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.
Thursday, March 13, 2014
Attorneys disciplined for criticism of the judiciary should unite in action
I appeal to such attorneys, or former attorneys for that matter, to unite in order to address the dangerous tendency of the government to immunize judicial misconduct while allowing judges to retaliate against attorneys for criticism.
I think that attorneys need to start to publicly assert their rights to independence of their profession from the judiciary. Independence of attorney status from government influence and pressure, especially for the criticism of the government, has become an international norm, which is somehow slow coming to the U.S. soil.
I am planning to actively advocate, through this blog, books that I plan to publish, appeals to state, federal and international authorities and to national and international public, advocating for independency of the legal profession, both from the side of provider of legal services, and from the side of potential consumer of such services.
I consider regulation of attorneys, and especially of civil rights advocates, such as myself, by the very government that the advocates may challenge in lawsuits and motions to recuse, in situations where an attorney is duty-bound to his client to raise issues of judicial misconduct in order to protect his client's constitutional right to a fair and impartial trial, a jeopardy to the American democracy.
My personal situation, undoubtedly, gave a trigger to my research on independence of the legal profession.
On June 27, 2011 I sued a judge because no other measures to bring his misconduct under control were helpful, and disciplinary authorities refused to address his misconduct which I and my clients witnessed and experienced over years and across many cases.
Immediately after I sued that judge, I was sanctioned by him 3 times in 3 different court cases within a month of the lawsuit, $1,250 on June 30, 2011, $1,250 on August 2, 2011 and $2,500 on August 10, 2011. My husband was then sanctioned by that same judge on November 17, 2011 in the amount of $10,000; $20,700 and $500, for the total of $31,200.00.
I sued in federal court for retaliation on December 19, 2011. The judge immediately responded with two more sanctions in two more other cases on January 2, 2012, for $2,500 each against my husband and myself as his attorney and $5,500 each against my husband and myself as his attorney.
The total of sanctions in these 6 cases against me and my husband is $52,200.00. No court is willing to see it as a pattern of retaliation, due to claimed jurisdictional restrictions of state and federal courts and the appellate division. Yet, the same appellate division will, no doubt, willingly provide the cross-case "totality of circumstances " review in order to punish me, while denying me the same type of review to finally acknowledge that the judge is engaged in retaliation against me and is bent to disbar me as a punishment for my lawsuit against him.
The state lawsuit was dismissed on the basis of judge-created self-serving doctrine judicial immunity for malicious and corrupt acts, without reaching the merits.
The federal lawsuit was dismissed also based on judicial immunity, as well as for sovereign immunity, Younger abstention and even on the basis of appellate Rooker-Feldman doctrine, even though sanctions were imposed by the judge after the state lawsuit was filed and could not possibly be part of its record for purposes of appellate review.
All of these doctrines are judge-created and, in my legal opinion, are unconstitutional because federal courts are not allowed to engaged in legislative activity and only U.S. Congress can define jurisdiction of federal courts within the meaning of the U.S. Constitution.
Appeals from sanctions were unsuccessful, because the appellate court lacks authority to review patters of misconduct across cases and restricted itself to "compartmentalized" review case by case. At least that is what was claimed by the appellate court, even though the same appellate court does go outside of the record on appeal if it helps my opponents. In my case, on the opposite, the appellate court not only refused to reach beyond the record on appeal and review the issue of the pattern of retaliation by the judge, but ignored a transcript where an attorney admits on record to an ex parte communication with the judge, and , in another case, ignored two motions in order to affirm sanctions against me.
At this time, I am facing disciplinary charges based exclusively on sanctions imposed on me by a judge right after I sued him.
It is important to mention that I followed all possible avenues to address the judge's misconduct through Commission of Judicial Conduct before I sued the judge as a point of last resort.
The Commission for Judicial Conduct rejected all of my well documented complaints without investigation, and in New York a complainant does not have standing to appeal the dismissal of her complaint, and does not get to see the results of the investigation, if any. Judging by the fact that the judge got himself assigned to all of my cases in 2011 and started humiliating me and my clients there even more than before, the judge has gotten that complaint where I asked the Commission to take the judge off the bench explaining that, based on my experience with the judge and on his conduct in several court cases, which I described in detail, the judge is a jeopardy to the public and undermines with his behavior public trust in the integrity of the judiciary and in the possibility of a fair administration of justice.
I do not hope for any justice in the disciplinary proceedings because I have found out through Freedom of Information Law request and through other open sources about multiple conflicts of interest both in the disciplinary court that is about to review my case, and in the Disciplinary Committee.
