"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, May 1, 2015

If we are serious about court reform - let's start cleaning up the house

Various grass roots groups and independent individuals raise, in the press, in social media, in documentaries, in rallies, the issue that corruption in court proceedings is pervasive and that court reform is necessary.

I wholeheartedly agree.

Here is what, in my personal opinion, may help clean up court proceedings in the United States, on the state and federal level.

1/  Deregulate the legal profession and remove control of attorney's livelihood from the government.  It will not cost the state any money to simply say - finita, we do not any more regulate who represents you in court, as long as you've chosen that individual and gave him/her a Power of Attorney.  

For substandard services or professional misconduct of court representatives there are private cause of action for professional malpractice, breach of contract, breach of fiduciary duty etc.  Your counsel is independent from the government and can challenge the government without fear of being stripped of his/her livelihood.  For that, you pay with having to watch out for yourself on your own as to quality of your counsel's services.

Such a measure will increase supply of legal services, drop prices in the market for such services and increase variety of services and creativity of providers.

2/ For the same reason as deregulation, abolish rules and statutes allowing judges to impose sanctions upon attorneys and parties for expressing themselves in litigation.

3/ Legislatively, or on state and federal constitutional level, abolish all restrictions to jurisdiction of federal courts to review civil rights cases - all deferences, abstentions, immunities, specific pleading (plausibility) requirements etc.

4/ Legislatively abolish any and all time and page restrictions for pleading a civil rights case.

5/ Legislatively prohibit discrimination against civil rights appellants, from putting them on the "fast track" to deciding their cases by "troika courts (three, most often, senior status judges)" through "summary orders".

6/ Cut the terms of judges to one year maximum to prevent judges from colluding with influential attorneys.   Make elections secret, through secure Internet hubs, and allow anybody who meets educational requirements to preside over judicial proceedings to register and run for a judge, no party approval  and no approval by groups of supporters to register should be required.  

7/ Simplify court rules and procedure.

8/  Teach judicial duties and requirements of the law for such duties in high schools, preparing every citizen to be able to serve as a judge by appointment, on a case-by-case rotational basis.

9/ Eliminate the pension and state benefits as a lure for incompetent losers who come to the bench because they cannot survive in private practice and spend their time on the bench avenging their incompetence against independent attorneys and litigants represented by them.   

10/ Make rotational appointment process transparent and public, so that members of the public can see, in an online register, what is the order of assignment of attorneys or members of the public as judges in every court on every particular date.

11/ Allow peremptory challenges of judges, especially where judges are fact-finders.

12/ Allow voir dire of judges, on the same principles as voir dire of jurors.

13/ Mandate judges to file their financial disclosures with the clerk of the court where the judge is serving, allowing anonymous access to those financial disclosures by the public.

14/ Equalize rights of pro se parties and representing parties in rules of service, subpoena powers et.  If the legal profession is deregulated, allow all court representatives and all pro se parties the same powers in service and non-judicial subpoena powers.

15/ Abolish absolute judicial and prosecutorial immunity for corrupt acts in office, legislatively, or on state or federal constitutional levels.

16/ Legislatively mandate all courts to publish their decisions online and make them accessible to search engines, for easy legal research by the public.

17/ Make the texts of the laws, from federal to state local laws and agency regulations, readily available to the public through easily searchable online free online databases.

18/ Until such databases are in place, abolish or suspend statutes presuming that lack of knowledge of the law is no defense.

19/ Offer free courses to eliminate illiteracy easily accessible to the public.

20/ Until such courses reach all illiterate people in the country, abolish or suspend laws punishing pro se illiterate people for imperfect pleadings or for lack of knowledge of the law.

21/  Allow all cases to be resolved out of court, through arbitration and mediation, including some criminal cases (95% of cases in this country are resolved through plea bargaining anyway, and most of them are for non-violent crimes).

22/ Abolish jail sentences for non-violent offenses, applicable retrospectively, and release all prisoners who are in jail for non-violent offenses.

23/ Equalize the scope of discovery between criminal and civil cases.  At this time, discovery in civil cases is more generous than in criminal cases, while stakes for criminal defendants are higher than in civil cases.

24/  Allow video and audio recording by private individuals of court proceedings.

25/ Open all proceedings to the public with very few exceptions, such as juvenile proceedings.

26/ Fully ratify the International Covenant for Civil and Political Rights and give a private cause of action, as other UN member states allowed, for violation of individual civil rights by the United States, federal and state governments.

27/ Legislatively abolish any and all "rules of finality" where justice was not served, and allow litigants to re-litigate matters until rule of law is correctly applied, as written.

28/ Legislatively prohibit to punish litigants and their representatives for making constitutional arguments and for making motions to recuse a judge.

If at least a fraction of these changes is implemented, court proceedings will be much cleaner than they are now and people will have a lot more trust in the integrity of the country's justice system.

Most of the solutions that I've pointed out are being offered by different scholars and members of the public for decades.  It is time to finally do something about court reform.

Let's remember that courts were established to put the predictable, uniform, status-blind and even-handed rule of law as a barrier to personal vendettas.

Why do we need to clean up the courts urgently is very clear - injustices can easily lead to public unrest, and the frequency and concentration of injustices, misconduct and corruption in this country's courts can easily - and soon - urge the public to public disobedience and unrest.

Let's start cleaning up our courthouses.  

No comments:

Post a Comment