"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, September 6, 2014

Criminalized civil proceedings in Family Court should be abolished

Family Court of the state of New York is a court of limited jurisdiction, limited by statute, the Family Court Act and by the New York State Constitution.

Nothing in the Family Court Act gives the Family Court criminal jurisdiction.

You will search the Family Court Act in vain for any protections afforded criminal defendants, and, most importantly, a right to remain silent and a right to a jury trial.

Yet, several subsections of the Family Court Act sound and operate definitely like exercise of criminal jurisdiction, and, as far as enforcement of those statutes are concerned, the line between civil and criminal has disappeared.

The subsections I am talking about pertain to issuance of arrest warrants.

Now, once again, proceedings in Family Court are deemed "civil" proceedings - and for that reason, parents are denied their right to a jury trial, even though parental rights are fundamental constitutional rights, and even though in New York jury trials are allowed as of right, under the New York State Constitution in, say, civil actions for breach of contract.  Jury trials are also allowed as of right in federal civil rights actions asserting federal constitutional rights.

In other words, parental constitutional rights are separate and apart - they are afforded in New York less procedural protection than any other federal constitutional right and less protection than even property rights.

Observing how biased judges are in Family Court against parents who are poor or with low social status and how judges they ascend to Family Court, usually from prosecutorial positions, with prosecutorial, accusatory mentality ingrained in them over years of practice, introduction of jury trials as of right in Family Court appears to be a must.

I also assert that exercise by the Family Court, at the same time, of civil jurisdiction in imposing sanctions for frivolous conduct upon attorneys and parties in Family Court proceedings, as well as exercising of bench warrant powers are incompatible, and should be addressed by the Legislature.

If you are sued in civil court in any other proceeding, your failure to appear in that court will never result in issuance of a bench warrant for your arrest, instead, if you are a defendant in a civil action or proceeding, the civil court must ascertain whether the Plaintiff or Petitioner in the civil action or proceeding has served you properly with the court papers and whether the Plaintiff or Petitioner has provided to you proof of that service.

If all of those conditions are satisfied, and you did not appear, the most that the civil court is allowed to do is enter a default judgment against you, but never arrest you, unless you are in violation of a court order - and then you are subject to civil contempt proceedings.

There is one exception to that, which I recently addressed in federal court - which was dismissed before I served the action by a court that was itself a defendant in the action, when I asked to transferred the venue - and I am addressing that particular criminal contempt procedure on appeal.

There is a strict distinction between civil and criminal contempt that I have written about in this blog, and provided a comparative table, and the distinction equally applies whether the parent is accused of violation of court order of support or of any other court order, such as, of the court order of visitation.

Civil contempt presupposes that the court is compelling you to do what you are ordered to do by court order, and the court's authority to compel ends as soon as you comply.  That's why the civil contemnor "holds the keys from his own jail cell in his pocket".

If the court is trying to punish you for non-compliance with a court order - that is criminal contempt, a criminal contempt of court is at least a misdemeanor and you are entitled to full criminal procedure on that, including the right to be charged only by a District Attorney, and a right to a plea of not guilty, right to remain silent throughout the procedure, the burden of proof never shifts to you, you have a right to confront witnesses accusing you etc. - see the table.

Now, in the Family Court, especially in child neglect proceedings (which are considered civil proceedings, and attorneys and parties can be sanctioned for frivolous conduct in those proceedings, which chills attorneys from raising sensitive issues like judicial bias and misconduct), if general rules of civil proceedings are to be followed, failure to serve respondents with a petition may not lead to any consequences to the respondent.

In other words, the court may not exercise personal jurisdiction over a respondent in any other civil proceedings if the respondent was not personally served by the Petitioner.

In child neglect proceedings, if the Petitioner (social services) failed to locate the respondent, the court simply issues a bench warrant to bring the respondent into the court against his or her will, as a criminal.  This is not a characteristic of a civil proceeding, but federal lawsuits to challenge constitutionality of this statute are practically impossible to get through courts because of the leverage that social services have over parents to "persuade" them, or, rather, to intimidate them to drop such lawsuits for fear of losing custody of their children. 

In fact, bench warrant power of the Family Court is considered one of its "general powers" and is allowed to be exercised in cases of an "emergency", such as where a child is in danger or where a party is in violation of a court order.

Yet, as you remember, the Family Court has no criminal jurisdiction, and the power to enforce its orders is civil, not criminal contempt power.

The main distinction between civil and criminal contempt powers is that in civil contempt proceedings the maximum the court can do is COERCE, MAKE you comply with the court order, by imposing on you a fine, or by putting you in jail, or both.

Once you've complied or, in some cases, where you  have no ability to comply out of jail, announce to the court that you will comply - the court must let you out of jail.

Yet, time and again, I see Orders to Show Cause from Family Court for civil contempt of court warning respondents that the purpose of the civil contempt proceeding is to punish them by fine or jail or both.

What are the sings that such Orders to Show Cause are for a civil contempt proceeding and not a criminal contempt proceeding?

(1) The caption saying it is a proceeding of a civil petitioner against a civil respondent, not People of the State of New York against a criminal defendant;

(2) The proceeding has been brought "upon the petition of" a civil Petitioner, not upon a criminal accusatory instrument, as it is in criminal courts;

(3) The potential contemnor is called Respondent and is ordered by the court "to show cause" (speak up) as to why a finding of a violation of the court order should not be made, while in criminal proceedings a criminal defendant has a right to remain silent throughout the proceedings;

(4) The very first appearance in the case is "a hearing" where the warning on the Order to Show Cause says "THE PURPOSE OF THE HEARING IS TO PUNISH YOU FOR CONTEMPT OF COURT - SUCH PUNISHMENT MAY CONSIST OF A FINE OR IMPRISONMENT, OR BOTH" and at the same time the Order to Show Cause says that it is going to be only an "Initial Appearance" on the same "Order to Show Cause".  As compared, the initial appearance for a criminal defendant is an arraignment where he usually gets counsel, pleads not guilty, gets his or her 45 days for discovery and motions and only after that and after pre-trial hearings on the motion, if granted by the court, comes not a hearing, but a jury trial.


  • these orders are often used against poor parents who only have assigned counsel,
  • assigned counsel are heavily dependent upon the hopes of being assigned again and would not raise any sensitive issues on behalf of their clients,
  • rules of frivolous conduct are applicable to Family court proceedings, unlike criminal proceedings, chilling attorneys from raising important constitutional issues,
  • and it is impossible to bring a civil rights case in federal court to declare a statute unconstitutional, because it will be dismissed on judicial immunity and abstention grounds, returning it to Family Court, while Family Court Act and CPLR 3001 do not allow a Family court to decide issues of constitutionality of statutes, and Family Court judges consider constitutional arguments as "lying",
the  only way to address this mess and human rights crisis is through the Legislature.

Apparently, the poor parents and parents of low social status do not have any procedural protections or effective representation in such cases in Family Court, such cases rarely make it to appellate courts, and assigned counsel on appeal are similarly  afraid to raise important issues for fear of being accused of frivolous conduct - and the result is that an untold number of parents are punished by Family Courts without authority, including by jail time, which is a gross violation of their 4th Amendment and due process rights - but who cares?

I think, it is time for the New York State Legislature to straighten out this mess and to provide parents proper procedural protections in Family Court.

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