SECOND DIVISION

[A.M. No. RTJ-03-1746. September 26, 2003.]
(formerly OCA IPI No. 10-1225-RTJ)

ROGER F. BORJA, complainant, vs. JUDGE ZORAYDA H. SALCEDO, respondent.

SYNOPSIS

Before the Supreme Court is an administrative complaint against the respondent, Presiding Judge of the Regional Trial Court. Branch 32. of San Pablo City, for gross ignorance of the law and grave abuse of discretion in issuing a temporary restraining order (TRO) in Civil Case No. SP-5775, without complying with the Rules. Among other things, complainant contended that the TRO was issued ex parte even if the complaint did not allege extreme urgency and that its nonissuance would cause the applicant to suffer grave or irreparable injury: that respondent judge did not conduct the required summary hearing: that it is the executive judge who may issue an ex parte TRO. On his part. the respondent judge manifested her willingness to submit the matter for resolution on the basis of the pleadings on record. TcSaHC

The Court found that-respondent judge issued the TRO without conducting the required summary hearing. ex parte is when the matter is of such extreme urgency that grave injustice and irreparable injury will arise unless it is issued immediately. Under such circumstance, the Executive Judge shall issue the TRO effective for 72 hours only. There was no showing that this case falls under the exceptional circumstances enumerated by the administrative circular where a TRO may be issued by the Executive Judge before assignment by raffle to a judge without first conducting a summary hearing. The respondent judge had earlier been apprised of the provisions of

SYLLABUS

1. REMEDIAL LAW; PROVISIONAL REMEDIES; TEMPORARY RESTRAINING ORDER; WHEN MAY BE ISSUED EX PARTE; RULE; CASE AT BAR. The rule holds that before a temporary restraining order may be issued, all parties must be heard in a summary hearing first, after the records are transmitted to the branch selected by raffle. The only instance when a TRO may be issued ex parte is when the matter is of such extreme urgency that grave injustice and irreparable injury will arise unless it is issued immediately. Under such circumstance, the Executive Judge shall issue the TRO effective for 72 hours only. The Executive Judge shall then summon the parties to a conference during which the case should be raffled in their presence. Before the lapse of the 72 hours, the Presiding Judge to whom the case was raffled shall then conduct a summary hearing to determine whether the TRO can be extended for another period until the application for preliminary injunction can be heard, which period shall in no case exceed 20 days including the original 72 hours. Clearly, respondent Judge Salcedo as presiding judge of Branch 32 to which Civil Case No. SP-5775 (01) was raffled, erred in issuing the questioned TRO without conducting the necessary hearing first. Only the executive judge may issue a TRO ex parte, under exceptional circumstances and following a specified procedure herein-abovementioned.

2. ADMINISTRATIVE LAW; ADMINISTRATIVE CHARGES; JUDGES; CONSCIOUS DISREGARD OF BASIC RULE ON ISSUANCE OF A TEMPORARY RESTRAINING ORDER CONSTITUTE GRAVE ABUSE OF AUTHORITY AND CONDUCT . PREJUDICIAL TO THE PROPER ADMINISTRATION OF JUSTICE; IMPOSABLE PENALTY. -- In the present case, there is neither allegation nor proof that respondent judge was motivated by bad faith, fraud, dishonesty, corruption or any other ill-motive. However, it cannot be ignored that on September 7, 2000, barely a year before the filing of the present administrative complaint, another administrative case had been lodged against respondent judge by the same complainant concerning the issuance of a TRO in another civil case without complying with the same requirements of

3. REMEDIAL LAW; PROVISIONAL REMEDIES; TEMPORARY RESTRAINING ORDER; NO COURT HAS THE AUTHORITY TO NULLIFY JUDGMENTS OR PROCESSES OF ANOTHER COURT OF CO-EQUAL POWER; RULE NOT APPLICABLE TO CASE AT BAR. On the other hand, we accept the explanation of Judge Marivic T. Balisi-Umah, RTC Judge, Branch 30 San Pablo City regarding her dissolution of the TRO issued by Judge Salcedo of Branch 32 since it was issued in violation of