One current member of the court-appointed disciplinary board (18 out of 21 members of disciplinary board are unpaid attorneys in private practice) currently prosecutes a "slip and fall" lawsuit based on the episode that allegedly happened on my own and my husband's property at the time she prosecutes me for disciplinary violation.
Another member of the board who recently left the board, but who participated in investigation and initial prosecution, has an even "better" record.
That member of the board accepted as a law partner an attorney who was turned into the board for investigation and prosecution, instead of disbarring her, as the complainant publicly requested. The attorney in question is the spouse of one of New York's most high-ranking judges.
Moreover, the same recent attorney member's law firm engaged in representation of two attorneys who are defendants in a lawsuit for fraud and fraud upon the court brought by my husband, at the time when complaints by my husband, myself and, upon information and belief, from the New York State Attorney General against these two attorneys were pending in front of the disciplinary board while the attorney was still the member of the disciplinary board. The two attorneys in question was a retired supreme court judge and former chief judge of a large administrative district and his son.
Such representation continued while the attorney member whose firm represented people who were supposed to be investigated, instead investigated, prosecuted and disbarred my husband (the complainant about misconduct of the retired judge and his son), and commenced prosecution against me. My husband was disbarred with participation of that attorney member without a hearing, after 37 years of practice, based on "collateral estoppel" applied to non-final court order out of an action "coincidentally" handled by the retired judge and his son.
Apparently, membership in the disciplinary board affords a great opportunity to attorney members of such disciplinary board to show loyalty not only to the judiciary as a branch of the government, but to its individual members, including retired judges and members of their families, by picking and choosing whom to prosecute and whom to instead protect from prosecution by disbarring and prosecuting their critics and by embracing investigated attorneys who are members of judges' families as law partners. I doubt that such behavior adds to public confidence in the integrity of the judiciary or the legal profession.
Pointing out conflicts of interest to the Committee falls on deaf ears. As soon as I found the above mentioned conflicts of interests and addressed the Committee about them, the Committee brought disciplinary proceedings against me.
In the disciplinary proceedings, the Committee prominently accused me in Charge I Specification I of the complaint for not appearing at a deposition in a court case, failure to explain to the court why I did not appear, and for failing to oppose a motion to strike and for a default judgment, which ultimately led to a default judgment against my client. Those are the allegations, and, if perceived on their face value, they spell out serious accusations of neglect of clients, that's why they are put as the very first charges.
Nevertheless, the disciplinary board which brought the charges omitted to mention that the transcript of the deposition and the motion in question are on file with the court and show the dates of September 15, 2008 for the deposition and December 10, 2008 for the motion. I was admitted to the bar in 2009.
Not only I did not have a duty to appear at that deposition or oppose that motion because I was not an attorney of record and NOT AN ATTORNEY at that time, but such an appearance would be qualified in New York as a crime of practicing law without a license if I did appear and did oppose that motion. So, the disciplinary board is now set to punish me for NOT practicing law without a license in 2008, in full knowledge of falsehood, frivolity and illegality of such a claim. It is an interesting legal point as to whether the state of New York has authority to discipline an attorney for NOT committing a crime of practicing law without a license when she was not an attorney.
The disciplinary board was notified by me about the mistake over a year ago, by a letter with attached copies of the transcript of the deposition and of the motion. Disciplinary board refused to correct the fraudulent charge.
I removed the case to the federal court claiming that no fair adjudication is available in state court. The federal court remanded on Younger abstention grounds because the disciplinary board claimed my federal constitutional claims can be reviewed by the state court. When the removal on this ground was ascertained by the disciplinary board, the disciplinary board made a motion for a summary judgment in state court claiming that I have no right to "air" my "general grievances", or, in other words, my constitutional challenges in the state court.
At the same time, the disciplinary board is now claiming, in an official letter, that I was admonished by it as an attorney in 2002. Once again, I was admitted to the bar in 2009. The disciplinary board has blocked my access to my own file with the board for years, so I do not really know what else they may have created on me. Judging by the fact that the disciplinary board claims that they have records of admonishment against me allegedly made 7 years before I was admitted to the bar, there is a possibility that records exist that I was admonished by the board before I was even born.
Since I considered the false Charge I Specification I as attorney misconduct by the disciplinary board, I complained to the disciplinary board about its attorney members, which is the only way the complaint could be lodged for lack of other forum. Even though Rules of professional conduct in New York do not indicate that attorney members or counsel for disciplinary board are absolved from the reach of the rules, the disciplinary board refused to recuse from investigation of the complaint and dismissed the complaint against themselves as unfounded.
