Dean Chemerinsky makes startling (and startlingly incompetent) statements in an amicus brief regarding the pardon of Joe Arpaio

I wrote on this blog about the criminal case against Joe Arpaio, see Part I and Part II here, about how politicized and unlawful the whole proceedings, including the conviction, was, and that if we want to be the nation ruled by the rule of law, we must accept that the rule of law equally applies and gives rights to people we like and especially to people we do not like.


That approach to the rule of law is, apparently, not in the mainstream of political and legal thought nowadays.

For example, recently the new dean of the University School of Law at Berkeley, California, #ErwinChemerinsky, promoted by his school as a "thought leader" and a "living legend—a person who exemplifies the very best that the field of law has to offer: brilliant, warm-hearted, thoughtful, open-minded, and deeply engaged in the culture of public service", filed an amicus brief with the U.S. Supreme Court challenging constitutionality of Presidential pardon to Joe Arpaio.

Erwin Chemerinsky is a somewhat of a notorious figure.

• He was a paid lecturer of BarBri while remaining a professor and/or a dean of various law schools, while BarBri was sued for engaging in anticompetitive activity and underhanded tactics in driving its cheaper and better rivals out of business, thus undermining the quality of legal education and, ultimately, the quality of lawyers for us, the public and consumers of legal services;
• He opposed the recall of judge Persky who sentenced an athlete from his own alma mater to 6 months in jail (3 months for good behavior) for non-consensual sex with an unconscious woman - and the conflict of interest for Chemerinsky, an attorney licensed to practice law in California, supporting a judge against public outrage, while the judicial branch regulates and controls Chemerinsky's own law license and livelihood, is clear;
• In 2016, Chemerinsky not only represented a judge who was disqualified out of several cases through the use of a peremptory challenge by prosecutors, and not only argued that an absolute right to a peremptory challenge of a judge by a party is not absolute and has some kind of constituional limitations (while representing a judge who is not a party in a criminal proceedings and has no say in the matter), but also called for a federal investigation of prosecutors against whom his powerful client (a client who belonged to the branch of the government regulating Chemerinsky's own law license) belonged.  

I do not know how "warm-hearted" Erwin Chemerinsky is, but I do know criminal law, and I have a funny feeling that Erwin Chemerinsky had no clue what he was writing about, and wrote to justify his ultimate politically sought conclusion - that the pardon is unconstitutional.

In his amicus brief regarding the supposed unconstitutionality of Arpaio's presidential pardon, Chemerinsky follows and attempts to encourage the latest dangerous trend of identity politics in law where the identity of the party defines what rights that party is given, or not given by courts.

Since the election of Donald Trump as the President of the United States I monitor an interesting phenomenon in courts – the rapid disappearance of laws as basis of judicial decisions.

Any civil rights attorney knows how difficult it is to bring a civil rights case through a motion to dismiss and/or a summary judgment.

And, any civil rights attorney knows that it is nearly impossible to obtain a preliminary injunction in a civil rights case in federal court.

All that changed when Donald Trump or a member of his administration (like Jeff Sessions) are sued – even in their official capacities, which means, as any law professor teaching Civil Rights Litigation will tell you, means that the American taxpayers are being sued.

Reason and “respect to precedents” and to statutes disappeared as well as the law.

Preliminary injunctions are handed left and right.

·        Prohibiting the President to enforce immigration laws and block entry of certain immigrants into the country for considerations of National security – now courts demand that the President spill national security secrets (for which judges do not have clearance) in open court proceedings;  now, contrary to statutory law and existing precedents, immigrants located beyond U.S. borders suddenly acquired a right to sue that they never had before, and so did their relatives within the country, as well as their supposed employers and universities where they are going to supposedly enroll – and standing on purely economic grounds is judicially created for all these categories that supposedly trump (no pun intended) President Trump’s absolute exclusive prerogative to handle national security questions and regulating who does or who does not get to get a visa and entry into the country;

·        Prohibiting the federal government from deciding whether to give or not to give states or municipalities gifts of federal money – and mandating that they finance state social and law enforcement programs, a state obligation that federal taxpayers do not have to finance, and judges have no right to enforce.

We have people suing Donald Trump for issuing an executive order (the so-called “travel ban”) and for repealing an executive order (DACA) – I will analyze the grounds for the lawsuit in a separate blog.

We have people suing Donald Trump’s administration for a “right” of immigration attorneys NOT to represent people throughout an immigration proceeding – while claiming that it is done in those same people’s best interests – and they actually win preliminary nationwide injunctions.

And, apparently, all these lawsuits are fueled and brought by lawyers who have no compunction about spending scarce judicial resources and taxpayer money, putting the law on its proverbial head and replacing the U.S. Constitution, federal statutory law and the concept of separation of powers with a wholesale judicial whim based on just one principle – the identity of the U.S. President who dared to have been elected when the establishment did not want him there.

Presidents before Trump deported people – and no lawsuits were filed.

No DACA existed before President Obama – and previous presidents were not sued, or had riots in the streets of illegal immigrants claiming their supposed right to remain in the country, simply because they already received free education at taxpayer’s expense without taxpayer’s consent in this country and simply because they were children when they were brought here by their parents.

It is apparent that the media, the public who does not like this particular President finds fault with him at every turn – hair color, choice of wife, etc.

Public discourse about what the President of the United States is doing, under the 1^st Amendment, may be as vile, without becoming violent, as the public, or its separate members, wants it to be.

Yet, federal courts are bound by laws to resolve disputes based on federal law only – and that is, as the Supremacy Clause states:

·        The text of the U.S. Constitution;

·        The laws made pursuant to that U.S. Constitution – which means only statutes enacted by the U.S. Congress; and

·        U.S. Treaties.

That’s it.

Nothing else.

There is no such thing as “federal common law”, and precedents of any federal courts, including the U.S. Supreme Court may not be considered to outweigh the above three components of the Supreme Law of the Land.

