"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.

Monday, April 28, 2014

The dismissal of the Segarra retaliation lawsuit - did the judge have authority to accept the waiver of the judge's recusal?

Jake Bernstein of ProPublica reported that a federal judge in the U.S. District Court for the Southern District of New York, Ronnie Abrams, dismissed the retaliation lawsuit of a former bank examiner at the Federal Reserve Bank for failure to state a claim.  At the center of the controversy was Ms. Segarra's evaluation of Goldman Sachs which could have resulted in a downgrade in ratings for the bank and financial losses.  Ms. Segarra refused to "correct" her evaluation and was fired.  She sued, and Judge Abrams dismissed the lawsuit for failure to state a claim.

The interesting part is that, according to ProPublica, the presiding judge's husband represented Goldman Sachs, the bank which was at the core of the controversy, in his advisory capacity.

The judge reportedly disclosed that her husband represents Goldman Sachs only a day before the oral argument on the motion to dismiss, asked whether the parties wanted her to recuse and accepted their waivers of her recusal.

After the arguments, reportedly Ms. Segarra's lawyer sent out questions to the judge trying to verify the relationship of her husband with Goldman Sachs, but at that time the judge rejected that as too late, claiming that there is an appearance of judge-shopping by Ms. Segarra's attorney, dismissed Ms. Segarra's lawsuit and stated in her decision that "such an attempt to engage in judicial game-playing strikes at the core of our legal system", the "judicial game-playing" being Ms. Segarra's attorney's attempt to verify the judge's husband's relationship with Goldman Sachs after the oral argument.

Apart from the obvious question as to why Ms. Segarra's attorney did accept the judge's waiver of recusal, the fact remains that if the judge's husband did, in fact, had a contract for representation of Goldman Sachs, he had a material interest in the outcome of the litigation, and so did the judge who had a common financial interest with her husband. 

Thus the judge was disqualified from presiding over the case under 28 U.S.C. 455 (b)(4) (financial interest of judge or spouse) and 28 U.S.C. 455 (b)(5)(iii) ("judge or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding").

Moreover, 28 U.S.C. 455(e) is very clear that if the disqualification is under 455(b), the judge has no authority to accept waivers of her recusal. 

So, who is engaging in "judicial game-playing that strikes at the core of our legal system", Carmen Segarra and her attorney or the judge who disclosed the conflict of interest too close in time to the date of the oral argument on the motion to dismiss, so that the parties were enticed, in order to save time, to give a waiver of her recusal, and who accepted the waivers under circumstances when the statute governing judicial disqualification prohibited the judge to accept such waivers?

To me, actions of the judge present a huge problem.

The judge wields tremendous power over parties and lawyers.  A judge should strive to be squeaky clean and free of ethical conflicts in order to maintain in the public, parties and attorneys a firm belief in the integrity of judicial system and the rule of law.   If such belief is undermined, chaos will set in.   It is unreasonable at best to expect lawyers to believe in the image of a trustworthy judge when the reality tells the lawyer the opposite. 

Moreover, it appears that the issue of conflicts of interest in federal judiciary is more serious than just this one case.

At about the same time as Ms. Segarra's/Judge Abrams' case reported by ProPublica, according to the Huffington Post, the Center for Public Integrity discovered by comparing financial disclosures of federal appellate judges to caseloads of the same judges, that 16 judges did not disclose their conflicts of interest to parties, thus potentially compromising 26 cases.

The disclosures were made by the judges to the parties only after the Center for Public Integrity discovered the conflict and confronted the judges.

The federal judiciary reacted by attempting to claim "human errors" and using the usual heavy artillery of big numbers.  Specifically, the excuse was that the disclosed cases are just a minute fraction of the general caseloads of federal courts and do not represent how our federal judiciary operates.

Well, the Center of Public Integrity has limited resources to establish the full statistics of how our federal judiciary operates, and, in any event, when we are talking about access to justice, the "big numbers" argument fail

People who bring their cases to federal courts, and especially to federal appellate courts, which to most people are the courts of last resort, do that because of an acute necessity, an egregious civil rights violation, otherwise they would not have subjected themselves to the stress and expense of litigation.  26 cases compromised is 26 cases too many.  16 judges with undisclosed conflicts is 16 judges too many.  Each of those judges took an oath of office, and non-disclosure of a financial conflict of interest, respectfully, is a violation of that oath that must result in discipline.

I also firmly believe that to ensure accountability of the judiciary to the public, cases of judiciary discipline must be handled by the public and not by the judiciary who will certainly let their brothers escape unscathed without any discipline, no matter how bad conflicts of interests were.

In this case, reportedly the judges in question owned stock of parties appearing in front of them.  And that is "human error"?

Judges who filed disclosures of what they own with the court system somehow did not remember that?  I believe that such disclosures should be given directly to the parties of every civil case tried before the judge, as well as the judge's family trees and information regarding employment and ownership of property by close relatives in accordance with 28 U.S.C. 455 (b).

Only then effective enforcement of 28 U.S.C. 455 (b) and effective ensuring of impartial judicial review in federal courts will become a reality.

Notably, the 16 judges in the appellate federal courts were confronted not by attorneys, but by the Center for Public Integrity.  Had they been confronted by an attorney, the outcome for the attorney could have been depressing.  

Look at what Judge Abrams said in her ruling - it is, in her opinion, Ms. Segarra's attorney who did something wrong by questioning the judge's husband's connection to Goldman Sachs after the oral argument and not the judge herself in accepting a waiver of recusal which she had, under the reported circumstances, no authority to accept.

Welcome to the Orwellian world of the American judiciary.  And let us change that Orwellian world.  We the people are the masters of public servants, including judges and can demand their direct accountability to the public for violations of the law. 

Judicial discipline should be public, transparent and effected by members of the public with no connections to the legal profession. 

 As any fact-finders, if the public disciplinary panels need opinions of the legal experts, they will appoint such experts, but opinions of those experts will not be decisive or overruling the decisions of the public panels. Is that what the judiciary fears the most?  Direct accountability to the public? 

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