ACLU counters Florida court, calls ‘rocket docket’ unconstitutional

The American Civil Liberties Union responded to Florida 20th Judicial Circuit Chief Judge Keith Cary Thursday, claiming the system created to accelerate foreclosure cases in several counties is unconstitutional. The ACLU filed a petition on behalf of homeowner Georgi Merrigan in April with a Florida appellate court to end the practice of the so-called “rocket docket.” Created under Florida Supreme Court order in June 2010, the program was established to push a backlog of foreclosure cases through the system. In its petition, the ACLU claimed judges ignored court rules and denied delinquent borrowers a say in court. Cary filed a response to the petition in May, claiming the prohibition against the program was unfounded and the “hearsay” provided by the ACLU from other foreclosure defense attorneys did not pertain to the Merrigan case. He also argued that summary judgments were often all that is needed when a borrower admits to defaulting on a loan, not a trial. “In his response to Ms. Merrigan’s petition, Chief Judge Cary nowhere asserts that Lee County’s mass foreclosure docket adheres to the Florida Rules of Civil Procedure or meets constitutional muster,” the ACLU said in its response filed with the appellate court Thursday. “Defending this system as a method of ‘case management,’ however, cannot justify systematic departures from the rules of civil procedure, especially where those departures deprive Ms. Merrigan of due process.” The ACLU said pursuing a prohibition against the “rocket docket” is prudent because Cary exceeds his authority by assigning Merrigan’s case to a forum operating outside of the Florida Rules of Civil Procedure. The ACLU is not challenging whether or not Cary could establish a special division to adjudicate foreclosures, but the advocacy group did say the rules of that division – such as a “rocket docket” – must abide by those state rules of procedure. “As Ms. Merrigan’s petition sets forth, at every phase of a foreclosure case, (the) respondent has suspended many of the rules governing civil cases. Accordingly, prohibition lies to shield Ms. Merrigan from a set of prejudicial alternative rules that (the) respondent had no authority to promulgate,” the ACLU said. The ACLU pointed to three examples of “prejudices.” The “rocket docket” can set a trial date while Merrigan’s motion to dismiss remains unresolved, known as a “docket sounding order.” Because of this, the ACLU claims she is forced to defend herself at trial before the court rules on whether or not the complaint – in this case a foreclosure – is legal in the first place. The group also claims a docket sounding order keeps Merrigan from properly preparing for trial, and because the “rocket docket” can move straight to a summary judgment, a final court ruling can be reached before the defendant has been given the opportunity to be heard. Write to Jon Prior. Follow him on Twitter @JonAPrior.