THE EVOLUTION OF JUDICIAL TYRANNY IN THE UNITED STATES:
"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).
“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 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, dissenting.
" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.
"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.
“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.
Friday, March 14, 2014
The secret judges in the state of New York
There is a corps of the so-called "judicial hearing officers" whose names are not published by the New York State Court Administration.
Existence of such judicial hearing officers is defined not by a statute introduced by the Legislature, and not by the New York State Constitution. It is defined by the court system itself through their own regulation, 22 NYCRR 122.
The names of judicial hearing officers appointed under 22 NYCRR 122 are not known to the public, unless members of the public want to engage in a battle with the Office of New York State Court administration and spend money on copies of public records, as well as months on correspondence with NYS OCA's counsel who will reject any general FOIL requests as to the entire court system and will refuse to provide a list of judicial hearing officers currently serving in the State of New York, claiming that no such list exists as a public record.
It is a good trick for the NYS OCA not to create this list, and then to reject FOIL requests on this basis, while at the same time not publishing the names of such judicial hearing officers directly on the websites of courts where they serve, along with the names of judges and in the statewide judicial directory.
Yet, there might be great significance in knowing the names of such judicial hearing officers.
Such judicial hearing officers, as I learnt accidentally through a broadly cast FOIL request, are retired judges who, as attorneys, may be law partners in law firms representing parties in the same courts where they have members of their law firm serving as judicial hearing officers.
Such services, according to 22 NYCRR 122 and rules of conduct for judges, represent a direct conflict of interest. Yet, neither you, nor your lawyer will know about it, because names of these judicial officers are not published along with the names of sitting elected judges of the courts where they are appointed to serve.
I raised this issue in a letter to the Appellate Division Third Judicial Department and to the New York State Court Administration.
My review of public records, and research on database Westlaw showed that Levene, Gouldin and Thompson continued to appear in front of Appellate Division Third Judicial Department while its law partner Eugene Peckham was serving as judicial hearing officer in that court. Rules of that same court do not allow a former judge to appear in that court for 2 years after the judge's retirement. In this case, the law firm of the court's own judicial hearing officer was appearing in front of the court at the same time as its law partner was serving as part of the court.
The Appellate Division 3rd Department never announced on its website that Eugene Peckham was its judicial hearing officer, nor does it announce the names of any other judicial hearing officers.
The Appellate Division 3rd Department refused to answer my inquiry as to the list of names of judicial hearing officers serving at the period of time when I was prosecuting or defending appeals in the court since 2009, in order to verify potential conflicts of interest.
Instead, the Committee for Professional Conduct which is appointed and supervised by the Appellate Division 3rd Judicial Department, commenced a disciplinary proceedings against me, accusing me of not appearing to depositions at the time when I was not even practicing law.
I do not know until this day whether any law firms which opposed me at any time on appeals in front of Appellate Division Third Department were disqualified because their law partners or associates were serving as judicial hearing officers of the court. The court is not forthcoming with this information and instead is trying to take my license and thus turn me into a disbarred attorney in order to reduce my credibility as a public advocate against official misconduct.
The public also must know that there is no age limitation for judicial officers under 22 NYCRR 122, even though the public of the state of New York just turned down a constitutional amendment to push the mandatory retirement age of judges to 80. Judicial hearing officers may perform the same duties as judges perform, without any age limitations, in complete defiance of the public vote at the referendum.
Therefore, the wishes of the sovereign clearly expressed in a referendum in November of 2013 in not allowing judges past 70 to serve are flaunted by the court system through court rules, over which the public has no direct control, and the public does not even get to know the names of their public servants who are serving at the public expense, and at a great public expense.
For example, attorney and retired judge Eugene Peckham was, according to NYS OCA answer to my FOIL request, appointed as a judicial hearing officer in 25 courts in the year 2012, including 4 courts each in 6 counties and the Appellate Division 3rd Judicial Department. Counties included Otsego, Delaware, Broome, Chenango and two other counties. Broome County is where Attorney Peckham's law office is and where majority of his work is done. Yet, I doubt that opponents of his law firm were made aware that he was judicial officer of the court in which his law firm was appearing. Yet, I firmly believe that litigants and attorneys who were opponents of the law firm of a judicial hearing officer serving in courts where his law firm appears, were entitled to at least know that information in order to make a decision whether to raise the issue of disqualification or not.
As a member of the public, I do not find the fact that the names of public servants who have the same authority as judges, is not made known to the public by publishing their names along with names of sitting judges.
As a member of the public, I do not find it acceptable that the NYS OCA disregards the public vote pertaining to age of judges and promulgates and continues to enforce rules of appointment of judicial hearing officers which have no age limitation.
I would presume that the public vote must mean something to the court administration.
There is still another issue of public concern pertaining to judicial hearing officers and attractiveness of this position to sitting judges who lose half of their pay at retirement.
