"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.

Tuesday, September 2, 2014

The land of pure white kissing cousins

I have a friend.  He is an African American.  He really wanted to become a court security guard.  But, first, he is an African American, and, second, he is not related to any judges, or their current employees, relatives or friends by blood or marriage.

And he did not get that job.

Which, to me, is not surprising, because I did not see one court guard in Delaware, Otsego, Chenango or Schoharie Counties who would not be white.

And the same with the police force, State police stationed here and local police, with one exception in Delaware County Sheriff's Department (one officer who is not Caucasian).  And the same with corrections officers.

So, my friend (whose name for apparent reasons I will withhold) who served this country in the military and should be respected instead of being put down and discriminated against, told me this about coming to one of the local courts on a civil case "the courts here are not used to see somebody like me in court and not in shackles". 

Also, people call me, whether to seek my advice as an attorney or simply to chat, believe it or not, about my blogs, and give me information from a variety of dependable sources about relatives working in the court system and in the local governments.

I am not even talking about, for example, Delaware County, where I don't know whether there is an employee of the County who DOES NOT have a relative working in the same county.  It is a pure land of kissing cousins.  And, according to the County's answer to my FOIL request, the County does not have an anti-nepotism policy.

These blood connections are difficult to trace because women change names in marriage, have children outside of marriage, sometimes, on the opposite, women do not change names when they marry and you might never guess certain people are a husband and wife or are related in any other way, but within the "6th degree of consanguinity or affinity", requiring them to be disqualified from certain cases as a matter of law.

I keep hearing from my clients that a certain person who is allegedly a blood relative of a certain judge is doing something wrong to them in court, and that the victim cannot complain because information about blood ties is kept like intelligence secret and disclosed in whisper behind closed doors, usually by an attorney who is pissed by a judge - but not pissed to the point that the attorney would care to make this information public. 

Because, as I've written many times in this blog, attorneys are afraid of retribution from the most honorable people in the world - judges.

Recently, I've got some more information about alleged blood ties of judges to certain people in the local court system which may present certain disqualification or even misconduct issues.  And, I am investigating these issues through FOIL requests - I will see how successful those FOIL requests will be.

But here is a suggestion to the public - since it is a public court system funded by taxpayers money, to put it bluntly, you and me pay for this mess - shouldn't there be simply enacted a law REQUIRING judges to publish their family tree, down to the 6th degree of consanguinity and affinity (same as rules of disqualification for juror fact-finders), with names of all people in that family tree, places of work, names of spouses, etc.

So that a litigant entering a case may consult that family tree and at least see whether the judge has blood or marriage ties to witnesses, parties or attorneys in a certain proceeding.

Oh, and, of course, I would include into that law not only consanguinity and affinity, but close friends, law school buddies, campaign contributors, and non-formalized romantic relationships, like dating, boyfriends and girlfriends.

Too much invasion of privacy?  If that is too much for a judge to give the public who elected him or her information to decide for themselves whether the judge in a certain case is or is not disqualified, he or she should choose another profession.

And, of course, I would couple that requirement with mandatory online publishing of judge's semi-annual financial reports instead of hiding them and not providing them even on FOIL requests, which is what happens now.

And, of course, I would require judges to disclose their memberships and memberships of all members of the judge's family tree, up to the 6th degree of consanguinity and affinity, in ALL, and I mean, ALL "charitable", social, social networking organizations, with a schedule of events in those organizations and a disclosure of membership in those organizations and what kind of perks a judge - or his family - might be receiving from them.

And it goes without saying, especially given the current culture of cruel persecution of attorneys and pro se parties criticizing judicial misconduct, that it is equally important to not only be able to learn about judicial disqualification, but also be able to do something without it without a risk of sanctions. 

Allowing peremptory challenges to judges, as many states already allowed, would be a good start.

Such a system will not eliminate all issues of judicial disqualification, but it would at least provide a first step toward a real and effective access to court, guaranteed by the Constitution - instead of the pure white land of kissing cousins that we have, at least here, in the neck of woods of upstate New York.

And, personally, hypothetically, I would feel much better if I know that the mother (sister, brother-in-law, or the mother of the sister of the brother-in-law) of a recused judge does not have access to my own or my client's private file, simply because she is a court employee.

Of course, who cares about my feelings or feelings of other litigants if one needs to give a job to one's loved one in a tight job market?

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