Moreover, rights of the President clearly established by the text of the U.S. Constitution and/or a statute enacted by U.S. Congress may not be questioned by a court unless the court wants to declared the statute the President follows unconstitutional.  Courts have no rights to CHANGE the law through interpretation – only the U.S. Congress, under Article I of the U.S. Constitution has the power to create laws.

Let us revisit what separation of powers means.

Executive branch (President)	Legislative branch (Congress)	Judicial branch (courts)
Enforces the U.S. Constitution and statutes enacted by the U.S. Congress through powers provided to the President under Article II of the U.S. Constitution	Enacts laws within its Article I authority and in compliance with the U.S. Constitution, after consulting with their constituents – VOTERS, citizens of the U.S., not immigrants and not illegal aliens	Resolve individual disputes between parties based on the U.S. Constitution and statutes enacted by the U.S. Congress

·        Federal courts may not set policy, it is an exclusive legislative function of the U.S. Congress;

·        Federal courts may not change laws through their interpretation, to mean the opposite of what the laws’ clear text says;

·        Federal courts may not write into the statutory law or into the U.S. Constitution what is not there.

Courts may only resolve individual disputes based on the existing U.S. Constitution and federal statutes and treaties – or declare those federal statutes and/or treaties unconstitutional. 

That’s it.

But, since the election of Donald Trump as the President of the U.S. it has become even more obvious that courts are not content with the role of a detached apolitical arbiter dispassionately applying the law handed down to them by the U.S. Constitution and the U.S. Congress.

Courts want to be creators of the law, courts seek publicity through populist decisions, and there is a whole class of prominent, rich attorneys who support and encourage federal courts to usurp the role of lawmaker and to even change the U.S. Constitution by

Unfortunately, at least judging by comments in the media, there is a wide-spread belief in the public that anything – anything – that comes from under a pen of a judge is not only “law”, but “The Law of the Land”, to be obeyed without question, and that somehow the unlawful judicial lawmaking is, on the contrary, the way it should be, and everyone in this country “must” respect unlawful court orders made contrary to the U.S. Constitution and/or federal statutes as “law”.

And, unfortunately, prominent-name attorneys artfully manipulate the public in continuing with this dangerous illusion, that courts in this country are lawful lawMAKERS.

One of such dangerous examples that I came across recently is the now-dean of the Berkley Law School in California, Professor Erwin Chemerinsky.

Having disregarded his own conflict of interest, as a Dean of law schools that, no doubt, receives donations from large law firms representing employers that need cheap legal and illegal immigrant work force, and is a party against the federal government to make the President in a lawsuit to make him cancel his visa restrictions in order to benefit his law school and university financially, Erwin Chemerinsky recently filed an amicus brief with the U.S. District Court for the District of Arizona arguing that the recent presidential pardon of Joe Arpaio is unconstitutional.

This challenge to the pardon of Joe Arpaio by President Trump is a quintessential litmus test as to the rule of law in this country.

Should a legitimate exercise of presidential power as per the text of the U.S. Constitution, Article II, paragraph 2, be considered unlawful simply because it was done by a supposedly unpopular president in favor of an unpopular sheriff?

If it should, then we do not have the rule of law in this country.

I wrote in this blog about the criminal proceedings against Joe Arpaio and their stark illegitimacy, about jurisdictional defects in proceedings and screaming judicial bias of the Clinton-appointee judge that would make the blood of any criminal defense attorney, and of any member of the public knowing the law boil.

But, somehow, any violation of the law is good if that is against a person you do not like – because that is the sum and substance of public comments about Arpaio’s pardon.

President is bad, so his pardon is also bad.

Arpaio is bad, so to pardon him was bad – no matter what happened in his criminal proceedings, and if a judge issued a decision in those proceedings, it must be good, and President Trump should not have touched it with a pardon.

By the way, the U.S. Justice Department already moved todismiss Arpaio’s conviction as moot, over the resistance of the judge, so the prosecuting party does not want to continue to sentencing, cases should be closed and shut – if that would be any other criminal proceeding.

But, not here.

Here Dean Erwin Chemerinsky is throwing his heavy-weight name around in order to claim that the pardon was unconstitutional and to put the already dead criminal proceedings back on the docket – while making some outrageously incompetent claims that would result in an F in Criminal Law 101 and Constitutional Law 101 in Chemerinsky’s own law school, and on a bar exam.

A person who positions himself as an expert in constitutional law should have at least more self-respect than to make claims Chemerinsky is making, embarrassing himself in front of the legal community, his own students and the public – and putting into his law students an impression that the law does not matter when there is a political and financial goal to attain through the influence of courts.  And, by the way, Chemerinsky is arguing that the pardon is unconstitutional to the same judge whose decision the pardon affects – at the trial level.  Like – “Your Honor, see what that bad President did to your perfect order, declare that bad President’s Article II paragraph 2 presidential pardon authority unconstitutional NOW, what are you waiting for, he hurt your feelings so!”.

The claims of Professor Chemerinsky, through his two attorneys who both clerked for federal judges and should know better than to write such gibberish, can be seen in their full glory, here.

In view of Professor Chemerinsky’s influence on the legal community, courts and public opinion and the danger that his outrageous statements to the court present for civil rights in general, and criminal defendants’ rights in particular, I will analyze Professor Chemerinsky’sclaims, one by one, in separate blogs.

I am certainly not the only and not the first critic of Professor Chemerinsky's amicus brief regarding Arpaio's pardon, but, judging by the fairly bland criticism that I have read of the Chemerinsky's amicus brief, critics do not dare to go deep enough into the dangers of a celebrated supposed legal scholar going amok with a result-oriented attempt to influence federal judges with claims that are incompetent albeit pushed by a team of attorneys,


Larry A. Hammond (who boasts in his advertisement his involvement in "high profile criminal defense cases while demonstrating in the amicus brief a lack of knowledge of the most basic principles of criminal law)

and Josh Bendor, 

both of whom have a long history of federal judicial clerkships, which takes away any excuses that their deliberate manipulation of the court with incompetent claims is anything but deliberate.

