"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.

Tuesday, April 1, 2014

Will New York ever allow peremptory challenges of fact-finding judges, to make the procedure equal to juror challenges New York already has in place?

In Nevada, a party or attorney can strike a judge out of the case without revealing the cause, a so-called peremptory challenge.

It is done for a hefty fee of $450.00, and recently the statistics of how much particular judges are preempted was subject of some interesting publicity.

Researchers James Sample and Michael Vong reported in 2008 that, as of that time, 19 states had some form of peremptory challenges to judges presiding over court cases, including:

New Mexico
North Dakota
South Dakota

It is possible that now, in 2014, even more states allow peremptory challenges to judges.
Unfortunately, New York state is not one of them.

Peremptory challenges to jurors existed for a long time in all states of the United States and in federal courts.

Such challenges are unconditional, subject only to the so called "Batson" restrictions in criminal courts prohibiting racial discrimination against jurors.

Peremptory challenges to juror candidates are preceded by (1) questionnaires collected from juror candidates,  (2) questioning of juror candidates by the judge; (3) questioning of juror candidates by attorneys for all parties in litigation.

This questioning, or voir dire, is comprehensive and is meant to bring out any possible basis of bias.  Such elaborate procedures for exploring qualifications of jurors exist to ensure parties' constitutional right to a fair trial by an impartial fact-finder.

Moreover, attorneys receive lists of potential jurors, or jury pool lists, some time before trial and can hire private investigators to investigate the juror candidates' background prior to and for the use in voir dire.

It goes without saying that juror candidates do not decide issues of their own bias when challenged for cause.

Yet, when a judge is the fact-finder in a case, the same protections do not apply.

Peremptory challenges to judges have been introduced only recently, not in all states, and with cautions and, in some states, conditions.

In those states, like in New York, where such peremptory challenges do not exist, what also does not exist is the questionnaires of judges, which would be similar to juror questionnaires, or a possibility to voir dire the judge as to the judge's potential biases. 

Good luck doing your own investigation and trying to make a motion to recuse such a judge-factfinder who can choose to treat your motion to recuse as a personal attack and to sanction you, and then turn those sanctions into attorney disciplinary authorities, as it was done to me (see my previous posts on this blog).

Yet, peremptory challenges to judges can be a godsend both to litigants and their attorneys, and to the public and authorities dealing with judicial misconduct who can see, by statistics of peremptory challenges, which judges are most often taken off cases.

When a judge is struck off the case, there is no guarantee which other judge is going to be assigned instead.

Thus, the peremptory strike only guarantees that the judge currently presiding over the case will be removed from the case.

If an attorney or party is willing to pay for such an uncertainty a hefty fee of $450.00, that is a clear signal that the attorney or party thinks that any judge is better than the currently presiding one.

An appeal before a biased court is a monumental waste of money, effort and time.

To make a motion in front of a biased judge pointing out his errors is futile and dangerous, as it can invite sanctions.

Thus, attorneys who are practicing in states where peremptory challenges to judges are not allowed, are in a material disadvantage with attorneys (and parties) in states where peremptory challenges to presiding judges are not allowed and, moreover, the judge whose bias or qualification is challenged is presiding over the motion to recuse/disqualify and rules upon it in his sole discretion.

An attorney can investigate juror candidates from the jury pool, through public sources and by directly hiring a private investigator.

Try to investigate a judge-factfinder.

My FOIL requests about financial semi-annual reports of a particular judge to NYS Court Administration were repeatedly stalled, my FOIL requests to Boards of Election (County and State) returned empty because these bodies do not retain disclosures of judicial candidates for the length of their terms in office, the fact that I investigated the judge in the first place, was reported to the judge  in question and brought his ire on my head and on the head of my clients.

My FOIL requests as to security tapes of what happened in a courthouse on a certain date where, I believed, one of the judges made an unlawful order unrelated to any court proceedings was denied to me under the pretext that I, for some reason, am not allowed to get the copies of the tapes, but am only allowed to see the originals, and only before or after hours.  

First, it is impossible to see an 8-hour tape before or after hours of the court.

Second, Public Officers Law allows review of public records only during the hours of the entity whose records are being reviewed.

Third, review of security tapes before or after court hours will require the staff to arrive early or to leave late, and thus will unnecessarily pit the attorney against the court personnel.
In other words, the "offer" to review security tapes before or after hours was a form of constructive denial of access to such tapes to me by the New York State Court Administration.
That was in August/fall of 2010.

On another occasion i requested copies of security tapes when I believed that were "coincidentally" unavailable on the day when I asked for those tapes to verify whether there was an ex parte communication between the Assistant NYS AG, presiding Judge James Tormey and defendant tot he civil lawsuit Judge Becker on the 2nd floor of the Delaware County Courthouse.

The response of the court administration to my FOIL request at that time was that the video recorder allegedly broke, and the Court Administration refused to provide to me copies of the repair checks for that video recorder, which indicates to me an appearance that the video recorder was never broken in the first place.

