"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, January 15, 2015

If the NYS Commission of Judicial Conduct has no jurisdiction to discipline a former judge discharging judicial functions, then who does?

I received an instant response to my complaint about Referee Sirkin who refused to provide to me a court-ordered hearing and instead "granted the motion" to the prosecution.

To preside over a fact-finding hearing and make findings of fact (that is what Referee Sirkin appointed by the court to do) is a clearly judicial function - that is what judges to in bench trials, make findings of facts.

Referee Sirkin (without authority) "granted a motion" and thus "resolved" the liability stage of my disciplinary proceeding - that is a clearly judicial function, even though Referee Sirkin is only a "former judge".

If a former judge is appointed by a court  as a referee in a court proceeding to discharge at least SOME judicial functions (preside over a fact-finding hearing and report as to his findings of fact, for further confirmation of the appellate court that appointed him), shouldn't then that former judge be amenable to discipline?

Here is what the New York State Commission for Judicial Conduct answered to my complaint - answered instantly, I must note:

The letter is marked "confidential", but, if the Commission does not have jurisdiction to discipline Referee Sirkin, then there is no confidentiality.  Moreover, non-amenability of individuals who discharge a portion of a court's judicial functions to judicial discipline is a major issue of public concern requiring amendment of the legislation pertaining to judicial discipline.

Which brings me to the subject I raised early on in my blog - there exist in New York also "secret" judges, the so-called "judicial hearing officers" whose names are not openly declared on court's websites, but who discharge FULL FUNCTIONS OF JUDGES.

A federal court recently tossed my challenge to the fact that courts conceal names of these judges, thus allowing the law firms where such hearing officers who are at the same time practicing attorneys, are partners, to continue to practice in courts where judicial hearing officers are appointed, creating conflicts of interest that opposing counsel and parties may not even know about, while such behavior constitutes judicial misconduct.

It has been established that it is judicial misconduct for a judge to allow his partners to practice in the judge's court.

By the way, a long-time member of the current Attorney Disciplinary Committee Alan J. Pope was involved in practicing in Binghamton City Court where his partner Judge Murphy was a part-time judge of that court.  

The part-time judge was disciplined for that, even though it can hardly be called discipline for the judge to simply serve out his term and not seek judicial officer after that.

Alan Pope or his partners were not disciplined as attorneys because - surprise! - how could one discipline oneself when Alan J. Pope is a member of the very disciplinary committee that is supposed to discipline him and his partners?

There is a fine example as to how disciplinary attorneys consider the committee their own fiefdom when it turns to complaint against themselves.  Instead of recusing from investigation and prosecution of THEMSELVES, they fight and dismiss complaints against themselves claiming that the complainants should not complain to the disciplinary Committee as a state body officially authorized to accept such complaints, but should speak to their "litigation attorneys" only.

 By the way, Alan J. Pope is right there on the letterhead on the left as a member of the Committee when the letter was written - and all letters attorneys for the Committee write are written on behalf of the Committee and on behalf of each one of its members.  It's official business.

So, Peter Torncello, on behalf of Alan J. Pope, an attorney prosecutable for attorney misconduct to which no statute of limitation apply, but who does not prosecute himself, writes a letter to me and advises me that I need to address Peter Torncello's litigation counsel, while my complaint against ALL attorneys and attorney members of the Committee (for filing and prosecuting false charges against me) must be instead sent to Peter Torncello's litigation counsel.

Nice job, isn't it?  To be able to deflect official complaints sent against you without recusal?

Peter Torncello resigned soon after writing the above letter, together with two other attorneys for the Committee, Steven Zayas and Elizabeth Devane, allegedly "amid investigation pertaining to filing false timesheets".

Peter Torncello was never suspended or disbarred for either filing false charges against me, or for filing false time-sheets which, if it was confirmed, constituted a crime or several crimes.

Which begs the question as to why people are appointed to these disciplinary committees - apparently it is not only to quash competition and eliminate critics of judicial misconduct, but also to guard the door from discipline against yourself and your law firm, partners buddies and attorney clients.

By the way, I was told time and again by the Committees and the courts that there is no statute of limitations for attorney disciplinary prosecutions.  If that is true, why wouldn't the Attorney Professional Conduct Committee of the Appellate Division 3rd Department prosecute Alan J. Pope and his partners for misconduct in connection of events that resulted in discipline of Alan J. Pope's partner Judge Robert Murphy?

Below are charges against Judge Murphy, Alan J. Pope's partner, and Judge Murphy's stipulation not to seek judicial office once his judicial term expired in 2008 because of the stated misconduct.

Yet, attorney Robert Murphy was never disciplined for engaging in conduct prejudicial for administration of justice which attorney Murphy admitted to the Judicial Conduct Commission, and I wonder why.

This is what happens when at least it is known by the public that a certain individual is a judge.

With secret judges, it is not even known - and the federal court recently told me that I, as a member of the public, do not even have a right to know.

A lawsuit to simply declare that actions of the court administration not to publish names of judicial hearing officers as part of the list of judges on the court's websites is a violation of a litigant's civil rights was recently dismissed by a federal court.  Apparently, the court found no right of the public to know of all the names of judicial hearing officers to know potential conflicts of interest where law partners of such judicial hearing officers would appear in court.

Here is also an interesting excerpt from yet another order of a federal court stating how much judicial immunity covers.  The name of the case is Neroni v. Peebles:

 Moreover, so many people other than judges were also granted absolute judicial immunity for malicious and corrupt acts by federal courts that one scholar wrote a law article called "The Black Robe is not a Big Tent".

So - there is an absolute judicial immunity not only for money damages, but even as to your right to declare that the judge violated your constitutional rights.  

So, you cannot sue the judge in civil court.

Yet, you can turn the judge in for criminal prosecution or for discipline in the Commission for Judicial Conduct and hope that discipline will be available.

Now that the Commission indicated that it does not have jurisdiction over "former judges", even if they are acting in a judicial or quasi-judicial capacity, the only recourse for me now to obtain any kind of justice against Referee Sirkin is to turn him into criminal prosecution?

But, it can be interpreted as a separate act of attorney misconduct as trying to get an advantage in a civil litigation by the use of criminal prosecution.

So - it appears that NO recourse is available for me as a citizen whose constitutional rights were obviously violated by a "former judge".

An injury without a remedy - in a country that boasts that it is based on the "rule of law"?

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