Compensation for positions of judicial hearing officers are $300.00 per day, as defined by court rules. If a judicial hearing officer works 250 business days a year in only one court, he gets $75,000.00, more than doubling his pension. In fact, if a judicial hearing officer is assigned to 4 courts per county which are usually located in the same building (Surrogate's, Family, County and Supreme Courts), he can hold hearings in all four courts in one day, be paid for each court separately, and his pay per day may then become $1,200.00. Nothing in 22 NYCRR 122, as far as I can see, precludes charging $300.00 per day from each separate court. If a judicial hearing officer can make it the same day to a neighboring county, which is quite possible, and hold another set of hearings in the 4 courts of the neighboring county, his daily pay will become $2,400.00.
If such performance is multiplied by 250 business days a year, a single judicial hearing officer may potentially earn $600,000 on top of his pension and on top of earnings from his law practice, because judicial hearing officers are not prohibited to practice law, as sitting judges are , see New York Constitution, Article VI section 20(b)(4), 26(2), which is yet another area of concern.
New York Constitution, Article VI section 20(b)(4) specifically states the following:
"b. A judge of the court of appeals, justice of the supreme court, judge of the court of claims, judge of a county court, judge of the surrogate's court, judge of the family court or judge of a court for the city of New York established pursuant to section fifteen of this article who is elected or appointed after the effective date of this article may not:
(4) engage in the practice of law, act as an arbitrator, referee or compensated mediator in any action or proceeding or matter or engage in the conduct of any other profession or business which interferes with the performance of his or her judicial duties, " highlighting added.
The constitutional prohibition for sitting judges to practice law arises is motivated by the need to insulate a sitting judge from any influences upon a judge's judicial independence. A judge is elected by public vote and can only act on behalf of the People of the State of New York and not at the bidding of his paying clients. The same must be true for judicial hearing officers who are given the same authority as sitting judges to hear and determine issues in litigation.
When judicial hearing officers are, on the one hand, given the same authority as a sitting judge, but are not prohibited to practice law, as Eugene Peckham's case demonstrates, the potential of influence upon such judicial hearing officer is there, and , respectfully, such service by judicial hearing officer violates the legislative intent of New York State Constitution prohibiting sitting judges to practice law in order to protect both independence of their judicial decisions and public trust in the integrity of the judicial system.
At this time, what kind of integrity of the judicial system can we talk about when the judicial system hides the names of judicial hearing officers from the public who is paying an arm and a leg for such judicial officers? What kind of integrity can the judicial system claim when it allows judicial hearing officers to practice law in direct contradiction of the voter's will embodied in the New York State Constitution which prohibits judges to practice law and restricts their age of service to 70?
The numbers of compensation that judges can earn per day show how lucrative and coveted this position is and how much influence individuals who can approve or disapprove these appointments may be.
Of my particular concern is the fact that certain high-ranking judges who get to approve these perks, have relatives who are practicing attorneys appearing in courts, in front of sitting judges who are close to retirement and covet such post-retirement perks.
One of such judges in a position to recommend or not recommend a retired judge for such a perk is the Hon. Michael V. Coccoma, Chief Administrative Judge of upstate New York, see 22 NYCRR 122 as to the procedure of whose recommendations are required for such appointments.
Judge Coccoma is married to Ellen Coccoma.
Ellen Coccoma is, upon my personal knowledge, a practicing attorney, a special counsel in a large Binghamton law firm Hinman, Howard & Kattel and is also serving as Otsego County Attorney a full-time officer and employee of Otsego County. My husband actually owns property in Otsego County and pays property taxes on it. I wonder whether he also pays part Ms. Coccoma's salary and benefits for the time she works for a private law firm. I know of at least one court case where Ms. Coccoma appeared multiple times and for multiple hours daytime when , I am sure, she is supposed to work for Otsego County as its full time employee and officer.
When a judge who is close to retirement rules in favor of, let's say , Ellen Coccoma in my example, the wife of Judge Coccoma who gets to recommend that judge to a lucrative and extremely well-paying post-retirment perk, there is no assurance to me as an attorney or member of the public that the decision the judge has made was not influenced by his aspiration to garner a favor of Ellen Coccoma's husband in order to secure the lucrative position of a judicial hearing officer in the future.
Such concern would not have existed if relatives of individuals who get to decide on judge's post-retirement perks would be prohibited to practice law, at least before judges who are close to retirement age.
Moreover, a judicial hearing officer may be similarly influenced to rule for attorney Ellen Coccoma, because if he doesn't he simply might not be reappointed and lose his perk.
Since Ellen Coccoma was taken in as a "special counsel" by a huge law firm, the appearance of favors flowing to Ellen Coccoma are flowing to the entire law firm and all of its clients.
In other words, any time any judge close to the age of 70 rules in favor of Hinman, Howard & Kattel, there are questions whether such rulings were influenced by considerations of appeasing Ellen Coccoma's husband the Hon. Michael V. Coccoma with a view for the judge to get a lucrative post-retirement perk.
New York State Constitution sought to block potential influences upon judges by prohibiting them to practice law. Such constitutional intent, in my opinion, goes out the door where judges can be easily influenced through the lure of lucrative post-retirement perks.
To me, it is a serious issue of public concern that the public should know about.
I will appreciate input on these issues by the public.