EVOLUTION OF JUDICIAL TYRANNY:

"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This
case illustrates to me the serious consequences to the Bar itself of not
affording the full protections of the First Amendment to its applicants for admission.
For this record shows that [the rejected attorney candidate] has many of the
qualities that are needed in the American Bar. It shows not only that [the
rejected attorney candidate] has followed a high moral, ethical and patriotic
course in all of the activities of his life, but also that he combines
these more common virtues with the uncommon virtue of courage to stand by his
principles at any cos
t.



It is such men as these who have most greatly honored the profession of the
law. The legal profession will lose much of its nobility and its glory if it is
not constantly replenished with lawyers like these. To force the Bar to become a
group of thoroughly orthodox, time-serving, government-fearing individuals is to
humiliate and degrade it.”
In
Re Anastaplo,
18 Ill. 2d 182, 163 N.E.2d 429
(1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong
dissent
,
366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan,
dissenting.



“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

Saturday, February 24, 2018

The 215th anniversary of judicial misconduct as the basis of power of the U.S. Supreme Court. On void and unconstitutional court decisions as pillars of constitutional democracy

I had an "Emperor's New Clothes" moment today - and a really hilarious one.

The American Bar Association announced that it is "celebrating" the 215th anniversary of Marbury v Madison - the case taught in all law schools across the nation indoctrinating the young mind of would be attorneys that THIS is the basis of the power of judicial review by the U.S. Supreme Court of unconstitutional decisions by the government.

I posted my opinion about the case - and an interesting discussion ensued showing just about everything that is wrong about our judicial system, as well as about judges regulating livelihood and reputation of legal experts.

First, the history of Marbury v Madison.

One and the same person in this case appears in two capacities - a party in interest and a judge, and that person has actually presided over the case.

President John Adams has appointed William Marbury as a Justice of the Peace, but John Marshall, the then-Secretary of State in President John Adams' administration, neglected his duty and did not deliver the commission.

John Marshall's successor in the position of the Secretary of State, James Madison, refused to correct John Marshall's mistake, and William Marbury sued James Madison.

So, who got himself presiding over the case - tada!  John Marshall, the person whose mistake was the central issue of litigation.

Yet, on September 25, 1789, 14 years before Marbury v Madison, the U.S. Congress ratified the 5th Amendment to the U.S. Constitution with a due process clause within it:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation".

William Marbury's ability to work in the appointed position was certainly a due process liberty and property interest.

And, William Marbury also had a due process right to a fair and impartial judge - at the very least, to a judge who is not one of the parties in interest and who is not a person who decides upon his own errors that are the subject of litigation.

For example, in 2017 the New York State Court of Appeals has ruled that a judge - who had no personal involvement in the case, let's assume - could not preside as an appellate judge over the case he decided as a trial judge.

The right to an impartial jurist is a "basic requirement of due process";

"[t]he Court asks not whether the judge is actually, subjectively biased, but whether the average judge in his [or her] position is 'likely' to be neutral, or whether there is an unconstitutional 'potential' for bias" (Caperton, 556 US at 881). 

Not only must judges actually be neutral, they must appear so as well.  We therefore conclude that, under principles of due process (see US Const, amend XIV, § 1]; NY Const, art I, § 6), a judge may not act as appellate decision-maker in a case over which the judge previously presided at trial; and

"where there is no opportunity for independent scrutiny by a new decision-maker, the appellate process is compromised, and due process has been violated."

Of course, here NYS Court of Appeals referenced the Due Process  Clause of the 14th Amendment, but the 14th Amendment was enacted only in 1868, 65 years after Marbury v Madison was decided.

Yet, at the time Marbury v Madison was decided, an identical Due Process Clause of the 5th Amendment was in effect and applied to actions of the federal government, including U.S. Supreme Court judges - I cannot bring myself to call them "justices", as "justice" has a double meaning which is the opposite of what Judge Marshall did in this case.

The U.S. Supreme Court's review of William Marbury's petition was a one-stop deal - there was no appeal from a higher court available.

Thus, the U.S. Supreme Court had to make sure that the review of the case not only conducted by an actually impartial judge, but that the process would appear impartial to a reasonable observer.

Of course, a party in interest whose mistake is being litigated could not be a disinterested decision-maker in that same case, and John Marshall should have kept himself as far from the case as possible.

