"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.

Thursday, December 17, 2015

A hole in absolute judicial immunity defense in New York

New York mandatory judicial disqualification statute, Judiciary Law Section 14 provides:

I already wrote on this blog that Judiciary Law 14 thus
presupposes disclosure by judges of their family trees 
to the sixth degree of consanguinity or affinity, 
not that judges are going to do that, but that's what 
the law presupposes, again, because otherwise
this requirement is hollow and without any meaning. 
But, additionally Judiciary Law 14 provides
an interesting twist on the so-called "absolute judicial
immunity for malicious and corrupt acts" - a judicially
created concept, an unlawful restriction of 
jurisdiction of federal courts in civil rights cases 
that is not found anywhere in the text of 
the Civil Rights Act.
In its seminal case on absolute judicial immunity,
Stump v Sparkman, the U.S. Supreme Court claimed that
a judge is immune even if his or her actions are
"malicious and corrupt".
Enters Judiciary Law 14.
If a judge is "malicious", that means the judge's
intent in litigation is to cause injury to a litigant
or litigant's attorney - that is a personal interest
under Judiciary Law 14, stripping the judge of
jurisdiction, and judicial immunity does not apply
"in clear absence of all jurisdiction".
If the judge acts in a corrupt manner (was bribed,
with money or non-monetary benefits to the judge
or to whoever else the judge has a personal interest in),
it means that, under Judiciary Law 14, the judge
is "interested" in the outcome of the case and
"shall not sit", has no jurisdiction and is not 
subject to the judicial immunity defense.
As an added bonus, prohibition of Judiciary Law 14 
is jurisdictional, and makes decisions in violation 
of the statute not voidable,but void (when courts 
agree to actually apply the statute properly, 
which rarely happens, because judges in all courts 
are usually power-hungry and are very reluctant 
to obey the law imposing restrictions on their power).
Yet, the law is there, and it undermines the
concept of absolute judicial immunity for
civil rights state defendants in New York. 


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