Some of the main claims by Chemerinsky and his attorney team of former federal judicial law clerks that I am going to review in separate blogs are (I will provide a basis why these claims are not well grounded in law, fact or precedent in separate blogs):

• That proceedings against Joe Arpaio where the President granted his pardon were not criminal proceedings;
• That the notion of "criminal offense" does not equal a "misdemeanor" or a "felony";
• That federal courts must provide a remedy in each case where a public official violates people's constitutional rights;
• That there is no such thing as federal common law;
• That interpretation of Old English common law going back to the 13th century is not only a valid source for interpretation of the U.S. Constitutien, but should apparently take precedence over the text of the U.S. Constitution and its legislative history;
• that THIS presidential pardon (somehow apart from all others) is unconstitutional because it encroaches upon judicial independence (even though such a mode of "encroachment" is written into the text of the U.S. Constitution all judges, Sheriff Arpaio, President Trump, Dean Chemerinsky and his two attorneys have sworn to uphold).

Nevertheless, such supposedly "expert" legal blogs as Above the Law cited to the brief as if it is Gospel, and blasted - no, not Chemerinsky for incompetence and attempt to influence the court with his gibberish, no, of course, not - Trump again.

The use of presidential pardon is now unconstitutional, says Chemerinsky, seconded by Above the Law, for the main three reasons, here they are:

I will start posting analysis of each of these issues today.  Stay tuned.

To give a free attorney with one hand, and to take him away with the other - now in death penatly cases, too

I wrote on this blog that caps on attorney fees for assigned appellate attorneys for the poor, practiced by New York appellate courts, is unconstitutional.

Often, at the $75 an hour rate and the $4400 cap, and a case with an extensive records - pretrial motions, transcripts of pretrial hearings, transcripts of the trial - an attorney exhausts the allowed limit of compensation after $58.66 hours of work, which is just 8 full working days for an attorney, while work on an appeal can take MONTHS, see, voucher forms from the New York State Appellate Division 3rd Judicial Department for compensation of assigned attorneys in criminal defense and Family Court cases.

Here is a voucher form for criminal cases:

The voucher form has a "note" that "The limit of compensation without showing an extraordinary circumstances is $4,400.  Claims for payment above the statutory cap must be accompanied by an affidavit in support of the excess fee claim".  I supplied once such an affidavit, showing an extraordinarily long record I was supposed to read, and, since the record was so large, an extraordinary fee I paid out of my own pocket for the required number of copies to reproduce it - the court only compensated 1/5 of what I paid out of pocket.  So, next time an attorney who would be so burned, would not opt for a "full record" option, but would go with an "Appendix" option which allows the court to skip its review by reviewing only a certain pages from the record, but not the entire record.

Judges of this court are not dummies, and they do realize when creating such a cap that any criminal case that made it to the appellate level will have a record that requires more than 8 days of work for an attorney to create a proper appeal, so with this voucher form and policy this court incentivizes (1) dishonesty in attorneys - since an attorney must claim he or she has read the full record to base the appeal on it, which is, if not paid, most often assigned attorneys simply do not do, and (2) poor work on behalf of the poor.

It goes without saying that this amount does not even come close to compensating an attorney's time for WestLaw research, which can cost up to $3400 an hour (!), and I do not mean that the attorney will charge that fee, but it will be an out-of-pocket expense of the attorney to pay in order to do proper research for a client in an assigned case, with a hope of compensation from the court in the future, when the appeal goes through and is decided, which will usually take months.

Not only the court system forces attorneys to finance the court system by not paying attorneys interest on fees generated, but not paid for for months, but attorneys are supposed to pay out of pocket, and provide diligent representation, where such diligent representation REQUIRES costly research - which the attorney knows will never be compensated.


So, assigned appellate attorneys are vigorously encouraged in New York to provide substandard representation for the poor, where, in a private appeal, an attorney will have full and often advance compensation from a client (through a retainer and advances as the work proceeds) for all necessary expenses AND attorney's own work.

Discriminatory compensation rules are no different in assigned cases in Family Court than in criminal court.


Here is a voucher form for civil cases:

The same "note" at the bottom.

As I said above, an attorney may exhaust the compensation cap by just be reading the record, noting the issues and before he even begins researching them, or through just a couple of hours of research, which is inadequate for a serious criminal or Family Court appeal, almost always fraught with multiple complex constitutional issues. 

As a result, there arises a huge conflict of interest for attorneys - to do their job properly, and then lose time (and opportunity to earn money in other cases, while having their own bills to pay and their own families to support) and do unpaid work for their clients, because the case requires more than the cap pays for - or to pretend you did your job, knowing that it is unlikely the higher appellate court will reverse on ineffective assistance of counsel issue if an appellate attorney will put in just some appellate brief, whether properly articulating all necessary issues the record raises or not.

Apparently, this problem has been brewing not only in New York State.

Recently, an appellate attorney in Utah asked to allow him to withdraw from a DEATH PENALTY case, because the appellate court capped compensation in that death penalty case.

In other words, like in New York, much of the work required by the death penalty case in question would have been unpaid work, and the attorney could not afford it, since he had to support his own family, naturally.

Of course, the press disrespectfully claimed "lamenting" the legitimate claim of the attorney that a huge conflict of interest arises when an attorney must pick whether he can properly represent his client, but then go unpaid - in a case where he is supposed to be FULLY paid by the government for his work as a constitutionally required counsel for his condemned client.

We are not talking about a greedy attorney not wanting to do his job.

We are talking about, potentially, hours, days, weeks, possibly, months of unpaid work.

Nobody should be required to do that.

13th Amendment prohibits slavery in this country, and that equally applies to attorneys.