My third request for security tapes happened last week, in relation to the ex parte communication of the Ulster County Supreme Court Justice Christopher Cahill who attempted to threaten me with a complaint to the Committee for Professional Conduct when I, as a witness to how my opponent was called into his chambers and how I was denied access by Judge Cahill's employee, challenged the judge and asked him to recuse.

I am still waiting for those security tapes, but, in view of my previous lack of success of getting such security tapes, I am not too hopeful to get them this time, either.

Under circumstances described and considering sanctions that these judges have rained upon me after I made those FOIL requests, to engage in such type of investigation, even though it is a lawful way of doing it, is a suicide act for an attorney's career.

Rules of disqualification in New York are overly narrow as compared to the due process jurisprudence and are applied in favor of judges.

Judges are notoriously reluctant to recuse from cases, even where their conflicts of interest are glaring obvious to an impartial reasonable outside observer.

Unfortunately, it is not the impartial reasonable outside observer who is going to decide the motion to recuse, but the challenged judge himself, who is not an outside observer, obviously not impartial to make a judgment about his own biases and whose reasoning is subjective and not objective.

New York Judiciary Law Section 14 provides for complete disqualification of judges under certain circumstances, and disqualification under Judiciary Law 14 strips the court of jurisdiction and makes decisions of disqualified judges void.

Disqualification under Judiciary Law 14 is mandatory, while New York courts find that recusal of the judge lies within the judge's own discretion, even though such position is in glaring contradiction with the Canons of Judicial Conduct, 22 NYCRR 100 and due process of law.

Yet, as strong as a rule of disqualification as Judiciary Law 14 appears to be, it is only as strong as its enforcement, and its enforcement is practically non-existent.

New York courts habitually confuse disqualification with recusal, and habitually rule that disqualification was discretionary, which is then affirmed on appeal, and the wrong party is without recourse.

New York State courts also usually ignore challenges to impartiality of judges under due process of law under the judicially created "constitutional avoidance" doctrine.  Often, no explanation as to why constitutional challenges are not considered is even given by the court.

It is practically futile to appeal refusals to recuse under court rules, 22 NYCRR 100.  Usually appellate courts claim that such recusals are discretionary to the challenged judge, even though 22 NYCRR 100 has mandatory and not discretionary language. 

If challenges under Judiciary Law 14 are even considered by the court, they narrowly focus on two areas:  financial interest and family relations.

Financial interests of New York State judges are at least partially verifiable through FOIL requests for semiannual disclosures of such judges to the New York State Court Administration - that is, if the investigating attorney has the stamina and money to break through the wall of stalling that NYS OCA erects to such FOIL requests, and if the investigating attorney is not afraid of the rain of sanctions from the investigated judge that can follow.

Familial interests might not be verifiable at all, especially in New York's rural counties, the proverbial land of "kissing cousins" where vast areas are thinly populated and there might be limited choices for romantic or marriage partners, other than amongst your own kinsfolk.

Challenges to jurors in New York

As is announced on the site of New York State Court administration, "[s]tatutory grounds for a challenge for cause include but are not limited to that a juror is: an employee or stockholder of a corporate party; a stockholder, director, officer or employee or has an interest in any liability insurance carrier; or related to a party within sixth degree of consanguinity", CPLR 4410.

According to reports in the press, at this time, over half of babies in the U.S. are born to unwed mother.

The tendency departing from the "traditional" family with married parents to all kinds of non-traditional families has been around in the U.S. for a while, with the resulting quagmires of family trees.

Moreover, when women marry they may take their husband's last names, and it is difficult, if at all possible to trace down the entire large families down to the 6th degree of consanguinity. 

If the juror was born out of wedlock and has his mother's maiden name, there is no way to trace that juror to the father and his family, as any custody proceedings in New York are closed to the public.

Similarly closed to the public in New York are birth certificates, marriage certificates and judgments of divorce.

Unavailability of investigation and voir dire of fact-finding judges

Under the circumstances where a counsel at voir dire would be able to ask juror candidates questions pertaining to their possible relationships with a party, a counsel is barred by unavailability of public records and fear of sanctions to ask the fact-finding judge the same questions.

In fact, trying to ask a judge a question whether he is related to a party to the 6th degree of consanguinity is a professional suicide which not many attorneys would agree to.  I was never courageous enough to ask a judge such questions, I had my own share of sanctions for making motions to recuse.

Moreover, judges do not publish family trees and do not keep such family trees in their records for the purview of parties and counsel, so that parties and counsel would be able to verify the judge's compliance, for a particular case, with Judiciary Law 14.

Private investigations of a judge may be perceived as stalking, with resulting criminal charges.  I did not dare do that, even though I was sorely tempted, given various circumstances.

The investigation of a judge pertaining to his or her family tree and potential involvement with the party are reduced to:

  • rumors - not a reliable source;
  • public records - may not have necessary information, is not a quick discovery tool, NYS OCA stalls FOIL requests and reports them back to the investigated judge, leaving the attorney at the judge's mercy;
  • publicly available obituaries of the judge's family members;
  • judge's own disclosures to attorneys (happens) regarding judge's family tree;
  • for federal judges - judges' disclosures during public confirmation hearings, available in open access
As compared to the set of tools of investigation and voir dire available to an attorney or party in regards to juror candidates, the set of tools pertaining to judge-factfinders in New York is severely, and, in my view, unjustifiably restricted.  It is especially unjustifiable that in some types of proceedings, trials by jury are unavailable by law, and the attorney and party is stuck with the judge as a fact-finder, without having any idea whether the judge may be disqualified under Judiciary Law 14.