That is not what John Marshall did.

John Marshall, instead, grabbed the case, stuck to it like glue, decided it against the victim of his own mistake and, in order to do that, claimed that the U.S. Supreme Court now has the power to review unconstitutional decisions that is not found in the text of the U.S. Constitution.

So, the case is VOID as decided by a party in interest acting as a judge - but at the same time the VOID case is the "basis of the power of the U.S. Supreme Court", and the power is what people do not shed lightly.

Thus, fast forward 215 years, what we have now is the supposed power of the U.S. Supreme Court of CONSTITUTIONAL review based on an UNCONSTITUIONAL and void decision of the same U.S. Supreme Court, and on nothing else.

Now, let's see what the American Bar Association and supporters of this "power of judicial review" say about the case - and remember that licensed attorneys are deathly afraid not to criticize American judges, especially judges of the U.S. Supreme Court, because a judicial whim is all that separates any attorney in the United States from being unable to work in his profession - or in any other decent profession.

So, here is the "Emperor's New Clothes" moment.


So, the ABA celebrates "judicial review" by celebrating a case born of misconduct of a judge in order to quash the victim of his own mistake in his previous position of Secretary of State.  Lovely.

I made a comment about it, here.


Here is the first "watch their hands" reply to it:


As I understand, this commentator is a 3rd year law student:


Let's see what this 3rd year law student says:

"We're celebrating the fact that 'it is emphatically the province and duty of the judicial department to say what the law is," and thank goodness for that.

For all its faults, and there are many, it is still THE landmark case that explains how the law of the land works.  The judicial branch interprets the laws and its decisions are binding."

Let's go step by step with this announcement, as it mays many things that - legally - do not make any sense.

1.  If a decision is void - as it is in Marbury v Madison, because a party in interest decided the case, several things follow from a court decision being void, not voidable, but void, like "a nullity":
  • it is not in existence;
  • it cannot be THE or "a" landmark case of any kind, and what it explains is irrelevant;
  • a judicial decision is not binding if it is made by a disqualified judge.
I guess, they do not teach about judicial disqualification in law school - cautiously so, because if law students do know what attorney regulation is really like, how easily judges may yank an attorney's license on a whim because of criticism of themselves, law students will not pay money for law school and will likely choose another profession, with a less volatile investment into it.


2.  "it is emphatically the province and duty of the judicial department to say what the law is," and thank goodness for that".

This is a 3rd year law student, a future lawyer of America talking, after having a mandatory course in Constitutional law (taught in the 1st and 2nd year).

Last time I checked the text of the U.S. Constitution though, it is emphatically the province and duty of the U.S. Congress to say what the law is, and the "province and duty" of "judicial department" is, most emphatically, not to legislate from the bench, but to OBEDIENTLY apply the law of the U.S. Constitution, as well as the law described in its Supremacy Clause - Article 6 Section 2:


  • the text of the U.S. Constitution;
  • international treaties that the U.S. is a party to;
  • laws made by the U.S. Congress.

If the text of the law is not clear to an average person, then the law needs to be re-written by legislators, but the judge's "province and duty" stops at stating - this law is clear and I apply it this way, or "this law is not clear and needs to be rewritten".

So, the province and duty of a judge is to look at the written law and if it is not clear, not even try applying it to facts, but stop right there and say - cannot go further, the law is not clear, the buck passes back to the U.S. Congress to change the law and make it clear for an average person to understand, BECUASE if an average person cannot understand the law, he cannot be expected to abide by it.  Easy.  That concept, by the way, was pronounced by the U.S. Supreme Court in 1972 in Grayned v City of Rockford (but the court would, of course, never apply its own musings to its own deeds).

There is no "third" in judicial review - "this law is not clear, and I think it means" - and especially not "my decision on what it means is binding".  That "third" would be changing the written law through its interpretation, and changing the law is the "province and duty", and exclusive authority of the U.S. Congress, under Article I of the U.S. Constitution.

Yet, law students in the United States are thoroughly brainwashed and indoctrinated to think that anything that the U.S. Supreme Court is doing must be good, excellent, worthy and honorable, even when what the court is doing is clearly wrong and illegal.

