"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 12, 2015

On a motion to recuse, if the challenged judge presides over the motion, does he violate The Constitution and act contrary to history and tradition?

I was reading a judicial decision dealing with occupational licensing in another state - state of Texas - and I came across a quote from Andrew Madison like this:

          "No man is allowed to be a judge in his own cause, 
           because his interest would certainly bias his judgment
           and, not improbably, corrupt his integrity," 
           Andrew Madison, The Federalist, No 10, at 79.  

That brought me back to the issue of judicial recusals in the State of New York, and throughout the U.S. state and federal judicial systems, since rules of recusals are similar throughout the United States.

I've researched the law of recusal, through case law, professional literature and my own motion to recuse and resulting actions by judges, for years.

So far, I've conclusively established for myself the following facts:

1/ that motions to recuse are rarely made;

2/ that such motions are rarely made not because they are rarely warranted, but because attorneys refuse to make them out of fear of retaliation from the judge (there is a popular adage amongst the legal profession that making a motion to recuse a judge is a career suicide), and pro se parties are either not educated enough to make them, or are similarly afraid of retaliation;

3) that usually the judge who is subject of the challenge decides the motion;

4) that more often than not a motion to recuse is denied by the judge who is being challenged, and that the judge claims that he "looked into himself, consulted his conscience, and concluded that he is and can continue to be impartial" - which is unreviewable and uncheckable for obvious reasons, you cannot X-ray a judge's conscience, and conscience is an intangible concept;

Yet, let me once again quote from the Founders - since the U.S. Supreme Court and federal and state courts like so much to rely upon "tradition" in their decisions.

I've made so far many motions to recuse, the cases warranted it.

It is apparent that when you challenge impartiality of a judge, and especially when you point out to the judge that he has committed misconduct that is likely to affect the case, a judge who remains on the case to decide the motion to recuse is "a man judging his own case".

Yet, New York appellate courts stubbornly hold that it is within the "discretion" of the judge to decide whether to recuse or not, even though the Code of Judicial Conduct at the same time requires the judge to recuse if his impartiality may reasonably be questioned, and the "reasonable" part is obviously from the point of view of a neutral, impartial reasonable observer.

Absent an "out of body" experience, a judge cannot possibly be impartial reviewing a motion challenging his own self.

Just how "impartial" a judge is in reviewing such motions is easily shown by:

1) the number of sanctions imposed by judges in retaliation for a motion to recuse (I was sanctioned several times by the judge who was the subject of the motion);

2) that attorneys are afraid to make such motions, obviously not believing any such thing as a presumption of judicial integrity and impartiality, no matter what kind of motion is in front of the judge and how it affects him personally;

3) the recent case Shtrauch v Dowd in the U.S. District Court for the Northern District of New York dismissed based on an overstretched concept of absolute judicial immunity which, in the opinion of the federal district court, applies even after recusal of the judge, a judge yelled at a pro se litigant who made a motion to recuse that he is a very dangerous person to dare to "impugn the judge's integrity" by making a motion and then ordered an armed court officer to throw him out of the courthouse.

In my practice, one motion to recuse made in 2009 against a judge on behalf of a client resulted in:

1) a fabricated child neglect proceeding against me and my husband;

2) disbarment of my husband based on fraudulent civil case prosecuted by a retired judge and his son where all applicable law, as well as the record, were in favor of my husband, and were summarily disregarded nevertheless;

3) several sanctions against me for frivolous conduct, including "harassment of the court" (in plain English - harassment of Judge Becker, who was the prosecutor, the victim, the witness and the judge in commencing the sanctions proceedings and imposing the sanctions) which resulted in a disciplinary action against me, I am waiting for its results any day now;

4) several judgments against my husband based on retaliatory decisions of Judge Becker who stuck to our cases like glue, got himself assigned to all cases in all courts and ruled against us in every one of them, in gross violation of applicable laws and in contradiction of the record in front of him - which decisions the Appellate Division, where judges had their own conflicts of interest, eagerly affirmed.

5) vicious rumors spread about me in the community, where judges and their friends were discouraging people from retaining me claiming that I was "nuts", incompetent specifically because I am "suing judges" and because I will soon be disbarred.

I received phone calls from people referred to me by their attorneys for the only purpose of making a motion to recuse (I refused), and in one case, the referring attorney clearly stated to his own client that the referring attorney will not make the motion to recuse himself, because he did not want "to be blackballed", while I, on the other hand, "already have nothing to lose".

So, once again, going back to "history and tradition", as many judges so like to do - what about practice the statement made by Andrew Madison (quoted above) and confirmed as a due process right of every litigant by the U.S. Supreme Court and the New York State Court of Appeals - a man may not preside over his own case.

So, why judges preside over motions to recuse made against them?

Why judges preside over actions in contempt of court where they are initiators, prosecutors, alleged victims, witnesses and adjudicators?

Why judges preside over "frivolous conduct proceedings" where they are, once again, initiators, prosecutors, alleged victims, witnesses and adjudicators?

I guess, those are rhetorical questions.

Because "the rule of law" is a smoke screen for the the plebs and is not supposed to apply to the insiders, stupid.

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