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.

Wednesday, August 19, 2015

Unlawful local rules of Greene County Supreme Court judge Lisa M. Fisher

I posted today a general blog about "local rules" of judges and courts and how unlawful - and unconstitutional - some of them may be.

This blog post is about local rules of a certain judge - Greene County Supreme Court Justice Lisa M. Fisher.


Judge Fisher's rules are available on the interlinked website of the Greene County Supreme Court in a PDF format.

I will comment on some of the rules of Judge Fisher, those that I consider, in my personal legal opinion, unlawful, biased and some - unconstitutional and causing parties to unnecessarily waste their time and money, and for counsel to unnecessarily incur malpractice liability.

RULE THAT PARTIES MUST PAY COURT’S POSTAGE



Judge Fisher’s rule says that if you send a letter to the court, in order to receive a response from the court parties and counsel must send to the court a postage-paid return envelope, otherwise Judge Fisher will not send her answer, but will leave the answer for a pick-up with the court, no matter how far the counsel or party must travel for that pick-up. 

New York law does not support Judge Fisher’s requirement that parties and counsel must pay the court’s postage.

RULE OF REPEAT NOTICES OF APPEARANCE UNDER A THREAT OF PENALTY



Judge Fisher’s rule requiring Notice of Appearance and acknowledgements of rules from counsel when Judge Fisher steps into cases where Notices of Appearances were already filed previously, does not comply with existing laws or court rules and are nonsensical. 

Parties in civil cases should not be required, under the threat of penalty from a judge, to pay more money to their attorney and incur legal fees for filing unnecessary documentation, especially given the usual attorney’s hourly rates.


RULE OF CHANGE OF COUNSEL CONTRARY TO THE CPLR AND CONSTITUTIONAL RIGHT OF SELF-REPRESENTATION



1/ Judge Fisher requires that change of counsel from an attorney to a pro se party must occur only through an Order to Show Cause.  Such a requirement is not supported by New York State Law, CPLR 321.

By making such a requirement, Judge Fisher unduly interferes into the right of any party to represent himself or herself without asking Judge Fisher for permission to do so.

Judge Fisher’s rule violates parties’ constitutional right of access to courts through counsel of their own choosing, which can be themselves.

2/ Judge Fisher acknowledges change of counsel between attorneys “by stipulation” - see subsection (B) of Judge Fisher's Rule 6.0.  Such stipulations are not supported by New York state law, CPLR 321(b).



CPLR 321 recognizes change of counsel by either notarized consent of party or court order.

RULE REGARDING ENDING THE CASE BY A SETTLEMENT

Normally, when parties file a stipulation of discontinuance with the court (and the defendant pays - I do not know why the New York law imposed this cost upon the defendant, but that's the law - the $30 filing fee to file such a Stipulation of Discontinuance) of the action, the lawsuit is over, and the court's jurisdiction is over.

Not so in Judge Fisher's court.

Here is Judge Fisher's rule:


So - if parties, after filing the Stipulation of Discontinuance, "did not comply with this Rule", that is, after jurisdiction of "Judge Fisher's court" has ended, then what?  Judge Fisher will grab jurisdiction back to punish parties for not telling her personally that they settled?

RULE OF MOTIONS ADDRESSING DISCOVERY

New York law is very particular about motions addressing discovery.

There are statutory rules and court rules.

Court rules require good faith efforts to ensure compliance with discovery prior to making a motion and filing an attorney affirmation of good faith with the motion to compel discovery or for other appropriate relief (to preclude use of non-disclosed evidence at trial or for a dismissal/summary judgment).

Judge Fisher goes further.  She requires that no motion addressing discovery is filed without a conference 



- thus practically mandating parties to incur travel and attendance fees for their attorneys, and expenses for themselves (daycare, leave from work, travel etc.) - which is not mandated by statute or rules of the New York State Court Administration.


RULES REGARDING ADJOURNMENTS OF APPEARANCES AT CONFERENCES

Judge Fisher requires physical appearances at “final” conferences, allows adjournments of conferences only for medical pain (and even then, reserves a “right” to still require appearance despite such pain, in violation of federal HIPAA, Americans with Disabilities Act and Due Process Clause of the State and Federal Constitutions) and does not recognize long-distance travel to a conference as a good reason not to appear.



There is no “discretion” for a judge not to give adjournment for medical reasons in view of a documented medical condition.  Federal law in this case pre-empts any inconsistent state law.

There are medical conditions that are not painful, but nevertheless disabling, and even life-threatening.  Obviously, they are not considered by Judge Fisher as good reasons to adjourn a court conference.

There are many reasons why a person cannot appear at a conference, from death of a loved one to impossibility to get a leave from work, where livelihood of the party's family depends on the party's holding on to the job that may be lost if the party is going to conferences every so often (and litigants do lose jobs because of frequent court appearances).

If Judge Fisher worked for 18 years prior to the bench as an attorney (as she states in the podcast interview interlinked above), and since she worked in the public defender's office, as her official Facebook election campaign page states, she should know that much.

If she knows it and still makes a requirement for a severely restrictive list of "good reasons" for an adjournment - she does it deliberately, that's the only reasonable explanation that I can find for this rule.

Conferences are a profound waste of time, many judges are using conferences and "mandatory appearances" at such conferences to drain resources of parties and frustrate parties into a settlement, thus clearing the judge's docket.

These tricks have nothing to do with proper administration of justice, and Judge Fisher knows it, no doubt, having practiced for 18 years prior to coming to the bench.

