"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 8, 2015

The "relaxed" rule of law in upstate New York courts...

A reader asked two questions on Avvo.

Avvo is an attorney rating website where anybody can rate any attorney's performance and/or ask legal questions that willing lawyers registered with Avvo answer, if they can and wish.

So, once again, a reader asked two questions on Avvo pertaining to legality of a judge's actions.

Question # 1

I already raised this question in my blogs pertaining to the case O'Sullivan v Bowie, Delaware County Index No. 2014-911, where the judge accepts motions from a police officer sued in his individual capacity for misconduct (vehicular assault) and where the police officer is not an indigent.

There, not only the fee was waived by the Delaware County Supreme Court (County Clerk Sharon O'Dell, presiding judge John F. Lambert, court attorney Mark Oursler, see my blogs about him and what he is doing /or not doing/ during court conferences here - and it was Mark Oursler who refused to put on record, despite my request, a court conference in a case where attorney Andrew Van Buren, political supporter of Judge Becker, was verbally harassing me, thus preventing me from having evidence of that harassment), but Mark Oursler, reportedly, made it his business to call people in charge of the Delaware County building at 111 Main Street and brokered for a rent-free room so that Derek Bowie's attorney could have a deposition at the building, at the County taxpayer's expense - and that is after the audit by the NYS Comptroller that already pointed out tremendous waste by Delaware County officials. 

 Remember, two of Delaware County officials, County Attorney Porter Kirkwood who ok'd the rent-free depositions, and the District Attorney Richard Northrup who employs Derek Bowie's uncle Jeff Bowie and refuses to prosecute Derek Bowie for vehicular assault and attempted murder of Barbara O'Sullivan ( a critic of judicial misconduct) while instead unlawfully prosecuting Barbara O'Sullivan for a made-up crime where Derek Bowie is an alleged witness, are currently running for two judicial seats in the upcoming Delaware County elections.

This is what attorneys answered on Avvo to the question above - whether a filing fee must be paid before the Order to Show Cause is signed:

So, the law is:  no, the motion filing fee must be paid and the Order to Show Cause must be filed with the County Clerk (instead of being sent directly to the judge's chambers without paying any filing fees), and a judge in a New York court simply cannot sign an Order to Show Cause without such a filing and without a fee, unless (as to the fee only) the litigant asking for such signing is an indigent (which should be separately established).

Of course, Derek Bowie is not an indigent, of course, no application for the Order to Show Cause was filed (because the County Clerk immediately scans all filings, and nothing appeared in the record when the application for the Order to Show Cause to undo the default of Derek Bowie was made), and the filing fee was still waived, the Order to Show Cause was still signed by Judge John F. Lambert, heard without proof that it was properly served, and granted, and a motion to vacate that decision because it was unlawfully made was denied by Judge Lambert, raising questions of applicability of the rule of law in Delaware County (especially to critics of judicial misconduct suing police officers for crimes pertaining to citizen safety), as well as to competence and impartiality of Judge Lambert.

Question # 2

Several answers were posted to this question by NY-licensed attorneys.

The answer by the attorney Terry Horner of Poughkeepsie, NY, floored the reader who reported the answer to me.

Note that all three answering attorneys indicated that what the judge did was wrong.

One of the attorneys stated that such conduct by a judge is grounds for mistrial.

Another stated that an attorney may have no choice but to proceed if the judge wants to disregard the failure to file a note of issue.

Yet another stated that such a failure may happen because cases get "procedurally confused" when "a computer puts" the cases on the trial calendar with the trial Note of Issue filed and served.  So, now computers, not people, put cases on trial calendars - and computers are to blame for procedural violations.

Attorney Terry Horner, though, took the bull by the horns (no pun intended) by stating that "procedure upstate is, shall we say, more relaxed than in Southeastern NY".

That is another way of saying that such violations by upstate New York judges are to be expected, which prompted the reader to make the following comment:

I do not think any attorney in New York can, in good faith, say the "Wild West" comment was not true...

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