"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.

Saturday, March 26, 2016

The only "substantial" constitutional question for NYS Court of Appeals is judicial pay raises?

It was reported that the newly-populated New York State Court of Appeals is handling on appeal the issue of judicial pay raises.

That is an extraordinary event, because New York State Court of Appeals has a very limited jurisdiction, and it is usual for that court to reduce even appeals "as of right" to appeals "by the court discretion" and dismissing such "as of right appeals" because a SUBSTANTIAL constitutional right was not violated, even though the jurisdictional "as of right" state only mentions a constitutional right, without delimitation of "substantial-insubstantial".

In other words, NYS Court of Appeals has a policy indicating that to violate the U.S. Constitution is ok, only not "substantially", and what is "substantial" and "insubstantial" is for the court to decide, without any guiding criteria for such a distinction existing, nor does a state court have authority to establish criteria distinguishing which provisions of the U.S. Constitution may or may not be violated.

There is a scholarly article dating back to 2011, on this topic indicating that a constitutional appeal "as of right" to NYS Court of Appeals was rendered "illusory" by the court's (ultra vires) amendment of its own jurisdictional statute, arbitrarily making discretionary appeals that are mandatory for the court to take and review.

Actually, there is a very strong dissent in a case dismissed by the NYS Court of Appeals on "substantiality" of constitutional argument involved, written in 2010 by the now-retired Judge Robert S. Smith.

It is practically impossible to reach New York State Court of Appeals with a constitutional appeal, the court always rejects such cases, from "mere mortals" at least, raising constitutional issues.

Yet, the court accepted now, as it accepted before, an appeal on issues of constitutionality of denying judges retroactive pay raises.  

And, one of the presiding judges, Michael Garcia, has been a recent counsel for the Legislature, while the case claims the Legislature did something unconstitutional.

It appears that, once one becomes a judge, one loses any moral compass as to "appearance of impropriety", sense of civility and fairness, and mere decency as to their actions.

One accepts cases in which one has personal interest as a member of the class to which the decision will apply.

And, one rejects cases that, by law, one must hear - because one can abuse his power this way, and there is no power to control that abuse of the New York State Court of Appeals in rejecting proper constitutional appeals as of right on "insubstantial constitutional question" issue.

We remain the state where its highest court, sworn to protect the U.S. Constitution, blatantly violates that same U.S. Constitution by arbitrarily and unlawfully deciding, without any authority to decide that question, which constitutional violations are SUBSTANTIAL and which are INSUBSTANTIAL - and to reject appeals "as of right" on that principle.

So, we will hold our breath now to see what the Court of Appeals will decide about retroactive judicial pay raises, a very substantial constitutional question - for the presiding judges.

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