"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.

Wednesday, June 11, 2014

A time vector was invented to define timeless declaratory judgments... Anything to block civil rights litigation against high-ranking public officials on sensitive issues...

The Black's Law Dictionary (iPad version, 9th Edition, 2011, p. 918) defines a "declaratory judgment" as a "binding adjudication that establishes the rights and other legal relations of the parties without providing for or ordering enforcement".  It is also termed a "declaratory decree" or simply a "declaration".

Since it is simply a declaration of rights for all times and purposes, it does not have a time direction.  In other words, a declaratory judgment cannot be, by its very nature, prospective or retrospective.

Enter Judge Gary L. Sharpe, the Chief Judge of the U.S. District Court, Northern District of New York.

In his recent decision against my husband Judge Sharpe denied my husband's constitutional claims (1) because they were barred by the 11th Amendment (they were not, my husband was suing his own state);  and (2) because Judge Sharpe deemed the declaratory relief that my husband was seeking as "retrospective" instead of "prospective".

In plain English, Judge Sharpe ruled that my husband is not entitled to even a declaration whether his constitutional rights were or were not violated because he asked the courts for a declaration of his rights, and the court considered his request as a request for "non-prospective",  or "retrospective" declaratory relief.

It logically follows that, even though in Marbury v. Madison, the very case by which the U.S. Supreme Court gave itself authority to interpret the U.S. Constitution, the U.S. Supreme Court declared that any law that is contrary to the U.S. Constitution is void, and being "void" is another timeless concept, the federal courts still construe it within the time limits.

So - it may just as well be unconstitutional, but since you are asking for a "retrospective" declaratory judgment, you are not entitled to a mere declaration of whether your constitutional rights were violated, even if all you are asking is declaration of your rights without enforcement!

For Judge Sharpe and for the judges whose decisions he cited on the issue, declaratory relief has a time vector, even though by its very nature declaratory relief is made for all purposes and all times.

Anything to slam the court's door into a disliked litigant's face...

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