And, if counsel is constitutionally required in certain cases, they must be FULLY paid for their jobs.

Anything else, any situation where a financial incentive is created for an attorney for the poor to do less to avoid being forced to work for free, is unconstitutional deprivation of counsel of the poor.

Which is happening all over the country for decades as we speak, and I do not see any demonstrations in the streets about it.

Of course, demonstrating to fell a statute that was not a bother for over a hundred years is more fun and will gain more political capital than protecting constitutional rights of the poor. 

New York to parents: prepare for your children's education to be screwed. New York cancels a reading test for teachers and by dropping certification scores. A question from a taxpayer and a parent: why do we need teacher certification at all?

New York State continues to "excel".

It is the state

• stifling property owners and taxpayers with taxes,
• vouching for sanctuary cities for illegal immigrants whose children those same property owners must educate at their own expense against their will (because public schools in New York State are financed by property taxes), 
• having the most expensive public education in the country while not providing the best public education.

It is also the state from where people run to other states - run from rampant government corruption and run from those same stifling taxes, "voting with their feet".

And, with all the claims of innovation in New York, the state has reportedly fallen behind a number of other states in creation of new millionaires (people who contribute heavily to the state's economy through taxes, creating jobs and spending), meaning that there are not so many opportunities (other than corruption, which does not produce public wealth) to earn big money in the state.

This state that, this year, canceled a reading test for teachers - for real, this is not a joke!  Because subjecting teachers who are supposed not only to KNOW how to read, but to TEACH it to our children, is supposedly "discriminatory to minorities" who want to become teachers.

Now, New York went even further than that.

It is dramatically cutting passing standards on teacher certification exam, in order to be able to hire the 180,000 teachers to cover the current shortage in New York public schools.

That is happening also at the background that New York vigorously pursues, and even sues, to preserve its supposed "right" to not report illegal immigrants to authorities. 

As recently as yesterday, NYS Governor signed an executive order barring New York State police and state agencies from even asking about people's immigration status.

At the very same time, Cuomo created a special police force to fight "Central American gangs" in public schools in New York City where teachers are intimidated by such gangs.

Of course, there are a lot of comments on social media that Cuomo was not right to do that, that he should not be "policing our youth", but should instead be "speaking to the immigrant community" and trying to fight gangs in schools through pleas.

So, teachers who parents are going to be getting (and paying for as taxpayers), as a result:

• will not be properly tested even in how they READ - not to offend their tender sensibilities;
• will not be required to pass as rigorous a testing as those who taught the previous generations of New York children - in order to cover a teacher shortage (I guess, if there is a shortage, you hire whoever, in order to cover it, and the quality be damned);
• and will not be allowed to report illegal aliens in their schools,
• will continue to be intimidated by gangs that now require already a separate police force to be addressed - so tell me, who in their right mind will go teach in such schools.

And, a federal judge just decreed that we, the federal taxpayers, MUST finance this beautiful arrangement through federal money, wherever in the U.S. we are.

So, parents in New York, rejoice, a large flock of low quality teachers are coming into the public school in your area - who may not be able to read, may not be able to pass the certification exam that the previous teachers were passing, and is so desperate to get any job that he/she does not mind teaching in a war zone where gangs run amok.

And a judge just ruled that you, the parents and taxpayers, and we, the federal taxpayers, are stuck with paying for it.

The mercenary tell-all of Judge Posner and the silence of the "legal experts" about Posner's decades of misconduct, to the detriment of thousands of appellate litigants

Recently, a famous federal appellate #JudgeRichardPosner - famous for his proliferant writing and appearances outside the court for a number of decades - have published a book.

Of course, the question is, how a 78-old judge with a large caseload had the time to put together yet another book (he has published many while "serving" as a judge, begging the same question - where did he get the time?).

Writing a book is not a walk in the park, it is a full-time job.  Judge Posner somehow had many books published.  I already discussed on this blog the BIG public issue of where judges who publish books, teach outside the courtroom and make trips all over the country during business time of the court, get time to do that.

There is no question that such behavior takes away from their work as judges, the quality of opinions which they produce.

As to judges of federal appellate courts, which all developed a "policy" of reviewing only a small number of cases with full opinions, and to issue only summary orders for nearly 100% of pro se litigants, with no proper review, analysis and resolution of issues, BECAUSE the court is very busy and cannot use its precious time equally for all appellants, it becomes even a bigger issue.

Judge Posner was a federal appellate judge for 36 years, since December 1, 1981.

As Judge Posner confirms in his new book, he had authored plenty of article, "blog posts", and full-blown books while working as a judge:

"...my intellectual activity was never limited to the court; in my lifetime I have authored or coauthored not only many books but also countless articles and blog postings; and though many of the books and articles and blogs preceded my becoming a judge, a large number of them have been written and published since my appointment."

Posner, Richard. Reforming the Federal Judiciary: My Former Court Needs to Overhaul Its Staff Attorney Program and Begin Televising Its Oral Arguments (Kindle Locations 186-188). Kindle Edition.

And that is an understatement of the century.

Books published by Judge Posner are listed on Amazon on 12 pages - only lists of books.

Now, I do not doubt that Judge Posner is a very talented lecturer, teacher and scholar.

But, what I as a taxpayer and member of the public, am appalled about is that Judge Posner considered it possible to take enough time out of his full-time job as a judge to write that 12 pages of lists of books, to teach in all those schools (brilliantly, I do not doubt), to travel across the country, to make those interviews to the press and the media.

He had a full-time job as a judge on a court reviewing death penalty cases, and cases of constitutional violations by the government, his court, as other federal courts, repeatedly claimed to the U.S. Congress and the American public being overloaded and understaffed.

Yet, at the very same time,

• he found enough time to write books, lecture, travel the country during his court's business time, and
• his court unlawfully reduced appellate review of practically all pro se civil rights appeals, to summary orders -

when Posner was a judge of that court, and when Posner was the Chief Judge of that court, setting up the court's policies.