Law students are taught, through indoctrination in law schools, and later, through sanctions as attorneys for criticism of judges, not to believe their own judgment applying the law to the facts - especially where it concerns judicial disqualification, or to keep their critical judgment to themselves and voice only praise to the hand that feeds them, the judiciary.

Thus, a "thank goodness" for the judicial legislating from the bench from law student Ginan Acosta regarding the 215th anniversary of Marbury v Madison, thank goodness:
  1. to the void decision made by a party in interest in litigation;
  2. to the illegal usurpation by the judiciary of the power "to say what the law is", and
  3. for insisting that their illegal decisions as to "what the law is" are somehow "binding" on the entire country.
It is that THIRD view that has prevailed so far for 215 years.

That is why people are praying as to what the U.S. Supreme Court might or might not decide as to what this or that law is, and praying for the U.S. Surpeme Court to be so good as to choose to review their petition, while the U.S. Supreme Court in their laziness takes only 70 cases out of 8000 per year, less than 1%, making its direct duty - enforcement of the U.S. Constitution and delivering legal remedies to victims of violations of the U.S. Constitution - "discretionary", a matter of their personal whim.

Let's celebrate the 215th anniversary of the start of this slippery slope.

I had one more commentator on the ABA website, a Michele Thorne.  Her profile was empty, but there is a lawyer in the U.S. by the name of Michele Honora Thorne, with 27 years of experience, from Wilmette, Illinois.

I am not at all sure that the commentator is one and the same with the Michele H. Thorne, Esq. from Wilmette, Illinois, but I am positive that the commentator Michele Thorne had a legal training.

Here is what she said.




Let's analyze first just the two first phrases:

1.  Arguably Marshall should have recused himself since he was involved in the facts of the case.
2.  But that doesn't take away from the significance of the case.

Really?

Look how cautious the commentator is not to say point blank that what Judge Marshall did was atrocious, judicial misconduct and a constitutional violation - a violation of the judge's constitutional oath of office.

It is only "arguably" that Marshall "should have recused" (instead of "had to recuse").

The reason why Marshall "arguably should have recused" is also stated very cautiously:  "since he was involved in the facts of the case".

It was a little more than that, actually.

Even though he was not an actual party in litigation (was not included as a respondent or defendant), he was a "party in interest", a person who could have been sued on the same facts of the case as a defendant or respondent.

It was the judge's own mistake in his previous capacity that was to be resolved through the litigation.

And, as we discussed above, when a party or party in interest decides his own case, such a decision is VOID - not voidable, but void, a nullity, as if it never existed.

Yet, Michele Thorne, cautiously acknowledging that the judge "arguably should have recused", then says that "it doesn't take away from the significance of the case" that the judge "arguable should have recused".

Of course, recognition that the obligation of the judge to recuse was not optional, and that the failure of the judge to recuse resulted in a void decision would have made the difference in the argument - but that difference would have resulted in a revolutionary idea that an American lawyer cannot possibly voice: that the entire body of decisions for 215 years, as well as the current "power" of the U.S. Supreme Court may be - let's whisper "wrong?"  "unconstitutional?"  "illegal?".

No, we cannot possibly say that.

Here is what Michele Thorne says next, let's go by the argument, sentence by sentence.




"The Constitution is the Supreme Law of the land" - true.  That is in the text of the U.S. Constitution, Article 6, Section 2, the Supremacy Clause.

"and the Court has the power of judicial review to determine whether acts of governments are constitutional" - the U.S. Constitution has nothing in its text about this power of judicial review, this is what John Marshall decided, not only allowing himself to sit in review of a case where he was a party in interest, but, for that purpose, to give himself the power which is not reflected in the text of the U.S. Constitution.

Yet, this double usurpation of power by Marshall is, for the commentator "huge and emphasizes the importance of three strong branches of the government".

How does a double usurpation of power by a disqualified judge, and a grab of power so successful that it
  • lasted so far 215 years,
  • propelled the U.S. Supreme Court from an insignificant entity occupying one room in the Capitol building to a marble palace and a position of power higher than all other branches, to the point that people are praying what this "court" would or would not decide, and the whole country seriously discussing "stolen seats", stressing partisanship of judges and significance of every of the 9 votes on the "Court" in "making the law" - instead of the U.S. Congress
"emphasize the importance of three strong branches of the government"?

Further statements of the same commentator are even more disturbing.

"Our national legislative branch has become sickly and shrunken when it should have been vibrant and strong".

