"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, March 4, 2016

New York Attorney General: evidence submitted in support of a motion to recuse qualifies as "disruption of court proceedings" and ejection of the litigant out of the public courthouse by force

I wrote on this blog about misconduct of Judge Kevin Dowd of Chenango County Supreme Court and about the federal lawsuit that was filed against Judge Dowd.

Since Judge Dowd ordered an armed court officer, a known Nazi sympathizer who already threatened the litigant out of court, to throw the litigant out of the courthouse AFTER Dowd granted his motion to recuse and AFTER Dowd was out of the case and lost all authority to do anything in the case, Dowd was not covered by any immunity.

Yet, see the version that the New York State Attorney General (a public official sworn to protect New Yorkers) advances in defense of Judge Dowd's reprehensible behavior:

First of all, there was no "disruption" of the court proceedings, nor did Mr. Shtrauch allege that anywhere in his complaint or in his appellant's brief (I drafted that complaint, based on Mr. Shtrauch's words and later confirmed the truth of his words through a transcript of that conferencee, and read Mr. Shtrauch's pro se Appellant's Brief).

Mr. Shtrauch did not say anything even close to that he "disrupted court proceedings".

There was no basis whatsoever for the NYS Attorney General to claim that (1) Mr. Shtrauch behaved disruptively at a court conference, or that (2) Judge Dowd had authority to remove any party from a court conference because the party behaved as Mr. Shtrauch did.

First of all, Mr. Shtrauch showed pictures of the judge's law clerk not in the conference, but as part of a written motion to recuse that he asked the judge to decide on papers and without oral argument.

Second, oral arguments of motions, including a motion to recuse, must be held in open courtroom.  No procedure for "conferencing" motions is presupposed in New York.

Third, a motion to recuse must be supported by evidence.

Pictures of Mr. Shtrauch's children in the judge's law clerk's home publicly posted on her website is not "disruption of the courtroom", it was evidence submitted in writing in support of Mr. Shtrauch's motion to recuse - a motion which Judge Dowd granted - before he ordered an armed officer to throw Mr. Shtrauch out.

Judge Dowd did not provide any reasoning for throwing Mr. Shtrauch not only out of his chambers, but also out of the entire courthouse during business hours, where every other member of the public, including Mr. Shtrauch, were authorized to be.

And of course, whether Judge Dowd would have thrown out a non-Jewish litigant the way he did Mr. Shtrauch, is a matter of pure speculation that Mr. Shtrauch did not have to prove as a matter of equal protection claim.  What he was asserting is that he was ejected out of the courthouse, by use of force, by a judge who was no longer on his case, for no legal reason, while other members of the public had access to the courthouse.

If Dowd would have done the same to anybody else for making a motion to recuse, the NYS Attorney General is simply acknowledging, on behalf of his client Judge Dowd, that Judge Dowd is mentally unstable, does not have the required character for a judge and should not be on the bench.

But, the facts of the case clearly indicate that Judge Dowd's  actions were motivated by anti-Semitism, and for the NYS Attorney General Eric T. Schneiderman, who is himself Jewish, to pretend he did not see anti-Semitism in this case is to pretend he is completely stupid and unfit for his own office.

I quoted that transcript here and described the dismissal of the case and reasons for it, here.   It is very clear that courts are trying to protect judges at any cost, and that it is for the people to try to start a vigorous legislative movement in order for judges to be held accountable even for the most egregious misconduct.

Judge Dowd had absolutely no right to issue any orders against Mr. Shtrauch after Judge Dowd left Mr. Shtauch's case.

Judge Dowd had absolutely no right to issue an order to throw a litigant out of the courthouse because of the contents of a motion to recuse criticizing the judge or his law clerk's behavior.

By the way, what constituted the "impugning" of Judge Dowd's character where Mr. Shtrauch simply pointed out the appearance of impropriety and ex parte communications of the judge's law clerk with Mr. Shtrauch's children (who were parties in custody litigation represented by a separate counsel), nobody knows.  The appearance of impropriety was enough for Judge Dowd to recuse, and he did.  But, his character was not at all "impugned", unless he considers himself as one with his female law clerk of many years.

It often happens that governmental attorneys do not think much before they put arguments into an appellant's brief in a civil rights case, especially one against a judge, which they expect to win hands down.

But, here the NYS Attorney General, on behalf of Kevin Dowd, open a whole new can of worms by claiming that a judge can react with violence and use of force to the contents of a motion to recuse.

By the way, that motivation was not part of the transcript in Mr. Shtrauch's divorce proceeding that I read, and was not part of the opposition in the court below.  The NYS Attorney General just gave Mr. Shtrauch a gift to go back and make a motion to vacate the order of dismissal, because Judge Dowd, on appeal, acknowledged that he considered the contents of the motion to recuse (which he granted) as disruption of court proceedings.

Once again, at the time Judge Dowd ordered to throw Mr. Shtrauch (who is an immigrant from Israel, with an accent, around 60 years of age) out of the courthouse, Judge Dowd was no longer assigned to Mr. Shtrauch's case - because he recused.

NYS Attorney General not only misrepresented Mr. Shtrauch's complaint and what occurred in Judge Dowd's chambers, as reflected by the complaint and by the transcript, but now asks the 2nd Circuit to create a very dangerous precedent: that a judge, after GRANTING a motion to recuse, may deem evidence submitted in support of the motion as "disruption of court proceeding" which justifies violence to the litigant and throwing the litigant out of the courthouse.

That's quite a turn on #contentbasedregulation.  I am holding my breath as to (1) whether the 2nd Circuit will consider the topic worthy of its full opinion rather than the usual fast-and-sloppy track reserved for civil rights appeals, and (2) if that extraordinary event happens, how the 2nd Circuit will rule on this interesting argument of the NYS Attorney General, an elected public official, the sworn defender of the people of the State of New York.

And, I must say that, unfortunately, criticizing judges is regarded as falsity and disruption of the tribunal, without regard to the truth of the supporting evidence, not only in New York. 

I wrote about it often on this blog, and very recently, about a Louisiana case where an attorney was suspended for providing truthful evidence in support of motions to recuse - for disruption of the tribunal.

So, NYS Attorney General's Orwellian view that truth is disruption of the tribunal is very well entrenched in the judicial officers of this country and those who are serving them.

I will follow the Shtrauch v Dowd appeal and report on it further.

Stay tuned.

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