"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.

Saturday, May 24, 2014

You are in default because I said so! About the law and THAH LAW

I've written today about the common misunderstanding by judges of a distinction between civil and criminal contempt that lead to de facto reinstatement of debtors prisons in New York State without any regard of inability of such a debtor to pay...

Do such judges think what they are doing when they are doing it?

Well, they should, and they are equipped both educationally and personnel-wise not to commit such flagrant constitutional violations.

Another commonly misunderstood concept is when a default occur.

I am aware of several judges having no clue, literally, as to when a default may or may not be granted.

By law, a default may happen only when there is proof on record of two things:

(1) that the action is meritorious;
(2) that the party against whom the default judgment is sought has been properly served, with competent evidence of such service on record, and failed to appear in the action within the statutory limit of time.

As far as I saw, judges skip both of these requirements, instead claiming, based only on oral arguments of proposing party/attorney that - if the opposing party did not show up at the hearing, that alone means a default.

One judge even invented a concept of a "frivolous" default, when there was no affidavit of service of the initial pleadings in the record.

Of course, for something to be frivolous, a person has to knowingly do it, and when there is no affidavit of service in the record, there is no proof the allegedly "defaulting" party knew his or her appearance was required by law, or else they would be in default.

Moreover, the rule of frivolous conduct, 22 NYCRR 130, sanctions only for making arguments which have no basis in law or fact or acting with an intent to maliciously harass or injure a party litigant.  Not appearing in court proceedings does not fit any of the elements of this definition.

Yet, for some judges, if they say something, true or not, lawful or not, based on a court rule, statute, precedent, Constitutional provision or not - it is THAH LAW. 

How many judges say "it is MY courtroom" and "MY rules in MY courtroom".

Some judges even participate in panels where attorneys are invited, for money and Continued Legal Education credit, to learn about the judges' whims in THEIR courtrooms.

When I hear such things I want to pinch myself to restore in myself the sense of reality.

Am I still in the United States of America?  Am I still in a country which claims itself to be the beacon of democracy and which is governed by the rule of law?

What is this "MY courtroom" and "MY rules" about?

Shouldn't the judge at least read the applicable law on defaults and review the record before making pronouncements of default, and especially, of frivolous defaults, whatever that means?

Those judges had 13 years of school, 4 years of college, 3 years of law school and at least 10 years of practicing law before they come to the bench.

If 30 years of education and practice do not teach those judges to read, and then to abide by what they have read, what will? 

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