"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, May 23, 2014

On random drug testing for judges and health disclosures by judges. Do you know whether your judge was out of it when he pressed that big red button of your life?

The U.S. Constitution guarantees to everybody within the U.S. jurisdiction due process of law under its 14th Amendment.

That includes impartial adjudication by a competent court.

Being judged by individuals who do not have any physical or mental disabilities that prevent them from doing their job in adjudicating the matter is a due process right of every individual

Yet, under New York Constitution the only governmental body where one can raise such a problem is the New York State Commission of Judicial Conduct.

The New York State Constitution, Article VI paragraph 22 provides that the Commission may require the judge to retire if his mental or physical disability prevents him from performing his judicial duties.

First of all, if the Commission tosses your complaint, which is what it usually does, you do not have a right to even appeal that decision, because your role in the proceedings in the Commission is only of a "complainant", not of a bona fide party with rights (the so-called "standing").

Second, if you complain anywhere about the judge not being "together" on the bench, you need more than that to prove that he has a mental or physical disability.

He sleeps or nods, or is frequently distracted on the bench during the trial?

He talks gibberish on or off record in your presence?

His decisions clearly contradict what is in the record ?   That is, by the way, a polite way to say that the judge looks into a document saying A and states in the decision that it states B - and the appellate division happily affirms, and your further opportunities to appeal are virtually non-existent.

My experience with the NYS Commission for Judicial Conduct which, to me, is a glorified taxpayer funded shredder of complaints against the New York State Judiciary is - "we did not find that your complaint has merit, but thank you for telling us".

What if you pass a judge in the hallway and smell a whiff of alcohol on his breath?  During business day?

What if you know that the judge "drinks his lunch" on a regular basis?

Do you really believe that you or your attorney can stand up in court and say - your Honor, I believe you are drunk at this time and should not be presiding over my (my client's) proceeding?

Do you know how fast the judge, even if drunk or under the influence of drugs, will be able to pronounced the words "contempt of court" and lock you or your counsel up?

It has been reported in studies that 7 out of every 10 Americans are on at least one prescription medication and 5 out of every 10 are on two prescription medications.

That number may be even higher in the judiciary.


Common sense.
First, reports abound of overloaded court dockets and overburdened and overstressed judges.  Elementary rules of labor hygiene based on human physiology suggests that a human being can concentrate for only a certain period of time a day.  In other words, objectively, requiring a judge to concentrate for longer time than a human being is able to concentrate is a disservice both to the judge who can produce sub-standard decisions and to the litigant whose life may be (and often is) irreversibly and adversely changed by such sub-standard decisions.

I have failed to find much research, if at all, as to whether judicial caseloads fits physiological norms and rules of elementary labor hygiene.

In the case of judges I know and the dockets I know they are handling every day, that physiological limit is grossly overtaxed, and I believe, requiring a judge to concentrate and make life-changing decisions during one given day for longer than a human being is physiologically capable to do, is a violation of litigants' due process of law.

Second, the judiciary is an "old" profession.

The usual age of judges in New York, in my own personal experience, is well over 50 and, in fact, usually is over 60 years of age.

Recently, New Yorkers defeated a state constitutional amendment where judges were hoping to raise their mandatory retirement age to 80, claiming they are still fit to handle the existing unreasonable loads well into their ancient years.

Of course they are, if they are judging in name only and if their law interns/ externs/ clerks are handling their cases for them and instead of them, and if judges are needed only to rubber-stamp decisions made by judicial externs who are law students and by law clerks.

Yet, a knee joint can be replaced, and a heart valve can be replaced, but the dimming brain and the energy level withering with years cannot be replaced.

To show off that the judge can still perform his job, the judge can conceal his disability or resort to stimulating drugs to appear pert.

Yet, one cannot cheat nature and one does not have to conduct a study or be a great statistician to know that, with age, old diseases increase and new diseases are added up.

Look at least at the 10 symptoms of Alzheimer's reported by physicians and advocates for early diagnostics and intervention of Alzheimer's.

When you are dealing with a so-called "cranky judge" who makes gross errors of judgment in litigation and who is visually of an age when Alzheimer starts, what are your assurances that you are dealing with a temperament problem and not a symptom of a disease that affected judgment?

