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
This is a short introduction. I am a Russian American attorney, born and raised in the Soviet Union. I hold three advanced degrees, an MA in teaching English as a foreign language from the Moscow Linguistic University (Russia), an MA in Management (with specialization in financial management) from the Moscow University of Economics, Statistics and Information Sciences, and a Juris Doctor degree from the Albany Law School of the Union University, New York, USA. I am currently admitted to the bar of the State of New York and to the federal bar of the U.S. District Court of the Northern District of New York.
I have a solo practice in a small rural town of Delhi, New York, Delaware County. There is a saying that in Delaware County there are more bears than people. I did not count all bears, but the county is, indeed, what they call "thinly populated" and very large.
My practice covers the areas of family law, including child custody, child support and defense in child abuse and neglect proceedings; criminal law; litigation of various civil cases in the court of general jurisdiction, the Supreme Court; appellate practice and federal civil rights practice.
I went to law school at the same time as my oldest child went to college.
My views were definitely shaped by my life experience, therefore, before expressing my views on important subjects of public concern, I would like to describe my background.
I am practicing law for 5 years, since 2009. When I went to law school in 2005, my own life experience already included two advanced degrees, birth of three children, marriage, divorce and remarriage into a blended family.
I was privileged to be raised in my childhood and adolescence by my grandfather, a prominent applied scientist, inventor and professor of chemical technology who saved me from too much brainwashing on behalf of the Soviet state and instilled into me the value of maintaining personal dignity at all costs, as well as independent thinking and thorough analysis of what is going on around you. He himself kept that independent thinking through hunger, revolutions, civil war, repressions the Stalin's repressions of 1937 and later years during which he lost his wife and mother of his two young daughters.
I was never politically active in the Soviet Union, my country of birth, if you do not count the forced participation in the young pioneer organization (7 y.o. to 14 y.o.) and in the young communist league (14 y.o. to 28 y.o.). Failure to participate in these organizations would have resulted in severe adverse treatment, possible expulsion from school, and precluded receipt of any meaningful higher education or any meaningful career.
Thus, when I talk about freedom of association protected by the U.S. Constitution, which I plan to do in this blog, I know from experience what it is to be forced into associations at the threat of withholding your basic human right to self-realization in a chosen field. When I talk about freedom of speech for lawyers specifically, or advocates in general, because advocacy and protection of human rights is a much broader concept than just the practice of law, I have grown up in a country where such freedom of speech could get you into a nuthouse and thus was practiced, if at all, only around a kitchen table at home with your loved one, and if that was not a guarantee from repressions.
When I am talking about freedom of conscience in general, as a freedom to exercise religion of your choice or not to exercise it, I remember how my ex-father in law whom I respected asked me to have a church wedding, and how I had to turn down his request because I would have lost my job and be blacklisted for any other.
I called my first child Vera which means "Faith" in Russian, even though I have not become an adherent of any religion. At the time I called my child this name, I was ridiculed by some of my acquaintances and even relatives loyal to the then governmental regime. The point of ridicule was that the current faith of the moment was the so-called "Marxism-Leninism" and, as I stated above, religious faith was prosecuted and persecuted. To give you an example, the Soviet state considered educating children in religion by parents, especially if the religion was not Russian Orthodox, such as the Baptists, or Latter Day Saints or Jehova Witnesses, a legitimate reason to remove children from the family and raise them in a state-run orphanage. This was a continuation of the "glorious" tradition of killing the parents who belonged to any class other than blue-collar workers or the poorest farmers, putting children of the slayed parents into orphanages, renaming them after revolutionary leaders and brainwashing them into hating their parents and all that their parents held dear. The killing off of the intelligentsia parents happened during and after the Russian revolution and during the repressions of 1937. In my time, the government "softened" into simply taking the children away from believing parents.
The amazing detail about the people who ridiculed me for naming my child "Faith", for my own reasons, is that these people, while the Communist regime was alive, were literally worshipping that regime by having full works of Lenin, Marx and Engels in their small apartments occupying an honorably prominent space on floor-to-ceiling bookshelves in small Moscow apartments. These people learnt quotations from Lenin, Marx and Engels by heart and quoted them to support any thought they had. That is when I learned the value of my grandfather's teaching about independent thinking, because I did not really need, as they did, to cite to an authority of any kind to form a belief or to think that it is right.
When "perestroika" and "glasnost" (openness) came and it was now permissible to speak one's mind, the same people who worshipped and quoted Lenin, Marx and Engels started to burn their books to in woodstoves to heat their "dachas", the small country houses that in my youth many Moscow families had and used to supplement their meager income and no less meager food supply in the government-run stores.