I do not agree about the "sickly and shrunken" part, but, if that is so, isn't it because the U.S. Supreme Court makes the law, and there is no need for the U.S. Congress to be "vibrant and strong" when the 9 elders sitting (or sleeping) in their marble palace for life decide what the law is for them?

The next comment is just ... rich, I would say:

"Our judicial branch cannot be grafted with unqualified candidates or swayed by the political winds of their appointers".

It would be an ideal situation, yes - but that is definitely not the situation with the U.S. Supreme Court, and this phrase has no relevance to validity of Marbury v Madison, the discussed issue.

The conclusion from this pristine, but irrelevant (for the validity of Marbury v Madison's case) phrase was actually tied right to the supposed greatness of Marbury v Madison.  Once again, follow the hands - validity is skipped over, but greatness is emphasized.



The judiciary "must remain strong" - whatever, judges just need to do their job in accordance with their oath of office, whether they are weak, strong or 50 shades in between.

The judiciary must "grow in the direction set forth by the guiding principles of our U.S. Constitution".

It is a lofty phrase, but a totally wrong one.  The judiciary must not "grow in the direction" of "guiding principles" of the U.S. Constitution, the judiciary must be able to UPHOLD the U.S. Constitution and qualified to do so at the time of appointment or election to the bench.  If the judiciary has yet to "grow" in the direction of the U.S. Constitution, judicial candidates need to do so BEFORE coming to the bench.  The judiciary is not a kindergarten for judges who prepare themselves to "grow" towards their own oaths of office.

"Marbury v Madison is an assertion of that power and responsibility".

Once again - Marbury v Madison, as a decision made by a party-in-interest in litigation, is VOID, and an example of judicial misconduct.

An example of judicial misconduct and an unconstitutional decision cannot be a valid assertion of anything - much less of "power and responsibility".

That was not all from that commentator.

When I responded to her comment, she continued to promote her idea that Marbury v Madison is valid.



If my statement that the case is VOID because of a conflict of interest of the presiding judge/a party-in-interest, how can this case be of any importance at all, or a "pillar of our understanding of Constitutional Law".

This last phrase is actually a very revealing one.

"Our understanding" is an attempt to present uniformity of thinking about the U.S. Constitution - that necessarily stems from whatever the U.S. Supreme Court says, however wrong that may be.

That is ideology, ladies and gentlemen, and a long-standing one.

That is also an article of FAITH - because we do not need any oracles to tell us what our own Constitution means, and to shape our uniform "understanding" of our own Constitution.

The 9 people in that marble palace are not gods to be worshiped.

What they say or write is not Gospel.

And, what they say is not the Law of the Land - just read the Supremacy Clause already.

It DOES NOT include decisions of the U.S. Supreme Court - no matter what John Marshall said in Marbury v Madison.

The only reason why such a clearly wrong decision survived for so long is because there are many people who benefit by the usurped power of the U.S. Supreme Court - a power that is NOT in the U.S. Constitution.

But, for an association of professionals whose duty is to ensure people's access to courts and protection of people's constitutional rights, to celebrate 215 years of an unconstitutional decision illegally made as a personal vendetta for embarrassment by a party-in-interest, a case that established the usurpation of legislative duties by a court and establishment of that court as some kind of a collective 9-people monarchy for over 2 centuries in what is claimed to be a "constitutional democracy" is truly shameful.

PS.  An update:  the ABA deleted the string with "politically incorrect" comments, including comments from two more people that I did not have a chance to see yet - just saw notifications, but needed to do something else before I visited the page.

Quick work, the ABA.  As my Russian grandmother used to say, the cat knows whose meat it has stolen.

Did you only annoy a judge or did you vex him? It is time for a legislative overhaul of the law of judicial recusal, otherwise courts as we have it now is just a waste of our money, and a harmful waste, too

The word "annoy" is described by the Webster dictionary as:


The word "vex" is described as:



As dictionary definitions of these two words show, "vex" may mean "annoy", so it is the same.

Yet, 5 judges-"linguists" from the New York State Appellate Division 1st Judicial Department Renwick, J.P., Andrias, Kapnick, Gesmer, Moulton, JJ.  recently made law - not that they are allowed to make law, that is the exclusive authority of New York State Legislature, but why would they care - regarding their own recusals.

