"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, June 6, 2015

NYS Appellate Division Third Department legalizes ex parte motions

I've written on this blog already about the illegal way of how my disciplinary case was transferred from the Appellate Division Third Judicial Department to the Appellate Division Fourth Judicial Department.

I've written on this blog that I was never served with the "application" for that ex parte order of transfer, that the "application" was never transferred with the rest of the court record to the transferee court, Appellate Division Fourth Department, and that the Appellate Division Third Department adamantly refuses to provide to me access to that particular portion of the court record, while Appellate Division Fourth Department proceeds (without authority) on an incomplete record.

This is a response to my motion - denied, no explanation given. 

Not good enough. 

The motion was based upon my affirmation, the court has no proof of service of the "application and papers filed in support" of the application, there was no opposition to my motion, so the court had a legal obligation to follow the law and to grant my motion by default and as a matter of law.

Moreover, I asked for sanctions for frivolous conduct against the attorneys and the attorney disciplinary committee of the Third Department who admittedly made an ex parte motion.

Yet, this is not how the Third Department operates. 

The Third Department participated in misconduct, decided an illegal ex parte motion made by the 3rd Department attorney disciplinary committee, then recused from my disciplinary case - and yet sticks like glue to my other cases, despite a well established rule - a judge recuses from one case involving a party, there must be a recusal from all other cases, because the judge's impartiality may already reasonably be questioned.

Now the Third Department refused to grant sanctions for making an ex parte motion - which motion was UNOPPOSED and was supposed to be granted BY DEFAULT. Nothing like protecting the disciplinary committee - which means bias - which means the court should not have even been reviewing and deciding this motion because of its obvious involvement in misconduct described in the motion, the actual reason for the motion.

The Third Department positioned itself as an arbitrary ruler who is above the law because - guess what - what are my chances that the 3rd Department's decision will be overturned on appeal in the NYS Court of Appeals and that my petition for certiorari will be granted by the U.S. Supreme Court - right, the chances are negligibly small.

Therefore, the Third Department can adamantly and obnoxiously flaunt in my face a decision, without an explanation, reasoning or legal grounds, an illegal and unconstitutional decision saying - here, what can you do about it - nothing?

In fact, I can do something. 

First, I can write about it and I can contribute to the growing awareness of corruption and open and adamant misconduct and incompetence in courts throughout this state and this country, on all levels. 

Second, since I consider such a decision, especially in view of what kind of motion is denied without an explanation, and what kind of circumstances were the basis for the motion - as adamant, obnoxious, unlawful and unconstitutional.

The court must at the very least provide legal grounds upon which such motions are denied, if they are denied.  It is a litigant's due process right, and I will be asserting it by available legal means - and some legal means, believe it or not, are still available to me.

What the court did instead is that it created a self-serving precedent legalizing what constitutes both attorney misconduct and judicial misconduct - an ex parte motion made by a party, reviewed and decided by the court, and where the court and the party continue to refuse, for a year now, to release papers upon which the order was based and which are clearly identified in that order.

Stay tuned as to how the situation develops.

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