"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.

Monday, January 5, 2015

Menaces to society are not entitled to the rule of law

I described in this blog that I removed my disciplinary case to federal court, and it was remanded back on grounds of "lack of jurisdiction" (because the unfairness I was claiming was not racially-based) and because of the so-called "Younger abstention" (meaning that the federal court considered that the state court is competent and able to resolve my federal constitutional issues).

How the "competent court" has resolved my federal constitutional issues, I also described in this blog, but I will provide a brief summary once again.

The initial disciplinary court, the 3rd Department, entered into an ex parte communication with the prosecutors, issued an ex parte order of transfer of my disciplinary proceedings combined somehow with my husband's disciplinary proceedings (which concluded 3 years ago) to the 4th Department and blocked my access to the prosecutor's "application" for such a transfer that was never served upon me or my husband, for that matter.

The ex parte order with a caption including both me and my husband was the first time I saw my husband's name included into my disciplinary proceedings.  Apparently, the court does not have a clear picture who is being prosecuted, and it did not care.

The 4th Department court, after not receiving the full record from the 3rd Department and refusing to stay proceedings until the full record is provided by the 3rd Department, denied my federal constitutional claims without an explanation, once on a cross-motion, and the second time on a motion as of right to vacate, renew and reargue.  

After my motion to vacate, renew and reargue demanding, among other things, a reasoned decision on my cross-motion raising federal constitutional claims that were remanded on the Younger abstention from federal court, the 4th Department not only once again denied my motion without an explanation, reasoning or analysis, but also imposed upon me an anti-filing injunction without an explanation, reasoning or legal analysis - meaning that I may not, without court's permission, make another motion to the court.  

Enough of my pesky motions.  Enough of those pesky constitutional claims.  And enough of my pesky claims that I am entitled at least to a reasoning as to why my well-researched and pled constitutional claims are denied.

Now I am faced with a hearing.

Of course, it is a wonder as to how that hearing was even ordered since the prosecutor's motion for a summary judgment is still pending and is unresolved. 

I will have a hearing under the following conditions:

(1) the referee who the court refused to disqualify, is old, in my perception based on how he handled a trial conference, he has memory problems, and, most importantly, is not qualified by statute providing for clear requirements to qualifications of referees;

(2) I am not entitled to discovery;

(3) I am not entitled to send out witness subpoenas;

(4) the Department where the hearings are going to be held is located over 100 miles away from where the main witnesses are located, thus blocking for me any possibility for calling them even if I had subpoena power;

(5) New York State and 4th Department do not explicitly provide that evidentiary rules apply to such proceedings;

(6) I am not entitled to a jury trial;

(7) I am not entitled to even a public proceeding, as the court records were sealed under the statute that is supposed to protect my privacy, but, when I waived it, is now used by the court to protect itself and the prosecution from embarrassment and to intimidate me with the threat of contempt of court if I do publish the "sealed" court records, including those records which are in public domain and were not sealed are they were originally filed.

The federal court which was remanding the case back to the state court for a "fair determination", knew all of that.

Of course, in a federal civil rights litigation, I would have been entitled to:

(1) full discovery;
(2) a public trial by jury;
(3) rules of evidence fully applicable to all proceedings;
(4) reasoned decisions on constitutional issues
(5) strict rules as to how motions for a summary judgment can be brought (here, the prosecution first brought a motion for a summary judgment, without providing proof for their claims, and then the court rescued the prosecution by ordering a hearing while the motion for a summary judgment is still pending, which would NEVER have happened in federal court).

Attorney disciplinary proceedings are considered civil proceedings in New York.

There is no question that in other civil proceedings, litigants are entitled to public hearings, discovery, applicability of evidentiary rules and the CPLR, and to reasoned decisions on fundamental issues.

Since I am an attorney - and, "coincidentally", an attorney who criticizes judicial misconduct, and has been doing it for years - I am not entitled to any of the due process protections that normally must be afforded to litigants.

It is beyond the point to list attorneys who were engaged in: 

  • "robo-signing" in foreclosures;
  • ex parte communications with judges;
  • filing (like my prosecutors) fraudulent charges and prosecuting them, with vigor, in several courts.
As long as you do not "cross the line", do the "taboo" thingy, say the "taboo" words "judicial misconduct" and especially if you do not make motions to recuse judges, do not speak out against pervasive judicial misconduct in our court system, contribute to election campaigns and private seminars of judges, wine and dine judges through "mentoring" programs, marry and befriend judges - you will be just fine with your law license.

The only attorneys that the public apparently must be protected from, and at its own expense (consider over 2 years of my disciplinary proceedings on fraudulent charges), appear to be civil rights attorneys seeking to protect that same public from official misconduct, including misconduct of judges and powerful attorneys.  

That is the same public where 80% of it cannot afford an attorney.  Yet, the same public can afford funding disciplinary proceedings on fraudulent charges to eliminate those few attorneys who are not afraid to do their jobs, be faithful to their oath of office and zealously and independently protect constitutional rights of their clients, and, as one of the most important of those rights - their right to an impartial judicial review.

To these menaces to society, such as I am, no normal rules of litigation should apply - because, if such rules would apply, prosecution would have to lose, and that cannot be tolerated.

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