THE EVOLUTION OF JUDICIAL TYRANNY IN THE UNITED STATES:
"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.
Tuesday, August 11, 2015
Does judicial recusal mean anything under the New York State and U.S. law? Apparently, not much.
After the judge renounced his authority, presumably he or she is off the case and may not make any rulings in that case.
Lawyers in New York and generally in the U.S. are deadly afraid of making motions to recuse, even when they know such a motion is required based on documentary evidence in the case.
Why? Because a judge that is the object of a motion to recuse may retaliate viciously against such an attorney, sanction him, using the lax, vague and arbitrary judicially created "frivolous conduct" rule and send the lawyer into the disciplinary commission, which can leave the lawyer without his or her practice, reputation, livelihood, with his lifetime into the costly legal education gone down the drain and his skills unwanted and even prohibited to be used, even for the benefit of people, if the lawyer is suspended or disbarred from practice as a result of such judicial retaliation.
So, lawyers do not usually make motions to recuse, but pro se parties, on their own behalf, do.
And sometimes judges recuse on their own.
What happens after recusal occurred and what are the legal consequences of a recusal?
As the recent developments in the New York and federal law show, the judiciary does everything to water down the logical and reasonable consequences of judicial recusal, to help bad judges escape accountability for their misconduct.
Issue No. 1
May a judge who recused from the case rule in the case?
The logical answer: of course, not, the reason for a recusal is to remove the judge from the decision-making in the case.
The real-life answer: maybe, sometimes, in upstate New York, if a party or attorney for the party are critics of judicial misconduct. Judge Carl F. Becker of Delaware County who hastily retired from the bench on July 31, 2015, from the coveted bench where he got after a ferocious election campaign wrought with fraud upon voters, re-entered two cases after recusal and made decisions in those cases, and no discipline was imposed upon him by the NYS Commission of Judicial Conduct despite my report of that. Appellate Division relied upon his unlawful decision on re-entry in one of the cases, both cases were from Family Court and both involved me as counsel for people against whom Carl F. Becker ruled on his re-entry after recusal.
Issue No. 2
May a judge who recused from a party's case preside over any other cases of that same party pending at the same time or closely thereafter?
The logical answer: of course, not, when a judge recuses himself from a party's case, he acknowledges that there is an appearance of impropriety or lack of impartiality that prevents the judge from presiding over such party's case. Such an implied admission destroys presumption of impartiality for that judge for any other case of that party.
The real-life answer: maybe, sometimes, in upstate New York, if a party or attorney for the party are critics of judicial misconduct.
The same Judge Becker recused himself in 2009 from a case that his friend Delaware County Commissioner William Moon (who also hastily retired, a little earlier than the hasty retirement of judge Becker, and before the audit of Delaware County by the NYS State Comptroller that found multiple "indiscretions" by his department was complete) commenced against me and my husband in child neglect (dismissed after 2 years of litigation and a full trial, putting our whole family, including our children, through hell) 10 days after I brought a motion to recuse Judge Becker from a child neglect case of a client specifically because Judge Becker, the presiding judge in a bench trial and a fact-finder in a case, had extrajudicial knowledge about witnesses and represented the Petitioner in the case for 27 years prior to coming to the bench.
Judge Becker, upon information and belief, was still in communications with the presiding judge over that case, and soon after his recusal assigned himself to several cases where my husband and I were parties and repeatedly ruled against both my husband and I, generating over $100,000.00 in judgments against us, and generating several "frivolous conduct" decisions against me that were then sent to the disciplinary authorities, and I was prosecuted and await an order of discipline based solely and entirely upon rulings of Judge Becker in my cases AFTER he recused from my own and my husband's case in 2009.
In 2012, after Judge Becker worked enough havoc in my own and my husband's lives, he recused from ALL of our cases, but reentered two of them after that second recusal and made rulings against my clients (see Issue # 1 above).
Yet, recusal of Judge Becker from ALL of my cases in 2012 indicates that after his recusal in 2009 he should have been assigned to any of my cases and all of his rulings in cases where I or my husbands were parties, are void and should be vacated.
Judge James Tormey recused from one case involving me as a party in Chenango County Supreme Court, but refused to recuse from another case involving me as a party-plaintiff where I sued an attorney who is also a judge in a justice court, for his fraud upon the court. Judge Tormey stayed on the case in order to punish me for suing Judge Tormey in federal court - and he did, openly imposing sanctions, in part, for suing the judge himself. Judge Tormey also imposed against me an anti-filing injection, imposed upon me $2,000 in sanctions and over $8,000 in legal fees while misrepresenting the record in order to punish me instead of my opponent. Then, Judge Tormey sent his decision to the disciplinary committee before sending it to me, and the disciplinary proceeding got transferred to the 4th Department where two of the committee members are Judge Tormey's employees.