There is absolutely no reason why all conferences cannot be held by phone, and requirement of physical appearance by any attorneys or parties is nothing other than a desire to exercise control and cause submission of parties and counsel, without regard whether it is necessary or not.


RULE OF TRIAL SUBMISSIONS

Judge Fisher requires all “evidence” to be submitted by all parties (Plaintiffs and Defendants alike) a week before trial, and otherwise threatens with a possibility of precluding introduction of evidence at trial.




This way, Judge Fisher unduly advocates for the plaintiffs’ side, in violation of the requirement for the adjudication to be neutral, because Judge Fisher requires the defense to make its case known, including impeachment evidence, before the Plaintiff makes their case, thus teaching the plaintiffs how to sue the defendants more efficiently and how to preclude all of their defenses.

It appears that Judge Fisher wants her trials to be not trials where unexpected things can happen, like impeachment of witnesses, but should be as close as possible to motions for a summary judgments, with no surprises at any time at all.

Such a position (my legal opinion) certainly undermines the very principle of adversarial justice which is the cornerstone of the American justice system.

RULE OF JURY INSTRUCTIONS AND VERDICT SHEETS

Judge Fisher requires jury instructions to be drafted by parties "working together" and then submitted to Judge Fisher a week before trial.

Judge Fisher also requires verdict sheets also to be submitted a week before trial (even, I understand, when the verdict sheets are special interrogatories to juries that can only be formed on the basis of what evidence was submitted at trial).


This requirement is clearly pro-plaintiff, and puts Judge Fisher in the shoes of an advocate for plaintiffs (usually, corporations suing in her court) and against defendants, usually common people, often pro se or poor.

Defendants do not have to put on any case in a civil or criminal matter.

Plaintiffs have to.

Defendant’s counsel’s role often is not to wait what kind of case the Plaintiff puts on to then fashion jury intructions that point out Plaintiff’s errors.

To require a defendant to draft jury instructions together with the plaintiffs and then file such jury instructions a week before trial is to require a defendant to teach the plaintiff how to sue and win against the defendant better.

Such a requirement runs contrary to the contractual and ethical obligations of counsel to defendants and may subject counsel to malpractice liability.

Such a requirement is clearly unlawful.

I had judges trying to force me, as a defendant’s counsel, in civil or criminal cases, to submit instructions before the end of the Plaintiffs/prosecution’s case.  I always argued that such a requirement undermines the adversarial nature of justice and requires me as defendant’s counsel to work for the plaintiff, to the detriment of my client.


RULE OF POSTTRIAL SUBMISSIONS AFTER BENCH TRIALS


In a bench trial Judge Fisher goes even further than in jury trial cases and imposes more obligations on trial counsel than in a jury trial.

After bench trials, Judge Fisher requires parties to submit the following:

·      Final statements of facts citing to the record of evidence submitted at trial;
·      Conclusions of laws;
·      Memorandum of Law in the form of an appellate brief;
·      Printouts of all authorities, including statutes, cases and regulations to which the Memorandum of Law refers



Now.

In a bench trial Judge Fisher is a factfinder and the PROVIDER of the law.

Parties are entitled to an oral closing argument as a matter of law.

Parties sometimes ASK the judge to ALLOW them to make their closing arguments in writing.

It is simply a matter of convenience to both the court and the parties to do that after the court proceedings, as it gives parties more time to prepare.

Closing arguments must be done within the trial and not after the trial.

Once again, it is a concession, on request of a party, and cannot be a REQURIEMENT of the court to ALL parties.

Moreover, what Judge Fisher requires sends a clear signal that neither Judge Fisher nor her court attorney want to actually do their job, review the record and research the law.

Instead, they want to decide the case as if it is a summary judgment – with a digest of the facts and the law provided to the court multiple times in conferences, pretrial submissions and now in a post-trial submission.

New York state does not support requirement that parties after a trial must file with the court what Judge Fisher requires parties to file.

Moreover, even in appellate courts there are no requirements to submit every single legal authority cited, printed out, as an attachment to the Memorandum of Law.  That is not only a gross waste of paper (some cases run on 100 pages, while only one issue is used and referenced through a citation in a Memorandum of Law), but also a gross waste of attorney’s time and the party’s money.  Submitting the legal authority to Judge Fisher "by e-mail" does not obviate printing and scanning, which involves hours of work.

Apparently, Judge Fisher makes parties do her own and her court attorney's work, and pay for it. 

In fact, parties should not be MADE to pay their attorneys for post-trial work, especially as extensive as preparing an “appellate brief” based on record after a trial.

Appellate work is expensive specifically because it requires hours of research and hours of working with the record on appeal.

Judge Fisher requires that appellate work to be conducted by trial counsel post trial.

It is clearly better to go in for a jury trial, refuse to submit defendant’s jury instructions to Judge Fisher until the end of the plaintiff’s case – and address Judge Fisher’s refusal to recognize such jury instructions on appeal – than waive your constitutional right (under New York State Constitution) to a jury trial and receive in exchange the requirement to do appellate work, at appellate cost of thousands of dollars, post-trial to allow the judge to not do her work as a fact-finder.

The sum and substance of the rules of Judge Fisher shows:

1)  Judge Fisher is more concerned by form than by substance and fairness of the litigation;

2) Judge Fisher is extremely pro-plaintiff, to the point of advocacy for the plaintiffs through her rules;

3) Judge Fisher disregards the law, including constitutional law, to assert her authority.

Not good, and this is only her first year on the bench.






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