"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.
Tuesday, August 2, 2016
The 2nd Circuit refuses to release records of the State-Federal Judicial Council under Freedom of Information Act claiming exemption of the "judiciary" under FOIA, while the D.C. Circuit grants access to records of complaints against immigration judges to the American Immigration Lawyers Association
Initially, both judges D'Agostino (the U.S. District Court for the Northern District of New York) and Katzman (the U.S. Court of Appeals for the 2nd Circuit) simply ignored my FOIA request.
I repeated it after President Obama signed into law at the end of June, 2016 the FOIA's presumption of access to records.
Today I received a response from a "Circuit Executive" of the U.S. Court of Appeals for the 2nd Circuit denying my FOIA request - in the court's alleged "discretion", claiming that information I am seeking is exempt from FOIA, because "the judiciary" is allegedly not subject to FOIA.
Yet, I was not asking for information regarding judicial acts of "the judiciary", but instead regarding administrative activities of a body where members are appointed by the Chief Judge of the 2nd Circuit.
Moreover, the "Circuit Executive"'s webpage indicates that the office of the Circuit Executive handles administrative activities of the 2nd Circuit.
Such a statement is an admission that not all activities of the 2nd Circuit are judicial activities.
Administrative activities are definitely subject to FOIL, same as administrative activities of, let's say, New York State Court Administration are subject to the state Freedom of Information Law. In fact, I obtained the only document I could regarding the New York State-Federal Judicial Council through a FOIL request to the New York State Court Administration.
Simply because members of that body are judges, does not mean that records of that body are concealed from public review, and that is especially so that FOIA exempts information only about federal judiciary, while the body is a mixed body, and thus information about state judges who are members of that council is definitely discoverable.
State judges have no official place in the federal judiciary - they are neither appointed as magistrates, nor nominated by the President, nor confirmed by the Senate. Thus, state judges' - and attorneys' - participation in such "councils" certainly does not fall within exemptions from FOIA.
Administrative activities of any governmental body, including the court, are subject to FOIA, and FOIA has, since June of 2016, a presumption of disclosure.
As an illustration as to how "inapplicable" FOIA is to "the judiciary", I provide the July 29, 2016 decision of the U.S. Court of Appeals for the D.C. Circuit regarding information sought by the American Immigration Lawyers Association regarding names of immigration judges against whom complaints were filed.
These two decisions - one from the 2nd Circuit, and the other from the D.C. Circuit, on the same subject of access to records regarding non-judicial activities of judges, are only one day apart.
Here is also an article about the lawsuit to get access to records of complaints against immigration judges. (As a side note, in New York, for example, complaints against judges are deep secret and are not recoverable under FOIL on "privacy" grounds. Apparently, not so under the federal Freedom of Information Act. As a matter of public concern and ability to review performance of their high-powered public officials, such information must be available to the public - and the D.C. Circuit's decision of July 29, 2016 is a huge step in that direction.
As far as denial of my FOIA request is concerned, judges are judges, whether they work in the actual court, or for and administrative agency, such as the Board of Immigration, and information sought by the American Immigration Lawyers Association is not related to the judicial decisions, same as my information was not seeking court records.
The D.C. Circuit's precedent is fully applicable to the denial of FOIA request on July 28, 2016 (one day prior) by the 2nd Circuit.
Please, note that the 2nd Circuit did not say it does not have the records I was seeking - only that it will not give the records to me, in the court's alleged "discretion".
Apparently, the information I am seeking is too sensitive for judges of the 2nd Circuit to be disclosed - all the more reason for me to try to get it.
I will certainly appeal the denial of my FOIA request, and if my appeal is denied, am contemplating a court action to compel production of records I seek.