The brand new spanking law of judicial recusals in New York is now that if the judge is "annoyed" by a party or the party's attorney, but not "vexed", he does not have to recuse from a court case.

They also said that "[t]he court also acted within its discretion in ordering a sanctions hearing to ascertain whether the recusal motion was frivolous (see 22 NYCRR 130-1.1[a], [c]; see also 22 NYCRR 130-1.1[a][b])", paving the way for possible proceedings - now as regulators of attorney John O'Kelly's license to discipline attorney John O'Kelly for making a motion to recuse a judge protecting his clients' constitutional right to impartial judicial review.

After all, the 3rd Department had already suspended an attorney - John Aretakis - in 2008 for criticizing a judge in a motion to recuse without a hearing, based on sanctions of "annoyed but not vexed" judge whose was annoyed enough to sanction an attorney for daring to criticize him, and his colleagues in the Appellate Division 3rd Department agreed that criticism by an attorney of a judge is a no-no offense.

And, the 4th Department has done the same, too - suspending me in 2015 - also for criticizing a judge in a motion to recuse and for " additional complaints, filings and charges of “gross continuing judicial misconduct” against the court", and also I was denied a hearing, since I already had all the "process due me" in having a "frivolous conduct" proceedings instituted and decided by an "annoyed, but not vexed" judge sanctioning me for criticizing his own precious self.

Here is how a judge "tries" a proceeding for sanctions the judge institutes for criticizing the judge's own self - note that the judge is at the same time 
  • the alleged victim;
  • an unsworn witness;
  • a prosecutor;
  • a judge - 
  • and even marks his own exhibits at that "trial" that was all the "process due" that an attorney in New York deserved before he was stripped of his license and livelihood.
Also note that after that the judge was elevated to the position of a federal magistrate, where he is now continuing to toil, "with no record of public discipline".

Why the 1st Department should be any different?  They may also now pursue attorney John O'Kelly so that he would not dare criticize the supposed cousin of Sheldon Silver for being biased against tenants in favor of landlords - surprise, surprise!

Of course, the trial judge, #Judge ShlomoHagler who was "annoyed" enough to hold a sanctions hearing against attorney John O'Kelly for criticizing the judge's precious self for his supposed cozy relationship with landlords and bias and hostility towards tenants and their attorneys, recently himself got sued for a supposed illegal sale of a lucrative real property lot as a president of a synagogue in violation of a ruling of a rabbinical court - sued by board members of his own synagogue, and the lot is adjoining an institution that was run by NYS Assembly leader (resigned and prosecuted for corruption ) Sheldon Silver.

Given that I was sanctioned by a judge who, before I was suspended based on his sanctions for criticism of his precious self, ran from the bench during a triple investigation:

  • by the New York State Comptroller;
  • by the New York State Judicial Conduct Commission, and
  • by the FBI
the ire of Judge Shlomo Hagler may be of the kind characterized back by William Shakespear as "the lady doth protest too much, methinks".

After all, Silver is not out of the woods with the criminal prosecution for corruption yet, and who knows what can be dug up by the investigation of his ties, including his familial ties.  Striking at a critic who comes close to explore those familial ties does look like "protesting too much".

It does raise the issue of Sheldon Silver's looming presence (and influence?) as to why Judge Shlomo Hagler is still a judge, after his atrocious behavior in John O'Kelly's proceedings, why the 1st Department glossed over Judge Hagler's misconduct, why Judge Shlomo Hagler was dropped as a defendant from the lawsuit that he illegally sold a lot belonging to his synagogue, reportedly without revealing to the members of the synagogue board that the synagogue will not be able to use the proceeds for its needs because of some stipulation regarding resale of the property.

Now, John O'Kelly alleged in his motion to recuse that Judge Hagler was actually Sheldon Silver's cousin - and Judge Hagler could not have it.

Judge Hagler commenced a sanctions hearing against John O'Kelly for "frivolous conduct", for his supposed failure to properly investigate his allegations - even though the constitutional standard for a motion to recuse is APPEARANCE of impropriety, and appearances are based on REASONABLE PERSONAL PERCEPTIONS  and not on hard proof, especially that judges do not necessarily trumpet about their misconduct and bias at every corner.

More and more people going public regarding impropriety of the current "law" of recusal, which has nothing to do with the law and everything to do with the judiciary usurping the power to decide whether to step down from a case or not - no matter how conflicted they are.

