"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.

Friday, December 4, 2015

Judge Sheri Roman's testimony before the NYS Commission for Judicial Pay raise - shameless and flowery unwarranted self-praise, invitation for corruption to attorneys and a substantiation for a "judicial pay adjustment", a pay CUT

In her testimony before the New York State Commission for Judicial, Executive and Legislative Compensation, Appellate Division judge Sheri Roman made many interesting statements.

Here the are, with comments. 

1) the Judicial Pay Commission is the "key component to remedy a wrong of constitutional import impacting judicial independence" (pages 34-35 of the transcript) - the word "Constitution" is used by judges in four settings: 

    No. 1 - judges take their office and start receiving their salary and benefits by taking an oath pledging to protect and enforce the Constitution of the State of New York and of the United States;

    No. 2 - when a constitutional argument is brought in court, judges punish those who raise those arguments with multi-thousand-dollar monetary fines and make sure such people cannot earn a livelihood in the State of New York or in any other state;

    No. 3 - when judges are sued for violation of constitutional rights, they invoke absolute judicial immunity to violate the U.S. Constitution that they took the oath to protect (No. 1), they assert their right to violate the U.S. Constitution as a necessary condition of maintaining their "judicial independence", and they ask to punish the victims of their constitutional violations for complaining and make sure that those who complain and especially their attorneys suffer monetary fines and be deprived of their livelihood (No. 2);

    No. 4 - judges recall the U.S. Constitution when they claim that they need a pay raise to continue to protect their judicial independence, the same judicial independence that they also need to protect by punishing those who raise constitutional arguments and those who sue judges for constitutional violations; judges need the pay raise to continue to protect the U.S. Constitution with immunity (No. 2, No. 3 above).

Quite a "House that Jack built" kind of an argument, isn't it?  

Yet, that is the reality of what is happening with the U.S. Constitution, judicial "independence" FROM that U.S. Constitution, and penalties imposed upon people who raise constitutional arguments in court, pro se or through an ever diminishing number of attorneys who are brave enough to do their duty by their clients, including penalties upon victims of judicial constitutional violations for daring to complain about those violations and for daring to ask for help against judges who committed those constitutional violations.

Judge Sheri Roman's testimony before the NYS Commission for Judicial Compensation is a good example of setting No. 4. 

For licensed attorneys, "officers of the court" similarly sworn to protect the U.S. and State Constitutions, but who do not have absolute immunity for misconduct "in office" like judges gave themselves, raising constitutional arguments is safe only in setting No. 4 - in support of judicial pay raises (see below where Judge Roman extends a "resounding thank you" to licensed attorneys whose licenses she regulates for advocating for her pay raises).

Ok, let's go further with Judge Roman's testimony, here are other quotes. 

2)"there is no real controversy for the need for judicial pay adjustment", p. 35 - I guess, Judge Roman polled every one of the millions of New York state taxpayers who she is saddling with that pay raise, what an accomplishment;

3) "across the state, judges dedicate their professional life to the rule of law", p. 35; as far as I know from my professional experience, judges dedicate their professional life to anything but the "rule of law", mostly, they dedicate their lives to  using the courtroom to settle their personal grudges, extending their personal favors and demonstrating their power without regard to the rule of law;

4)please, brace yourself to absorb this one: "judges strive to employ every scintilla of their legal acumen accumulated throughout their legal career to achieve just resolutions" - I was always disgusted with people who praise themselves, and especially in a flowery language.  It is a "flowery language alert" - whenever you see that, hold onto your pocket, most likely you are being duped.

5) "fairness of course is the bedrock of expectations we are relied upon to mete out to all citizen who cross the thresholds of our courtrooms", pp. 35-36.  That declaration may be true because the public does elect judges to fairly resolve disputes in court - which does not happen in reality

As a "consequence" of No. 5, 

6) "justices of this state trust that we have finally achieved by this Commission our own path to fair compensation", p. 36 - by "this"  Commission comprised of people with financial interest in judicial pay raises "justices of this state" certainly can trust that they have achieved "a path" to RAISED compensation - which has nothing to do with fairness, appropriateness of such pay, or approval of the taxpayers who are being saddled with that pay; nor can the Legislature delegate an important task deeply affecting the State budget to unelected officials, making the Commission and its findings completely illegitimate and void;

7) "this Commission,comprised of successful legal, business and civic leaders, understands the necessity to advance and maintain seasoned, learned and compassionate bench" - that is as thick a hint as it could be made, to the bar dependent for its licenses and livelihoods, as well as for their "successes", upon favors of the "seasoned, learned" and especially "compassionate bench" (this statement of Judge Roman also raises in my, possibly, too-vivid imagination, some disturbing images about inanimate objects (bars) being "successful" and about other inanimate objects ("benches") being "compassionate", p. 36;

8)"the necessity to advance and maintain a seasoned, learned and compassionate bench ... is a prerequisite to the economic vitality and preeminence of New York State" - now, for those of you who thought that the job of judges is to decided just certain cases coming before them, this one is a new, apparently, judges are marketing themselves as an attraction point of the State of New York to businesses - how appropriate (at least, there is no wonder any more when you read judicial decisions openly catering to business litigants over individuals without any regard for that much propounded "rule of law", in foreclosures and consumer debts cases), p. 37

