"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 25, 2015

Sexual orientation, race, gender, or any other factors other than knowledge of the law and ability to be impartial and even-tempered is not a proper factor for choosing a judge to the New York State Court of Appeals, or to any other court

In June of this year (2015), Judge Read of the New York State Court of Appeals announced that she will retire early,  before her term expired.

Immediately, speculations began in the press as to who is going to be appointed in Judge Read's place and suggestions started to pour.

Appointments of judges are an interesting matter in New York.

Such appointments must be at least based on judicial qualifications, right?

Qualifications for a judge should be (exclusively):

  • knowledge of the law;
  • proven integrity, fairness and impartiality
  • ability to be even-tempered with parties and counsel, under any circumstances
That's all.

Not party affiliation.

Not race or ethnicity.

Not gender identity.

Not sexual orientation.

Not origination from the poor or from the rich.

None of that.

It is presented to the public time and again that the judiciary is not the "political", or "representative" branch of the government.

In other words, judges do not represent certain segments of population, their work has nothing to do with "representing" the public and reflecting wishes of the public, but is to painstakingly review the record of the case in front of them, apply the existing law and make a fair ruling.  That's all.  A judge takes an oath of office to be fair and impartial to all parties and attorneys appearing in front of him or her.

Of course, then we have such judge as the Chief Administrative Judge of the 5th Judicial District Judge James C. Tormey who first orders attorney and court clerk Bobette Maureen to spy on a judge and judicial candidate for future election running on a Democratic ticket, to dig dirt about him, and when Ms. Maureen refuses, engages in a binge of retaliation, is sued for it, litigates for 4.5 years at the expense of taxpayers and then settles for $600,000, also out of taxpayers' pocket.  Only to be sued again, now by a female Spanish court interpreter, a Latino woman, also for discrimination and retaliation.  So - let me see, party affiliation and race/ethnicity matters for Judge Tormey, as well as gender identity - he discriminates only against women.

Once again, there are only two qualifications to be a judge - knowledge of the law and integrity/impartialiry/fairness.  

For Judge Fisher and for those thousands of voters whom she swayed, gender identity was the key.   Moreover, Judge Fisher also pointed out that it was somehow a problem for her that for 18 years there has not been a "Republican" judge on the bench in her area. 

In other words, gender and party identity in a judge mattered to Judge Fisher - which raises issues whether Judge Fisher now sits on the bench ruling for women and Republicans.

We also keep reading about the "first" black, female, transgender, LGBT, whatever judge.  Which undermines two fundamental concepts pertaining to the judiciary:

1) that the judiciary branch is not a representative branch of the government;
2) that the judiciary must be impartial to all parties and counsel that appear in front of the judge, and should not favor members of their own class.

If that is so, why push for "the first" _____ (insert characteristic) judge on the bench.

Now, when New York State introduced legislation several years ago allowing same sex marriage, I supported the move, because, in my opinion, it is an equal protection issue.

When the U.S. Supreme Court found it in the U.S. Constitution that same sex marriage is constitutionally protected, I supported the move because I also believe that it is an equal protection issue, although issues of "retroactivity" to all those who were persecuted, denied rights and even criminally convicted for same sex emerge because the U.S. Supreme Court interprets the same U.S. Constitution that was passed in the 18th century, and the 14th amendment that was passed at the end of the 19th century, but keeps "finding" in it what it did not see there before.  

This "finding" process to me as a civil rights attorney who was punished for "frivolous conduct" for interpreting the U.S. Constitution in the way a federal court did not like, and I am far from the only one so punished, looks a little bit arbitrary and giving too much power to the U.S. Supreme Court. 

Yet, once again, I firmly believe that people should have same rights without regard to sexual orientation.

That said, such equality rights are irrelevant to judicial qualifications where the only things that matter are knowledge of the law and impartiality.

Who and how the judge has sex with or has sexual attraction to, which is the essence of sexual orientation, should have nothing at all to do with preferences for judicial appointments, and "pushes" for an LGBT judge (same as "pushes" for a female, black, Latino, Italian, Anglo-Saxon, whatever else judge) are completely inappropriate.

As much as the LGBT community, and Assemblywoman Deborah Glick as part of that community, wants to see "their own" on the bench, appointment of judges who are "representative" of a sector of the community destroy the remainder of the dwindling public trust in impartiality of the judiciary by a clear undertone that the judge which is part of a certain community will serve that certain community better than other litigants - which is a DISqualification for a judicial office.

It is enough conflict of interest that, as it is openly stated in the article, Deborah Glick, a lesbian herself, "helped pass" the same sex marriage law - even though interested parties should not participate in legislating, because it taints the legislation with self-interest and tells a lot about Deborah Glick's integrity.

Now Deborah Glick is "pushing" for an LGBT judge - while

1) she has no say in the matter;
2) she is in no position to influence the Governor;
3) influencing the governor as to judicial appointments based on factors that has nothing to do with judicial qualifications is plain wrong and tells adversely on the image of the legislator 

What I am also concerned about is the identity of the judge Deborah Glick is "pushing" for.

There are three openly gay appellate justices in New York, two women, former Lambda Legal Executive Director Rosalyn Richter and Elizabeth Garry, and Paul Feinman.

