"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.

Wednesday, August 5, 2015

Assigned rotational citizen judges, universal public legal education, revocation of any and all immunities - any takers?

I already wrote on this blog about the necessity to provide public legal education - in view of the obvious "justice gap" that the New York State Chief Judge Jonathan Lippman so likes to refer to in his various speeches year in and year out, and he is not alone in paying lip service to the "justice gap", but does not effectively address reducing it.

When 80% of litigants cannot afford an attorney, the state should at the very least teach them, through public education, how to fend for themselves in court.

I also wrote extensively on this blog about the necessity to repeal and abolish legislatively and/or through state and federal constitutional amendments any and all immunities for public officials to violate the law and state and federal constitutions and deprive people of basic human rights - without any remedies to the victims and any accountability to the perpetrators so cloaked in "immunities".

Many scholars have written so far that immunities are undemocratic and unconstitutional, and that creating them was usurpation of power by federal courts which was not given to those courts by Article III of the U.S. Constitution - and that is the power to legislate or amend legislation.

In fact, the U.S. Constitution must have within its text, clear and simple, a text describing the list of persons and the list of circumstances under which that same U.S. Constitution may be violated.  There is no such clause in the U.S. Constitution, and, therefore, there is no such right to violate it - no matter what the judge-created doctrines of various immunities say.

There is no question that the judicial system throughout the U.S. has become too expensive, too wasteful, as well as corrupt and disfunctional, delivering anything but justice, which is what it is supposed to deliver.

Judicial misconduct is rampant and unaccountable, attorneys whose livelihood depends on judges, are mostly silent,  it comes to the point that there is no assurance that judges on the bench are not high - see my blog about a judge who has lost custody of his child, through a court decision, because of use of cocaine, which did not prevent him getting on the judicial bench, and did not cause him to lose his law license.

Yet, with all of the above said, disputes that need final resolution exist and will continue to exist, and a system, some system that works is needed to resolve them, finally, efficiently, fairly and in compliance with the U.S. Constitution and concepts of equity and fairness.

What should be done?

What kind of system would you create if, hypothetically, none existed, for dispute resolution?

I propose the following structure:

1/ all members of the public receive legal education at the high school level that would allow them to understand court rules and be effective either in representing themselves in court, or as judges presiding over court cases on a rotational basis.

2/ judgeships, whether by appointment or by election, should be abolished, and with such judgeships the structure of corruption and "career paths" through law clerkships to being hired by law firms that rely upon the former law clerk's ties to the judge, will be eliminated, too. 

With eliminated judgeships, attorneys in New York (as an example) will not be able to brown-nose judges no matter what judicial misconduct they commit, be as incompetent as they want, and then, after they did nothing to earn a pension, "run for the bench" and have taxpayers fund their pensions and medical needs while they continue to be as incompetent and corrupt, and even more than before they came to the bench.

3) as the alternative to term or "for life" judgeships I propose to computer-assign citizens, on a rotational basis, to cases in counties where they do not live and without prior warning as to what the case is about.

4) I suggest that an assigned citizen judge handles only cases on one certain day and is not forewarned as to which cases those are going to be, so that he does not make phone calls ahead of time and is not able to do research as to the background of parties.  This arrangement will certainly not eliminate corruption in court proceedings completely, but will dramatically reduce it, especially when every citizen acts as a judge at some point, and thus, it is not just the absolute unchecked and often corrupt power of one person, for years, over the entire county.

5) of course, there should not be any immunities for intentional violation of people's rights established by law, and no right of legal representation in lawsuits based on intentional violation of constitutional rights.

The state will assign taxpayer backed legal counsel in all cases, but judges will be aware that they will have to reimburse the state for legal fees should the jury find they were, indeed, violating people's constitutional rights.  At this time, cases against judges are dismissed before discovery, without even looking whether they, indeed, violated people's constitutional rights - because of the alleged (judge-created) judicial immunity - which, as I stated above, is unconstitutional.

6) Commissions for judicial conduct must operate openly, transparently to the public and should consist of members of the public.  Since there will be no position of elected or appointed judges, there will not be a conflict of interest, as it exists now, where commissions are mostly populated by attorneys whose licenses are in the hands of judges attorneys are supposed to discipline, and by judges who have a vested personal interest not to prosecute other judges and not to create bad precedents that may hurt themselves.
This way, judgeships will stop being such an attractive position for people who should not be close to the bench, will stop to breed corruption on the scale it is happening now, will stop being the source of absolute power of the government to oppress its citizens (and do that in a corrupt way, without any accountability) and will be reduced to the function it is supposed to accomplish - conflict resolution.

My proposal, of course, is not ideal, nothing in this life is.  But it is an attempt to reform the completely corrupt judicial system so that it discharges its function instead of being the sought-after sinecure to provide for financial security of otherwise incompetent and corrupt attorneys, to establish absolute tyranny of men (rather than laws) for years and decades in a certain locality, and to drum up business for family and friends of such judges, to the detriment of the public and litigants.

My readers are encouraged to post and send me comments, or to address their legislative representatives with their proposals as to how to reform the broken "justice" system in their state and on the federal level.

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