9) "the 12-1/2 year salary freeze diminished the stature of the judiciary in the eyes of our citizens as well as those in the legal profession" - I wish Judge Roman would not speak on behalf of "our citizens", it clearly reminds me of a salesman trying to instill into you why you "deserve no less" than some expensive trinket that you do not need - and the proposition that judicial salary freeze somehow diminished "stature of the judiciary" in the eyes of the legal profession... why should that be even a relevant point?  A lawyer is an agent of a litigant who comes to court to advocate for his or her client, a judge is doing his or her job resolving that dispute, that's it - "statures" have no relevancy to that;

10)   the importance of the legal profession in whose eyes the salary "freeze" diminishes the "stature of the judiciary" is that the legal profession "is the very well we need to draw upon to fill the ranks of tomorrow's judiciary, as well as prevent the premature retirement of those who personify judicial talent" - and these statements are thrown around by a sitting judge without presentation of ANY data showing that the salary "freeze" at $174,000 a year scares away from the "bench" any number of lawyers, including those who line up for $60 and $75-an-hour assignments (rather, what "scares them away" is the expense and required clout in the judicial election campaigns that those who "personify judicial talent" cannot afford like Judge Sheri Roman did for her own election);

11) "a judge embodies notions of equal treatment and fair play, but how can a judge decree a fair solution in cases before them when they are not empowered to achieve fairness for themselves" - now, that is rich, because for those who are familiar with New York court system and the New York judiciary, a judge in New York courts "embodies" notions of a cantankerous and capricious tyrant whose whim rules over the rule of law every time, yet, what is valuable in this particular false self-praise is that Judge Roman attempts to connect and condition judicial compensation on judicial performance, on its "fairness" part, saying that since judges are fair to everybody else (of course, they are not), they need to be treated fairly by the taxpayers - in that regard, if that principle is invoked by the judiciary, it should be applied: since the judiciary is not fair to "citizens", it cannot expect fairness in its compensation;

12) "12-1/2 years with no salary or cost of living adjustment created an adverse financial situation that was not sufficiently ameliorated by the raises decreed by the last salary Commission" - think about how judges and their families are struggling on only $174,000 a year, do you feel compassion overwhelming you?

13) "anyone who chooses a life in public service makes that career decision understanding they will never accumulate the wealth of their colleagues in the private sector. We need diversity of background for those willing to apply for appointment or election to the bench. We do not want a judiciary comprised of those who aspire because it's viewed as a career with a guaranteed paycheck or a bench comprised primarily of those select individuals wealthy enough to retire to the bench. To achieve this diverse judiciary, we need to assure judicial candidates that it is an economically viable aspiration providing fair compensation" - here Judge Roman pretends to be an economist implying that we need to raise judicial pay to attract better judicial candidates, while, in fact, there are studies by economists showing that raising judicial pay may worsen the quality of the judiciary, I will cover that subject in my next post;

14) "a stagnant period of 12-1/2 years created a twist and constriction in the pipelines of the bench. Seeds of judicial aspirations certainly lay fallow" - I was taught as a linguist (I have a Masters degree in teaching English as a foreign language from the Moscow Linguistic University) that metaphors should be used cautiously since perception of the creator of the metaphor may differ, significantly, from the perception of the reader and can invoke reactions other than those sought.  Now imagine in your mind's eye the "twist and constriction in the pipelines of the bench"... I wonder who wrote the piece for Judge Roman.  If it was Judge Roman herself, she definitely is a candidate for a judicial pay CUT, and if it is her clerk, she needs to change that clerk.  Look at the next one: "seeds of judicial aspirations certainly lay fallow" - what are "judicial aspirations", why should the public answer those aspirations, why should they answer those aspirations with pay raises of the already inflated salaries, what is the empirical, evidentiary support for the pay raises other than that judges want to be paid the same as their neighbors?

15) "the rippling effects [of the salary "freeze" - T.N.] diminish the stature of the judiciary in tandem with diminishing the ability of our jurists to be bread winners for their families" - as I said above, my heart, as, I am sure, the hearts of New York taxpayers who  make on average not more than $52,000 a years, overflows with compassion to the poor judges who cannot provide for their families on $174,000 a year.  On the other hand, if they can't do that, they (1) need a course in home economics and (2) they should step off the bench because if they cannot handle their own family budget on more than ample pay, they certainly cannot be trusted with good judgment in making judicial decisions;

16) "our legal system has not tread water. New York judges now hear over 4 million cases. Supreme Court filings have increased more than percent since the 2011 salary Commission last heard testimony. Justice is delivered in staggering quantities, with judicial implementation of innovative initiatives to address the astonishing complexity of today's litigation". I know of some "innovative initiatives to address the astonishing complexity of today's litigation".  They are: (1) disregard the record;  (2) disregard the law, (3) drag people into multiple coerced conferences so that they drain their resources on legal fees to attend those conferences and can no longer afford an attorney for the actual trial of the cases; (4) punish people for making constitutional arguments, (5) dismiss most cases on motions to dismiss or summary judgment disregarding the applicable law, (6) use the "move up or move on" rule; (7) use on appeal the "judicial deference to the biased judge below" rule;  (8) use on appeal the "constitutional avoidance" (I do not see your Constitutional argument, along with parts of the record it refers to) rule.  Because of those "innovative initiatives" Injustice IS, indeed, "delivered in staggering quantities".

