"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.

Monday, November 2, 2015

Delaware County NY judicial candidates Porter Kirkwood and Gary Rosa on the issue of incarceration of parents who do not pay child support - an "F" to both candidates for the answers

I just posted a blog about the answers of the two candidates for the position of Delaware County Family Court judge (New York) at their meeting with voters in October of 2015.

Here are their answers to another burning question: under what circumstances they consider appropriate incarceration of parents for non-payment of child support.

Porter Kirkwood immediately started to boast about his alleged experience of prosecuting 400 cases of non-payment of child support in Delaware County per year, for many years.

He also praised putting the parent in jail as a superbly efficient money-squeezing tool, stating that as soon as the parent is put in jail, the money "magically appears".

Yet, Kirkwood did not mention whether there is a verification whether the parent has the present ability to pay, or whether the money is squeezed not from the parent, but from the savings of his friends or extended family who never had an obligation to pay, but are paying simply to help out a friend and prevent him from losing a job, a home and his livelihood through detention for civil contempt, where courts are quick to put people in jail, but unwilling to release them pending appeal, even when putting them in jail was distinctly unlawful.

Nor did Kirkwood mention his illegal practice of raiding accounts of parents and taking even money he is not supposed to take, such as federal student loan money.

In my practice in Delaware County Family Court, Porter Kirkwood's agency systematically supported putting a person in jail without any verification of present ability to pay, and where the parent actually proved that he or she is unable to pay.

Kirkwood who arrogantly sees in incarceration of poor parents only an effective means of money-squeezing, will continue as a judge turning child support laws into debtor prison laws, long ago condemned as unconstitutional.

Yet, there is growing awareness across the country of the widespread unconstitutional practice of treating parents as a objects of money squeezing and populating debtors prison.

See, for example, articles regarding such practices in the states of:

Those are just a few articles about unconstitutional practices of social services agencies to squeeze money out of parents who have no ability to pay at the threat of incarceration and loss of their livelihoods.

I highly doubt Porter Kirkwood did not know about this growing awareness.

Porter Kirkwood, as an attorney boasting of his vast Family Court trial and appellate experience, must know that his actions in pursuing child support against parents in Delaware County under a "presumption" that they have an ability to pay while the economy is terrible, jobs are few, and there are no good jobs, as he stated to the voters in the same speech, are unconstitutional.

It is a bad and downright scary prospect for voters to elect a judge such as Kirkwood, with such a callous disregard for constitutional rights of his main constituents in the area.

So, it is a resounding F to Kirkwood for this answer.

It is an F to Rosa, too, unfortunately.

Gary Rosa blundered in failing to distinguish between civil contempt (Family Court) and criminal contempt (criminal court) by claiming that a parent who had an obligation and means to pay child support, but did not do that, should be put in jail for a "period of incarceration".

Yet, a parent put in jail for civil contempt must be released the moment the money is posted on his behalf, and cannot be put for a "term" of incarceration, that is a criminal sentence which Family Court has no authority to impose.  Moreover, criminal contempt is a  misdemeanor (at least judging by the fine), entitling the criminal defendant to a full panoply of criminal procedure protection, including a right to a jury trial - protections that are not available in Family Court.

I already described the difference between civil and criminal contempt on this blog, and specifically in the context of child support proceedings.

For a judge who practiced for 23 years and has run for the Family Court judge seat twice, such a lack of knowledge of elementary jurisdictional restrictions of Family Court is unforgivable.

Therefore, an F to both candidates on this issue.

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