"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.

Sunday, November 2, 2014

Judges in New York are not amenable to discipline unless they are judges who are not attorneys and unless they upset a prosecutor - and then all bets are off and no law applies

Many times I made documented complaints about egregious misconduct of judges in New York State Courts.

Naturally, most of the complaints dealt with courtroom behavior of judges, as I witnessed that behavior as an attorney or a party in legal proceedings.

All of the complaints, other than those which are pending, were dismissed by the Judicial Conduct Commission with an indication to me that where a judge's misconduct occurred during a court proceeding, my avenue to address it is on appeal.

Yet, when I sued judges for misconduct, my lawsuits were dismissed on the basis of the so-called absolute judicial immunity conferred upon the judges even when they are sued for malicious and corrupt acts on the bench, specifically because discipline is (supposedly) available for their acts on the bench.

Now, you see the circular logic here.

A judge may not be sued for acts in a court proceeding, because you have the alternative to have him disciplined.


A judge cannot be disciplined because you are complaining about his acts in a court proceeding.

And an appellate court will rubber-stamp anything the judge said and reject any allegations of bias.

And the Court of Appeals will refuse to see any constitutional violations.

And it is easier to squeeze through a needle's eye than to get a review in the U.S. Supreme Court.

And your federal claims that the judge is violating your federal constitutional rights will be rejected by a federal court while the state proceeding is pending on a judicially created "Younger abstention", and, after the biased judge ruled against you, and the appellate court rubber-stamped the ruling, your federal claims will be rejected by the federal court under the so-called "Rooker-Feldman doctrine".

So, if you move to recuse a judge in the court below, the judge may punish you (in a civil case) and your attorney with a fine of up to $10,000.00 and with your opponent's attorney's fees which your opponent's attorney will be happy to inflate since such a windfall fell into his or her lap.

But - guess what - there seems to be an interesting exception in New York to this "do not criticize a judge, or else" rule.

(1) If a judge is a not an attorney, and
(2) If a judge, in a criminal case, upset a prosecutor by ruling for the criminal defendant.

Look at what happened to Judge Daniel J. Evans of the Norwich City Court.

Judge Evans dismissed, sua sponte (on the court's own motion), a traffic ticket, which was a clearly judicial act, yet the Commission for Judicial Conduct claimed that Judge Evans undermined

That was clearly an act on the bench, a judicial act.

And the "policy" of the Judicial Conduct Commission would be to tell the prosecution to appeal the dismissal if they are not happy instead of prosecuting a judge.  Had Judge Evans been a judge of an upper court, and had Judge Evans been an attorney, no investigation would have been conducted, no testimony would have been taken, the complaint against Judge Evans would have been tossed and Judge Evans would still be on the bench now - as numerous judges (who are attorneys) who were subject of much worse complaints, still remain.

Yet, a proceeding erupted where Judge Evans was hauled as a witness against himself, was grilled as to why he (1) did not engage in an ex parte communication with the prosecution and (2) why he did not conduct his own discovery on the case before he dismissed it.

 Note that the judge admits to an ex parte with Mr. Dunshee, and the ex parte communication, in the Commission's view, is necessary to prevent discipline of the judge - because then the Commission found that the judge lied to the Commission, that there was no ex parte communication with Stephen Dunshee and THAT was the reason why the judge was taken off the bench.

Note that the judge did not go outside of the record when he dismissed the ticket and did not contact the insurance company - which is what the judge was not supposed to do anyway, that would have been judicial misconduct had the judge tried to collect relevant evidence himself.

Here Judge Evans admits to an ex parte communication with the prosecutor Mr. Dunshee after the defendant was already served with the traffic ticket:

Judge Evans also admitted that he actually started seeking evidence from outside of the record when the Commission started its investigation of him - but obviously, Judge Evans did not engage in this "expected" judicial misconduct soon enough for the Commission's liking.

Note also that Judge Evans would not dismiss a ticket without "approval" (on an ex parte basis, naturally) from Stephen Dunshee, Judge Evans' former personal attorney, and that Judge Evans considered issues of liability in a POSSIBLE civil lawsuit in his considerations to dismiss or not to dismiss a traffic ticket, which is not a lawful consideration for a traffic judge to make.  That was NOT the basis of charges for misconduct against Judge Evans.

The basis of charges was that Judge Evans in this case allegedly dismissed the ticket WITHOUT obtaining the ex parte approval of the prosecution.

Stephen Dunshee appeared and testified about his representation of Judge Evans.

Note that Stephen Dunshee claims that the Town of Norwich paid for his representation of a judge accused of judicial misconduct - and why did taxpayers have to pay for such representation?

and offered testimony where he admitted to routinely engaging in ex parte communications with judges.

Stephen Dunshee's testimony against Judge Evans, Stephen Dunshee's own former client, was inconsistent and sometimes mumbling:

Look how Stephen Dunshee describes his own employment history:

Here Stephen Dunshee is completely incoherent: "Before that I had a private law practice which I was with the district attorney's office three or four years".  What does that mean? Would you like such reasoning faculties in a magistrate judge that Stephen Dunshee has just become?

So, in my experience, the Judicial Conduct Commission, following its own policy, does not even investigate judges if they are accused of misconduct on the bench, claiming that the only remedy is on appeal.

Yet, Judge Evans was taken off the bench because of a judicial act, the sua sponte dismissal and because he did not consult with the ADA before the dismissal!

So now, for a judge of a justice court, not to lose his judgeship, is necessary to actually engage in ex parte communications with prosecutors of traffic tickets.

This stuff is, really, for the Last Week Tonight show...

Yet it is the reality in New York...

And - judges who are attorneys, packs of them, are not hauled into the Judicial Conduct Commission and are not prosecuted for not following procedural law, NO MATTER WHAT THEY DO.

And, had the sua sponte dismissal been of a civil case, the civil plaintiff would have banged his or her head against the door of the Commission in vain, they would  have simply tossed his complaint.

It is because a prosecutor was upset, the judge (a non-lawyer judge) was taken off the bench.

Also, Judge Evans was taken off the bench for failure to disclose that he has been represented 3-4 years prior by the Assistant District Attorney Stephen Dunshee in the same Conduct Commission, when Stephen Dunshee appeared in front of him as a prosecutor.

Yet, Judge Carl F. Becker appeared as an Acting Supreme Court Justice in Delaware County in a DEC case where the NYS Attorney General, at that same time representing Judge Becker in a lawsuit against Judge Becker in his individual capacity, was a plaintiff's attorney. 

Judge Becker made no disclosures of representation, rejected any claims of impropriety, and the appellate division, after a financial incentive from the Governor in the form of nomination of the presiding judge of the appellate panel Judge Leslie Stein to the Court of Appeals, affirmed that Judge Becker's non-disclosure was ok.

So, we have a real double-standard here.

One judge (who is not an attorney and who pissed a prosecutor, who was "coincidentally" the judge's own prior attorney) has been taken off the bench for exactly the same reasons as to why another judge was not, despite complaints filed by me about non-disclosure of involvement with the New York State Attorney General as the judge's counsel in an individual matter.

Not only Judge Becker was not taken off the bench in 2011, with a prohibition, like in Judge Evans' case, not to take the bench again, but Judge Becker was  allowed to run and be re-elected for a new 10-year term, retained his appointment as an Acting Supreme Court justice entitling him to a higher salary and to a higher pension on retirement.

So, when you are told next time about the so-called "rule of law" in the State of New York...   Read the proceedings against Judge Daniel Evans on the website of the NYS Commission for Judicial Conduct.

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