R E S O L U T I O N

AUSTRIA-MARTINEZ, J p:

In a Complaint dated January 11, 2001, Roger F. Borja accuses Presiding Judge Zorayda H. Salcedo of the Regional Trial Court (Branch 32) of San Pablo City of gross ignorance of the law and grave abuse of discretion in issuing a temporary restraining order (TRO) in Civil Case No. SP-5775 (01), entitled, "Damaso T. Ambray vs. San Pablo City Water District, represented by General Manager Roger Borja, et al.", without complying with the

Complainant alleges that the civil case was filed with the RTC of San Pablo City on January 2, 2001 and on the same day, assigned by raffle to Branch 32, presided over by respondent Judge. The following day, respondent Judge issued an Order granting the TRO, to wit:

Before this Court is a verified complaint praying for the issuance of a Temporary Restraining Order (TRO) which the Court finds to be sufficient in form and substance.

Conformably with Rule 8 of the Interim Rules and Guidelines and Section 1 of

In the meantime, in order to maintain the status quo between the parties and to obviate irreparable damage the petitioner may suffer by reason of and as a consequence of the acts sought to be enjoined pending hearing on the issuance of the writ of preliminary injunction, the respondents/defendants are hereby enjoined from enforcing Board Resolution No. 082, Series 2000 restraining Atty. Marciano Brion, Jr. to sit, act and exercise the powers of a Director of San Pablo City Water District representing the civic sector.

Let this Order together with the copy of the Complaint be served forthwith upon the respondents/defendants who are hereby given a period of ten (10) days from receipt within which to file their Answer.

The Deputy Sheriff of this Branch is hereby ordered to implement the processes of this Court immediately.

SO ORDERED

City of San Pablo, January 3, 2001.

and a copy thereof was received by the complainant that afternoon.

Complainant claims that the procedure followed by respondent Judge violated Rule 58 Section 4 b-c-d,

(a) Being a multi-sala court, it is the Executive Judge that may issue an ex-parte TRO good for 72 hours.

(b) The notice of raffle was not preceded or contemporaneously accompanied, by service of summons, with the complaint or initiatory pleading and the applicant's affidavit and bond.

(c) Respondent Judge who was assigned to the case did not conduct the required summary hearing with notice and in the presence of the parties within 24 hours after the Sheriff's return of service and/or the records are received by the branch selected by raffle.

(d) The TRO was issued ex-parte without the required bond and without alleging that the matter is of extreme urgency and applicant would suffer grave or irreparable injury.

(e) Complainant did not ask for the issuance of a preliminary injunction on January 4, 2001 in the morning.

Then Court Administrator Alfredo Benipayo, through a letter dated February 7, 2001, informed complainant that the subject matter of his complaint is judicial in nature hence it shall be denied due course as there are judicial remedies available under the

On March 30, 2001, however, the Office of the Court Administrator (OCA) received a Motion from complainant dated March 29, 2001, praying for the reconsideration of the notice of denial of his complaint on the strength of an Order dated January 19, 2001 issued by Judge Marivic Balisi-Umali of the RTC (Branch 30), San Pablo City, dissolving the questioned TRO for failure to comply with the requisites of

Complainant argues that when the law transgressed is elementary, as in the instant case, the failure to know or observe it constitutes gross ignorance of the law.

Upon the report and recommendation of the OCA, this Court, in a Resolution dated August 29, 2001 resolved to require:

(a) respondent Judge Zorayda Salcedo to COMMENT on the complaint and motion for reconsideration within ten (10) days from notice hereof; and (b) Judge Marivic T. Balisi-Umali, then Regional Trial Court Judge, San Pablo City, Branch 30, to EXPLAIN within ten (10) days from notice hereof why no disciplinary action should be taken against her for issuing an order dissolving a temporary restraining order issued by a court of co-equal jurisdiction."

