In the overwhelming majority of books and law review articles I've read I usually see statements that the majority of judicial profession is honorable, but black sheep happen.
When people talk about numbers (majority-minority), they must have statistics.
Statistics on the issue of judicial misconduct is sorely missing.
Why?
Either judicial misconduct is not reported - because of fear of the legal profession, or it is kept under wraps as "private" and discounted by the disciplinary bodies who, as I wrote in this blog before, act more like glorified shredders of disciplinary complaints than as bona fide disciplinary bodies.
I keep getting phone calls from people whose complaints can be grouped in the following way:
1) my attorney refused to file a motion to recuse against a judge, instead referring me to you - because my attorney was afraid to be "blackballed" (apparently, I am expendable in the eyes of multiple attorneys, and I can be hired to do specifically what those attorneys are afraid to do);
2) my presiding judge is biased, but my attorney refuses to report him to the disciplinary authorities (people often include a list of misdeeds of the judge which, if they are true, warrant taking the judge off the bench);
3) I know people against whom the judge committed the same misconduct as in my case;
4) I want to sue my judge/ my attorney/ both.
When attorneys refuse to report judicial misconduct, sometimes parties report it themselves.
Yet, if complaints by attorneys are discarded without review by disciplinary bodies, the probability that a lay individual's complaint will be so discarded is even higher.
It is summarily regarded as sour grapes of a disgruntled litigant.
The usual responses from the disciplinary bodies are:
1) there is nothing in your complaint that warrants our investigation (even though there is, and plenty - but the complainant has no standing to appeal the dismissal of the complaint in New York);
2) what you are describing is judicial discretion, not judicial misconduct.
Apparently, it is judicial discretion to be biased, to preside over cases where the judge has a grudge against a litigant or bias against a class of litigants (immigrants, people with an accent, people of a certain ethnicity or gender).
Moreover, in our neck of woods, if you dig into many judges' background - and people do dig - you can come up with interesting information about glaring conflicts of interest that judges do not report and punish people when they dare to request recusals based on it.
Conflicts reported to me pertain to judge's marriages, relatives of spouses, relationships between litigants (usually opposing parties) and judge's personnel, judge's financial ventures.
All of that raises serious concerns.
All of that requires serious investigation, including funds and time.
Lay individuals usually lack such resources, and especially when judges unite in action and start to consistently sanction the "stubborn" reporter of their misconduct, hoping that he or she will shut up if ordered to pay an N number of thousands of dollars in sanctions.
Attorneys can be quickly turned into disgruntled lay individuals since the judiciary holds in their hands attorneys' licensing and, through that, their reputation and livelihood. Attorneys, therefore, are deathly afraid to bite the hand that feeds them, the duty to their clients be damned.
New York State Commission for Judicial Conduct has neither the resources nor, as far as I know, the budget to handle large-scale investigations of judicial misconduct.
It appears that "serving" on the Judicial Conduct Commission is a type of a line in one's resume to boast of, not a public duty to properly discharge - and discharging such a duty conscientiously can gain a person many powerful enemies, which apparently nobody wants.
Against this background, when anybody says that the majority of the judicial profession is allegedly honorable, and there are rare black sheep, that is an insult collective intelligence of the public.
The public is entitled to know the real statistics of judicial misconduct and how the state of New York is dealing with it.
A person charged with a crime ends up on a police blotter, and whether charges are later dismissed or not, you cannot "unring the bell", the police blotter report remains published, often on the Internet, and that often deals a severe blow to the person's reputation and job prospects.
It is certainly unfair, but that's what is happening to people now in the State of New York.
Disciplinary complaints against judges should be equally reported, so that people would at least have a modicum of control over them and see whether the Commission for Judicial Conduct does its job or should be disbanded and replaced.
Mechanism for disbandment of the Judicial Conduct Commission or replacement of its members or staff because of conflicts of interest, corruption or appearance of the same must be in place.
Legislation should be put in place specifically prohibiting a judge to impose sanctions upon an attorney or party who reported the judge. If sanctions are contemplated against an attorney or party who filed a disciplinary complaint against the judge, a neutral judge from another area should be assigned to review such sanctions.
Legislation should be put in place specifically prohibiting to impose sanctions for filing a motion to recuse, so that attorneys should not be put in front of a choice - to do their duty to their clients and lose their livelihood or to play the coward and keep their livelihood. For many attorneys this situation is a no-brainer and is, predictably, decided against their duty to their clients.
Legislation should be put in place making disciplinary proceedings against judges transparent and giving the complainants a standing to appeal dismissals of their complaints.
I am sick and tired of telling people that they are powerless to do anything about their situations because of immunities and the risk of retaliation from judges if they report them or make a motion to recuse.
Judicial profession should be stripped of any ability of acting as petty tyrants and disregarding both the facts and the law (at the trial and appellate levels, state and federal courts), at the expense of the public and, ultimately, undermining the American democracy.
Yet, until more people start reporting judges - with all possible risks involved - and start addressing these problems to their legislative representatives, including through denial of votes to those legislative representatives who refuse to act on such public concerns - nothing will change, and things will only get worse.
Thus, if you want our courtrooms to be free of favoritism, nepotism, backroom dealings with powerful attorneys etc. - or at least to have the courtroom start stepping on that path to self-cleansing - people need to be more active and less afraid of retaliation.
It is easy for judges to retaliate against people who are not united. It is easy to present people against whom judicial retaliation is exacted and who are still fighting against it as nuts, being "off the wall", being "disgruntled litigants" etc. etc.
When the actual statistics come out, more people come out, more legislative initiatives come out to fight judicial misconduct - only then we will (possibly) see things changing.
As a practical initial step, I request the public to send to me for publication copies of their complaints against judges. I will accept only notarized complaints, preferably with supporting documentary evidence - transcripts, other court or out-of court documents showing the judge's conflicts of interest, favoritism, nepotism or corruption.
My e-mail is Tatiana.neroni@gmail.com, please, forward your questions there.
THE EVOLUTION OF JUDICIAL TYRANNY IN THE UNITED STATES:
"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.
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