"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, April 27, 2015

The elusive appearance of impropriety

Judges of both state and federal courts must step down from cases where they are presiding where there is even an "appearance of impropriety".

That is because the U.S. Supreme Court has ruled that, as a matter of federal due process of law, not only justice must be done in court cases, but appearance of justice must be done, too, to satisfy the public in the integrity of the court proceedings.

Yet, while the rule is declared that even "appearance of impropriety" is enough for the judge to step down, courts also introduced a mirror rule cancelling the constitutional requirement to judges to step down because of "appearance of impropriety" to ensure due process through both justice and appearance of justice in court proceedings.

The mirror rule is "discretion".  "Discretion", as interpreted and applied by most courts in the United States, both state and federal courts, is absolute and unrestricted power of a judge to do what he wants.

Judges of state and federal courts also have "discretion" (absolute power) to impose sanctions upon litigants and their attorneys for "frivolous conduct", which is defined so vaguely and applied so selectively against the "mere mortal" parties and attorneys and privileged and politically connected parties and attorneys that it appears to be a tool targeted for retaliation of certain individuals for voicing certain political opinions rather than a rule established as part of the "rule of law".

So, on the one side we have "appearance of impropriety", constitutional rights of litigants to impartial judicial review, due process, justice and appearance of justice, and, on the other hand, all of the is swept away by the rules of "discretion", "discretion" not to step down, "discretion" to impose sanctions for motions for recuse, "discretion" for raising constitutional arguments and any other arguments that the judge simply does not like, whether they are legitimate and lawful or not.

Appellate courts routinely rule that failure to recuse and imposition of sanctions for making motions to recuse is not "abuse of discretion".  Appellate courts also routinely rule that failure to make a motion to recuse (even for fear of these "discretionary" sanctions) is a waiver of a right to raise issues of judicial bias.

The "discretion" not to recuse and to sanction for motions to recuse is given by the courts to themselves because courts presume upon themselves integrity - even while giving themselves absolute judicial immunity for malicious and corrupt acts on the bench.  

Of course, to a reasonable person all of that is nonsense and corruption, but try saying that in the court pleadings - you will be sanctioned thousands of dollars and, if you are an attorney, you may end up without your law license, since in America the very same government misconduct of which lawyers are supposed to challenge on behalf of their clients is regulating the lawyers' licenses and livelihoods.

Such control by the government of independence of court representatives has been pronounced a human rights violation and undemocratic in such parts of the world as Iran, but remains in full force in the United States of America.

Because of the "rules of discretion", the rule requiring that judges step down from cases because of "appearance of impropriety" is interpreted so broadly that nothing at all, no glaring conflict of interest, can be or is considered improper for a judge to preside over a case.

Cases interpreting "appearance of impropriety" are read like a combination of George Orwell's "1984" and the Diagnostic Manual of Mental Health Disorders.  In other words, they are simply crazy for a normal person to read.  What a reasonable person clearly would see as an appearance of impropriety, judges, after no less than "consulting their own conscience", consider proper - and consider it proper to punish the challenger who raised the issue of impropriety in the first place, and appellate courts do not see anything wrong in that, and affirm, cutting off any possibility for people for further effective legal remedies for the clear wrongs dealt to them by the government, through a member of its judicial branch.

What I suggest is that rules allowing judges' "discretion" to recuse or not to recuse, or to punish for anything at all, including motions to recuse, should be legislatively abolished, judges should be legislatively prohibited to impose sanctions for making motions to recuse, and judicial immunity (illegal and unconstitutional that it is) should be at the very least legislatively stripped from the judges for imposing sanctions when a motion to recuse is made, allowing victims of such sanctions to sue the judge for that particular retaliation.

That would be at least the first good step forward to prevent chilling litigants from raising legitimate issues in litigation and protecting their legitimate rights.

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