On October 16, 2001, respondent judge submitted her comment and apologized for the delay in its submission explaining that she, as well as her husband, underwent cataract operation. She informed the Court that she is adopting as her comment the Indorsement dated November 16, 2000 which she had submitted to this Court in connection with OCA IPI No. 00-1058-RTJ, an earlier administrative case also filed by herein complainant against her but which was dismissed by this Court for lack of merit. She likewise emphasized her "denial of partiality, ignorance of the law, bias and so forth being attributed to her by complainant for the reverse is true as it has been (her) desire . . . to always observe impartiality, fairness, and dedication in the administration of justice."

Judge Marivic T. Balisi-Umali in her Compliance dated October 17, 2001, explained her actions relative to the case as follows:

May the Honorable First Division be informed that Civil Case No. SP-5757(01) . . . for Declaration of Nullity of Board Resolution No. 082, Series 2000 and for Issuance of Temporary Restraining Order was originally raffled to Branch 32 of the San Pablo City, RTC presided over by the Honorable Zoraida Herradura Salcedo on January 2, 2001. The following day Judge Salcedo issued a Temporary Restraining Order (TRO). On even date, defendant Borja filed a Motion to Inhibit Judge Herradura Salcedo from the case and which the latter granted. On January 5, 2001, defendant Brion filed a Motion to Dissolve Temporary Restraining Order anchored on the ground that the TRO was issued in violation of Rule 58, Section 4(d) of theOn even date, the case was raffled to the undersigned.

The undersigned resolved the Motion to Dissolve Temporary Restraining Order on January 19, 2001. A copy of her Order is hereto attached. The undersigned dissolved the TRO because it was issued in violation of

The record of the case forwarded to the undersigned from Branch 32 did not show that any Order setting a summary hearing on the application for TRO was caused to be issued by Branch 32 for service to all the parties.

The undersigned humbly submits that as aforestated, Judge Salcedo inhibited herself from the case which was thereafter reraffled to the sala of the undersigned. The motion to Dissolve TRO had to be resolved.

The undersigned in dissolving the TRO did not ignore or overlook the fact that it was issued by a co-equal court, the orders or processes of which the undersigned cannot interfere with, pass upon much less reverse. However, under the circumstances obtaining where it was clearly shown and the undersigned was convinced that the TRO was irregularly issued, somehow she had to correct the error. It was her conviction then and now that by sustaining the TRO because it was issued by a co-equal court would tantamount to correcting a mistake with another mistake. (Emphasis supplied)

In a Resolution dated July 17, 2002, this Court referred the case to the Office of the Court Administrator for evaluation, report and recommendation.

Deputy Court Administrator Jose P. Perez submitted his Report, dated November 4, 2002, pertinent portions of which read as follows:

In the study of the entire record of the case, the undersigned observed that respondent judge did not controvert the material allegations in the complaint. Her comment dated November 16, 2000, specifically relates to the incidents involved in Civil Case No. SP-5454(99) which is the subject matter of OCA IPI No. 00-1058-RTJ. We therefore find unavailing the explanation of Judge Salcedo.

We find that respondent judge failed to comply with

A TRO may however be issued ex-parte if the matter is of such extreme urgency that grave injustice and irreparable injury will arise unless it is issued immediately. Under such circumstances, the executive judge shall issue the TRO effective only for seventy-two (72) hours from its issuance. But such a procedure is not applicable to respondent judge because she is not the executive judge of RTC, San Pablo City. (Emphasis supplied).

In Golangco vs. Villanueva, 278 SCRA 414, it was held that respondent judge's disregard of the Supreme Court's pronouncement on temporary restraining orders was not just ignorance of the prevailing rule; to a large extent, it was misconduct, conduct prejudicial to the proper administration of justice and grave abuse of authority.

