"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

Those busy and cranky judges and those pesky litigants

I hear often that judges are "busy", they are "frustrated", and, therefore, we the litigants (and their attorneys) should not take the judge's valuable time with lengthy pleadings.

In one of the CLE courses I recently had, the presenter of the course expressly called presenting to the court of all of the issues that an attorney can possibly raise on an appeal as a weakness and a receipt for failure, because the court will be discouraged to "read that all".

I refer you to my blog TL-DR ("too long, did not read"), where I touched on that issue before.

But, there is also these aspects to the problem of "busy and frustrated judges".

1/ who is whose servant - aren't judges public servants that serve the sovereign (the public) at the sovereign's pleasure during good behavior only, and isn't frustration at a litigant for raising all issues that present themselves in the record, the litigant's due process right and the judge's duty to review?

2/ a judge is not dragged into the judicial office by his hair or other bodily parts.  A judge comes there voluntarily, moreover, in New York a judge has to "win" a rigorous election campaign - and get funding for that campaign.  In New York, most judges must be lawyers with at least 10 years of experience.  10 years is more than enough to learn that court dockets are overcrowded and courts are understaffed.

If, knowing all that, an attorney runs for a judge, shouldn't he then deal with the inevitable time-constraints, overcrowded dockets, understaffed courts and associated stress levels without taking it out on litigants and their attorneys who have constitutional rights to due process, access to courts and impartial judicial review - and not by cranky judges who are "too busy" to provide a detailed review of all issues that the litigant wants to present to the court.

Otherwise, judicial review may not legitimately be called "an opportunity to be heard", right?

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