"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, July 30, 2014

Judges for the rich and for the poor in New York State

Whenever this topic comes up in a conversation even with lawyers who are not practicing in upstate New York towns and villages, the information that judges in such courts are not required to be lawyers comes as a shock.

After all, a judge in a local "justice court" in towns or villages in upstate New York has the power to evict people from their homes, to resolve breach of contract claims up for contracts up to $3,000.00, and to conduct jury trials in criminal proceedings and to put people behind bars for a year per count, or for several years if there are more than one count charged against them, to be served consecutively (one after the other) in the local jail.

Moreover, since felonies are charged a lot less than misdemeanors, and misdemeanors are handled by the local justice courts, it may be said that the majority of criminal proceedings in New York are handled by judges who are not required to be lawyers.

Additionally, while the caseloads of such judges are high and the stress levels are similarly high, their annual salaries are, let's say, nominal.

The Sidney Town Court justice reportedly received $2,250 in one recent year and $1,750 in another recent year, according to  Sidney Town Court is a very busy court.

As a comparison, a County Court justice was earning $125,000 before the increase and will be earning $160,000 after the increase.

The average salary in New York State is $41,673.83 in 2010 and I doubt that it raised too much over 4 years.

If $125,000 for a county court judge is not enough, what motivates judges in local justice courts to work for under $2,000 to $4,000 a year?  Do they come to decide disputes for friends?  To settle their own grudges? To pursue their rush for power, which is what former police officers turned justice court judges often do - at least it appears that way?

Imagine - there is NO requirement for ANY level of education to be elected a judge to the local justice court in New York.  Not the ability to read, or write, or count, or reason - not anything!

Since this situation has continued for decades in New York, it appears acceptable for the New York state government that the mostly poor and uneducated people in upstate New York are judged this way.

Abuses of power in local justice courts were reported in New York 8 (!) years ago through a series of articles in New York Times.  The call for reform of those courts was not heard. and everything remains as it was.

What is the difference between the local justice courts, where judges are not required to be lawyers, and the higher courts where judges are required to be lawyers, to justify the distinction?

Is it complexity of cases?

Not really, misdemeanor cases can be as complex as felony cases.  Eviction cases can involve complex evidentiary issues as well.  The complexity of the breach of contract cases is not determined by the amount of money in controversy, and local justice court judges do resolve breach of contract cases for under $3,000 in controversy.

The types of cases handled?

Not really, for example, sex offender cases are equally handled by the local justice courts (misdemeanors) and by the County Courts (on indictments or superior court informations). 

The time served by a convicted criminal defendant?

As I stated above, a local justice court judge may convict a person for several misdemeanors at the same time and commit him to jail for several years, served locally, but consecutively.   That decision may be right or wrong, but the judge has the power to make it. And to do that, a judge does not have to have any education.

In upper court judges decide issues for juveniles that require them to have education in law - is that what allegedly distinguishes the requirement for, let's say, a Family Court judge to be a lawyer  as opposed to a local justice court judge?

Not really.  Local justice court judges routinely handle the so-called "youthful offender" cases which legally transform criminal proceedings into a sealed civil Family Court juvenile delinquency proceeding - without the benefit of a law-educated Family Court judge.

Is it the knowledge by the County, Family or Supreme Court judge as a lawyer that controls the distinction?

Not really.  While there is a requirement for a County Court or Family Court judge to be a lawyer for 10 years before coming to the bench, there is no requirement for that judicial candidate to be a practicing attorney in criminal or family law, or in any other areas of the law he is supposed to handle as a judge, and by the time he or she steps on the bench, the judge who may never have practiced law may have forgotten everything he ever learnt about the law. 

Thus, a judicial candidate can be a person with a heartbeat and a law license - but with no knowledge of the law he or she is supposed to apply in the courtroom. 

It can be a rich man's wife who sat on her law license without using it for 10 years - and then, when her children are grown - suddenly felt the urge to re-enter the workforce, at a prestigious level of a judge no less, while she has forgotten by the time of running for a judge anything she was taught in law school.  It can be a lawyer of either gender who had practiced in a completely different area of the law and having no clue as to what he or she has to do in the courtroom.

It can be a transactional attorney who has never set his or her foot into the courtroom.

It can be a lawyer with a failing practice.  It is not a big secret in the legal profession that often people are running for judgeships not because their law practice is good, but, on the opposite, because it is bad and because they want to secure a stable salary, medical benefits and a pension where otherwise their outlook for a comfortable retirement is bleak. 

So - what is the distinction justifying the lack of a requirement in local justice courts for a judge to be a lawyer and a requirement for all upper courts for the judges not only to be lawyers, but to be lawyers for over 10 years before coming to the bench?

That in upper courts more money is involved in civil cases, cases are decided for richer parties, and judges who preside over those cases are supposed to be "higher quality" judges than "judges for the poor" in the local justice courts, at least by their educational credentials? 

And such "judges for the rich" who survived for 10 years without criticizing the judiciary and thus keeping their license intact are expected to be properly entrenched with the system and to rule they are supposed to rule - for the government and for the rich?

In New York, it appears that way.

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