Issue No. 3
Can a judge get assigned to the case directly related to the one from which the judge has recused, remain or get assigned to a related case?
The logical answer: of course, not. If a judge feels he cannot be impartial in one case of a party, he cannot then claim he can be impartial in a case directly related to the case from which the judge recused, where issues of fact and law may be shared.
The real-life answer: maybe, sometimes, in upstate New York, if a party or attorney for the party are critics of judicial misconduct.
Judge Kevin M. Dowd recused from Neroni v Harlem which was based on misconduct of attorney Richard Harlem, his crew and his clients in the case Mokay v Mokay, Delaware County Index No. 2007-695, yet, staunchly refused to recuse from Mokay v Mokay, bringing it, through adjournments given to Plaintiffs but not to me, through an ex parte trial during my documented medical leave, to a judgment against my husband of over $300,000.00. All the while, Kevin Dowd asked me after my husband's health during conferences in unrelated cases, calling my husband by his first name, "Fred", and asked to "say hello to Fred" for him.
Judge Michael V. Coccoma recused from Mokay v Mokay in 2007, but continued to assign judges to that case, and to all other cases involving my husband as a party.
Judge Coccoma recused from all of my cases, I believe, in 2012 after he started to actively assign himself to my cases (when I made a motion to punish his wife, an attorney, for frivolous conduct). When I pointed out to him his disqualification and reminded him of his recusal from my husband's case in 2007 and of my motion against his wife, he had the decency to recuse but continued to assign judges to my cases. Judge Coccoma has authority to make decisions pertaining to post-retirement perks for judges, so there is a vested financial interest for judges to make good to Judge Coccoma and rule against his enemies or enemies of his wife - and they diligently do so, judge after judge.
Issue No. 4.
Is a recused judge covered by absolute judicial immunity after he recused from the case?
The logical answer: no, of course not. Recusal is a voluntary cessation of jurisdiction by the judge, so where there is no jurisdiction, there is no immunity. Judicial immunity does not apply "in clear absence of all jurisdiction", and recusal is a voluntary abdication of jurisdiction by the judge, a point of (supposedly) no return.
The real-life answer: maybe, sometimes, in upstate New York and the U.S. District Court for the Northern District of New York jurisdiction, if a party or attorney for the party are critics of judicial misconduct.
Most recently, judge Lawrence E. Kahn of the U.S. District Court for the Northern District of New York who is connected through ex parte communications and out-of-court benefits to a law firm involving a disciplinary prosecutor John Casey against me and my husband who was openly bought by my husband's opponents in litigation attorneys Robert Harlem (a retired judge and retired Chief Administrative Judge of the 6th Judicial District) and his son Richard Harlem, to disbar my husband and not them, who were also turned in for his investigation, made a magnificent ruling that stretches immunity beyond the judge's recusal because the judge's misconduct "were related to litigation" from which the judge admittedly recused by the time he engaged in misconduct he was sued for.
Misconduct Judge Kevin Dowd was sued for, as I wrote on this blog, is because, AFTER THE JUDGE RECUSED, he knowingly used a court officer who was an armed Nazi sympathizer and already made an antisemitic comment/threat against Jewish litigant, to throw that Jewish litigant out of the courthouse for making the motion to recuse.
Judge Kahn wrote that there is no support for my argument that a judge loses jurisdiction on recusal, and with jurisdiction, he loses immunity.
So now, as long as a judge's misconduct is "connected with litigation", a judge may recuse and then continue to rule in the case against a party, including directions to armed court personnel to engage in violent actions against litigants who dared to make motions to recuse - and absolute judicial immunity for malicious and corrupt acts will apply even to that.
In other words, when judges have a vested interest, as a group and as a class, in some issue, like their own liability for misconduct in office or after recusals, you can count on judges trying to bend and twist words in order to present the most glaring unconstitutional conduct as lawful and the victim of such misconduct as a pest not entitled to any remedy.
So, the law of recusal is - it is nearly impossible to get, and when you get it, it means nothing.
There are no rules attending recusals, so even if you obtain a recusal, through a great personal sacrifice, the judicial system will retaliate against you so viciously that you may lose everything, your financial stability, your health, your ability to earn a livelihood for your family despite your skills that are much needed for many people.
The rule of law in action.