Likewise, in A.M. No. RTJ-99-1496, 316 SCRA 570, respondent judge was fined in the amount of P5,000.00 for his failure to abide by

Concerning the dissolution of the questioned TRO by Judge Marivic T. Balisi-Umali, RTC, Branch 30, San Pablo City, we find the same to be proper. Judge Umali has satisfactorily explained that she granted the defendant's motion to dissolve TRO on 19 January 2000 or only after Judge Salcedo inhibited herself from trying the case and the case re-raffled to the former's sala on 5 January 2000.

IN VIEW OF THE FOREGOING, it is respectfully recommended that:

(1) OCA IPI No. 01-1225-RTJ be RE-DOCKETED as a regular administrative matter;

(2) Respondent Judge Zorayda H. Salcedo, RTC, Branch 32, San Pablo City be fined in the amount of FIVE THOUSAND (P5,000.00) PESOS for her failure to comply with

(3) The explanation of Judge Marivic T. Balisi-Umali, then RTC Judge, Branch 30, San Pablo City be ACCEPTED for being meritorious.

On March 27, 2003, complainant submitted a Memorandum emphasizing that: respondent judge is not an Executive Judge; the complaint in Civil Case No. SP-5775 (01) did not allege extreme urgency for the issuance of a TRO neither did it state that its non-issuance would cause grave injustice and irreparable injury to the plaintiff; the TRO issued by respondent judge on January 3, 2001 failed to declare that it was effective for 72 hours only; and on January 19, 2001, Judge Marivic T. Balisi-Umali dissolved the TRO issued by respondent judge for violation of

Respondent judge, on the other hand, manifested, through a letter dated February 13, 2003, her willingness to submit the matter for resolution on the basis of the pleadings on record.

After a review of the records of the case, we find the recommendations of the OCA to be well taken.

1. Where an application for temporary restraining order (TRO) or writ of preliminary injunction is included in a complaint or any initiatory pleading filed with the trial court, such complaint or initiatory pleading shall be raffled only after notice to the adverse party and in the presence of such party or counsel.

2. The application for a TRO shall be acted upon only after all parties are heard in a summary hearing conducted within twenty-four (24) hours after the records are transmitted to the branch selected by raffle. The records shall be transmitted immediately after raffle.

3. If the matter is of extreme urgency, such that unless a TRO is issued, grave injustice and irreparable injury will arise, the Executive Judge shall issue the TRO effective only for seventy-two (72) hours from issuance but shall immediately summon the parties for conference and immediately raffle the case in their presence. Thereafter, before the expiry of the seventy-two (72) hours, the Presiding Judge to whom the case is assigned shall conduct a summary hearing to determine whether the TRO can be extended for another period until a hearing in the pending application for preliminary injunction can be conducted. In no case shall the total period of the TRO exceed twenty (20) days, including the original seventy-two (72) hours, for the TRO issued by the Executive Judge.

4. With the exception of the provisions which necessarily involve multiple-sala stations, these rules shall apply to single-sala stations especially with regard to immediate notice to all parties of all applications for TRO.

In this case, it is not disputed that respondent judge issued a TRO without conducting the required summary hearing. There is no showing that it falls under the exceptional circumstances enumerated by the afore-quoted administrative circular where a TRO may be issued by the Executive Judge before assignment by raffle to a judge without first conducting a summary hearing.

In defense, respondent judge adopts as her comment in this case, the 2nd indorsement dated November 16, 2002 which she submitted in OCA IPI No. 00-1058-RTJ, which is an earlier administrative case filed against her by herein complainant. In said indorsement, respondent talked about the urgency of the issuance of the restraining order in that particular case and also mentions that:

. . . A judge may not be held administratively accountable for every erroneous order or decision he renders. To unjustifiably hold otherwise, assuming that he has erred would make his position doubly unbearable, for no one called upon to try the facts or interpret the laws in the process of administering justice can be infallible in his judgment. The error must be gross or patent, malicious, deliberate or evident bad faith.