Elizabeth Garry and Rosalyn Richter were appointed by Governor Pataki in 2008, on the same day - clearly indicating that their homosexuality was a large part of the appointment decision, even though sexual orientation should have NOTHING to do with judicial appointments - even though the LGBT community pushes the issue as if appointment of "openly gay judges" is a step up in history, and a step toward a "more just judiciary".  What sexual orientation does or should have to do with judicial qualifications is, once again, a mystery for me.  

The press celebrated the appointments as a sign of social progress, instead of expressing outrage that factors that had nothing with judicial qualifications drove the appointments.

Judge Feinman, of the Appellate Division 1st Department, was appointed by Governor Cuomo in 2012 and was a former president of the International LGBT association who openly expressed elation, at the time of his appointment, that "the first gay man" was appointed to be an appellate judge in the State of New York.

Now, the question is, since Judge Feinman was so elated and stressed this "firstness" as some kind of an achievement, does it mean that for 3 years he "serves" his community better than others and has preferences to "his own"? Because otherwise, his being gay should not have been a factor in his appointment - as it clearly was.

I did not litigate in the 1st Department and do not know the record of competence and integrity of Judges Feinman and Richter.

Yet, I did litigate, and a lot, in the Appellate Division 3rd Department, both as an appellate attorney on behalf of clients and as a party, and I personally know the abysmal record of Judge Elizabeth Garry - on both points of judicial qualifications, competence and integrity.

Judge Garry, judging by her decisions both in the courts below and in the courts above, and based on personal experience of people who knew her as a lawyer, is a judge who unashamedly assigns herself to cases involving interests of her former law partners, or in cases where a party litigant took a benefit from her when she was an attorney (like a client left from attorney Garry to that other attorney) and, respectively, rules in favor of her law partner and against the attorney who hurt her by taking her client away.

I already posted on this blog Judge Garry's ex parte decision pertaining to my own disciplinary proceeding where Judge Garry 

1) unlawfully reviewed the application of the Attorney Disciplinary Committee where her own former law partner Samantha Holbrook was a member - and then elevated Samantha Holbrook to be the Committee's "Chairperson", while documents pertaining to appointment of Samantha Holbrook as a member or of the Committee or the Committee's "Chairperson" were denied to me when I made a FOIL request for them;  

Samantha Holbrook, when reviewing the disciplinary case against me and against my husband, was at the same time litigating a slip-and-fall case pertaining to our property, with my husband as a party defendant.  

That did not put off either Samantha Holbrook from the case, or Judge Garry from presiding over my disciplinary proceedings (before the ex parte transfer to the 4th Department) or unlawfully adding my husband into those proceedings to help stall discovery in a federal civil rights lawsuit - because by adding my husband to the motion for an order of transfer (without notice to him or me) Garry's former law partner Samantha Holbrook made it more difficult for my husband to obtain records that the Committee refused to release to him since his unlawful disbarment in 2011, even though by law they became a public record for ANYONE's access as of the date of disbarment, July 7, 2011.

Then, Samantha Holbrook AND Elizabeth Garry continue to block access to the ex parte "application" by Samantha Holbrook's Committee to Elizabeth Garry's court for an ex parte order of transfer to this day, to both me and to my husband, even though our names are on that order as parties to litigation.

That misconduct only garnered for Samantha Holbrook an appointment from Chief Judge Jonathan Lippman to the "Commission for Statewide Attorney Discipline" and a place on several committees within the "Commission" to ensure "uniformity, efficiency and fairness" of attorney discipline in New York.  Right!

2) The disbarment of my husband was because of the Mokay case (see blog posts about the Mokay saga in this blog).

Judge Garry was the second judge assigned to the case and the first judge to rule on that case at the trial level, while very close in time before her assignment to the case, Judge Garry was still an attorney, and lost a beneficial client to my husband - which did not prevent Judge Garry to get assigned to my husband's case and to consistently rule against him, without paying any attention to the applicable law or record of the case.

All of the above actions of Judge Garry qualify her more for a disciplinary action than for the highest bench on the New York State Court of Appeals, but I am holding my breath as to the appointment, because, so far, two judges who committed misconduct in our cases, made it to the Court of Appeals, Leslie Stein and Eugene Fahey, so why not add a third one to that happy family...  

After all, Governor Cuomo was sued by both of us and, in an apparent retaliation, as well as a likely bribe, appointed Leslie Stein to the Court of Appeals at the time she was in the process of making a decision for Governor's Cuomo's subordinate, the Commissioner of Environmental Conservation - and, of course, ruled in favor of the hand that fed her.

So, out of the 3 gay judges whom Governor Cuomo may choose to elevate to the Court of Appeals, at least one has an abysmal record, which, I understand, does not matter - because she is one of the two "first openly gay judges" appointed to the appellate bench?

Let's stop looking at how and with whom a judicial candidate has sex, because it does not matter to how that same judicial candidate, after he or she becomes a judge, makes decisions.

Appointing based on "social progress" and "first XYZ-ness" diverts public attention from the actual qualifications of the judicial candidates which should be ONLY:

1/ knowledge of the law;
2/ integrity, impartiality and fairness.

Let's see who is appointed to the two seats that are being freed this year on the NYS Court of Appeals, by Judge Susan Read because of her early retirement and by Chief Judge Lippman who turned 70 this year, because of his mandatory retirement (that he was unable to change through an attempt to change New York State Constitution).

Such appointments will make for an interesting factor analysis as to what, in reality, not in declaration, matters on the bench - knowledge of the law and impartiality or party affiliation and factors "marketing" such an appointment to certain politically powerful segments of population.

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