"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.
Saturday, August 29, 2015
The Alex Kozinski litigation saga: if a judge is a litigant in courts subordinate to him, only one rule applies - that no rules apply to that litigant-judge
And when judges are litigants, they are at least supposed to have same rules apply to them that they invented for others.
And to follow laws, including case law, that they invented for others.
Not so for Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit.
In 2013 Judge Kozinski was a class member of a class lawsuits pertaining to a technical problem with his car.
Judge Kozinski, as a federal judge, regularly affirms dismissals of federal civil rights lawsuits dismissed before any discovery, on insufficiency of pleadings.
The claimed "insufficiency of pleadings" as to certain issues (such as state of mind of civil rights/governmental defendants regarding conspiracy to violate people's constitutional rights) often results from lack of discovery. The discovery that federal district courts block.
And federal appellate courts, such as the 9th Circuit over which Judge Kozinski was the Chief Judge at the time of filing his brief, affirm those dismissals, clearly leaving people who were often victims of egregious constitutional violations, without any remedy, moreover, sanctioned and ordered to pay fines and exorbitant legal fees of governmental offenders.
Discovery does play an important role in litigation.
Yet, discovery, especially non-paper discovery, depositions, is also expensive.
And, there is a rule and policy in both state and federal courts, including courts where Judge Kozinski was a part of for decades, favoring settlements - at any stage of litigation, with or without discovery.
Judge Kozinski did know that when he filed with the U.S. District Court for the Central District of California - Western Division (Case No. 2:12-cv-8238-BRO-PJW), a frivolous brief (posted here) accusing the lawyers for the class action where he was a class member and had a vested financial interest in its outcome - of not conducting enough discovery before reaching a settlement.
Somehow, only a foreign news agency dared to describe Judge Kozinski's misconduct, which tells a lot about freedom of press and integrity of mainstream journalism in the U.S. in covering issues of public concern.
Judge Kozinski's arguments, or rather, personal escapades against the lawyers for the class lawsuits, in that brief are, on top of being frivolous, extremely uncivilized and would have garnered any other party sua sponte (on the court's own motion) sanctions under the "inherent power of the court" and under 28 U.S.C. 1927.
But that would be from an independent court.
The court where the case was heard, where Alex Kozinski was a litigant, was the court directly subordinate to the court where Alex Kozinski was a Chief Judge, including on issues of judicial discipline.
For that reason apparently, Alex Kozinski was never sanctioned.
Alex Kozinski stepped down as Chief Judge of the Ninth Circuit on December 5, 2014, well into his litigation in the U.S. District Court for the Central District of California - Western Region (litigation where Alex Kozinski was a party started in 2012).
Alex Kozinski stepped down as Chief Judge not because of appearance of impropriety due to his official duties as the Chief Judge of the 9th Circuit, and not because, due to his official duties, he had to delegate his authority as the Chief Judge to Circuit Judge Sidney Thomas to appoint a judge in Alex Kozinski's own case, but because his 7-year "Chief Judgeship" term ran out.
Judge Kozinski's replacement as new Chief Judge of the 9th Circuit, Judge Sidney Thomas, was "coincidentally" the very same judge to whom Alex Kozinski delegated the authority to assign a judge to his own case after several district judges recused and refused assignments to that case because of an obvious and glaring appearance of impropriety.
"Coincidentally", Judge Thomas's wife is, like Judge Kozinski's, an attorney, Martha Sheehy.
Same as Judge Kozinski's wife, Judge Thomas's wife has a different last name from her husband's, obscuring the connection to her judge-husband. I was unable as yet to verify through available public sources whether she is or has been practicing in her husband's courts.
After review of documents from the Alex Kozinski class litigation (to be published in separate blogs, stay tuned), the following sad rules appear - if a litigant is a judge in charge of the court where he is litigating as a party, the following new rules apply:
1/ the case remains in that subordinate court;
2/ the judge-party controls assignment of judges and, through his power to discipline those judges, controls the outcome of his case;
3/ normal rules of court as to e-filing, representation, service, motion practice, settlements and sanctions for misconduct against the judge-party do not apply.
I will provide documentary illustrations of the above mentioned new rules created just for Alex Kozinski and his wife in the blogs to follow.
I have just downloaded materials from Alex Kozinski's litigation and am preparing them for presentation in the next blogs.