"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.

Sunday, October 11, 2015

Task Force/Lobby by the Supreme Court of Ohio: we need extension of immunity to non-judicial acts, because our liability insurance costs too much - Part 2

Recently I started analyzing the 2006 Report of a "Task Force" between an Ohio Supreme Court and a non-profit judicial trade association which asked to expand judicial immunity because of raising insurance premiums for judges.  Ohio is one of three states that cover judicial misconduct with a liability insurance.  Ohio pays for legal defense and payouts in lawsuits against judges made by:

  • civil rights plaintiffs in litigation-related matters;
  • civil rights plaintiffs in employment-related matters;
  • disciplinary proceedings against judges.

As I wrote previously, the very first recommendation of the "Joint Task Force" was to expand the concept of judicial immunity to cover non-judicial acts by qualified immunity.  I wrote in Part I about impropriety of such a grant.

Here is recommendation 2.

The report states the following as a basis for the recommendation:

I repeat once again the question - why judges, people who earn in all states close to $200,000 per year in salary, cannot pay a thousand dollars a year for their own liability insurance?  Why it is such a gigantic problem that the law of immunity must be changed to extend coverages of judges, at taxpayers' expense, for misconduct in office?

Here is recommendation No. 3.

In New York, NYS Attorney General already represents all state judges sued for misconduct in office, and even for misconduct that judges committed out of office, which is, consequently, not related to their duties.

Such representation creates unique conflicts of interest for the Attorney General who is also charged by separate legislation with duties to:

  • protect people of the State of New York from crimes, no matter who commits them;
  • investigation and prosecution of crimes, such as corruption of public office;
  • oust usurpers of public office by initiating writs of quo warranto 
At the same time, the NYS Attorney General continues to appear in court in front of judges whom he represents in litigation, while representing other clients, and such representation is irreversibly tainted by the conflict of interest of a judge ruling for his or her own attorney appearing in front of her.

Ohio judges, obviously, wanted far back in 2006 to endow the Ohio State Attorney General with the same set of conflicts of interest as the New York State Attorney General has.

Here is recommendation No. 4.

Now, why judges have to be provided with taxpayer-paid legal representation in a DISCIPLINARY action is a mystery.

Yet, the judicial lobby in Ohio insisted in their entitlement to free legal representation in disciplinary actions against judges, at the expense of taxpayers, whether with or without insurance, when so many of those same Ohioans, the taxpayers who fund judicial liability insurance, cannot afford their own legal representation.

Legal representation of judges becomes fraught with conflicts of interests to begin with because judiciary in Ohio (as in all other states of the United States) also licenses all lawyers, and thus controls livelihood of all attorneys.

Imagine being opponent of a judge in litigation and what that judge can do to your license.

Imagine not suiting your judge's needs in litigation, and what that judge can do to your license.

Here is the substantiation of the demand for taxpayer-backed legal representation of judges in disciplinary proceedings:

So, out of 608 disciplinary complaints filed in 2005, only in 4 cases formal charges were brought.  That is a whopping 0.66% of complaints against judges are prosecuted after initial investigation.

Of course, judges claim that it was because "the vast majority of these dismissed grievances are filed by dissatisfied litigants who are invoking the grievance process as a substitute for an appeal".  

Of course, there is no way of verifying that claim, because dismissed grievances are sealed, and it is unclear how the "Joint Task Force" got its collective hands on those grievances in order to make that bold claim in their report.

Of course, if 0.66% of police complaints are prosecuted, it will be blamed on inefficiency and corruption in the police and prosecution, not on the fact that the quality of complaints was bad.

In the situation where judges in Ohio (the same Supreme Court of Ohio that participates in the Joint Task Force) appoint the Board that handles complaints against judges, the number of prosecuted complaints, 0.66% (remember, I put the number at 1.3% when I calculated the comparative cost of litigation in disciplinary proceedings in Part I of the analysis, so I will have to go back and recalculate that) indicates the appearance of the influence of the judiciary on the disciplinary board, and a policy of non-prosecution of judges, not the quality of complaints. 

Also, under the law of the State of Ohio, once a formal charge is filed against the judge, the proceeding remains public.

So, the Board spared 99.34% of judges against whom complaints were filed in 2005 from being exposed as judges complained about for misconduct.

Since 99.34% of complaints against judges remained sealed, the Ohio Supreme Court, or, and especially, a private organization of judges called the Ohio Judicial Conference, same as everybody else in Ohio, should have had no access to the sealed information in order to claim that the vast majority of the 99.34% of the complaints were from "disgruntled litigants".

