whether interlocutory or from a final judgment, the identity of judge is no secret. Nor is it hard to ascertain. It is shown on the online docket for each case.
Is there a meaningful distinction between a trial court judge having committed error that can be attacked by mandamus, as opposed to interlocutory appeal, or appeal from a final judgment? Before the Texas Legislature authorized interlocutory appeals of denial of arbitration under the TAA, savvy lawyers would file arbitration-related complaints in the courts appeals both as mandamus proceedings and as interlocutory appeals under the FAA. The purpose of the appellate maneuver was the same regardless of the form: to get the judge’s denial of a motion to compel arbitration overturned when it was not clear whether TAA or FAA applies, or both.
Judges act in their official capacity for courts, and are therefore properly referred to as “it” because a court is an institution
True enough, each court is a public institution, and the judge is merely an office-holder. So this explanation seems logical too. But it does not hold up under closer examination. After all, the whole point of the appeal is to convince the court of appeals that the trial judge committed error, and thus did not follow the law, and -- as the person holding office -- did not properly perform the role, acting for the court, that the court should have performed. So, the error, if any, is that of the office holder.
Further, if another judge had filled in on that day and heard the matter, or tried the case, the error presumably would not have happened, or perhaps a different error would have been committed because the visiting judge made a mistake, and thus did not act in the manner consistent with the way the court as an institution should have applied the law, and dispensed justice.
If there was error, it was error of the court only in the derivative sense, i.e. the judge’s error is error of the trial court only to the extent judge and court are equated. Ultimately, if there was error, it what error on the part of a particular judge who did not follow the law, or abused his or her discretion as judge. A trial court has no discretion to not follow the law, or to re-interpret it, and to the extent the trial court judge has discretion (i.e. leeway to rule as he or she sees fit), it is within the parameters of what the courts of appeals say are the limits of such judicial discretion.
The key issue that the courts of appeals are called upon to decide is whether the trial-court judge committed reversible error. If they conclude that the judge made such error and reverse, by definition, the erroneous ruling (or erroneous judgment) does not survive as an official valid act of the court below. The court of appeals may say that the “trial court” erred, but it is the individual acting for that particular trial court that erred. So why not refer to the judge as he or she, him or her, when the identity of the reversed judge is no secret in any event. Not even a semi-secret since appellate docket information is these days available on the web for the whole world to view.
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