"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, March 24, 2016

A judge presiding over his own divorce and being "fair and impartial" - how far "judicial discretion" and immunity can get us

I wrote on this blog previously about "accomplishments" of two judges, the now-retired Judge Carl F. Becker of Delaware County and of the Chief Judge of the 5th Judicial District James Tormey (sued by two female employees for misconduct in two separate lawsuits, one lawsuit resulted in a $600,000 settlement, after 4.5 years of litigation, for retaliation against the female employee when she refused to spy, at Tormey's urging, on a judge who was a Democratic judicial candidate, the other lawsuit, by a court interpreter claiming discrimination by Tormey and his friend Onondaga County DA William Fitzgerald, is still pending).

Both of these judges were deciding cases where they had their own personal interest.

Both were allowed to do that, where the appellate court (3rd Department) found that the question of their recusal was within their "discretion".

Judge Becker presided over a motion challenging not just his impartiality, but his legitimacy as a judge - denied the motion and sanctioned the challenger (me).

Judge Becker presided over motions to recuse him for misconduct and conflicts of interest that he believed were designed to harass him as a victim - denied them and sanctioned the challenger (me).

Judge Tormey, on request from a private attorney Jonathan S. Follender (who is also a judge in a justice court in Ulster County), presided over Follender's defectively served motion with a request to sanction me for suing Judge Tormey himself in federal court - granted the motion and sanctioned me.

In all of those above instances, where a judge has a personal interest in the outcome of the matter, and when a judge claims himself to be a victim of an attorney's conduct, he is definitely positioning himself as a victim and a person with an interest in the outcome of the case - the judge definitely is disqualified by due process and by statue, New York Judiciary Law 14, from presiding over the matter.

Did not prevent Becker or Tormey to preside over the cases where they positioned themselves as victims of my alleged conduct, and being the victim, prosecutor, judge, jury and executioner.

The appellate court claimed that in all of those cases, with obvious personal interest of both judges, Becker and Tormey had "discretion" to decide whether to recuse or not to recuse.

Of course, that's not true, but, with the "move up or move on" mentality of American courts, and where the Appellate Division 3rd Department as the last appellate court where the issues of discretion or no discretion may be raised, a party like me is left without a remedy when the court deliberately refuses to follow black letter law, including New York court rules (22 NYCRR 100), statutory law, Judiciary Law 14, and constitutional due process of law requirements.

Yesterday I read about a Texas judge though who is a rival of Becker and Tormey.

Judge Michael Herrera, of El Paso, Texas, was reprimanded (only!) by the Texas Supreme Court for - presiding OVER HIS OWN DIVORCE CASE.

How much remorse Judge Herrera felt is shown in his post-reprimand statement where he reportedly said the following:

"The public reprimand also said Herrera misused his position to satisfy his personal desires in the divorce action.

"That's what the state says, but I was I was very impartial on my own (divorce)," said Herrera, "It is constant lies and lies and lies."
Judge Herrera does not and would not get the difference.
He does not get it that he has no AUTHORITY to preside over his own divorce case - and that whether he was "impartial" or not presiding over his own divorce case, is irrelevant.  He was not supposed to be there.
Apparently, abusing his judicial position in such a drastic way did not get judge Herrera judicial discipline, or disbarment.
As abusing their judicial positions did not get judicial discipline to Becker or Tormey.
And, until judges presiding over cases where they have personal interest, do suffer the consequences of their actions, in a real way, nobody can expect real justice in our courts.
Think what other conflicts of interest Judge Herrera, for example, would not be disclosing if he brazenly presided over HIS OWN DIVORCE case - and, even after the reprimand, practically claims he had a right to do that.

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