Hayes-zy issue: Lawyers argue judge shouldn't hear cases involving Collier government

Judge Hugh Hayes, right, and Garry Blackman, left, listen as attorney Rachael Loukonen objects questioning coming from Blackman's attorney Steve Chase during court earlier this year. Blackman is the president of the Florida Georgia Grove company who was taken to trial for blocking access to the historic Ted Smallwood Store. Scott McIntyre/Staff

Photo by SCOTT MCINTYRE

Judge Hugh Hayes, right, and Garry Blackman, left, listen as attorney Rachael Loukonen objects questioning coming from Blackman's attorney Steve Chase during court earlier this year. Blackman is the president of the Florida Georgia Grove company who was taken to trial for blocking access to the historic Ted Smallwood Store. Scott McIntyre/Staff

— What's in a name?

Possible bias and favoritism, according to two defendants embroiled in separate legal battles against Collier County government.

At the heart of their fight is a sign: "Welcome to the Hugh D. Hayes Courthouse Annex."

It's a nondescript sign tucked away on an interior wall in the courthouse annex's employee entrance. Because the public only exits there, with their backs to the wall, few know the building has an official name.

For most, it's simply "the new annex."

But Hayes' role as the judge in two cases involving county government, which approved the naming of the Hayes annex, has come into question.

One case involves an ongoing code dispute between an Immokalee trailer park owner and county officials; the other a company that closed a street in Chokoloskee and its battle over providing access to the historic Smallwood store.

While lawyers argue that Hayes could repay the naming favor by ruling in favor of county officials, county attorneys consider the notion a last-ditch attempt by lawyers losing their cases.

Florida's Rules of Judicial Conduct say a judge shall not allow political or other relationships to influence judicial conduct or judgment. The question is whether a "reasonable" person would believe there's a perception of impropriety.

Collier Circuit Judge Hugh D. Hayes on the bench in a 2009 case.  Michel Fortier/Staff

Photo by MICHEL FORTIER

Collier Circuit Judge Hugh D. Hayes on the bench in a 2009 case. Michel Fortier/Staff

There's nothing in judicial ethics rules addressing such a rare circumstance of a building named after a sitting judge, who has been on the bench for decades.

"This is not a situation that would arise often, obviously," said Cynthia Gray, director of the American Judicature Society Center for Judicial Ethics.

* * * * *

The Collier County Bar Association suggested honoring Hayes, who was appointed county judge at age 30 by then-Gov. Reubin Askew in 1978.

In July 2009, a month after the building opened, Collier commissioners approved the proposal. Judges, lawyers and others held a party to dedicate the building.

"In recognition of over 30 years of tireless dedication to serving the people of Collier County by adjudicating our dispositions with fairness and compassion, expanding our access to the courts and improving the administration of justice for all citizens," a plaque beneath the sign reads.

Collier commissioners scoff at the suggestion Hayes would consider the dedication while making rulings.

"It makes absolutely no sense for the judge to recuse himself," Commissioner Jim Coletta said.

Residents of the Shell Trailer Park in Immokalee are caught in a long-lasting battle between the property owners and the Collier County Code Enforcement who have ordered the homes removed or the land rezoned. The owners of the property, Jerry and Kimberlea Blocker, claim that the property they purchased five years ago should be grandfathered in as a residential zone despite its current classification as commercial and light industrial zone. The rental units are home to mainly migrant workers who say they pay between $300 and $450 per week to rent the trailers. David Albers/Staff'

Photo by DAVID ALBERS

Residents of the Shell Trailer Park in Immokalee are caught in a long-lasting battle between the property owners and the Collier County Code Enforcement who have ordered the homes removed or the land rezoned. The owners of the property, Jerry and Kimberlea Blocker, claim that the property they purchased five years ago should be grandfathered in as a residential zone despite its current classification as commercial and light industrial zone. The rental units are home to mainly migrant workers who say they pay between $300 and $450 per week to rent the trailers. David Albers/Staff'

Lynn Smallwood-McMillan, executive director of the store involved in one of the cases, maintained Hayes would be out of work if he disqualified himself from all cases involving county government.

But Jerry Blocker, who is fighting more than $2 million in code violations, signed a sworn affidavit saying he has a well-founded fear Hayes would be biased.

Blocker's attorney, Steven Bracci of Naples, argued Hayes should have immediately disqualified himself from county government cases after the dedication. He noted Hayes didn't ask any questions after lengthy arguments in his case, just signed a "verbatim order" in favor of county officials.

Assistant County Attorney Jacqueline Williams Hubbard, however, said Hayes has heard arguments "ad nauseum" in the case, so it was "logical" he had no questions.

"It appears the plaintiff would like to retry the issues of this case and obtain a second bite at the apple (while choosing his own judge) in order to retry a case repeatedly lost on appeal," Hubbard stated.

To avoid any question of impropriety, Hayes disqualified himself in August from the Blocker matter.

Last month, Florida-Georgia Grove LLP resurrected the name issue after Hayes ruled in favor of county officials and the Smallwood Store, ordering Florida-Georgia Grove to reopen Mamie Road access.

In his motion, Sarasota attorney Steven Chase cited Hayes' recusal in the Blocker case and a noise complaint involving outdoor seating at Stevie Tomato's Sports Grill. Hayes signed a September 2009 order voluntarily disqualifying himself in the latter. He gave no reason, but those involved say he knew a witness.

Helen Bryan of Chokoloskee holds her sign in support of an access road being restored to the historic Ted Smallwood Store in Chokoloskee.

Photo by ROGER LALONDE

Helen Bryan of Chokoloskee holds her sign in support of an access road being restored to the historic Ted Smallwood Store in Chokoloskee.

The restaurant, which sued county staff, won the case before a Lee judge.

Noting Florida Georgia Grove and its attorneys don't have offices in Collier, Chase said they were unaware of the building dedication and argued that appeal courts say a judge who disqualifies himself once involving a party should disqualify himself in all matters concerning that party.

"The public dedication, along with the fact that Judge Hayes has previously recused himself from hearing cases involving the plaintiff, Collier County, substantiates defendant's well-founded fear of bias in favor of the county," Chase wrote in a motion to disqualify Hayes.

Hayes granted the motion, but already had ruled in the county's favor. Chase recently filed an appeal and declined to speak about the pending case, citing his firm's policy. Hubbard also declined comment.

It will be up to the Lakeland-based 2nd District Court of Appeal to decide whether another judge should rehear the Smallwood store case.

* * * * *

Locally, the annex naming battle highlights why buildings usually are named after someone who has died: It prevents possible problems or scandals.

Across the nation, government officials and others have pondered when and how to name a public building. Often, it's to honor someone or sell naming rights to cover construction or budget deficit problems.

In November 2008, after the Naples City Council unanimously voted to rename its skatepark The Edge Johnny Nocera Skate Park, council abandoned a policy that required it to wait to name a building or park until five years after a death.

They agreed naming proposals can be based on meritorious public service, financial gifts or long-term sponsorship and cited Nocera's work making the park a reality.

Last year, the Marco Island City Council also changed policy, recommending buildings be named after places, but agreeing they could be dedicated to someone living or dead to honor community service or financial gifts.

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