Recently:


It is interesting to compare
  • what the law of recusal and criticism of judges should be in a constitutional democracy, based on the structure of power in a constitutional democracy and constitutional rights involved in such judicial recusals - let's call it "Model C";
  • what the law of criticism of judges was in medieval England, "the Old Country" - let's call it "Model K"; and
  • to try and place the "law" of recusal as it exists in the U.S. and in the State of New York today based on these models.


Issue
Model C
Model K
Model used in NY

1.
Who is the sovereign

The People (Constitution, Preamble “We the People”, the Dredd Scott case – People are the sovereign, there are no subjects in the U.S.)

The King

2.
Who are the subjects

None
The people

3.
What is the government

Servant to the sovereign – the people
Servant to the sovereign – the King


4.
What is criticism of the government
People’s way to check on their servant, the government

A challenge by the subjects of the divine power of the sovereign, the King


5.
The place of criticism of the government
Theoretically – a good thing, the way allowing the democracy to work and cleanse itself

A criminal offense, seditious libel

6.
Standard of proof to criticize the government

Protected by the 1st Amendment, strict scrutiny (a judicial invention) to punish for criticism

The critic is never right.  Later on – “you need to have iron clad proof” to win a seditious libel case.

K
7.
Constitutional threshold of recusal

Appearance of partiality of the judge – the public must have, as a matter of due process, not only impartial adjudication, but also the appearance of impartial adjudication

The judge is the reflection of the King and is always right
De facto – K
8.
Burden of proof based on the threshold

Reasonable perception of partiality
Judges require ironclad proof that the judge did something wrong, and when such proof is provided (Christine Mire's case in Louisiana), the attorney is punished for providing that proof

K
9.
Due diligence to prepare the motion

Judicial collusion, corruption and ex parte communications are not exactly announced from rooftops, so what attorneys can judge upon can only be the reasonable perception and the breadcrumbs picked up from circumstantial evidence, “connecting the dots”.  Circumstantial evidence is good enough even to convict of murder in NY.

Judge Hagler:

1.       Required ironclad proof against himself;
2.       Was upset about criticism of himself by an attorney for doing his due diligence and investigating the judge



Same as John Aretakis' and my case in New York


Two diametrically opposite “standards of due diligence” + I am the King standard

De facto K


10.
Who gets to try the motion to recuse

Should be – somebody other than the object of criticism, common sense and due process

Judge sitting in judgment of himself problem;

Potential of retaliation – accuser/adjudicator problem

Until 1792 in England –

The Star Chamber, a judge sitting in judgment of himself
K
11.
Right to a jury to review accusations of criticism of the government
Should be, as with trial of any other issue of fact relevant to the party’s adjudication
Introduced in Star Chamber by Act of Parliament in 1792 (the Fox Act).

The bill was prepared by the former Star Chamber judge Sir Edward Coke who knew from his own adjudications how biased a judge reviewing such cases can be.

Seditious libel cases were removed from judges and placed with the jury

K
12.
Defamation of judges as a separate lawsuit to be brought by judges (idea belongs to Russian attorney Vitaliy Burkin recently stripped of his "advocate" status for criticism of corruption in the Russian judiciary)

If a judge considers himself “defamed” by criticism, as for any other citizen, the path to a remedy for that defamation lies through a separate defamation lawsuit against the party the judge thinks is defaming him.

That requires that:

·         The judge prepares a lawsuit, satisfying enhanced pleading standards for defamation;
·         Files it, with a filing fee;
·         Properly serves it upon the opponent, the critic;
·         Hopes to survive an immediate motion to dismiss for failing to meet elevated pleading standards and on 1st Amendment grounds that the critic will likely win because of high standards – New York Times v Sullivan (deliberate falsehood + malice) + strict scrutiny for content-based regulation of speech
·         Hopes not to be slapped with frivolous conduct sanctions and attorney fees to be paid to the critic;

If the judge survives a motion to dismiss, he still faces exposure through paper discovery, interrogatories, notices to admit under oath, out-of-court depositions and in-court trial by jury and cross-examination

The King is above the law and can have his servants summarily punish the critic or institute criminal proceedings against the critic instead trying his luck in a civil defamation case