Occupational licensing, and attorney licensing as part of it, is meant to protect the public from harm. I wonder how the public is protected where the disciplinary board is trying to obtain a summary judgment against me for NOT practicing law without a license in 2008. I wonder how the public is protected by victimizing me even further by stripping me of my license for doing my duty and trying to obtain fair adjudication by an impartial judge where all authorities in New York, including Commission of Judicial Conduct, state and federal courts, preferred to look the other way after a judge obviously abused his power and sanctioned my husband and myself $52,200 over the 6 months in 6 different court actions after I sued the judge in state court, including two sanctions after I sued the judge in federal court for retaliation.
The judge knows my husband and myself very well, knows that we have a minor child and a child in college under the age of 21 to support, but simply does not care in his vendetta. I exposed the judge's misconduct and my husband and I must lose our livelihood, in the judge's obvious opinion expressed through sanctions. Disciplinary authorities refuse to discipline the judge, but will discipline me for complaining about the judge's misconduct through motions to recuse. "Coincidentally", the chief judge of my disciplinary court was a member of the Commission of Judicial Conduct who dismissed my complaint against the local judge without investigation.
Giving judges absolute immunity for malicious and corrupt acts on the bench, refusing to reach issues of such misconduct on the merits, refusing to have cross-case review on appeal, refusing to reach issues of pattern of retaliation of a judge and then enforcing his retaliative sanctions against me anyway hardly smacks of fairness or due process of law to me.
Yet, in New York I have no right of appeal, and, interestingly enough, while private discipline such as admonishment and censure must be proven by clear and convincing evidence (the rules are legislated by the same court that adjudicates the discipline and appoints investigators and prosecutors, as another point), the standard of proof is suddenly dropped to preponderance of the evidence for censure, suspension or disbarment, and then elevated back to clear and convincing evidence if the attorney seeks reinstatement. Since my case is to be adjudicated by the court which set such rules that scream of favoritism to the disciplinary board, I understand that I am doomed, and this is why I decided to go public with what is going on.
My fellow attorneys in the area who approached me to discuss the situation with the sanctions are terrified because of the sanctions imposed upon me, and the public may be assured that after I am disbarred or suspended, no attorney in the State of New York will dare to make a motion to recuse and ensure his client's right to a fair and impartial judge, no matter what kind of misconduct the attorney witnesses, how much it is substantiated. An attorney license is an investment of a lifetime, and attorneys will think about themselves and their families before their clients, as already happened in Pennsylvania where attorneys failed to report that two local judges were selling juveniles into detention facilities, because there are rules prohibiting "scandalous" statements about judges. One child committed suicide. Was the public protected? Misconduct in Pennsylvania is an extreme case, but attorneys should not be stifled or sanctioned in reporting any perceived misconduct of judges in view of tremendous power judges wield and tremendous danger that abuse of such power can cause American society and its individual members, especially when several generations of judges in the U.S. served under conditions of absolute judicial immunity for even malicious and corrupt acts, which can only breed the sense of absolute impunity and contempt to the rule of law by the judges.
In my case, this contempt is obvious in view of how many strange things continue to happen to me in my court cases. Transcripts, affidavits and the whole motions get lost, altered, "impounded" and ignored when their contents may help me or my clients, and rules are bent and double standards are created where attorneys working for the government or who have worked with the judge before he came to the bench are concerned. Recently, I was sanctioned for a motion to compel production of the identity of a stenographer who took deposition in a court case where no transcript of the deposition was filed with the court and no notice was given to my clients in accordance with the law. I was sanctioned (by my "favorite" judge, after I sued him) for making this motion to ascertain my client's elementary right of access to full record of court proceedings where they are a parties. The attorney who concealed the deposition where, as it was reported to me, his own expert testified against his theory of prosecution, was "coincidentally" also a judge in a local justice court, and, thus, I was sanctioned for daring to point out his mistakes to the court.
I have amassed over the years a large file showing that the same disciplinary board, and disciplinary committees across New York state fail to discipline attorneys who are retired judges or sitting and their friends or family members, no matter what kind of misconduct is involved. It appears to be a system that militates against this so-called presumption of integrity of the judiciary. To require attorneys who are considered intellectual elite of the country to presume integrity of public officials who are given absolute immunity for their malicious and corrupt act is insane. One does not have to be a rocket scientist to know that if misconduct is not addressed and is forgiven, it will repeat itself and get worse. When courts refuse to reach the merits of judicial misconduct in civil rights lawsuit and cover judges with absolute judicial immunity for malicious and corrupt acts, they in fact self-servingly protect themselves and perpetuate misconduct.
