"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, August 29, 2015

Alex Kozinski litigation saga: the history of recusals. Recusal # 3, Judge Robert H. Whaley

Judge # 2 in Alex Kozinski's litigation saga, Beverly Reid O'Connell, recused on December 19, 2013 after serving just 45 days on the case.

That was right before the Christmas season.

For 20 days the case remained without a judge.

On January 8, 2014, an Order was filed designating Judge # 3, Judge Robert H. Whaley to the case, Docket No. 103.

Assignment of another judge in the same court, within disciplinary and appellate authority of one of the parties to litigation, did not remove disqualification of the court as a whole - or of the newly assigned judge.

Moreover, the way the assignment was done raised further questions about appearance of impropriety - or, let's say it out in the open, blatant self-serving behavior and misconduct of the then Chief Judge of the 9th Circuit Alex Kozinski, and the judge to whom he delegated his assignment authority, Sidney Thomas, who has become  "coincidentally", Alex Kozinski's successor as of December 1, 2014 as the Chief Judge of the U.S. Court of Appeals for the 9th Circuit.

Here is the order of "reassignment".

Robert H. Whaley, by the time of his assignment to the case, was a senior-status judge from the U.S. District Court for the Eastern District of Washington, and the former Chief Judge of that court, a court WITHIN THE SAME 9TH CIRCUIT!!!

Obviously, Alex Kozinski had the case in his death grip and would not let it leave the Circuit where he was the Chief Judge, and his subordinate, judge Sidney Thomas, kept the case in the 9th Circuit - and "earned" the seat of Alex Kozinski's successor by December 1, 2014, less than a year later.

Appointment of a judge from outside of the 9th Circuit did not remove disqualification from the court, because it remained the same court, subject to appellate jurisdiction of one of the parties.

Moreover, any judge assigned to the case within the 2nd Circuit was subject to disciplinary jurisdiction of the 2nd Circuit, and that was giving disciplinary authority to a party, Objector Kozinski, over Judge Whaley, another point of disqualification.

Moreover, the assignment was signed by a "Circuit Judge Sidney Thomas".

Such appointments were within the authority only and exclusively of - guess - Alex Kozinski.

Since Alex Kozinski was disqualified to assign judges to his own case, he was also disqualified from delegating his authority to assign judge to his own case.

Thus, Judge Sidney Thomas had no authority to assign Judge Whaley to the case, and Judge Whaley's assignment was legally void.

Judge Whaley showed the most integrity of all judges in Alex Kozinski's litigation.

He was appointed on January 8, 2014 (Docket # 103).

On January 15, 2014, within 7 days of the order of appointment,  he issued an order that he is conducting an additional inquiry if he can allow himself to serve (Docket # 104).

Judge Whaley, the only judge on Alex Kozinski's case so far who can be called Honorable, honorably recused within one more week, on January 24, 2014, without making any decisions relevant to the case, other than his own order of self-inquiry and recusal.

Moreover, The Honorable Robert H. Whaley went further in fulfilling his ethical obligations than any other judge on this case, before him, or after him, on the district court or appellate level (yes, there was and still is pending an appeal in 2015 - by an objector other than Objector Kozinski, to Objector Kozinski's court, and even then the 9th Circuit court did not recuse).

Judge Whaley 

1) made an order of self-inquiry;
2) sent a letter to the Committee on Code of Judicial Conduct;
3) received the Committee's answer;
4) recused based on the recommendation of the Committee, and
5) published the Committee's letter recommending recusal in an open-court filing, in open access to the public - while such recommendations usually remain confidential and hidden from the public.

Here is Judge Whaley's "Order of Self-Inquiry".

Here is Judge Whaley's Order of Recusal.

And here is the letter from the Committee on the Judicial Code of Conduct recommending the recusal which Judge Whaley attached as his reasons for recusal to the Order of Recusal.

That was SOME public service on behalf of Judge Whaley - and a real act of integrity.

After recusal of Judge # 3, the fourth - and last so far, judge was assigned to Alex Kozinski's case.

As you may read in the Committee's letter, the Committee advises the judge to:

(1) recuse;
(2) recommend designation in his place of a judge from another circuit.

Of course, that was a half-measure, because an out-of-circuit judge assigned to within-the-circuit case will be as disqualified as all other judges, because the judge, under such circumstances, becomes subject to disciplinary and appellate authority of Objector Kozinski.

Yet, in the letter there was a hint as thick as a log that the case should be, in fact, reviewed outside of the 9th Circuit because any district judge within the circuit (and any judge assigned even from outside of the circuit to a case within the circuit becomes an acting district judge within that circuit, which is the same) will be in the same position as Judge Whaley.

Judge Whaley did recuse.

He did not make any recommendations as to his successor, because, as a recusing judge, he could not ethically do that.

Yet, he did what he could ethically do - and which was a great act of public service.

He published the Committee's recommendations for recusal and reassignment of the case in open access to the public.

What Judge Whaley did is what I was taught in law school a judge with average integrity should do - recuse himself if there is even an APPEARANCE of impropriety.

All judges whom I asked to recuse (and I asked to recuse a lot of judges, each time where circumstances warranted and, in fact, mandated recusal).

In all cases, judges responded that they "searched their conscience" and "determined" that they can be impartial on the case.

Judge Whaley determined the same.

Yet, he went further and tried to put himself in the position of an objective reasonable observer and to ask himself - even if he finds he can be impartial, will an objective reasonable observer find an APPEARANCE of impropriety if he continues to preside?

In my legal career of 10 years as a legal assistant and 6.5 years as an attorney, and, upon inquiry with my husband who practiced law for 37 years, this is the FIRST and ONLY inquiry as to APPEARANCE OF IMPROPRIETY as to whether an admittedly impartial judge should recuse from the case.

I can only say "thank you" to Judge Whaley for this gift.  Not all is lost for the American judiciary if judges like Judge Whaley are or even have been on the bench.

As to the details of the assignment and actions of the judge once assigned - in the next blog post.

Stay tuned.

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