"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.
Thursday, September 24, 2015
Ways to address judicial misconduct
There are 4 ways to address judicial misconduct.
1/ A lawsuit against a judge. Most lawsuits against judges are dismissed on the grounds of absolute judicial immunity. Even though, in my opinion, the concept of absolute judicial immunity for malicious and corrupt acts on the bench, including deliberate constitutional violations, is unlawful and unconstitutional, courts religiously apply it, dismissing practically all lawsuits against judges.
There are restrictions to judicial immunity (declared restrictions), but they are not observed by courts.
Courts that created the concept of absolute judicial immunity for malicious and corrupt acts of the bench at the time the judge was performing his or her judicial duties, change that law on the go, to stretch it to apply to any situation that comes in front of them. After all, by protecting a judge sued for misconduct in office, courts are protecting themselves, and self-interest outweighs all other considerations.
2/ A complaint to disciplinary authorities. Absolute judicial immunity was given to judges because allegedly alternative remedies, such as discipline, are available.
Well, first of all, courts have ruled that citizens do not have "a justiciable interest" in prosecution or non-prosecution of anybody - be it:
* criminal prosecution of private citizens;
* disciplinary prosecution of attorneys, or
* disciplinary prosecution of judges
If there is no justiciable interest, judicial discipline cannot be called a legitimate alternative remedy to a lawsuit.
Yet, this thought is so radical that most judges will reject it (remember, most judges are old conservative people who consider as frivolous and sanctionable anything that was not taught in their churches). Of course, unless one tries, one will never know whether a certain theory will win in court. But one must have courage to do that and be prepared for a backlash. Judiciary does not yield its positions easily.
Also, complaints to judicial disciplinary authorities may be futile. My experience with the State of New York Commission for Judicial Conduct, review of what is discussed in the social media, and my review of what happens with complaints to similar authorities in other states, suggests that the absolute majority of complaints against state judges are tossed.
And, federal courts do not have separate disciplinary authorities for judges. They "police themselves", with predictable results - courts self-servingly created rules that prohibit even review of complaints about judicial misconduct on the bench, re-channeling such complaints through appeals only, even though the same courts dishonestly continue to toss civil rights lawsuits on judicial immunity grounds that presupposes availability of judicial discipline for misconduct in office, during court proceedings.
So, complaining about a judge, while needs to be done, as a due diligence step for the record, may achieve little, if anything, in the practical sense.
3/ An appeal. With judges busy engaged in book-writing, all-expenses-paid trips, sitting on various boards and committees, they hardly have time to diligently review records, and allow most of decisions to be made, as it seems, to the student interns who draft those decisions. Since student interns have no experience in life or law, and draft to certain policy guidelines from judges, and those policy guidelines apparently presuppose tossing any claims of judicial bias and misconduct, not to create a precedent that can bite the judge who created it right back, chances to win against a bias judge on appeal are nil.
4/ Yet, nobody cancelled shaming, requests for a criminal prosecution of a judge involved in misrepresenting court records and colluding with politically connected attorneys, and more shaming on social media.
Judges are sensitive to criticism. They may not allow cameras in the courtroom in order to be able to catch their misconduct live, but they are afraid to lose votes and donors in the next re-election campaign if they are shamed in the social media too much.
And, there is no immunity from criminal prosecution.
And, if criminal authorities refuse to prosecute, criminal prosecutors are also sensitive to lose votes and campaign donors, even more than judges (because prosecutor's terms in office are shorter than judicial terms in office) and are also sensitive to shaming in the media.
So, where all other areas to bring about judicial accountability are blocked, and we need to bring about changes now and address specific cases of judicial misconduct now, criminal complaints against judges accompanied by shaming of proven misconduct in the media may help a lot.
You only need a lot of courage to do that. Judges are a vengeful and powerful bunch. Yet, the power of the social media is that, once you start publishing your instances of judicial misconduct, other people may publish theirs, and you will then know what you will not otherwise learn from the Commissions for Judicial Conduct, because there complaints about a judge are secret.
And, the more meritorious complaints are brought against the same judge on the same recurring issues of misconduct by different people in different cases, the more likely it is that authorities will wake up and take action.
You know, there is a saying "little strokes fell great oaks". So, let's try and clean up the dirty black robes. One by one. Bit by bit. Nobody will do it for us.