"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.
Sunday, November 20, 2016
A judge who refused to perform same sex marriages was indicted in Oregon - because he committed a crime or because his indictment is a come-uppance for refusing to perform same sex marriages?
For example, the precedents of the U.S. Supreme Court about due process and free speech can be violated with impunity, with nobody bothering - as evidenced by the statistics of persecutions against attorney whistleblowers of judicial misconduct.
Yet, judges in Alabama, Wyoming and Oregon were sought out for discipline for disregarding the particular U.S. Supreme Court precedent about legalizing same sex marriage (while the State Bar of the State of Texas refused to discipline the Attorney General for the State of Texas on the same grounds).
I wrote specifically about the fate of the Oregon Judge Vance Day who was targeted for discipline because he refused to perform same sex marriages.
Now, one of the judges targeted for refusal to obey the same-sex marriage precedent of the U.S. Supreme Court has been reportedly indicted for allegedly providing a gun to a felon, and for using his position to obtain a benefit in 2013 or 2014.
Now, judges use their positions to obtain benefits all the time, and I've been writing about it on this blog since 2014. I wrote about conflicts of interests of U.S. Supreme Court justices just yesterday - none of those justices were ever indicted for "obtaining benefits" for themselves using their judicial positions, such as book deals, speaking engagements, teaching engagements overseas, trips paid by associations, attorneys and law firms appearing in front of the court etc.
And, state judges are usually - if indicted at all, which happens in extremely rare cases - are indicted only in federal court, because, first, state prosecutors are afraid to touch them, and, second, State Attorneys General are actually the judge's own attorneys advising them and representing them if judges are sued. Judge Day is the fist sitting judge in the State of Oregon who was indicted, according, reportedly, to the official statement of representative of Oregon Judicial Department.
So, when the Oregon Attorney General presented the case to the grand jury, he was certainly disqualified from doing it by an irreconcilable conflict of interest.
And, since a decision was made that a state judge would be turned into a state criminal grand jury, the judge was really marked for destruction.
Interestingly enough, after indictment and arraignment, Judge Vance Day was reportedly ordered to "work from home" - whatever that means for a judge.
The whole point of "benefit" and "giving a gun to a felon" was because Judge Day took a litigant, a former Navy Seal, appearing in his "Veteran's Treatment Court", to Judge Day's son-in-law's home to do some work there, and allowed the former Navy Seal, a convicted felon, to remove a clip on the gun in order to make sure the gun is loaded.
This country has just witnessed on live TV crowds of people crying in the streets because a criminal who exposed the national security was not elected president.
We have judges, like Judge Sotomayor, accepting "books and pieces of art not exceeding $350.00 in value".
We have other judges accepting all-expenses-paid trips from attorneys, bar associations and parties appearing in front of the court.
Those are huge "benefits".
Nobody gets indicted. Instead, these judges are celebrated as "outstanding jurists".
What Judge Day allegedly did - if he did it - is undoubtedly improper.
It is unquestioningly improper for a judge to hire a litigant appearing in front of him to do work in the judge's son-in-law's house.
Yet, it is no less improper for a judge to accept wining-and-dining from attorneys sponsoring the American Inns of Court on a monthly basis, behind closed doors and without the litigants even knowing that judges are accepting benefits from attorneys, likely, attorneys appearing in front of them.
And, it is clear that judges would not have been wined and dined but for their position and judges.
For example, here is an interesting article about the "challenges" that the Clinton Foundation may face now that the "goodwill" of Hillary Clinton as a future president of the United States disappeared - and big donors, like the governments of Norway, Australia or Kuwait being disappointed.
"Goodwill" is a code word nowadays for the ability of a public servant to use his or her official position to enhance business opportunities for himself/herself and their families.
Half the country said it is good for Hillary Clinton, with such shady money received by her Foundation, to become president and continue to trade her influence for money for her family that is running and using the Foundation's money.
If it is good for Senators, if it is good for Hillary Clinton, if it is good for the U.S. Supreme Court justices to receive "benefits" in exchange for their influence as public servants - why Judge Day was targeted, as the very first and only judge so far in the State of Oregon who was ever indicted.
We are talking selective enforcement of laws here.
The judge himself did not receive a benefit from the former Navy Seal's work - his son-in-law did. And, there is no indication that the judge traded the former Navy Seal's work for the judge's son for a beneficial treatment in court.
Moreover, there is a real question that allowing a trained former Navy Seal to DISABLE a gun qualifies as allowing possession of a gun by a felon. Such an indictment puts the law prohibiting possession of guns to felons on its head, because the reason why the former Navy Seal was allegedly allowed to disable the gun was to enhance safety, not threaten it.
Judge Day is not a very likeable person.
He reportedly included the portrait of Adolf Hitler in the "Hall of Heroes" artwork display at the courthouse, and refused to take it down, reportedly stating that "some influential people in town" want that portrait there.
But, Judge Day was not indicted for that.
Judge Day was indicted for conduct that, likely, every other judge in the country can be accused of, but no judges are indicted for.
The only other things that judges in Oregon were ever charged for criminally was driving while intoxicated and bigamy/forgery of documents to commit bigamy.
With the general permissive attitude with judges committing crimes in office under protection of absolute judicial immunity for malicious and corrupt acts, I believe that, had Judge Vance Day not been targeted as a judge who refused to perform same sex marriages, defying ONE U.S. Supreme Court precedent (while every other judge continues to defy any other U.S. Supreme Court precedents with impunity and immunity), he would never have been indicted.
And that is a big problem with the "rule of law" and "equal protection of law" in this country.