"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, June 5, 2015

A prosecutor is part of the judiciary - for some purposes, but not for others

I received yesterday a decision of Judge Kahn on Defendants' "motion for a judgment on the pleadings" asking to dismiss the action Neroni v Zayas where my husband, in claims that survived from the intermediate dismissal, claimed the following:

  • that he was not given access to his own disciplinary file in the attorney disciplinary committee - before, during and even AFTER his disciplinary proceedings concluded and when his disciplinary file became, to all who would want to see it, a public record pursuant to Judiciary Law 90(10);
  • that somehow it does not constitute any constitutional violation where a member of attorney disciplinary committee engages in post-disbarment investigations - something that the same Judge Kahn said previously that may be a constitutional violation in his previous decision.

Of course, Chief Judge Sharpe, Judge Kahn's superior, in the interim between Judge Kahn's decision # 1 (there may be a constitutional violation in post-disbarment investigations) and his decision # 2 (Plaintiff has failed to state a cause of action for a constitutional violation - in the same pleadings that were the basis of decision # 1), commenced Judge Sharpe's own action for an anti-filing injunction against my husband and included into that action claims based on Neroni v Zayas, over my head as a counsel in Neroni v Zayas litigation, over the head of judge Kahn as the presiding judge in that case, before that case was adjudicated.

Judge Sharpe used the yet-unadjudicated Neroni v Zayas case to punish my husband with a PERMANENT draconian anti-filing injunction that had nothing to do with any possible rule of law (currently on appeal).

So, I understand that Judge Kahn had to think long and hard as to how to adjust his Decision # 1 to Judge Sharpe's anti-filing injunction based on the yet-unadjudicated Neroni v Zayas - and produced a Decision # 2, which makes no sense, if two decisions are compared, but makes perfect sense in terms of obedience to the unwarranted opinion of Judge Kahn's superior.

A more specific analysis of Decision 1, Anti-filing injunction, and Decision 2 by Judge Kahn pertaining to the same case, will follow.

What I can say today is that a precedent has been created indicating that an attorney can be denied access to his disciplinary file before, during and after the conclusion of the disciplinary proceedings.

In my personal opinion, knowing all I know about the workings of the attorney disciplinary committees in general, and of this particular disciplinary committee (of the Appellate Division Third Department) specifically, this precedent was created to protect the committee from the following investigation through discovery:

  • that attorney disciplinary committees in the State of New York, and the attorney disciplinary committee of the Third Department, have absolutely no archives and no records of what they are doing and operate as a shadowy - and lethal - force under the rug of the judicial system, without any supervision and without any accounting for their actions;
  • that the committee has absolutely no records of who voted to investigate or prosecute an attorney - and how that particular member of the committee voted;
  • that when the committee tells the court, in sworn pleadings, to obtain public discipline of an attorney to the point of stripping the attorney of his hard-earned law license, reputation and any ability to earn a decent living for himself and his family (because a disbarred attorney is usually blacklisted and denied employment anywhere he turns), the committee may commit perjury left and right, because - see above - no archives exist, and there is no way for the disciplined attorney to obtain access to the archive to prove that.

Oh, and there is yet another "discovery" by Judge Kahn in his decision.

Judge Kahn, in his decision # 2, was carefully trying to avoid the issue that my husband was trying to get access to HIS OWN disciplinary file, a file cited by the disciplinary committee in the court pleadings (without providing the actual certified copies of documents) and based on which my husband's license was revoked.

In his attempts to avoid the necessity to address the key issue of litigation, Judge Kahn made the following two stunning and diametrically opposite conclusions:

  1. Freedom of Information Law (which was irrelevant to my husband's due process right of access to his own disciplinary file) is not applicable to the judiciary (that is correct), and, therefore, was not applicable to the Defendants - making them part of the judiciary (even though they acted in my husband's disciplinary case as prosecutors, and thus, part of an executive branch of the government);
  2. My husband (and, obviously, I as his attorney in federal court) is "confused" in arguing that, if the prosecutor is actually part of the same court that was adjudicating his disciplinary proceedings, the disciplinary committee was disqualified from proceeding as a prosecutor in that disciplinary proceedings.
In other words, my husband's claim was clear as day:  a prosecutor may not claim to be a judge for one purpose (to protect themselves from access to the file) and to be a prosecutor for another purpose (claiming that they are not disqualified under the judge-advocate rule and separation of power principle).

Pursuant to Judge Kahn (Decision # 2) - the prosecutor may now be both - they may deny access to the file as if they are a judge, and they may still continue to claim that they were a proper prosecutor.

I would be surprised at such a stark change of opinion, but I am not, for a good reason.

Judge Kahn is part of one of the American Inns of Court where the law firm where my husband's disciplinary prosecutor John Casey who sold his prosecutorial discretion for the right to represent one of the politically subjects turned in (by my husband and myself) for his investigation is a member and may be providing to Judge Kahn and other members of this particular federal district court benefits, not to mention that this law firm, Hiscock & Barclay employs multiple recent former confidential law clerks of judges of the U.S. District Court for the Northern District of New York.

And, and, and...  Who knows what exactly Judge Kahn may have discussed with John Casey or his partners behind closed doors during his monthly-or-more-frequent meetings behind closed doors in the American Inn of Court?

Who knows what took place during those discussions, what kind of incentives may have been offered to Judge Kahn?

The reason to prohibit ex parte communications to judges is obvious - there is no way to restore what occurred during those communications, and interested witnesses may not be relied upon to produce the record.

One piece of evidence is apparent enough though - comparison of Decision # 1 with Decision # 2 by the same judge, made on the same pleadings, with diametrically opposite rulings - should raise questions and eyebrows.

No comments:

Post a Comment