If judges do not have enough time to treat equally all of appellants who pay equal filing fees and have an equal right to a full review of their appeals, not a negligent fly-over-the-roof review, if any at all, through a summary order, like described in this law review article,

where do the same judges find time (for their own entertainment and financial gain), like Judge Posner did, to write books, teach for a fee, participate in various societies,

speak for a fee or travel to speak for free, but have his/her expenses paid + entertainment and lavish wining and dining?

It does not look like a little bit of corruption, it is corruption.

And Judge Posner was part of that corrupt setup for a very long time, doing NOTHING to change it.

So, why would now the 78-old judge who was appointed for life, would retire instead of (like practically all federal judges do) "assume senior status" and pretend he authors opinion when his law clerks do that for him, until he drops dead or until the court can no longer conceal that a certain judge has completely lost his mind to dementia?

Why would Judge Posner only now become this revolutionary and rubble-rouser and claim that the U.S. Court of Appeals for the 7th Circuit discriminates against pro se litigants and "does not give them a fair shake"?

Like, he did not know it before?

Like, he did not PARTICIPATE in the discrimination before, and did not create, enforce and perpetuate this discrimination?

Oh, no.

Apparently, first, Judge Posner had a piss-off battle, some kind of a grudge with his colleagues on the court, and at 78, apparently decided that a federal pension + book royalties and speech engagements/teaching fees will be enough for him in his "sunset years".

Second, Judge Posner retired with a door-slam for a distinct financial reason - to sell his new book.  I bet it will be selling well now.

Of course, it is too little too late for Judge Posner to persuade the public that he truly cares about that same discrimination - because, if he does, and he knew about it for years while being on that court, he should have gone public about it while still there, while still being able to make a difference about it through court decisions, while voicing dissent about tossing appeals of pro se litigants through summary orders.

There is no question that there is a silver lining in Judge Posner's self-serving door-bang retirement jest:

• he is a public figure of a caliber and renown who cannot be easily smeared by the court system for his criticism of the system's flaws;  
• the discrimination against pro se litigants in state and federal courts, and in federal appellate court specifically, does exist, and public attention was drawn to it by Judge Posner, no matter how late and for what self-serving reasons.

But, let me ask a question - a rhetorical question.

What would Judge Posner do if, when he is still on the bench, an attorney practicing in "his" court would publicly raise the question of "his" court's discrimination against pro se litigants, and listing Judge Posner as one of the judges who are practicing that discrimination (which would be correct)?

I have no doubt in my mind that such an attorney would be severely disciplined and would likely lose his/her law license and livelihood.

As it is happening from time to time, with increasing frequency, around the country.

Because in our day and age only a well-renowned judge, and only on the doorstep of his retirement, can tell the truth about discrimination in our courts.

And only to sell a book.

That are my thoughts on the timing of Judge Posner's "revolutionary" retirement.

As to the contents of the book, I will publish a full review of the book later.

Stay tuned.

And actually, the best accuser against Judge Posner here is - Judge Posner:

So, for 35 years, this judge created, promoted, perpetuated and financially gained from the discrimination against pro se litigants as a matter of policy, including in a position of Chief Judge of his court who could do away with that discrimination, as a matter of policy and rule of court, in one pen strike.

And 6 months ago he somehow "awoke from a slumber of 35 years" and "wanted to do something about it".

Like - sell a book, for $11.99 in paperback, or for whatever dribbles in royalties from KindleUnlimited sales.

So, for the public, and for the "legal experts" who are salivating over the supposed brilliancy of Judge Posner while having no courage to address his screaming misconduct over the years - this judge deserves only one "badge":  shameless.

Is it proper for a judge to decide an appeal from his own decision? And - is it misconduct for an attorney to concede points that would derail appeal of her own client, in order not to hurt feelings of a law school classmate-judge before whom she is practicing?

I wrote on this blog previously about #judgeRobertMulvey who first assigned judges to my husband's case in the court below, claimed in federal court, in order to obtain judicial immunity, that he acted when assigning such judges in his judicial capacity, and then was conveniently promoted to the Appellate Division right after my husband has filed the appeal from that decision, and dismissed that appeal as an appellate judge on fabricated grounds.

To me, that was no question that it was unlawful for a judge to decide on appeal a case where he acted in his judicial capacity in the court below.

Apparently, Judge Mulvey is not alone in doing what he did.

A case has been argued on September 6, 2017 in the highest court of the State of New York - New York State Court of Appeals, whether it was a violation of due process for a judge not to recuse himself from reviewing an appeal from a judgment of criminal conviction that the same judge made as a trial judge.

In other words, the same judge was the trial judge in a non-jury trial in a criminal case, and the appellate judge from his own decision at the trial level.

Here is the digest of the case published by the New York State Court of Appeals.

The appellate defense #attorneyDanielleNeroniReilly argued that failure of the trial judge to recuse from reviewing the appeal from his own decision is a violation of due process.

She referred to a federal statute, 28 U.S.C. 47, enacted by the US Congress in 1948, nearly 70 years ago, which says:

"No judge shall hear or determine an appeal from the decision of a case or issue tried by him."

Apparently, the U.S. Congress enacted that statute based on due process concerns involved when a judge would review criticism of his own decision at the trial level.

The U.S. Congress, 70 years ago, considered that the possibility of bias in such a situation is impermissible.

Yet, in New York there are no such prohibitions by statute - even there should be, as a matter of federal constitutional due process of law, which is what is argued in People v Novak.

The case was already orally argued, and a decision is pending.

It is a great victory for the defense attorney that she even got the case before the Court of Appeals that casually rejects cases with "insubstantial constitutional questions", even though the New York State Constitution and a specific New York State statute mandates acceptance of all constitutional question cases for review.

