"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).
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,
“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.
Monday, August 24, 2015
Proposals for the change of the New York State Constitution
Here are my first proposals:
1. To mandate public legal education in high school. That will at least alleviate the need for attorneys in court representation and will bridge the gap between the "presumption of knowledge of the law" by the public and arcane and complicated legal rules that require an expensive interpreter (a licensed attorney) to explain to that same public.
2. To require that rules of law must be written in clear and simple language and rely on concepts taught in public schools, so that the presumption of notice and knowledge of those laws to be valid. What we have now are laws that even lawyers and judges cannot agree upon, split hairs in interpreting them, and punish each other for interpreting them incorrectly.
3. To allow any person to represent any other person in court. Access to courts is already guaranteed by the 1st Amendment (petitions clause) of the Federal Constitution, it must be secured by people's right to retain anybody they trust, not only expensive licensed attorneys practically imposed upon the public by the government, to represent their interests in court.
Independence of such court representatives from government regulation is key.
Quality of services of such representatives will be quickly regulated by the market - lawsuits for breach of contracts, malpractice, breach of fiduciary duty or fraud. Such causes of action are already on the books.
At this time, the majority of New Yorkers cannot afford services of licensed attorneys, and those who can, do not receive independent (and thus efficient) representation by such attorneys, because livelihood of such attorneys depends on the very government whose conduct attorneys may have the duty to their clients in challenging.
4. To allow and make it a duty (like a jury duty) of EVERY person to serve as a judge on a rotational basis.
This will eliminate dynasties of "blue blood attorneys", eliminate the virtual necessity of attorneys to "build relationships" with judges, prevent judges from building relations with the local legal elite and assign themselves to cases of their enemies with purposes of retaliation and thus will dramatically reduce corruption in court proceedings.
5. To make judicial duty compensable at the lowest level, like jury duty, and make the citizen-judge "serve", like jurors do now, on a case-by-case basis only. This will reduce the burden on the economy by judicial salaries, benefits and retirement packages.
6. To eliminate all types of immunities for governmental officials acting in excess of their authority and in violation of written statutory law and state and federal Constitutions.
7. To allow legal representation at public expense of public officials sued for excess of power in office, but to require compensation of value of such services if the public official in question is found by a court to have acted in excess of his duties in office.
8. To prohibit payments of settlements in lawsuits for misconduct of public officials out of public funds.
9. To introduce "citizen grand juries" callable by a petition of citizens and self-controlled, with authority to engage independent experts of the law for consultation purposes only.
I will continue to publish my proposals to change the New York State Constitution - both new and updated proposals from the above list if I decide to amend them.
Feedback from readers is welcome, as always.