"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, January 8, 2016

NYS Commission for Judicial Conduct admits to corrupt activities

The New York State Commission for Judicial Conduct that exists since 1974 is proposing a rule under which members and former members of the Commission and their law firms may not practice before the Commission.

This is the full proposed rule.  There is no explanation there as to why the rule was introduced now, after 41 years of existence of the Commission, and why the rule did not exist from the beginning.

Nor does it say which members, former members or law firms of the Commission practiced before the Commission before.  Well, such information must be available under FOIL, and I'll try to obtain it and will report the result of my efforts on this blog.

The "rule" is a no-brainer.  Any judge or member of a judicial panel is prohibited from practicing before that panel under the judge-advocate rule.  The same applies to law firms of part-time judges.

Rules of disqualifications for part-time judges who continue to practice law, exist for an eternity and are fully applicable to Commission's members.

Yet, many times when I asked for disqualification of members of the Commission (for example, on the ground that they are reviewing complaints against themselves, like the now- Chief Judge of Appellate Division 3rd Department Karen Peters) or against judges who participated in misconduct together with them (like the now-retired Delaware County judge Carl Becker and the then Vice-Chair of the Commission Stephen Coffey), the Commission ignored my requests.

The question is, what had to happen for the Commission to see the writing on the all and introduce a rule governing itself (the Commission, apparently, is an investigator, adjudiator and legislator, all things in one), after 41 years of cozy existence since 1974?

So, I presume that before that time, Commission members and their law firms, did practice (and derived financial benefits) in front of the Commission, and the question is - how many decisions of the Commission were invalidated by this practice.

"Practicing in front of the Commission" means "representing judges turned in for discipline".

The fact that such a rule was not in existence until now can pretty much explain why the Commission, as it has been claimed by witnesses in numerous public hearings, acted so far more like a glorified shredder of meritorious complaints against judges (without a right of appeal of dismissals of meritorious complaints) than a fair and impartial governmental body.

In other words, for 41 years, New York State government was bluffing its citizens by claiming that there exists an impartial governmental body that investigates and administers discipline to New York state judges.

In reality, there existed a business where the Commission was an information hub receiving complaints from citizens, and then turning that information source which was confidential to all but members and employees of the Commission, into business for itself and the law firms in which the Commission members and former members were employed.

So, what happens now?

Will the Commission and its activities, including dismissals of all complaints against judges, be investigated by an INDEPENDENT citizen's panel as to:

  1. whether any dismissal was caused by representation of any judge by a Commission member, former member or their law firms, and
  2. whether milder discipline (any discipline other than taking the judge off the bench) was imposed because of the influence of a member, former member or law firm of such members or former members of the Commission practicing before the court and representing such a judge, openly, or as a confidential "member of the team" representing the judge?

Members of the Commission in 41 years of its existence are easily identifiable.

Their law firms are also easily identifiable.

Complaints against judges should have been archived, I know they are assigned index numbers, so, if they still exist, an independent investigative panel can review them.

I will file a FOIL request about members of the Commission for 41 years and who appointed them, and will report how New York State Unified Court system reacts to the FOIL.

By the way, the last reply of NYS counsel for Office of Court Administration to my FOIL inquiry was downright rude, so I understand that my last FOIL (about Lippman's "Learned Hand" program, a "public-private partnership" formed upon an "anonymous", but private donation of $1 mln) is onto something.

The implications are all the more interesting that many of the appointees of the Commission were appointed by the following individuals:

So, the current members of the Committee were appointed by:

1) Sheldon Silver - convicted for corruption;
2) Sheldon Silver's childhood friend Jonathan Lippman and his predecessor Judith Kaye (Lippman was not a Chief Judge in 2005 and 1999), who both have a record of corruption, see my blogs here and here for Lippman and here for Kaye;
3) Dean Skelos - convicted for corruption;
3)  John Sampson who was convicted in 2015 for trying to thwart a federal investigation and obstructing justice;
4) Governor Cuomo who is, reportedly, currently investigated for corruption, for dissolving the Moreland Commission as soon as it started to probing Cuomo and his administration, and, possibly involving the Buffalo Billion project.

Quite a crew.

So, will New York State Attorney General investigate corrupt activities of the Commission for Judicial Conduct, or will he balk out, as he did with Silver, Cuomo, Skelos and Sampson - because, by law, he is actually representing these scoundrels, so only feds could touch them, after years of corruption?

Will New York State law be finally changed to remove irreconcilable conflicts of interest of the New York State Attorney General?

And will the now-admitted corrupt activities of the NYS Commission for Judicial Conduct be a project worth addressing for Preet Bharara?

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