A close-to-retirement (and now retired) judge of the court actually argued, in a vigorous dissent, that what the court is doing in rejecting constitutional question cases is not proper or legal.

==

NEW YORK COURT OF APPEALS

2010 NY Int. 24

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This opinion is uncorrected and subject to revision before publication in the Official Reports.

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2010 NY Slip Op 01349

Decided on February 16, 2010

SSD 4

In the Matter of Alan Kachalsky, Appellant,

v

Susan Cacace, & c., Respondent.

Decided February 16, 2010:

Appeal dismissed without costs, by the Court sua sponte,

upon the ground that no substantial

constitutional question is directly

involved. Chief Judge Lippman and

Judges Ciparick, Graffeo, Read,

Pigott and Jones concur. Judge

Smith dissents and votes to retain

jurisdiction in an opinion.

SMITH, J. (dissenting):

I dissent because I think the dismissal of this appeal exemplifies an amorphous definition of "substantial constitutional question" that is at odds with CPLR 5601 (b) (1) and the New York Constitution.

Article 6, § 3 (b) (1) of the New York Constitution says that appeals to this Court may be taken in civil cases and proceedings:

"As of right, from a judgment or order entered upon the decision of an appellate division of the supreme court which finally determines an action or special proceeding wherein is directly involved the construction of the constitution of the state or of the United States .

. . ."

CPLR 5601 (b) tracks the constitution:

"Constitutional grounds. An appeal may be taken to the court of appeals as of right:

"1. from an order of the appellate division which finally determines an action where there is directly involved the construction of the constitution of the state or of the United States . . . ."

Neither the constitution nor the statute says that the constitutional question involved must be "substantial," but we have interpreted them to mean that. And the interpretation makes sense, if "substantial" is taken literally. The authors of the constitution and the statute surely did not intend to burden our Court with appeals as of right based on questions that are without substance, i.e., frivolous. As Karger points out, the substantiality requirement "is an obviously necessary safeguard against abuse of the right to appeal on constitutional questions, for otherwise the right to appeal would turn on the ingenuity of counsel in advancing arguments on constitutional issues, howsoever fanciful they might be" (Karger, Powers of the New York Court of Appeals § 7:5, at 226 [3d ed rev]).

But we have at times followed the practice — one in which, I confess, I have joined — of giving "substantial" a much more flexible meaning, so flexible that it confers on us, in effect, discretion comparable to that we have in deciding whether to grant permission to appeal under CPLR 5602. I am convinced that this practice is inconsistent with both the constitutional provision and the statute implementing it.

This case illustrates the point. Petitioner's argument, rejected by the courts below, is that Penal Law § 400.00 (2) (f), which requires "proper cause" for the issuance of a license to carry a concealed pistol or revolver, violates the Second Amendment to the United States Constitution. Two constitutional questions are directly involved: (1) whether the Second Amendment limits the powers of the states, as well as of the federal government; and (2) whether a prohibition on carrying concealed weapons without a showing of proper cause is consistent with the Second Amendment . I make no comment on the merits of either issue, except to say that neither is insubstantial. The first is of such great substance, and current importance, that the Supreme Court has granted certiorari to consider it (McDonald v City of Chicago, __US__, 130 S Ct 48 [2009]). The second issue, in light of District of Columbia v Heller (__US__, 128 S Ct 2783 [2008]), unquestionably presents fair ground for litigation. On neither issue could petitioner's case, by any remote stretch, be called frivolous or fanciful.

There is, I recognize, a perfectly reasonable argument that, if we had discretion about whether to take up these issues now, we should choose not to do so; it might make sense to wait to see how the Supreme Court decides McDonald.

I would not quarrel with that exercise of discretion, if I thought the discretion existed. I think, however, that petitioner has a constitutional right to have us hear this appeal, and that's all there is to it.

==

The mere fact that the New York State Court of Appeals, the court that rejects nearly all constitutional question as of right appeals, and especially those pertaining to recusal of judges, as a matter of their own (illegal) policy, even took this case, means that the court did accept that there is at least a POTENTIAL constitutional question in the case.

Yet, at least from what I can see reported in New York State Journal, judges of the New York State Court of Appeals tried to water down the importance of the federal constitutional question by confronting the appellate attorney with a question which the attorney - judging by her answer - perceived as threatening to herself and started to hedge, which, in my opinion, hurt her position.

As New York State Law Journal reports, 

"Associate Judge of the Court of Appeals Jenny Rivera asked Reilly, who has her own law office in Albany, if her argument on Sypniewski not recusing himself was based on the appearance of bias, or based on actual bias."

The question, while not illegitimate, was threatening, if you take into consideration that that particular attorney's father and stepmother's law licenses were revoked for criticism of judges in court - whatever the official reasons were given in the actual orders of disbarment of her father and suspension of her stepmother. 

And, it is a matter of public record that the same Judge Jenny Rivera participated in twice-rejecting the constitutional question appeal of the stepmother as to: whether it was a 1st Amendment and due process violation for a judge to be allowed to punish an attorney for the contents of a motion to recuse, and for the disciplinary authorities to allow to pull the attorney's law license without a hearing because of such a vengeful sanction.

So, it is the law in New York that your law license may be pulled because you legitimately make a motion to recuse a judge, the judge will then sanctions you in revenge, and that's it, no further hearings, your law license will be pulled just like that.

And, presumably knowing the law of attorney discipline as to criticism of judges, attorney Reilly, a mother of young children, answered that question, a question of intimidation to any attorney in New York.

A non-intimidated attorney would answer this question - BOTH.

BOTH appearance of impropriety AND the potential for actual bias are a concern when a trial judge reviews his own trial decision on appeal - because the litigant cannot get into the head of the judge who would be deciding an appeal (and thus criticism) of his own decision in the court below, but, knowing "human frailties", may legitimately suspect that the judge would not like criticism of his own decision and will affirm his own decision simply because he is partial to himself.