How many people will be happy or consider fair a situation where an object of your criticism holds your reputation, your livelihood and your investment of a lifetime into your education and training in his hands? Meet Judge Carl F. Becker of Delaware County Court, New York, who considered it possible for himself to repeatedly sanction an immigrant female attorney and the spouse of the judge's law school classmate and lifetime rival in legal profession after she sued him for misconduct, and who tries to obtain her disbarment this way. Shame on you, Judge Becker! You are a disgrace to the bench, and this is my personal opinion of you as a public servant, fully protected by the 1st Amendment of the U.S. Constitution.
It is time to take attorney licensing out of the hands of the government and join the civilized world where attorney independence from the government control and repressions is considered a fundamental requirement of a democratic society.
A democratic society does not need a timid bar, because such bar will be (and is now) unable to enforce protection of the U.S. Constitution against any violations by any governmental officials, including judges.
Moreover, statistics show that attorney regulation as it exists today in the United States is not benefiting the public as it is claimed.
In New York, according to the statements of Chief Judge Lippman on many occasions, 80% of litigants cannot afford an attorney. Attorney licensing is claimed to protect the public. Instead, at least in New York, while it surely restricts entry into the market of legal services of new providers, it also raises the cost of services so that they cannot be afforded by the overwhelming majority of litigants. It means that attorney licensing, at least in New York, protects the 20% of the top paying clients who can well afford to protect themselves and not to reach into the public pocket for such protection through attorney licensing. Such an effect of occupational licensing upon the market of the regulated services has already been picked up by economists and cogently called "reverse Robin Hood effect".
As a last drop, I am, naturally, reading a lot on the Internet about independence of the legal profession and I found these three interesting cases.
Case No. 1. The bar of the state of Iran has fought and succeeded in tabling proposed legislation subjecting the Iranian bar to regulation by the judiciary. The Iranian bar claimed that such regulation interferes with independence of the bar. The American bar claims that it is "self-regulated" while it has long been regulated by the government, and has apparently no concern about its independence, as long as it can keep high prices and restrict competition. Overwhelming supermajority of lawyers in disciplinary boards, precluding members of the public from ever have a majority vote in any one disciplinary case of an attorney clearly indicates that the main purpose of discipline is, for the judiciary, to weed out the critics, and for the unpaid attorneys who are acting as if they are public investigators while at the same time being in private practice and competing with the disciplined lawyers, attorney discipline is a perfect way to weed out competitors.
Case No. 2 Gryb v. Belarus. An attorney from Belarus which the U.S. claim in the media is a totalitarian state, complained to the United Nations that his attorney status was terminated by the state in retaliation for his political activities. The appropriate committee of the United Nations, where the U.S. is a member, agreed. Yet, while sitting in judgment of violation of attorney's political rights by other countries, the U.S. refuses to give the right to its own attorneys to come to the United Nations with the same kind of complaints, because the U.S. ratified the International Covenant for Political and Civil rights with RUDs (reservations, understandings, declarations), one of which is that U.S. citizens do not have a right of private enforcement of the Covenant against the U.S. Belarus did not restrict its citizens in this way. Thus, American attorneys have less rights than attorneys from the "totalitarian state" of Belarus.
Case No. 3. Kabanov v. Russia. A disbarred attorney from Russia sued the state of Russia in the European Court of Human Rights for violation of his right of free speech, because his attorney status was terminated due to his criticism of a judge. The court found against Russia and awarded Attorney Kabanov 11,000 euros in damages. Based on the decision of the court, the attorney's status was reinstated. A similar lawsuit of a disbarred attorney in the United States will be dismissed for sovereign immunity and on the grounds of the so-called Rooker-Feldman doctrine, and the attorney will be left without a remedy and disbarred forever. This case demonstrates that American lawyers and other citizens have less remedies as to how enforce their basic human right to earn a livelihood than 28 countries of the European Union plus its aspiring members like Russia.
I believe, popular initiative is needed to change the way in which constitutional violations in the United States are enforced, which applies not only to attorneys, but to all individuals whose claims of constitutional violations are barred with a quagmire of judge-created doctrine leaving majority of victims of governmental misconduct with no remedy, and some of these victims are even sanctioned for their "frivolous" constitutional arguments and requests to the court for help.