I've seen the statues of the people whom I was required to respect and to literally worship in my elementary through high school time, taken down, ridiculed, vandalized and destroyed in my college years.
I lived through two military coups in Moscow, in 1991 and 1993. In 1991 I've seen columns of tanks coming through Moscow streets when I was heading out of town with my child to a country house, and failed to realize that it is not a military parade, but a military coup.
I've experienced the frenzy of not having the news about my loved ones left in Moscow when I heard the news from my neighbors, since I did not have television or radio in the country house, and certainly did not have a phone or a vehicle.
In 1993, when pregnant with my second child, I found myself in the line of fire during the second military coup, and saw on TV how tanks were positioned on the bank of the Moskva-river across from the Parliament building, the Moscow "White House", and was shooting at that building, with people in it.
Then, I saw that the same people who were in the Communist government, and were persecuting religion as part of the Communist rule, to the point of killing the clergy (after the Russian Revolution of 1917) or taking children away from believers, publicly accepting baptism late in life, burning their Communist Party cards and donating money to restore the old churches and build new churches.
To say that I do not like hypocrisy is an understatement. Also, in my nearly old age, and due to my life experience, I will never be persuaded that a citizen in a democratic society has a duty of loyalty to the government or governmental ideology, or has a duty to think or act to preserve the public belief in governmental integrity as a whole, and for that concept to sacrifice exposure of misconduct of public officials or the right to free speech.
I also do not believe in the government glorifying itself and proclaiming its own integrity from rooftops as something to be believed as a condition to earn your livelihood, or else.
I grew in a country where we had words "Slava KPSS", or "Glory to CPSU", CPSU being the Communist party of the Soviet Union, the only governing political party in the country which was officially calling itself a democracy and at the same time, a "dictatorship of the proletariat", were mounted everywhere on the walls of buildings, fences etc. It did not mean that CPSU actually had that glory.
Yet, to make statements "impugning integrity of a Communist" spelled out a death toll in one's career.
With growing alarm I see that in this country, based on democratic principles and that must be governed by the Constitution, I now find the same totalitarian principles governing the legal profession which, my firm belief, must be independent from the reach and influence of the government due to its unique role in the democracy.
Attorneys are required to believe in integrity of the government, and specifically of its judicial branch, and are required to maintain public confidence in the integrity of judiciary, whether such belief is justified by reality or not, as a condition of continuing of their right to practice law and earn a livelihood. This requirement to believe and maintaining public belief is nothing less than a requirement of worship of a certain branch of the government and of missionary work among attorneys. While people who are religious may not find it offensive, I do, especially where the same judiciary and every judge in this country are sworn into office on their loyalty to the U.S. Constitution which prohibits governmental establishment of religion in any way, shape or form.
Any criticism of the judiciary is usually deemed false, speculative and is frequently sanctioned by stripping an attorney of his or her reputation and livelihood.
For the most recent sanctions see the very informative blog of my Indiana colleague attorney Paul Ogden about sanctions pending against him and disbarment of a Florida attorney James A. Frost, both sanctions for criticizing the judiciary.
Disciplinary proceedings against attorneys in this state and in the United States generally are clandestine, attorneys are not given elementary rights given to everybody else, such as a right to a jury trial of his peers, a right to discovery, a right to appeal. During disciplinary process, a certain court acts as a legislator issuing the rules, including the burden of proof, appoints prosecutors and defines the structure of disciplinary committee where usually that court gives a supermajority to attorneys rather than to the public that such committees claim to protect. Attorneys are sanctioned specifically because their speech is perceived as more persuasive and may "undermine public trust in the integrity of the judiciary". At the same time, no reasonable person would, probably, deny that attorneys are the most knowledgeable witnesses of judicial misconduct, as they observe judicial behavior on a daily basis while other members of the public only come to the court once or twice in their lives and their experience of the judiciary is not informative to the public as voters.
I have communicated with many attorneys who have been personally sanctioned for speaking out, whether in court or out of court, whether publicly or privately, whether in diplomatic terms or in brutally blunt terms, about perceived misconduct of the judiciary.
I have also done an extensive research of how lawyers are treated by their governments in other countries and what kind of international norms as to attorney independence from the government and from the judiciary as a branch of the government, exist in the civilized world. After all, independence of the judiciary is ardently supported I this country, to the point of covering judges with absolute immunity for malicious and corrupt acts on the bench. Attorney independence in protecting human rights must be no less valuable in a democracy, otherwise nobody will be able to fearlessly stand up for the protection of the U.S. Constitution, the Supreme Law of the land, if, or rather, when, it is violated by the government, including its judicial branch.
I hope that you find this blog an interesting reading. I will appreciate your comments.