"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, March 28, 2015

Once again on the oath of office of taxi drivers

Occupational licensing is rampant in this country.

According to one study, 30% of U.S. workforce is licensed or certified.

The study was recently referenced in a law review that was, in turn, relied upon by the U.S. Supreme Court in the case North Carolina State Board of Dental Examiners v. Federal Trade Commission, decided on February 25, 2015 and declining to give immunity to the State Board of Dental Examiners controlled by market participants, I wrote about that case earlier here.

The concept of occupational licensing is simple.

It is permission by the state to an individual to privately practice a certain profession, based on meeting certain requirements.

Once again, it is a permission for private practice.

It is not an application for appointment or election for a public office.

When occupational licenses are given to doctors, engineers, taxi drivers, they are not pronounced "officers" of a certain branch of the government.

Not so with attorneys.

When a private individual receives a license to practice law, he or she is also "sworn in" as an "officer of the court".

What does this oath of office mean?

Does it provide to the attorney absolute judicial immunity, as court personnel has?

Only to some of attorneys, such as prosecutors, whether civil or criminal, but not to private attorneys.

Actually, the embattled Judge Tormey (see here and here) has granted absolute judicial immunity for fraudulent acts during litigation to a private attorney, the same Jonathan S. Follender (who, in addition to his practice, is a justice in the Denning Town Court in Ulster County, New York) who was favored by Judges Eugene Peckam and Carl Becker, see my previous blog.

Yet, Judge Dowd quickly refused to recognize Judge Tormey's gift to his brother-in-arms Jonathan Follender as a binding precedent of the court, because recognizing it as a precedent would have invalidated the whole proceedings against my husband Mr. Neroni who Judge Dowd hates with a passion.

Judge Dowd actually reproached me for trying to present "dicta" as precedent.

Judge Dowd's refusal to apply Judge Tormey's gift to a private attorney-judge to all private attorneys is that Judge Tormey could choose, based on whatever powers he does not have, to give a one-time gift like that to his brother-in-arms, but that gift of new law cannot be equally applied to the rest of private attorneys, the mere mortals.

So, when private attorneys are sworn in as "officers of the court", does it mean the person actually holds a public office, or is it yet another pretense of the court system to use this pronouncement to require more from independent private attorneys?

The only time when the court recalls that a private attorney is "an officer of the court" is when the court wants to point out that the private attorney is "out of line" - for example, when you are criticizing a judge for misconduct.

An independent private attorney, especially the one who is not politically connected, must maintain in himself and in the public religious blind faith in the integrity of the courts while the courts, including judges and court personnel "enjoy" gave themselves absolute judicial immunity FOR MALICIOUS AND CORRUPT ACTS no matter what they do and are naturally not entitled to any trust at all because of that.

But a big question arises - Constitutions of most states prohibit individuals from holding more than one public office.

Yet, we know that lawyers, while all being officially designated as "officer of the court", are overpowering both the executive and the legislative branches of the state governments.

Is it a conflict of interest, should lawyers be cast out of executive and legislative branches of the government because all lawyers are "officers of the court" and cannot be trusted to control and impose "checks and balances" upon the branch of the government that they are (1) officers of, and (2) which controls their livelihood through licensing?

And the ultimate question - how can an attorney be appearing as an advocate in the same court that he or she is an officer of?

See once again my blog about the Appellate Division 4th Department's clerk of the court who stated in her recent letter to me that disciplinary prosecutors are actually employees of the court system, confirming to me what I asserted time and again, that attorney disciplinary proceeding is a mess of conflicts of interests where the three branches of the government have merged in a happy incest? 

What does appearing of "officers of the court" in courts they are officers of do to the court neutrality?

What does it do to independent advocacy?

Isn't it true that a court may not be an advocate?

Doesn't advocacy by court officers invalidates the very existence of advocacy and courts as they exist now in the U.S.?

And, if private individuals who simply want to practice their profession as lawyers and earn a living, must take an "oath of office" as "officers of the court" (without being paid as such), should we then push for oaths of office of all individuals who apply for occupational licenses?

An oath of office for taxi drivers, anyone?

The idea that officers of the court should not be members of the legislatures, that I developed in this blog, belongs to my friend Diane Gochin, of Pennsylvania, to whom I extend my appreciation.

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