Yet, by giving such an honest answer, an attorney can subject herself to the potential ostracism in court by the same supposedly "fair" judge, before whom she, no doubt, continues to practice - so an attorney under such circumstances may have a personal reason to hedge.

Accusing a judge of actual bias in New York, even on good record and with good grounds, has become a suspension offense, and the attorney knew it, based on what happened to two of her own family members.

So, she hedged and answered this:

"Appearance of impropriety."

Now that would have been enough of an answer to that question.

But, the attorney who has young children to support, was apparently intimidated by the question and did not want to part with her career by even having a shadow of a doubt that she may accuse a judge of actual bias or even imply it, so she went on.

"Judge Sypniewski is a fair judge through and through. There's no indication that he had an actual bias in this case," Reilly said. "But that's not what I'm asking the court to determine. I think the court has to determine that Brian Novak went before [Sypniewski] and then had basically no appellate review because no one was there to review his decision on the law."
Now, why an attorney would say "Judge Sypniewski is a fair judge through and through. There's no indication that he had an actual bias in this case" while contending that appellate review by that same Judge Sypniewski amounted to now appellate review at all - specifically because of a potential of bias in such a case?

And why should an attorney, while putting in a question of LEGAL THEORY, whether a judge MAY, as a matter of due process of law, be allowed to review an appeal from his own decision, consider it necessary to shoot her own argument in the foot (to the detriment of her client) by claiming that:

1. she actually knows that particular judge; and
2. that she actually knows that particular judge to be "fair through and through".

If the judge is fair through and through, there is no point bringing an appeal, because there would be no potential for bias, and the client should simply accept his fate.

An attorney is the official voice in court of his client, so it was not Danielle Neroni Reilly, but it was Brian Novak who told the court that HE accepts that Judge Sypniewski is "fair through and through".  Nothing like selling your client out, to save yourself.

And, the question is whether the client allowed attorney Reilly to concede these significant points on the appeal, that the judge whose decision to (1) decide an appeal from his own judgment; and (2) decide it (surprise, surprise!) by affirming his own judgment against the defendant had no indication of actual bias, and that the judge was "fair through and through".

I highly doubt that any client would knowingly shoot his own appeal that he paid for in the foot this way.

Yet, that statement of Novak's attorney renders his appeal, in my opinion, frivolous - since he is appealing a decision of an admittedly fair judge who was admittedly fair to him in that particular case.  Let's see whether the Court of Appeals would use that sellout admission against Brian Novak - I am sure they will.

My question on reading the article about this oral argument was - why?

Why take this case if you do not have the courage to argue it the way it has to be argued?

Why not anticipate this question and hedge when it was asked?

After having the courage of bringing this case all the way through to the Court of Appeals, why hanker down and defeat your own argument - that a situation where a judge decides an appeal from his own judgment is fraught with  a great, impermissibly dangerous potential of ACTUAL BIAS?

Anyway, the case is in, it has been argued, and we are now waiting for the decision of the New York State Court of Appeals.

It is time for New York to emerge out of the cave and admit that a person must not "sit in judgment of himself" and to evaluate propriety of his own decisions.

The U.S. Congress has decided the same thing, as attorney Reilly correctly mentioned in her argument, in 28 U.S.C. 47, and that statute has been enacted long time ago.

And, while the New York State Court of Appeals may still continue to wiggle (as Judge Jenny Rivera did with her intimidating question) around the constitutional question and claim that it is "merely" a question whether there was an "appearance of impropriety" -

especially since the defendant conceded through his attorney that the judge was "fair through and through", and, even more so, that "there is no indication that [the judge] had actual bias in this case" -

other that the judge taking his own decision and affirming it, that is 

- the question remains, and is actually broader than posed in this particular case: may judges, as a matter of due process, be allowed to review and make decisions on criticisms of themselves, decisions involving people's lives and livelihoods - whether the criticism was in a motion to recuse, or in an appeal from the judge's own decision.

This question must be rhetorical.

Yet, unfortunately, it is not in New York.

One more question that the prosecution in this case raised - and decision of which has important consequences for litigants in New York in both civil and criminal cases - may a judge review motions to vacate the judge's own decisions.

In my case, I was sanctioned by the judge for making a motion both to vacate his prior decision and to recuse from consideration of such a motion because of the judge's bias and prior misconduct in that same case.

Here is what prosecution in People v Novak argued, according to the New York State Court of Appeals' digest of the case:

Of course, it is disingenuous for the prosecution to argue that

"[j]udges deciding post-conviction 440 motions of their own verdicts at trial is common practice that goes uncontested".

First of all, "goes uncontested" is an unjustified generalization which is not true in every case, such motions may still be made.

Second, if such "common practice" does go uncontested, the prosecution must know what the law in New York is in making motions to recuse a judge - even in criminal cases, considering the fate of criminal defense attorney John Aretakis who was

• suspended for making a motion to recuse a judge in a criminal case,
• where the disciplining court (which was also an appellate court in a criminal case) actually taught the judge at the trial level how to sanction him correctly so that the sanction would stick:

"In 2005, Christian F. Hummel, Acting County Judge of Rensselaer County, sanctioned respondent for his frivolous conduct in making a recusal motion in a criminal matter.

Judge Hummel found that respondent had made reckless and unsubstantiated charges that the Judge had participated in a criminal conspiracy to predetermine cases, had committed federal mail fraud, had regularly engaged in impermissible ex parte communications, and had engaged in a conspiracy to tamper with court files.

On appeal, this Court found that any such sanctions should have been imposed under Judiciary Law §§ 750 and 751 rather than 22 NYCRR 130-1.1 (People v Allen, 34 AD3d 1044 [2006]).

Upon remittal, Judge Hummel held a hearing, found respondent in contempt of court pursuant to Judiciary Law § 750 and imposed the maximum allowable fine (see Judiciary Law § 751 [1])."