It is important for parties and their attorneys to have an equal opportunity to investigate and challenge fact-finding judges, same as jurors are investigated and challenged, simply because judicial factfinding in New York prevails.

Jury trials are rare in New York courts, most of factual issues are, in fact, resolved by judges, and it is, thus, of paramount importance for an attorney to be able to conduct investigations and voir dire of fact-finding judges the same way as counsel does that with juror fact-finders.   It is my firm belief as an attorney that such procedures must be provided to parties and counsel as a matter of equal protection of laws.  Unfortunately, at this time it is just a hope and not reality of court proceedings.

Proceedings where trials by jury are unavailable in New York include, but are not limited to the following:

  1. All "special proceedings", such as:
    1. sale of homestead to satisfy a debt;
    2. Article 78 proceedings to challenge arbitrary determinations of governmental officials;
  2. All Family Court proceedings, including, but not limited to:
    1. Child support, including civil contempt of court for non-payment of child support;
    2. Child custody and visitation;
    3. Paternity of children;
    4. Family offenses/domestic violence;
    5. Child abuse and neglect;
  3. Frivolity proceedings against attorneys and parties under 22 NYCRR 130
In all of these proceedings important rights, including fundamental constitutional rights, are being litigated.

In other proceedings, like regular civil actions, where jury trials are allowed by law and even mandated by New York State Constitution, the rule is frequently obviated by summary judgments, where the decision-maker as to whether there are or there are no "material disputable issues of fact" are judges and not jurors.

Even in criminal cases, judges and not jurors rule on factual issues and mixed issues of fact and law in pre-trial hearings, and such rulings most often define the outcome of the later jury trials.

Thus, importance of uninhibited challenges to judges, whether for cause or as peremptory challenges, is crucial to all types of cases in New York state court proceedings.   At this time, attorneys have no possibility to do their jobs for their clients in securing an impartial fact-finder for any particular case, given the legal framework of how the judges can, or rather, cannot, be challenged, either peremptorily or for cause.

I did have cases when a particular judge concealed his conflicts of interest, extrajudicial knowledge of material facts, friendship with a party, and I had such cases aplenty, but I had only one case over 5 years of practice when the judge actually disclosed that his law clerk is married to a partner in my opponent's law firm and requested counsel to address the issue, whether they would or would not agree for him to proceed on the case.

Not many attorneys would agree to stick their heads up the noose for their clients and to challenge the judge for cause based on available record where peremptory challenges are unavailable.

Moreover, the courts sanctioning attorneys for criticizing judges elevated attorneys' burden of proof from "appearance of impropriety" requiring from the attorney to establish only the attorney's own reasonable perception of impropriety in order to bring a meritorious motion to recuse, to hard proof of judge's misconduct, which may be undiscoverable because discovery tools are unavailable on a motion to recuse, and discovery through FOIL may be ineffective and dangerous for reasons stated above. 

The bottom line is, the law of recusal and disqualification exists in New York, but does not work, and parties constitutional right to impartial tribunals remain unprotected.

It is easy to remedy the situation, simply by introducing peremptory challenges to judges and equalizing voir dire and investigation of judges as fact-finders with similar procedures pertaining to jurors.
A party and attorney should be able to take a certain number of judges off their cases, same as it happens with jurors, without explaining their reasoning.

As to challenges for cause, or, in other words, motions to recuse and disqualify judges, it will make sense to legislatively prohibit judges to decide motions to recuse against themselves and to sanction attorneys for making such motions. 

In fact, I would appeal to the public of the State of New York to support a legislative ban on imposing any sanctions upon either attorneys or parties for making motions to recuse and disqualify judges, because such sanctions unduly chill attorneys' zealous representation of clients, undermine attorneys' independence and result in deprivation of litigants of their constitutional right to an impartial tribunal.

I understand that abuses of such motion practice can happen, but the same society where the law exists that immunizes malicious and corrupt behavior of judges on the bench, attorney independence in attempting to secure their clients' constitutional right to an impartial tribunal must be accorded no less value than judicial independence.

The public as a whole will gain if peremptory challenges to judges are introduced in the State of New York.

First, New York then will even out the playing field between cases where jury trials are allowed and cases where such trials are not allowed, and if the state of New York simply allow, in any court case, a certain number of peremptory challenges to a judge, for a fee if necessary, with a clause relieving indigent parties of necessity to pay such fees if they cannot afford them.

Second, when an attorney or party receives an ability to remove a judge from a case without explaining his or her reasoning, both the judge and the attorney and his or her client are spared much grief and personal anguish, and the attorney is spared the risk of being sanctioned, and later disciplined, simply for trying to ascertain for his or her client a constitutional right to an impartial court.

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