"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.

Thursday, December 11, 2014

To ensure genuine access to justice in the US and in the State of New York, state and federal statutory prohibitions should be introduced for any public officials, including judges, to sanction critics of their behavior in any forum, with a strict-liability disciplinary component for violations and with statutory voiding of any such punishments

You criticize a public official.  You complain about misconduct of that public official.   You ask disciplinary authorities to discipline that public official.  You sue that public official in his or her individual capacity.

That public official then turns around and deprives you of a benefit.  Moreover, that public official sanctions you for your criticism of that public official.

It is pretty obvious that a major conflict of interest exists under the circumstances.

It is pretty obvious that a public official cannot sit in judgment of a person who criticized the public official, and cannot punish that person, as there will be an appearance that the punishment is in retaliation for criticism and in violation of the person's 1st Amendment rights.

Right?  Not so fast.

In New York State courts, and, as far as my research shows, in other states around the country, judges punish attorneys and parties specifically for making motions to recuse those same judges.

A growing number of states allow peremptory challenges to judges (removal without cause), but New York is not one of them.

If you do not make a motion to recuse, the appellate court will reject your claim of bias on appeal and will "defer" to (rubber-stamp) all factual determinations of the biased judge bent on retaliation against you.

If you do make a motion to recuse, the judge will sanction you and your attorney, so attorneys usually refuse to make such motions.  It is a Hobson's choice, of course.  Everybody knows about it in the court system, nobody wants to address it.  Why? Job security.

Is it a denial to you of effective representation of counsel due to this culture of intimidation?  Definitely.  Is it going to change any time soon?  Not until and unless the people start asserting their claims to change the situation through legislative initiatives, because nothing will be done through courts where judges will always support their own.

Is it constitutional to allow a judge whose conduct is challenged to be the judge of his or her own misconduct?  In my opinion - definitely, not.  Yet, it is happening, in both state and federal courts.  I urge people of the State of New York to write to their legislative representatives to introduce a bill prohibiting judges to sit on motions to recuse those same judges.

Is it constitutional to allow a judge to sanction a person who criticized the judge, for the criticism?  In my opinion, definitely not.  It is a violation of the 1st Amendment freedom of speech, access to court, and a due process right to a fair trial before an impartial court.  A person, no matter how honorable his official position is supposed to be, cannot NOT have favorable bias to himself or herself, it is in the human nature to not take criticism well and not to see your own flaws.  Economic constraints, constraint of caseloads of judges, constraints of understaffing of courts have nothing to do with people's right to a fair trial in front of an impartial judge.  Therefore, a bill should be introduced and statutory law passed, in my humble opinion, prohibiting state and federal judges from presiding over motions challenging their conduct, and a "statute with teeth", with strict disciplinary liability for non-compliance.

A state and federal statutory prohibition should also exist for judges to impose any other sanctions or deprive litigants of any other benefits, such as access to court, where making motions to recuse those judges is any factor or basis for such sanctions.

It is elementary.  You do not get the authority to punish your critic, it is a conflict of interest to any person, honorable and dishonorable.  And if you do punish your critic, you must be punished, too, and your decision to punish your critic must be deemed, as a matter of statutory law, null and void.

Until and unless such statutory law is introduced, nobody in this country will have effective representation of counsel, with counsel shaking in the bushes whenever their client raises the issue of bias of the judge and requests to file a motion to recuse.

A law allowing peremptory (no cause) challenges for judges for the State of New York and in federal court would also be nice to have, but they do not eliminate the problem.

It is a basic due process principle that removal for cause from any position of power should not be within the exclusive discretion of the person whose conduct is challenged and whose removal is sought, whoever the person is and however high and honorable his or her position of power is.

 In fact, if judges claim to be a presumptively honorable profession, they should adhere to such principles more, not less than we mere mortals.

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