A subject cannot call the King to testify
K

Judges should not be above the law.  If they think anybody made false statements about them, their remedy is the same as for everybody else - a separate lawsuit for defamation in a court of law where the judge will have to:
  • pay his own way for representing himself in this private legal matter - personal defamation of a judge, like everybody else has to do;
  • put together a non-frivolous lawsuit satisfying the very rigorous special pleading standard, like everybody else has to do;
  • pay all the filing and judicial assignment fees, like everybody else has to do;
  • properly serve the lawsuit upon his critic, his opponent in litigation, like everybody else has to do;
  • expose himself to the rigors of paper discovery and oral depositions, including questions that the judge must answer his critic (defendant in a defamation lawsuit) under oath regarding information in exclusive possession of the judge;
  • expose himself to the rigors of a jury trial in open court before the public and to public cross-examination of himself by his critic;

satisfying all the requirements of the law, as everybody else has to.

If judges are afraid to submit their own personal claims to adjudication by their peers in the judicial system and to the jury - which is what it appears to be with
  • Judges Carl Becker (my case),
  • Cristian Hummel (John Aretakis' case),
  • Phyllis Keaty (Christine Mire's case), and now with
  • Shlomo Hagler (John O'Kelly's case) - and instead try to invent "rules", like the "rule of frivolous conduct" allowing themselves to turn constitutional courts into medieval courts and try cases against themselves by themselves - that IS the best proof that judges do not believe in impartiality of any judges at all, and that anybody can obtain effective and fair legal remedy from the American judicial system.
By the way, the New York State Court of Appeals has struck as unconstitutional, in 2014, "harassment by speech" criminal statute - on 1st Amendment grounds, with a dissent by the then-Chief Judge Jonathan Lippman dissenting only on the grounds that the majority opinion was not far reaching enough and did not dismiss all criminal charges on 1st Amendment grounds.

That did not prevent the same New York State Court of Appeals from dismissing in 2016 my 1st Amendment appeal from suspension for "harassment by speech" and "defamation" of Judge Becker (as decided by Judge Becker in a "frivolous conduct" proceeding instituted and tried by Judge Becker) as lacking a "substantial constitutional question".

That did not prevent the 1st Department in 2018 to rule that it is perfectly hunky-dory for judge Shlomo Hagler who was "annoyed, but not vexed", to start sanctions proceedings for "frivolous conduct" for harassment of his precious self by speech (which was deemed unconstitutional by NYS Court of Appeals in 2014) and, obviously, for making false statements against his precious self - instead of bringing a lawsuit in defamation against attorney John O'Kelly which Judge Shlomo Hagler knows very well he will lose if he files it - with sanctions for frivolous conduct against Shlomo Hagler and attorney fees for such a frivolous defamation lawsuit to be paid by Judge Shlomo Hagler to attorney John O'Kelly.

That is - if the law is to be applied as it exists for every one of us, mere mortals.

That judges do not trust their own court system to provide a fair and effective legal remedy for them in a defamation lawsuit and thus invent shortcuts for themselves turning court proceedings into medieval pre-1792 Star Chamber trials of the Old Country is a litmus test of impartiality of the American judiciary - requiring that legislatures MUST take what is going on in courts seriously, MUST address the crisis in access to justice CAUSED by the judiciary "regulating" itself and the profession it belongs to, attorneys.

When attorneys cannot establish for their clients the clients' constitutional right to impartial judicial review because that would involve breaching the supposed personal pledge of fealty to the likes of judges Becker, Hummel, Keaty and now Hagler, because doing your duty for your clients results in loss of reputation and livelihood for an attorney - it is proof that courts turned into a useless and harmful waste of public money.

Laws of recusal must be set in stone, and fast - by impartial members of legislatures having no connection with the judicial system and over whom judiciary has no control, and that will exclude any legislators who are attorneys with licenses regulated by the judiciary, "officers of the court".

What we have now as a "law" of recusal and "law" of sanctions for motions of recusal - based on judges setting their own "rules of procedure", rules of "judicial ethics", and trying their own cases by themselves in their own favor - has nothing to do with the law or the Constitution each of the American judges, including Becker, Hummel, Keaty and Hagler were sworn to uphold and protect.

Judges should be given a strong legislative kick in the butt to wake up and smell the coffee - it ain't the King's Bench any more.




