"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.

Saturday, January 24, 2015

Retired Judge of Appellate Division 3rd Department Carl Mugglin as the pronouncer of the court's review policy

Back in 2009 during an appellate "settlement conference", a retired judge of the Appellate Division Third Department, Carl Mugglin, without reading the record in the case that the settlement conference was for, but after hearing my constitutional arguments, started to discuss a topic that was irrelevant to the pending appeal.

The topic was - whether a private attorney can invoked the power of the People of the State of New York to order appearance of litigants who are not religious, at a deposition in a church, if litigants object.

Carl Mugglin pointed out to me that a criminal trial was allegedly held in a church in Cooperstown, NY (Otsego County), and if that was ok for a criminal defendant, a deposition in a church of non-religious litigants over their objection as to having to enter the house of worship on the threat of contempt of court is surely ok for my clients.  

(1) the issue of the deposition was not part of the appeal, and Carl Mugglin had no business discussing that issue;

(2) what was allowed by another attorney and other parties in another case decades ago, without even knowing whether it was done on consent or not, was not applicable in a case with clear 1st Amendment implications nowadays;

I attempted to point these simple things out to Carl Mugglin.

Carl Mugglin, whose ONLY authority as a retired judge handling the settlement conference was to inquire whether parties can settle or whether the appeal was to proceed (and at that early stage in the appellate litigation the Record on Appeal and appellant's brief were not yet filed and were not in front of him, so he did not know the record or issues in the case), started then lecturing to me and stated, in response to my arguments to him to stick to what he is supposed to do ,the following;

"you will dig a hole, Mrs. Neroni, for your clients by your intellectual efforts".

My client, an educated female, was shocked by the sexism of his statement.  

Practicing law is making intellectual efforts on behalf of a client.

Yet, for the 3rd Department court, from the times of Carl Mugglin to this time, judging by their decisions, including the latest decision I just posted about, judges fail to engage in proper intellectual efforts to provide full judicial review - and consider rightful indignation of litigants as to lack of, let's say, intellectual rigor and competence of judicial decisions in New York from trial to appellate level as questionable and sanctionable.

And it is time to make collective public efforts to introduce legislation or changes to the State Constitution to end this judicial arrogance, introduce true judicial accountability and ensure true access to courts and proper judicial review of court cases.

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