"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.

Friday, February 20, 2015

What is the essence of the rule of law in Nebraska, is long dead in New York. And we need to revive the rule of law now - before it is too late.

Recently, when I was putting in a Russian-language blog on death penalty in the United States, I came across a spectacular document, a "Sentencing Philosophy" statement by the Chief Judge of the U.S. District Court of the District of Nebraska the Hon. Laurie Smith Camp.

I provide here a portion of Judge Camp's statement that I found extremely relevant to what is going on in courts in New York state - in federal and state courts.

Judge Camp writes in her "Philosophy of Sentencing" statement that the essence of the rule of law is equal application of laws notwithstanding the individual characteristics of a litigant, and uniformity and, thus, predictability of such application from case to case:

I completely support and share Judge Camp's view as to what the rule of law should be, what it does, and what will happen if the rule of law does not exist.

Yet, I've lost count how many times I've been sanctioned for requesting judges to follow the law, or to recuse because they favor a status and refuse to apply the law in the fair, reasonable and predictable manner, as it should be applied.

I've been sanctioned for what precedents and statutes say is legal conduct.

I've been sanctioned for raising constitutional arguments based on legal research and precedents.

And, as Judge Camp says, since I am not at all assured how a certain judge will rule in a certain case, even where the law (case law, statutory law and constitutional law) is quite clear as to how the judge should rule, I, as a litigant cannot make reasoned decisions about my own life, and I, as an attorney, can only give my clients a "triple" advice:

(1) this is what the law is;
(2) this is what the record is of this particular judge as to this law, in various cases, for various parties, such as:

  • men v. women;
  • rich v. poor;
  • people with a criminal record v. people with no such record;
  • social services v. everybody else;
  • the government v. regular people;
  • politically connected attorneys v. regular people or sole practitioners;
  • attorneys who sit with judges on "councils", "Committees", donate to judges election campaigns etc. v. attorneys and parties who did not cater for the judge in any way

(3) and as a bottom line - I DO NOT KNOW how the judge will rule in your case, even if the law is clear.

And, as an attorney and officer of the court, I did not take my constitutional oath of office to guess whims of judges and to cater for those whims in order to win cases.

Unfortunately, I am far from the only one affected by this "selective" application of the rule of law in federal courts within the State of New York and in New York state courts.

As a result of my own personal experience as an attorney and litigant, communications with other attorneys, feedback on this blog, I can, unfortunately, conclude that the problem with unpredictable court rulings, and ruling contrary to the existing law which are not corrected on appeal, or where people simply cannot afford to appeal and the judge who refuses to apply proper law, knows it - such cases proliferate and constitute the rule rather than the exception.

It is definitely not my personal problem only, it is the problem of access to justice for people in this entire state.

The rule of law should be there, and if it is not there, there will be problems like Judge Camp described in her Sentencing Philosophy, and worse.  The rule of law prevents tyranny and it prevents chaos.

If the rule of law dies, tyranny and chaos will ensue.

Tyranny is already here, as is already known to many litigants who were ever confronted with court decisions that they cannot change where courts defied the law, and where courts clearly favor parties and attorney with high status and political connections than those who the law favors.

Chaos may ensue following the further advancement of tyranny.

It is to make sure that the rule of law is there and is enforceable, the beginnings of tyrannies may be timely caught and rooted out, and chaos is prevented, the Civil Rights Act was enacted in the 19th century, and in the 19th century U.S. Senators pointed out that, where there is no rule of law, rebellions may ensue.

Federal courts made the Civil Rights Act practically unenforceable with judicially created amendments existing in the form of various "doctrines" restricting application of the Act - "abstention" (until the biased state court predictably decides against you) doctrines, "deference" (to the biased state court) doctrines, the "Rooker-Feldman" (your case was already heard by the /biased/ stated court, you are a LOSER and we won't hear your claims of constitutional violations by that court) doctrine, self-given immunity doctrines etc.

So, the door to nipping governmental, including judicial, tyrannies in the bud at their very beginning, through civil rights litigation, is slammed by federal courts into the public's face, and what remains is that shut door to federal courthouses and state courts where judges rule according tot heir whims and not according tot he law, knowing that litigants can do nothing about it.

One does not have to have a crystal ball to predict that, if the rampant judicial corruption, misconduct and refusal to follow the applicable law continues on a scale it exists now, and against the worsening economic situation, public rebellion is not far away.

As a person who was born in the Soviet Union, a country rampaged and ravaged by a revolution and its consequences, I would really prefer this country to be spared of any violent solutions to this problem.

We need to seek legislative resolutions of the rampant problem of judicial misconduct, access to court and rule of law crisis in New York.   Now.  Before it is too late.

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