As a matter of public policy then, the acts of a judge in his official capacity are not subject to disciplinary action, even though such acts are erroneous. Good faith and absence of malice, corrupt motives or improper consideration are sufficient defenses in which a judge charged with ignorance of the law can find refuge. (Quisumbing, J., Annabelle R. Gutierrez V. Hon. Rodolfo Palattao, A.M. RTJ-95-1326, July 8, 1998).

We find the explanation of respondent in the present case to be insufficient to excuse her from observing strict compliance with

As previously explained by this Court, there are differences in the requisites for the issuance of a temporary restraining order and in the life of a TRO when it is issued by an Executive Judge and when it is issued by a Presiding Judge of a court. In , we clarified:

If the temporary restraining order was issued by respondent in his capacity as Executive Judge, the TRO was good for 72 hours only. Within that period he was required to summon the parties to a conference before issuing the TRO and then assign the case by raffle. Thus, par. 3 of

If the matter is of extreme urgency, such that unless a TRO is issued, grave injustice and irreparable injury will arise, the Executive Judge shall issue the TRO effective only for seventy-two (72) hours from issuance but shall immediately summon the parties for conference and immediately raffle the case in their presence. Thereafter, before the expiry of the seventy-two (72) hours, the Presiding Judge to whom the case is assigned shall conduct a summary hearing to determine whether the TRO can be extended for another period until a hearing in the pending application for preliminary injunction can be conducted. In no case shall the total period of the TRO exceed (20) days, including the original seventy-two (72) hours, for the TRO issued by the Executive Judge. (Emphasis added)

On the other hand, if the TRO was issued after Civil Case No. 3391 had been raffled to Branch 2 and respondent judge issued it in his capacity as Acting Judge, then he should have complied with the following provision of

The application for a TRO shall be acted upon only after all parties are heard in a summary hearing conducted within twenty-four (24) hours after the records are transmitted to the branch selected by raffle. The records shall be transmitted immediately after raffle. (Emphasis supplied).

In this case, respondent judge issued the questioned TRO in her capacity as Presiding Judge. She should have known that a summary hearing was indispensable.

As we explained in

. . . The holding of a summary hearing prior to the issuance of a temporary restraining order is mandatory, in view of the requirement that the application for a temporary restraining order shall be acted upon only after all parties are heard in a summary hearing after the records are transmitted to the branch selected by raffle. In other words, a summary hearing may not be dispensed with.

A TRO can be issued ex parte if the matter is of such extreme urgency that grave injustice and irreparable injury will arise unless it is issued immediately. Under such circumstance, the executive judge shall issue the TRO effective only for seventy-two (72) hours from its issuance. The executive judge is then required to summon the parties to a conference, during which the case should be raffled in their presence. Before the expiry of the seventy-two hours, the presiding judge to whom the case was raffled shall conduct a summary hearing to determine whether the TRO can be extended for another period until a hearing on the pending application for preliminary injunction can be held. (Emphasis supplied)

The reason for this is that ex parte issuance of a TRO to cases of extreme urgency in order to avoid grave injustice and irreparable injury.

The rule holds that before a temporary restraining order may be issued, all parties must be heard in a summary hearing first, after the records are transmitted to the branch selected by raffle. The only instance when a TRO may be issued ex parte is when the matter is of such extreme urgency that grave injustice and irreparable injury will arise unless it is issued immediately. Under such circumstance, the Executive Judge shall issue the TRO effective for 72 hours only. The Executive Judge shall then summon the parties to a conference during which the case should be raffled in their presence. Before the lapse of the 72 hours, the Presiding Judge to whom the case was raffled shall then conduct a summary hearing to determine whether the TRO can be extended for another period until the application for preliminary injunction can be heard, which period shall in no case exceed 20 days including the original 72 hours.