So, here is the timeline of John Aretakis case:

1. The attorney makes a motion to recuse a judge from a criminal case, on the following grounds:
1. criminal conspiracy to predetermine cases;
2. committing federal mail fraud;
3. regularly engaging in impermissible ex parte communications;
4. engaging in a conspiracy to tamper with court files
2. The judge who was accused of all those illegal activities, sat in judgment of the motion to recuse, refused to recuse, and sanctioned the attorney who dared to confront the judge with such a criticism, for "frivolous conduct". 
3. Of course, the rules of criminal conduct do not apply in criminal proceedings, so the sanction was illegitimate.  But, the Appellate Division (which is also the one-stop no-appeal disciplinary court for attorneys in that jurisdiction) did not restrict itself to ruling on appeal - that the Appellant was correct, that the judge was incorrect, and that sanctions were reversed.  No.  The Appellate Division went outside of its limited authority on appeal and actually TAUGHT the judge in question that, if he wants to sanction the attorney, he needs to do it under Judiciary Law 750 and 751 and, instead of reversing and dismissing the sanctions and calling it a day, returned the case to the court after they taught the judge who was offended by a motion to recuse how to act as a judge, jury, prosecutor and unsworn witness in the same case in sanctioning the attorney "properly" for making that motion to recuse.  The "heroes" who decided that case were:  judges Crew III, Mugglin, Lahtinen and Kane.  Judges in New York, by New York State Constitution, are prohibited to practice law.  Giving legal advice to a judge on an issue that is irrelevant to an appeal whether it was legitimate to sanction attorney Aretakis for frivolous conduct, was illegal for judges Crew III, Mugglin, Lahtinen and Kane.  But, judges Rose, Lahtinen, Kane, Kavanagh and Stein did not consider it a constitutional problem for his disciplinary case, and accepted the illegal sanctions as legitimate, and as not entitling attorney Aretakis to even a hearing before his law license and livelihood was suspended.  Of course, judges Lahtinen and Kane would not criticize judges Lahtinen and Kane for their own illegal activities - same as judge #MatthewSypniewski in People v Novak would change his mind as to validity of his own verdict of conviction (and you need to have a lobotomy to believe that actual bias was not involved here).  Note that part of the panel unlawfully yanking the license of criminal defense attorney John Aretakis for making a motion to recuse a judge was Judge Leslie Stein whose ascension to the New York State Court of Appeals was a quid pro quo by the corrupt NYS Governor Andrew Cuomo for her decision on an important case in favor of Cuomo's subordinate DEC Commissioner as a response to Cuomo's nomination of Leslie Stein to the Court of Appeals, will be one of the panel of judges in deciding People v Novak as to propriety of a judge to be allowed to punish a litigant who dared to appeal the judge's decision.  Judge Stein is apparently the best expert on the particular topic of punishing litigants for criticism of judges, so we should not hold our collective breaths as to what her decision is going to be in People v Novak.  And, attorney Reilly was arguing in front of Judge Stein, who took away livelihood of attorney Aretakis because he dared to claim actual bias and misconduct of a criminal trial judge - thus, apparently, attorney Reilly hedged and, instead of recognizing that actual bias may have been involved, shot her client's case in the foot and conceded on behalf of her client that (1) the judge was "fair through and through" in general, and (2) there is no indication of the judge being biased in this particular case.

Once again, the prosecution was making the point that  

"[j]udges deciding post-conviction 440 motions of their own verdicts at trial is common practice that goes uncontested".

To me, that is the same, no offense, as claiming that the victim of rape did not fight back because she was afraid that the rapist will kill her if she does.

Unfortunately, the rapist in this case is the court system.

And, by the way, the supposed personal knowledge by the attorney of #JudgeMatthewSypniewski,

that he is supposedly "fair through and through", was unsworn testimony of the defense attorney outside of the record - which should have been stricken off the record, but, I am sure, will never be, and will be used against the client.

Attorney Reilly does, in fact, know Judge Sypniewski, and knows him very well.

Judge Sypniewski was likely Attorney Reilly's law school classmate - they went to the same law school and were admitted to practice law in the same year, 2002.

And, Judge Sypniewski was a prosecutor in Schenectady County while Danielle Neroni Reilly was a prosecutor in Rensellaer County, and, attorney Reilly likely knew and possibly interacted with prosecutor Sypniewski in their mutual professional capacities as prosecutors.

So, of course, attorney Reilly would not want to overturn her own apple cart by criticizing, for even potential of actual bias, her former law school classmate and colleague, now a judge of a powerful criminal County Court who can make or break her career as a criminal defense attorney - and as an attorney of any kind.

Which brings me to the question - why did attorney Reilly even take the case at all if she was not prepared to argue the POTENTIAL of ACTUAL BIAS, as the legal argument in a case invoking as a parallel 28 U.S.C. 47 required?  If she knew she is not prepared , likely for multiple personal reasons, to hurt the feelings of her former law school classmate and former prosecutorial colleague, was not prepared to fully raise the issue of the constitutionally impermissibly dangerous possibility of actual bias when a trial judge reviews his own decision in a criminal case on appeal?

Why?

Was it just the money?

As to the supposed "fairness" of any judge to review an appeal from his own decision.  

Imagine that your trial attorney does an appeal from your conviction.

What will be the incentive of a trial attorney to shoot himself in the foot and raise the issue of his own ineffective assistance of counsel that has led to your conviction.

Similarly, if a judge whose career advancement and/or reelection and additional perks to his judicial career (speaking offers, teaching offers, overseas travel offers) depend on his squeaky clean reputation, where the less reversals are the better, how likely it will be that the judge will shoot himself in the foot, calmly and dispassionately review arguments against himself - possibly, raising issues of judicial bias and misconduct - and reverses himself?

There was such a chance to make a difference in a lot of people's lives by presenting and handling this case properly.

Regrettably, that chance was blown.