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).


“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.


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.







Sunday, September 13, 2015

What made the U.S. Supreme Court disregard the "domestic relations" deference in so many cases


  1. The use of contraception;
  2. Legalizing abortion;
  3. Right to marry;
  4. Right to marry a person of another race of ethnicity;
  5. Right of a grandparents to see their grandchildren;
  6. Legal standard for deprivation of parental rights;
  7. Criminalization and decriminalization of homosexuality
  8. Gay marriage
All of the above are just a few issues that the U.S. Supreme Court undertook that directly relate to domestic relations.

Yet, lower federal courts consistently dismiss (with prejudice) civil rights actions of pro se poor litigants acting without counsel on the doctrine of "domestic relations deference" to state courts that, in the opinion of the federal courts, "bars jurisdiction" of federal courts in civil rights actions - even though the U.S. Congress never amended the Civil Rights Act to include such a jurisdictional restriction.

Here is a portion of the recent dismissal of the case Davis v Kushner in the U.S. District Court for the Northern District of New York by Judge Mae D'Agostino (a sua sponte dismissal of a poor unrepresented person's handwritten complaint without giving that person time or opportunity to retain counsel to address issues upon which the report threatening to dismiss the complaint was based, with 14 days' notice to complete all the required education (high school, college, law school) and take a crash course in civil rights litigation, where rules baffle even seasoned attorneys).





The piece is full of arrogant hypocrisy in blocking the person's only path to a legal remedy made available to him by a federal civil rights statute enacted by the U.S. Congress.

It arrogantly cites to the 2nd Circuit case (where civil rights appeals are rubber-stamped by 80-year-old judges without reading them in "summary" opinions) applying "Rooker-Feldman" doctrine that cannot possibly apply to a case decided by a court of limited jurisdiction where constitutional issues MAY NOT be raised because, once again, jurisdictional restrictions upon authority of the Family Court.

What is not raised in the lower court, may not be raised for the first time on appeal.

What may not be raised in any state court, is not subject to the appellate Rooker-Feldman bar.

Yet, the rubber-stamping courts seeking to eliminate civil rights cases by all means, do not care.

As to the "domestic relations exception", you will be seeking in vain for any traces of any such "exception" to federal courts' jurisdiction in the Civil Rights Act.  It is not there.

In other words, federal courts are acting unlawfully in tossing civil rights complaints regarding constitutional violations in Family Court, a court of limited jurisdiction where constitutional issues MAY NOT be resolved (at least, it is so in New York) - because of a judge-created rule that was created unconstitutionally, in usurpation of the U.S. Congress's exclusive power to legislate under Article I of the U.S. Constitution, and in violation of Article III of the U.S. Constitution that DOES NOT give federal courts the power to legislate.

Yet, the U.S. Supreme Court apparently picks and chooses which of the "domestic relations" to subject to its "deference" doctrine and which not to - which looks also as an unlawful policymaking to me and selective enforcement of even judge-created law - on a whim.

So, do we need any more proof that we have "the rule of whim" in this country in the place of the declared "rule of law"?

When exceptions to jurisdiction of courts that are only in Congressional hands, are invented on a whim by courts for themselves to control their dockets and protect government officials from accountability (while in most cases federal judges have undisclosed ties to those same government officials, from blood ties to friendship ties to financial ties to "former colleagues" ties), and then applied equally on a whim by the same courts, picking and choosing to which case the whim should apply, and which case, by whim, should be heard to make the most publicity and fame for judges - that is not called the rule of law, ladies and gentlemen.

4 comments:

  1. This is rather silly stuff for a lawyer to claim.

    The domestic relations exception limits federal jurisdiction in -- and only in -- cases regarding the issuance of divorce, alimony, or child custody decrees. See, e.g., Ankenbrandt v. Richards, 504 US 689, 701-704 (1992) None of the subjects of Supreme Court jurisprudence you list fall within this category. Further, the exception is based on Congress's exercise of its Article I, § 8,cl. 9 powers and thus neither usurps Congressional power nor abdicates the courts' Article III powers. Id. at 697-701.

    As for your other complaints, every court -- particularly a federal court -- must ascertain for itself that it has jurisdiction in any case, acting sua sponte if necessary. See, e.g., Steel Co. v. Citizens for Better Environment, 523 US 83, 94-95 (1998) ("Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause. . . . [T]he first and fundamental question is that of jurisdiction . . .. This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it. The requirement that jurisdiction be established as a threshold matter springs from the nature and limits of the judicial power of the United States and is inflexible and without exception." (internal citations omitted)).