Clearly, respondent Judge Salcedo as presiding judge of Branch 32 to which Civil Case No. SP-5775 (01) was raffled, erred in issuing the questioned TRO without conducting the necessary hearing first. Only the executive judge may issue a TRO ex parte, under exceptional circumstances and following a specified procedure herein-abovementioned.

In meting out the correct penalty, we considered the following cases:

where this Court pronounced that the failure of respondent therein, as an Executive Judge, to abide by

where the Court reprimanded respondent judge and warned him for failing to comply with The Court explained that while a judge's disregard of the Supreme Court's pronouncement on temporary restraining orders is not just ignorance of the prevailing rule, but to a large extent, constitutes misconduct, conduct prejudicial to the proper administration of justice, and grave abuse of authority; however, to be punishable, an act constituting ignorance of the law must not only be contradictory to existing law and jurisprudence, but must also be motivated by bad faith, fraud, dishonesty or corruption.

In the present case, there is neither allegation nor proof that respondent judge was motivated by bad faith, fraud, dishonesty, corruption or any other ill-motive.

However, it cannot be ignored that on September 7, 2000, barely a year before the filing of the present administrative complaint, another administrative case had been lodged against respondent judge by the same complainant concerning the issuance of a TRO in another civil case without complying with the same requirements of

Unfortunately, the issue on the issuance of the TRO was sidetracked when the administrative matter was dismissed by this Court for lack of merit per its Resolution dated March 12, 2001, based on the recommendation of then Court Administrator Alfredo Benipayo that what complainant assailed was the wisdom of the decision rendered by respondent judge; that there was already a pronouncement made by this Court that there is no reversible error committed by respondent in the assailed decision; and that complainants themselves admitted in their complaint that the decision was rendered by the court after the case was tried on the merits.

In other words, respondent judge had earlier been apprised of the provisions of

For this reason, we find the recommendation of the Office of the Court Administrator to fine respondent in the amount of P5,000.00 to be just and appropriate.

On the other hand, we accept the explanation of Judge Marivic T. Balisi-Umali, RTC Judge, Branch 30, San Pablo City regarding her dissolution of the TRO issued by Judge Salcedo of Branch 32 since it was issued in violation of

WHEREFORE, we find Judge Zorayda H. Salcedo of the Regional Trial Court, Branch 32, San Pablo City guilty of grave abuse of authority and conduct prejudicial to the proper administration of justice. She is imposed a fine of FIVE THOUSAND PESOS (P5,000.00) with a stern warning that repetition of the same or similar acts in the future will be dealt with more severely.

SO ORDERED.

Bellosillo, Quisumbing, Callejo, Sr. and Tinga, JJ ., concur.

Footnotes

1. Rollo, p. 17.

2. Id., at p. 2.

3. Id., at p. 20.

4. Rollo, pp. 23 24.

5. Id., at p. 33.

6. Id., at p. 38.

7. Id., at p. 40.

8. Id., at p. 39.

9. Rollo, pp. 58 59.

10. Rollo, p. 86.

11. Rollo, pp. 91 92.

12. Id., at pp. 102 103.

13. Id., at p. 104.

14. Rollo, p. 46.

15. A.M. No. RTJ-99-1496, 316 SCRA 570 (1999).

16. Id., at pp. 575 576.

17. A.M. No. RTJ-98-1416, August 6, 1999, 312 SCRA 1, 19 (1999).

18. Id., at pp. 18 19.

19. A.M. No. RTJ-99-1506, 362 SCRA 409,414 (2001).

20. Supra, note 15.

21. Id., at p. 579.

22. Supra, note 17.

23. Id., at p. 21.

24. Id., at pp. 19 20.

25. Civil Case No. SP-5454 (99), entitled, "Atty. Antonio Lacsam, et al., vs. Roger Borja and Teresita Rivera".