What if your judge is on antidepressants and is having hallucinations as one of the reported side effects of such drugs?

What if your judge is simply taking illegal drugs?

What if your judge is sipping alcohol there on the bench or in his chambers, and you will not be able to even sniff it because the judge may stay up on the bench, away from the public and not allow members of the public near him, and his employees will sure cover him up and not report him, in fear for their own jobs.

Unmanageable caseloads combined with advanced years of judicial officers and combined with virtually non-existent control of accountability of the judiciary plus existence of an abundance of hungry lawyers and law students eager to advance their career and work as "replacement judges" in positions of law clerks and judicial "externs" or 'interns", create a system where a judge can work well into the last stages of dementia as long as he keeps a vertical position and does not say anything that would be absolutely insane.  Everything else can be covered by law clerks.  Trials may be diverted into encouraged mediation and settlements.  Other judges may be assigned for trial terms...  Thus, the public may never know that a judge had a problem until it is too late to change consequences of such a judge's decisions.

By confession of a federal judge out of Nebraska in his own blog, 9 out of 10 times it is the judge's law clerk who closely reviews your pleadings and not the judge himself, and Judge Kopf even mocked attorneys for pretending they didn't know about it.

You might know about it, but you might also know that such a state of events is not right.  In the case of a federal judge, it is not the law clerk who was confirmed by Senate in a public hearing to review and decide cases.  

In the case of a judge in New York, it is not the law clerk who was elected by public vote into office to review and render decisions, and it is my firm belief that it is judicial misconduct for judges to delegate "close review" of cases to their law clerks, relegating their own duties to reading summaries of cases prepared for them by their law clerks and signing decisions that their law clerks submit for their signature. 

A New York State judge, an elected public official, you are submitting your pleadings for review and decision to that elected public official and not to his unelected law clerk who may be ineligible to make judicial decisions.

Yet, availability of such a law clerk making decisions for a judge who simply signs prevents recognition of the judge's health or substance abuse problems.

No docket congestion can justify this blatant delegation of duties to law clerks.

Yet, because of that delegation of duties you might not be able to prove, without additional information, that your judge has a mental or medical problem and is unable to handle your proceedings.

Are we entitled to such information?

I believe, we are.

But how to get it?

Various employers routinely and randomly drug-test their employees.

Drivers are regularly stopped and checked by law enforcement whether they are under the influence of alcohol or drugs while driving.

Same is with testing of pilots.

Same is with any other profession where public safety is at stake.

A judge presiding over, let's say, a child custody case, may order a parent to be drug-tested and may refuse to give the custody of a minor into the hands of a parent with a severe drug or alcohol problem.  In many states and in federal courts, death penalty is still on the books.  Wouldn't the public is entitled to know whether judges who preside over proceedings where people are condemned to death are alert enough to understand what they are doing?

A judge accepting a plea bargain must ask the criminal defendant to answer, under oath, whether he is under the influence of drugs or alcohol and whether he is able to understand what he is being offered and what kind of rights he is waiving.

Yet, that same judge may have a drug or alcohol problem of his own, or may have a physical or mental disability, or a complication from a prescription medication, and you are not even entitled to know what is in the judge's bloodstream when he takes away your property, liberty, custody of your child, etc.

How come?

I believe, judges should be randomly tested for drugs and alcohol, and not by their own personnel, but by rotating committees representing members of the community, and corruption and tips to the judges that a random check is coming should be vigorously prosecuted.

I believe, judges should undergo semi-annual checkups and, like jurors, should be subject to disclosure of their medical and mental health conditions and prescription medications. 

There should be no privacy given to judges on the issue of substance use and abuse and medical or mental health conditions and medications which may affect focus, perception, attention, temperament or judgment.   Such  privacy creates a public safety hazard.  A candidate running for judicial office, in my opinion, leaves his privacy when he puts up his candidacy for public vote, long before he dons the black robe.

Therefore, I appeal to the legislatures, state and federal, to introduce mandatory disclosure by judicial officers of health conditions, prescription medications and use and abuse of alcohol and drugs, as well as random testing for alcohol and drugs on the bench.

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