17) judges had "generous support from academia in analyzing the financial and comparative data, which were all included as exhibits in our association's written submission. The Institute for Compensation Studies at Cornell University School of Industrial Labor Relations has provided us with reliable statistics, including historic data from the archive of the National Center for State Courts. Our ability to pay analysis was compiled under the auspices of James Parrott, Deputy Director and Chief Economist at the Fiscal Policy Institute" - of course, Judge Roman omits to mention a strong  opposition "in the academia" showing that there is no evidentiary support for the proposition that judges are underpaid and should be paid more, and that there are people in the "academia" who believe that raising judicial salaries will worsen the quality of "justice delivered in staggering quantities", see article "Are Judges Overpaid";

18) judges "recognize that the state's fiscal picture is eons away from the dismal one that confronted us in the past. ...
The state anticipates multi-billions in state budget surpluses and is in its best fiscal position in many years, as described by New York State Budget Director Mary Beth Labate" - I wonder which planet Judge Roman and NYS State Budget Director Labate are from, and I wonder why REAL monetary increases should be based on ANTICIPATED surpluses where the current economic conditions in the State of New York are so far from healthy that the State of New York ranks 47 of 51 states in economic health.  Of course, when you are on the bottom, all steps you make are in the "right direction" - upwards, but such "anticipation" in no way justifies spending now what the state economy simply does not have to spend;

19) "our fair compensation request would constitute a small fraction of 1 percent of the state's operating budget" - first, Judge Roman did not indicate how small is the "fraction of 1 percent", second, Judge Roman does not give a real number of all pension related and non-pension related benefits impact of the salary increase, and under conditions where New York already has $250 billion of unreported public employee benefits debt as opposed to just $30 billion reported, such an omission is very telling;  Judge Sheri Roman, "the saleswoman" for the judiciary, does not want to show the downside of her unnecessary expensive trinket to the taxpayers upon whom she is thrusting that trinket of judicial pay raise;

20) "the continued declination to promulgate appropriate and fair compensation has created an injury of constitutional proportions and undermines the ability of New York to provide an excellent, enlightened, hard working judiciary. Competitive salaries are required to attract the best and brightest" - now, let's get real: judges in New York are elected, nobody drags them into election campaigns, and when they run for the judicial position, they know the salary they are getting into; judges are getting into a term of 10 (in Family and County Courts) or 14 years (Supreme Court), the salary for those terms are fixed, and there should be no expectation of salary increase by those who are already on the bench.  You ran for that position, you got that position, you are paid for the position you applied for, now work for that pay or get out, it is as simple as that.  And, the public sector judiciary does not need the "best and the brightest", competent, honest and hardworking are enough, thank you very much.

21) "a resounding thank you must be accorded Stroock and Stroock and Levan, Joe Forstadt, Alan Klinger and Dina Kolker, for their perpetual support of the judiciary's request for fair treatment and compensation" - now, THAT is an open signal to the "citizens and the legal profession" that the law firm of Strook, Strook & Levan and lawyers of that law firm "Joe Forstadt, Alan Klinger and Dina Kolker", are the favorites of Judge Roman and of the State judiciary because of "their perpetual support of the judiciary's request for fair treatment and compensation".  That is corruption, ladies and gentlemen.  

A judge of the appellate division, a law-licensing agency, a judge who holds in her hands licenses and livelihoods of every one of the lawyers in that same Strook, Strook & Levan, in her public testimony to the NYS Commission for Judicial Compensation, which she knows will be published for the whole wide world to see, puts a pointer on a law firm indicating that that law firm is her favorite - because attorneys of that law firm fortified their business, as well as protected their licenses and livelihoods by advocacy that brought more money to the judges in front of whom those attorneys appear.  That is also a signal to other lawyers to advocate for judicial pay raise, to earn the same "resounding thank you" from the judiciary, in more than just words.  That is an invitation for corruption.  You advocate to raise my salary, and I will not take your license and will make judicial decisions in your favor.  That's a hint, as clear as it can be.  Disgusting, absolutely disgusting, Judge Roman.

I urge present and future litigants and attorneys in the State of New York (those who are not in the brown-nosing the "constricted and twisted" "pipeline of the bench" - not my words, Judge Roman's) to note the testimony of Judge Sheri Roman and its apparent invitation to attorneys for corrupt relationships with the state judiciary.

I urge the U.S. Assistant Attorney General Preet Bharara note Judge Sheri Roman's testimony, for the same reason.

On the other hand, Judge Sheri Roman's testimony is a good example that judicial salaries should be, indeed, "adjusted" - it should be adjusted downwards, through a pay cut, until and unless the New York judiciary is thoroughly cleaned of judges such as Sheri Roman.

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