Since Judge Dowd ordered an armed court officer, a known Nazi sympathizer who already threatened the litigant out of court, to throw the litigant out of the courthouse AFTER Dowd granted his motion to recuse and AFTER Dowd was out of the case and lost all authority to do anything in the case, Dowd was not covered by any immunity.
Yet, see the version that the New York State Attorney General (a public official sworn to protect New Yorkers) advances in defense of Judge Dowd's reprehensible behavior:
First of all, there was no "disruption" of the court proceedings, nor did Mr. Shtrauch allege that anywhere in his complaint or in his appellant's brief (I drafted that complaint, based on Mr. Shtrauch's words and later confirmed the truth of his words through a transcript of that conferencee, and read Mr. Shtrauch's pro se Appellant's Brief).
Mr. Shtrauch did not say anything even close to that he "disrupted court proceedings".
There was no basis whatsoever for the NYS Attorney General to claim that (1) Mr. Shtrauch behaved disruptively at a court conference, or that (2) Judge Dowd had authority to remove any party from a court conference because the party behaved as Mr. Shtrauch did.
First of all, Mr. Shtrauch showed pictures of the judge's law clerk not in the conference, but as part of a written motion to recuse that he asked the judge to decide on papers and without oral argument.
Second, oral arguments of motions, including a motion to recuse, must be held in open courtroom. No procedure for "conferencing" motions is presupposed in New York.
Third, a motion to recuse must be supported by evidence.
Pictures of Mr. Shtrauch's children in the judge's law clerk's home publicly posted on her website is not "disruption of the courtroom", it was evidence submitted in writing in support of Mr. Shtrauch's motion to recuse - a motion which Judge Dowd granted - before he ordered an armed officer to throw Mr. Shtrauch out.
Judge Dowd did not provide any reasoning for throwing Mr. Shtrauch not only out of his chambers, but also out of the entire courthouse during business hours, where every other member of the public, including Mr. Shtrauch, were authorized to be.
And of course, whether Judge Dowd would have thrown out a non-Jewish litigant the way he did Mr. Shtrauch, is a matter of pure speculation that Mr. Shtrauch did not have to prove as a matter of equal protection claim. What he was asserting is that he was ejected out of the courthouse, by use of force, by a judge who was no longer on his case, for no legal reason, while other members of the public had access to the courthouse.
If Dowd would have done the same to anybody else for making a motion to recuse, the NYS Attorney General is simply acknowledging, on behalf of his client Judge Dowd, that Judge Dowd is mentally unstable, does not have the required character for a judge and should not be on the bench.
But, the facts of the case clearly indicate that Judge Dowd's actions were motivated by anti-Semitism, and for the NYS Attorney General Eric T. Schneiderman, who is himself Jewish, to pretend he did not see anti-Semitism in this case is to pretend he is completely stupid and unfit for his own office.
I quoted that transcript here and described the dismissal of the case and reasons for it, here. It is very clear that courts are trying to protect judges at any cost, and that it is for the people to try to start a vigorous legislative movement in order for judges to be held accountable even for the most egregious misconduct.
Judge Dowd had absolutely no right to issue any orders against Mr. Shtrauch after Judge Dowd left Mr. Shtauch's case.
Judge Dowd had absolutely no right to issue an order to throw a litigant out of the courthouse because of the contents of a motion to recuse criticizing the judge or his law clerk's behavior.
By the way, what constituted the "impugning" of Judge Dowd's character where Mr. Shtrauch simply pointed out the appearance of impropriety and ex parte communications of the judge's law clerk with Mr. Shtrauch's children (who were parties in custody litigation represented by a separate counsel), nobody knows. The appearance of impropriety was enough for Judge Dowd to recuse, and he did. But, his character was not at all "impugned", unless he considers himself as one with his female law clerk of many years.
It often happens that governmental attorneys do not think much before they put arguments into an appellant's brief in a civil rights case, especially one against a judge, which they expect to win hands down.
But, here the NYS Attorney General, on behalf of Kevin Dowd, open a whole new can of worms by claiming that a judge can react with violence and use of force to the contents of a motion to recuse.
By the way, that motivation was not part of the transcript in Mr. Shtrauch's divorce proceeding that I read, and was not part of the opposition in the court below. The NYS Attorney General just gave Mr. Shtrauch a gift to go back and make a motion to vacate the order of dismissal, because Judge Dowd, on appeal, acknowledged that he considered the contents of the motion to recuse (which he granted) as disruption of court proceedings.
Once again, at the time Judge Dowd ordered to throw Mr. Shtrauch (who is an immigrant from Israel, with an accent, around 60 years of age) out of the courthouse, Judge Dowd was no longer assigned to Mr. Shtrauch's case - because he recused.
NYS Attorney General not only misrepresented Mr. Shtrauch's complaint and what occurred in Judge Dowd's chambers, as reflected by the complaint and by the transcript, but now asks the 2nd Circuit to create a very dangerous precedent: that a judge, after GRANTING a motion to recuse, may deem evidence submitted in support of the motion as "disruption of court proceeding" which justifies violence to the litigant and throwing the litigant out of the courthouse.
That's quite a turn on #contentbasedregulation. I am holding my breath as to (1) whether the 2nd Circuit will consider the topic worthy of its full opinion rather than the usual fast-and-sloppy track reserved for civil rights appeals, and (2) if that extraordinary event happens, how the 2nd Circuit will rule on this interesting argument of the NYS Attorney General, an elected public official, the sworn defender of the people of the State of New York.
And, I must say that, unfortunately, criticizing judges is regarded as falsity and disruption of the tribunal, without regard to the truth of the supporting evidence, not only in New York.
I wrote about it often on this blog, and very recently, about a Louisiana case where an attorney was suspended for providing truthful evidence in support of motions to recuse - for disruption of the tribunal.
So, NYS Attorney General's Orwellian view that truth is disruption of the tribunal is very well entrenched in the judicial officers of this country and those who are serving them.
I will follow the Shtrauch v Dowd appeal and report on it further.
Stay tuned.
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