"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 # 2, Judge Beverly Reid O'Connell.

In the previous blog post, I described the commencement of a case in the U.S. District Court for the Central District of California, a court within the mandatory appellate jurisdiction of the the U.S. Court of Appeals for the 9th Circuit, where Judge Alex Kozinski, then Chief Judge of the U.S. Court of Appeals for the 9th Circuit, appeared as a party-objector, along with his wife, attorney Marcy J. Tiffany.

I also described the non-disclosure by Alex Kozinski of the "social relationship" and the ex parte communications with the first presiding judge Dean D. Pregerson at the time he filed his and his wife's objections in a case where Judge Dean D. Pregerson was presiding.

Now did Alex Kozinski - or his attorney wife Marcy Tiffany, for that matter - disclosed the fact and contents of the ex parte communications with Judge Dean D. Pregerson on the issue material to litigation.

Nor did Alex Kozinski - or his attorney wife Marcy Tiffany - or Judge Dean D. Pregerson - disclose at any time during litigation that Judge Dean D. Pregerson's father Harry Pregerson is Alex Kozinski's colleague on the 9th Circuit court for 27 years, and a subordinate for 5 years.  

So much for these ethical "forgetfulness" of the three attorneys, two of them federal judges who serve only "during good behavior".

Once again, at no time did Alex Kozinski make a motion to change venue and transfer litigation from the district court that was subordinate to Alex Kozinski's appellate court - and, apparently, nobody else did, most likely because attorneys and judges, being subject to disciplinary authority of Alex Kozinski in his official capacity, were afraid to upset him.

Which tells us a lot about attorneys' and judges' belief in the integrity of their colleagues.

Judge # 2, Beverly Reid O'Connell, was assigned to the case on November 5, 2013, 7 months after being appointed to that court. Apparently, the case was assigned from a social contact and son of a long-time colleague to a novice on the federal bench who was supposed to take the blame for any possible errors in litigation.

At the time of assignment, her court was hopelessly disqualified from presiding over the case, and picking any "replacement" judge from that same court and with appellate jurisdiction remaining in party objector Kozinski's court was putting a torn band-aid upon a whole in a sinking ship.

Judge O'Connell herself was within the disciplinary authority of Alex Kozinski, a completely disqualifying conflict of interest.

Yet, the novice Judge Beverly Reid O'Connell remained on the case from November 5, 2013 (docket of assignment order # 69) to December 19, 2013 (docket of assignment order # 102).

During her 1 1/2 month's assignment to the case 33 filings were made on the docket - that's a record in a civil case.

Alex Kozinski actively made new filings in the case during Judge O'Connell's assignment and argued his opposition to a motion in front of her.

On December 19, 2013 Judge O'Connell filed an "Order of Recusal".  Here it is.

Irreverent teenagers usually have one word adequately describing a reasonable person's reaction after reading this order.


All of that is correct, Judge O'Connell, but didn't you know that BEFORE you were assigned to the case and AT THE TIME of your assignment?  What made it so long for you to step down?

That was not the last recusal in the case.  

Who was assigned next, how inappropriate was the process of assignment, how long the newly assigned Judge # 3 served and how he recused, read on in my next blog post.

Stay tuned.

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