When judges claimed that the "disgruntled litigants" used grievance process instead of an appeal, that only shows how deep is the judicial bias and how prepared are judges to serve themselves in protecting themselves from any liability, because it is the Supreme Court of Ohio who not only 

The Ohio Supreme Court calls rejection of complaints against judges by the supermajority of lawyers licensed by judges at the rate of 99.34% as the result of the quality of the complaint, and, based on the U.S. Supreme Court's recent decision in North Carolina Board of Dental Examiners v. Federal Trade Commission decided in February of 2015, it can be called as a result of operation of the Board as a criminal antitrust cartel, by the members of the regulated profession - 17 attorneys who are dependent for their livelihood upon the good grace of the investigated and prosecuted judges, and 7 judges (acting or retired) who will not say anything against their own brethren.

The voice of the public, 4 lay members in a 28-member disciplinary board, is drowned by the voices of the industry, and the claim of protection of the public by such a Board from misconduct of judges is an astounding monument of hypocrisy of the judiciary and the legal profession.

As to "disgruntled litigants" using complaints against judges as an improper alternative to appeal, these two avenues are not mutually exclusive.

Since judges 

  • precluded suing themselves by giving themselves absolute judicial immunity for MALICIOUS and CORRUPT acts on the bench, 
  • disregard issues of judicial bias on appeals and sanction attorneys and parties who raise those issues, attorneys are sanctioned by up to revoking their licenses and livelihoods; and
  • shape the disciplinary boards in such a way that they dismiss 99.34% of complaints against judges - it is clear that judicial remedies and access to TRUE IMPARTIAL courts is non-existent in Ohio - as it is in New York, and many other states where the judiciary operates with the legal elite as an anticompetitive cartel.

Elena Sassower, director of the Center of Judicial Accountability in New York, has written a brilliant article several years ago about the myth of judicial remedies in the American Justice system, called "The Empty Promise of Judicial Discipline".  It remains true today, as on the day it was written.

The subsections of Elena Sassower's article are called:

  1. Intellectual dishonesty - the frequent misapplication of laws and misrepresentations of the law and the record in judicial decisions;  intellectual dishonesty of the Ohio judges is also shown by the fact that they first appoint 17 puppets into the disciplinary board whose livelihood depends on the Ohio judiciary, and then claim that the 99.34% rate of dismissal by those puppets of complaints against judges is explained by the quality of complaints;
  2. The Myth of Recusal, where the process must be objective and not dangerous for the challenger of judicial bias, in order to insure litigants' constitutional rights to access to court and to an impartial judicial review, but instead the process is dominated by the challenged judge, who most often retaliates against challengers and their attorneys, see also here;  Elena Sassower describes the virtual unavailability of recusals in federal courts, but the same happens in state courts;
  3. The Chimera of Judicial Discipline - Elena Sassower describes judicial discipline in federal court, but the process or results are not much different than in the Ohio State court system;
  4. The Illusory remedy of appeal - where all issues of judicial bias  and judicial decisions motivated by bias are collectively rejected as either not preserved for appellate review (because the litigant and his attorney were afraid to raise the issue by a motion to recuse or objection in the court below), or do not have "merits" (without any explanation why), or because to recuse or not to recuse is now considered by judges as a matter of absolute discretion of the presiding judge, not as a constitutional right of a litigant to access to court and to impartial judicial review.

The Ohio judges complain that in 1999 coverage in disciplinary matters was made contingent on exoneration of judges:

Then, in 2002 judges were given a gift of $20,000 cap and $25,000 "outside limit" on insurance payments, even if judicial misconduct was found:

For some inexplicable reason, the Supreme Court of Ohio claims that judges are entitled to be protected from all financial costs of defending themselves in disciplinary actions, no matter what the outcome - and while the same Supreme Court of Ohio appoints the Board that investigates and prosecutes those same judges, and populates the supermajority of the Board by people completely dependent with their livelihoods on the good grace of the judges they investigate and prosecute.

One cannot get a more corrupt scheme to begin with, but even that scheme is not enough for the Ohio judges, and they want to be absolved of any liability, and any costs of legal representation, even if they did commit disciplinary misconduct that even the puppet board could not swallow.

And, of course, the report concludes with some chest-pounding that the outrageous self-serving entitlements that the Ohio judiciary claimed for themselves in the report, on top of the corrupt way in which the Ohio judiciary handles complaints against itself, is somehow needed to ensure, for the benefit of the public, independence of the Ohio judiciary.  

Judges must start realizing that the public is not a bunch of idiots to buy such cheap tricks.

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