"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 cost.

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.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"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.

“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.

Friday, February 20, 2015

New York State of the Judiciary 2015 address on the state of the judiciary - New York needs the best judges money can buy

In his State of the Judiciary 2015 address made on February 17, 2015, the Chief Judge of the State of New York Jonathan Lippman addressed - predictably - issues pertaining to the judiciary.

Which issues did Judge Lippman, part of the judiciary, address?

The ONLY issue (in Judge Lippman's mind) pertaining to the judiciary that needed to be addressed in his "State of the Judiciary" address was raising judicial salaries.

At this time, judicial salaries at at the "meager" $152,000 per year for the County judge and at the no less meager $174,000 for the Supreme Court justice this year.  I use the word "meager" because that same word was used by the Supreme Court judge Kevin Dowd in a court proceeding in front of an indigent party when the judge explained to that party that he, Judge Dowd, has the authority, in exchange for the "meager bucks that he is being paid by the state, to decide issues that the litigant was raising.

Judge Dowd recused from that case after a complaint was filed against him, but not before he abused that indigent party some more.

Well, back to the "meager" pay of judges.

Once again, that was the ONLY issue pertaining to the state's judiciary that Judge Lippman believed necessary to address.

Not the recusal reform - where judges are considered "arbiters of their own recusal", even though the standard for recusal is from the point of view of OBJECTIVE reasonable DISINTERESTED OBSERVER, and the judge sought to be recused is neither an observer (he/she is a participant), nor is the judge disinterested (when his own integrity or impartiality are being challenged), nor can he/she be deemed by any stretch of imagination, objective, for the same reasons.

The objective for recusal in the first place is to ensure the litigants' constitutional right of access to court, and the litigants' constitutional right to a fair trial by an impartial tribunal (court).

Those constitutional rights may not be subject to judicial "discretion", they must answer to strict rules, and in New York it is not so.

It is difficult, if at all possible nowadays to find an attorney who would be brave (or suicidal) enough to make a motion to recuse.  

It should be prohibited for judges to sanction attorneys for making motions to recuse against them due to obvious conflicts of interest and because such motions are seeking to ensure a constitutional right for attorneys' clients, yet, judges in New York rain such sanctions on attorneys who dared to make such motions left and right - and turn attorneys into the disciplinary committees for further sanctions.

Lippman did not touch upon the practically non-existent system of judicial discipline.

Of course, Lippman knows just how non-existent the system of judicial discipline is since he personally invited to his confirmation hearing the NYS Commission for Judicial Conduct's counsel Robert Tembeckjian while there was no public notice issued for such hearings, and while a complaint against Lippman was pending in front of the Commission at that time.

The Commission has long become a shredder for complaints against judges, starting with the County/Family court level.

The Commission needs to be disbanded, and a transparent and effective system of discipline needs to be established.

To demonstrate just how corrupt and ineffective the Commission is, New York State needs to do just one thing - open the records of complaints against judges, and of answers to those complaints (if the Commission even has such an archive), and to provide copies of those records in the judicial directory, against the names of the judges complained about.

Since complaints are about court cases, the public will then be able to investigate whether conduct complained of actually occurred and is reflected in the record - many times it is - and see for itself whether complaints were dismissed improperly.

At this time, such statistics is unavailable to the public since proceedings against judges are secret.

Lippman also did not cover the burning issue of judicial corruption or, if not corruption, appearance of inappropriate behavior.

In federal courts, judges at least started to begin to pay lip service to the fact that there may be a problem in judges attending private seminars, and judges are required to publicly disclose such attendance.

In New York, it is impossible to get information:

  • if a certain judge participated in any social functions/seminars sponsored, directly or indirectly, by attorneys, and where the judge had an opportunity for an ex parte communication with such attorneys;
  • whether the judge participated or "served" or "serves" presently on any of the countless "Boards", "Councils", "Programs", "Projects", "Trusts", etc. where participating attorneys have an unlimited opportunity for ex parte communications with judges;
  • whether the judge or judge's relatives have social networking connections with litigants or their attorneys, like Facebook friendships;
  • whether certain law firms employ judge's relatives and judges in question are in a position of power to influence decisions for such law firms, and whether such law firms appear in the courts where judges preside.  Where law firms may have hundreds of attorneys, and where the relation with the judges may be obscured by different last names or common last names, it is absolutely necessary to start requiring judges to publish his or her family trees, up to the 6th degree of consanguinity and affinity, with places of work of the judge's relatives (for purposes of disqualification when judges preside as factfinders - the same as the law for disqualification of jurors);
It is absolutely necessary to equalize the way jurors and judges are disqualified from fact-findings functions, including voir dire,  background investigation and peremptory challenges.

It is absolutely imperative to allow cameras (and not only of the media, but mainly litigants' video cameras) into the courtroom to preserve evidence of potential juror, attorney and judicial misconduct or non-verbal communication that cannot be captured by the transcripts, especially that, as my disciplinary case indicates, court transcripts can be and have been falsified.

It is absolutely imperative to do away with the all-encompassing and stretching beyond any limits "absolute judicial immunity", an unconstitutional self-serving gift of judges to judges, by which judges are now allowed to violate the Constitution the moment they have made an oath to protect it and get on that bench through that oath.

Yet, none of that was addressed by Lippman in his State of the Judiciary Address in 2015. 

The only important issue was raising the already high pay for judges.

Apparently, New York has to have the best judges money can buy.

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