"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.

Tuesday, May 26, 2015

Judicial immunity in the times of seditious libel, and in the time of the 1st Amendment/freedom of information laws

Today I published a couple of blog posts about judicial immunity.

Each time I read about the Star Chamber public policy justifications - no joke, policy justifications for judicial immunity did come out of a Star Chamber case (see my blog posts describing how the doctrine of judicial immunity emerged, here and here) - and each time I re-read those same policy justifications re-appear in decisions of modern-time federal courts, I keep wondering if federal judges spawning these justifications actually read the U.S. Constitution that they are all sworn to uphold - or if they care what it says.

In the Star Chamber England, the King was a sovereign and had absolute power.

It was a crime to criticize the King or other members of the government - a crime called "seditious libel", punishable by life in prison.

The crime of seditious libel was established by the same infamous Star Chamber in a case De Libellis Famosis in 1606.

The crime was to criticize the sovereign (King), his heirs, or the established government structure and order and bring the sovereign and government in disrepute, or to advocate for changes in the government.

Seditious libel was deemed a crime by the Star Chamber because criticism of the government tended to undermine respect and confidence in governmental authority.

In a democratic society we have the following differences which should lead courts to reject the policy of establishing absolute judicial immunity, for any acts by a judge, no matter how wrong, done on the bench, for the ultimate goal of maintaining the established order and public respect to authority at all costs:

  1. The sovereign in a democratic society and in the U.S. is not a monarch, and not a group of people, it is the ENTIRE PEOPLE of the country.  Of course, I was sanctioned by a federal court for quoting from New York statutory law and from the U.S. and the New York State Constitution that the sovereign in the United States are the People and not the government.  Apparently, federal judges do not and would not know this basic concept of the U.S. governance and democracy.
2. The First Amendment to the U.S. Constitution explicitly guarantees to people their right to criticize the government - which is actually a servant to the people, because people are the sovereign in the United States and in the sovereign states.   This concept still appears foreign to many, if not most judges, prosecutors and other law enforcement officials.

3. Moreover, misconduct of certain public officials which is documented must be disclosed to the public through different access to records statutes.  On the federal level it is the Freedom of Information Act.  On the level of New York State Law, it is Public Officers Law 87 (Freedom of Information Law) and Judiciary Law 255, for judicial records.

Thus, the public policy considerations preventing members of the public from getting access to and then criticizing, members of the government, are long obsolete and inapplicable in a democratic society governed by a Constitution.

Not to mention that, as I amply described in my previous two blog posts, the U.S. Supreme Court, a court of limited jurisdiction under the Article III of the U.S. Constitution, a court without power under the Constitution to create decisions that would be deemed to be Supreme Law of the land, conceded in a case Tower v Glover, 104 S. Ct. 2820, 2826 (1984)  that it has no authority to create immunities based on public policy considerations that would restrict civil rights litigation.

If that is true, the U.S. Supreme Court has no authority to create immunities based on common law out of an institution abolished in the 17th century for its lawlessness (The Star Chamber) which immunities were based on the Star Chamber policy considerations.

Yet, that is what the U.S. Supreme Court did, for judges, prosecutors, police officers and a zillion of other public officials and private parties appointed by public officials, making civil litigation a joke and, in many respects and in relation to many classes of public officials such as judges and prosecutors committing misconduct in office, a waste of time.

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