    All of this an attorney should know, but is also easily looked up. Perhaps you should spend a little less time spinning conspiracy theories and wildly speculating about fundamental judicial corruption and spend more time reading the law you are supposedly writing about.

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  2. I invite you to a public debate, streamlined in real time, on Google + Hangouts, and I will post that debate without redaction afterwards on my YouTube channel. Of course, for that you need to disclose your identity. After all, the blog post you are criticizing was made under my real name and with my real picture on each blog post, yet, you remain anonymous and locked me from seeing the number of your followers and views in your apparently brand-new account. You can read the substantive answer to your criticism at attorneyindependence.blogspot.com/2015/09/will-my-critic-coyote-waits-come-to.html. You can communicate with me in regards to the Google+ Hangouts invitation through e-mail at Tatiana.neroni@gmail.com or by phone at (607) 435-2435. Thank you for reading my blog and thank you for adding to public debate, even if in an anonymous fashion, on these important topics.

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  3. "What we have here is failure to communicate"

    We also have you burying legitimate, important issues under ridiculous rhetorical flourishes.

    We also have me making some mistaken criticism based on a misreading of your post --- although my main point remains true and unanswered.

    Let me explain: There is a legitimate debate over whether 42 USC § 1983 claims should be subject to the domestic relations exception. Unlike diversity claims, jurisdiction in such cases is provided by § 1331 (IIRC). Some federal courts have applied to doctrine to such cases and others have said it does not apply. There are arguments on both sides and you articulate -- albeit somewhat confusingly -- one side of the debate. I'm not sure whether I agree with applying the domestic relations exception to § 1983 claims. However, a litigant cannot merely take a dispute over a divorce, alimony, or child support decree and turn it into a federal constitutional case by slapping the label of a § 1983 claim on it. (There also remains the issue of abstention doctrines and the like. You may disagree, but a court need not act just because it has jurisdiction. It cannot act without jurisdiction, but it can choose not to exercise jurisdiction.)

    I misunderstood your discussion of issues being raised below and thought you were objecting to the federal court denying jurisdiction sua sponte. A more careful reading makes clear that is not what you were talking about. So I made two important errors in my post.

    Nonetheless, my main criticism stands and I would expand upon it. This blog post is entitled "What made the U.S. Supreme Court disregard the "domestic relations" deference in so many cases" and you list a number of subjects that you imply could have fallen within the doctrine. As I pointed out using Ankenbrandt v. Richards, 504 US 689, 701-704 (1992), however, all of those subjects are entirely outside the scope of the domestic relations doctrine -- which is limited to divorce, alimony, and child support decrees.

    Further, the US Supreme Court has never itself denied a § 1983 claim based on the domestic relations exception. It came close in Elk Grove v. Newdow, 542 U.S. 1, 12-13 (2004), but it did not actually rely on that doctrine. So the Court cannot have been inconsistent.

    Finally, the many of the cases on the subjects you list were appeals directly from state court and did not involve § 1983. Deciding such cases -- even if they would otherwise potentially fall under the domestic relations exception -- has nothing to do with the exception because it cannot apply to such appeals.

    So, my bottom line is I made mistakes I admit, but, in your rhetorical flourishes, you created a non-issue out of thin air that confused and distracted from a real issue of serious concern.

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    Replies
    1. Just found this post in the "spam" folder and removed it from spam. I do not delete or "spam-filter" comments, it was the Blogger feature that did it automatically.

      I understand that it is a little late to answer to this comment, but still.

      Whenever somebody, especially an anonymous critic, asserts some conclusory points - such as my alleged "burying" something under something, I need the critic to specify, what the critic considers legitimate and what as a "flourish". That was not done in quite a long post where the author obviously put time and effort into making the post.

      The claim that "the court need not act just because it has jurisdiction" is unbelievable to hear from an attorney (and, I believe, a judge). Yes, the court is mandated to act when it has jurisdiction and is asked to act.

      The phrase "a litigant cannot merely take a dispute over a divorce, alimony, or child support decree and turn it into a federal constitutional case by slapping the label of a 1983 claim on it" is equally conclusory. The question is - WHY a litigant may not raise federal constitutional questions pertaining to a divorce or a family court case in federal court? 42 U.S.C. 1983 clearly allows any litigant to do that, and the "domestic exception" doctrine is a court-invented doctrine amending (restricting) its jurisdiction under 42 U.S.C. 1983. Federal courts have no authority to restrict their own jurisdiction, or to amend statutes enacted by Congress.

      Therefore, I am not persuaded. I am never persuaded by arguments "it is so because it is so", and "it is so because the court decided so". It is called "raw judicial power", abuse of office and judicial misconduct.

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