Friday, February 2, 2018

Why is it that attorneys in the U.S. are regulated by the judiciary? What impact does this model of regulation has on consumers? On attorneys? My first English-language law review article seeks to provide some answers

For both consumers and attorneys this answer to this question is a given - the American judiciary regulates American attorneys because they just do.  

I took that question a little further and explored how the judiciary across the United States bases its power over both attorneys (by regulating their law licenses), and with them, their reputation and livelihood, and, through attorneys, how the judiciary regulates access to court by every person in America.

The claimed goal of such regulation is universally "protection of consumers", in this respect, regulation of attorneys is no different than regulation of any other of over 1000 regulated professions in the United States.

Yet, since the regulator is the judiciary, and the regulation usually (with the exception of the State of New York) happens at the level of the top court of the state, peculiarities of such occupational regulation affects both the rights of the regulated attorneys and the rights of consumers for the choice of their providers of legal services.

In December of 2017 and January of 2017 I've published several law review articles in the Russian language - because in Russia a very interesting thing is emerging right now - attempts to saddle consumers with attorney monopoly of the American type, even though not quite.  In Russia they did not come yet to even consider to have attorneys be regulated and controlled directly by the government, and especially by the judiciary.

Yet, in the U.S. the presently living attorneys and consumers of legal services have missed the moment when the regulation of the legal profession has started the way it exists today (more than a 100 years ago, by the way), and in Russia the process - together with vigorous public discussion of the issue - is going on just now.

And, since in Russia there is no attorney monopoly at this time, providers of legal services are versatile and there are several competing fractions within the legal profession itself, all united into their own associations, and attorneys are not regulated by the government, the proposal to introduce an American-type attorney monopoly, give one group of lawyers control over others and make it impossible to work unless you are vetted through attorney quasi-licensing, is causing an uproar in the Russian legal community.

Recently, one of the group of Russian lawyers, the Association of court representatives, have filed a complaint with antitrust authorities, the Federal Antimonopoly Service (the Russian sister of the American Federal Trade Commission) - against attorneys trying to sneak their monopoly upon other lawyers and upon consumers.

The public debate that is ongoing in Russia regarding introduction of attorney monopoly - in the Russian legal community and in the government at many levels, including the Ministry of Justice, the Russian "Public Chamber", the Russian Legislature (Duma) - is, quite unfortunately, unparalleled in the U.S. history, where absolute attorney monopoly was grabbed by both the judiciary and the legal community and saddled upon consumers by stealth, without much, if any, public debate, and lobbied through by state senators who are themselves attorneys and members of the benefited profession.

How strong is the feeling of entitlement in the American legal community that it is them, and not he consumers who are the beneficiaries of the regulation that pretends that the beneficiaries are the consumers, I demonstrated in my previous blog article - attorneys who love that slavery viciously attack their colleagues who dare to claim that they actually have a constitutional right of free speech left after obtaining a law license.

In contrast, in the American legal community, American lawyers are stifled into silence as to whether regulation of lawyers through monopoly is healthy - for lawyers and for consumers.

The debate about attorney monopoly in Russia is invigorating for both American lawyers and especially for American consumers.  It shows that regulation of consumers' access to court the way it exists in the U.S., through strict regulation of the legal profession, including the de facto prohibition on criticism of the regulator, the judiciary, is not set in stone, that there are alternative models, and alternative ways of dealing with regulation that is already in place.

To invigorate public debate of propriety of the current form of regulation of attorneys and the impact of such regulation upon access to court by all Americans, I offer to the American reader my first English-language law review article: about the claimed bases of power of the American judiciary over the legal profession, with a vast bibliography showing how that power is used, whether in regulating its own profession (judges are licensed attorneys themselves) judges comply with existing constitutional precedents that they created for everybody else - and, most importantly, what are effects of the regulation upon consumers.

There is interesting case law that I uncovered during my research, from across the United States, and interesting aspects of regulation that was unexpected even for me as a researcher.  And, every point I make there is substantiated by evidence "from the horse's mouth" - admissions of the regulator of the legal profession, the judiciary, through court rules, court precedents and through direct statements of judges in the press.

Here is the link to the article, at this time I decided to make the article in public access.  It is only a portion of the research I am doing and continuing to do, which I plan in the future, circumstances permitting, to publish as a book.

Readers - welcome.