"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, November 11, 2014

More on finality of court orders that declare that the Sun rises in the West

This is yet another hypothetical for law students.

Let's say a certain court and a certain judge who had authority to preside over a case as a finder of facts, found that the Sun rises in the West.

The losing party made a motion to vacate claiming plain error, and lost because such errors must be raised only on appeal.

The losing party sued in federal court and lost on the Younger abstention grounds, because state appeals did not run through yet.

The losing party appealed and the appellate court affirmed claiming that they cannot do anything, because they must defer to the factual findings of the lower court.

The losing party sued in federal court against and lost under the Rooker-Feldman doctrine, because the federal court claimed issues of due process that the losing party is raising should have been raised on appeal.

Ok.  The losing party lost in state court and on all appeals from the state court order that says that the Sun rises in the West.

The losing party has lost in federal court without reaching the merits, because the state court already made its ruling which should be final and should not be disturbed.

Now, as to the losing party, for all purposes, the Sun rises in the West?

Yes, it must, it is now the law.

But does the Sun really rise in the West?

Look out your western-bound window in the morning and you will know.

Yet, if you move to vacate once again the obviously crazy decision of the court, you will now be sanctioned for frivolous conduct, ordered to pay your opponent's counsel fee and, possibly, blocked from access to court altogether as a "vexatious litigant".

But the Sun still rises in the East - yet, not for you...

This is just a hypothetical of how the law of finality works in American courtrooms.

You think it's crazy?  There are zillions of decisions that say exactly this, only instead of "Sun rises in the West" there is something slightly different, for example, a misrepresentation of documents which do not say what the court says they say, or misrepresentation of the law which does not say what the court says it says.

Yet, the result is the same - if the court says (erroneously, or with a purpose to hurt you) that black is white, A is Z and that, yes, that the Sun rises in the West - that's the law for you.

And don't you dare tell the judge that it is - what? - that's right, crazy, your Honor!

No comments:

Post a Comment