"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, January 20, 2015

I wonder how the NYS Appellate Division 4th Department will be wiggling out of the mess created by Referee Sirkin

The procedure set by the NYS Appellate Division 4th Department in attorney disciplinary proceedings is as follows:

(1) if the court orders a hearing to be conducted on issues of fact, the court appoints a referee "to hear and report";

(2) the referee hears facts and reports to the court (without a recommendation or making any decisions on facts or law);

(3) after the referee's report on issues of fact is filed with the court, both the attorney who is subject to the disciplinary proceedings and the disciplinary prosecutor may file with the court motions to confirm or disaffirm referee's findings of fact;

(4) the court then confirms or disaffirms the referee's report, makes its own findings of fact and findings of law based on findings of fact.

Now, the Referee Sirkin scrapped all of that and, instead of conducting hearings on liability to "hear and report" findings of fact, "granted a motion", or made a decision on the facts and the law.

In fact, court procedures do not even presuppose conducting a hearing while a motion for a summary judgment is pending, but, if the Referee was ordered to conduct a hearing, that was what he was supposed to do - and he refused to do that.

In the recording that I made of my conversation with Referee Sirkin on January 12, 2015 and posted in this blog, Referee Sirkin promised me that he will send me his written decision on the motion.

I still did not receive either the written decision from Referee Sirkin bypassing any court-ordered hearing and simply "granting the motion" without any hearings, nor did I receive any response from the court to my letter requesting appointment of a competent referee who will do what the court has ordered him to do - conduct a hearing and report his findings of fact to the court.

It becomes increasingly more interesting how the court will be untangling the mess it created with appointment of an incompetent referee and refusal to disqualify him when I provided to the court proof, a transcript, where the referee clearly stated that he was GOING to decide a motion, when that was not what he was appointed to do.

Even more interesting is the question how can people's cases be resolved by judges who are not amenable to judicial discipline - since technically referees, judicial hearing officers, and even some judges of the Appellate Divisions who serve past mandatory retirement, are "former" judges and, as such, according to the NYS Commission for Judicial Conduct, are not amenable to judicial discipline.

Reading responses from these different agencies I always wonder - does anybody think in creating contradictory laws and implementing them?

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