"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 31, 2016

What Constitution?

As you know, any law is as good as the weakest link in its enforcement.

There is - I've heard - a law called the U.S. Constitution.

There is - I've heard - a clause within that law called the Supremacy Clause, trumping any inconsistent law and making it void, or a nullity (like in "zero").

Now, what happened if your constitutional rights are violated, let's say, in the blessed state of New York, this state, 

  • where its Chief Judge asks you, with a smile, to notify you what is wrong with the state court system 

Once again, in a larger font:

  • You would report to her that New York State courts (starting with herself) are corrupt - so that she would do what? - see comments in the blog linked in the previuos "bullet", about "report corruption".
So, what will happen to you if your constitutional rights are violated in the blessed state of New York, this state, from where people are running, fast.

The New York, where these two are at the top, DiFiore covering Cuomo's misconduct, Cuomo elevating DiFiore, DiFiore - well, you know what happens next...:

If your constitutional rights are violated in THIS New York:


Here is what will happen.

1) You raise your constitutional issue in the lowest state court.

The reactions will be from - huh? to a sanction for frivolous conduct.  

Judges Carl F. Becker (now retired) (Delaware County), Robert Mulvey (Chief Administrative Judge, 6th Judicial District), Michael Coccoma (Otsego County Supreme Court, Chief Administrative Judge, upstate New York), Brian Burns and John Lambert (Otsego County Supreme, County and Family Court), Kevin Dowd (Chenango County Supreme Court), James Tormey (Chief Administrative Judge of the 5th Judicial District) - that's the Family-County-Supreme Court, "higher" "echelon" of judges universally believe constitutional arguments are frivolous, or constitute "lying" to the court - that's Frank B. Revoir, of the Chenango County Family Court.

Justice-level judges are simply illiterate and do not have any opinion on constitutional issues, nor on any other legal issues, they are waiting what the prosecution will tell them to do.

He is resigning "do /sic/ to both personal and health reasons".  

He also plans to "assist residents in any manor /sic/" he can.

If he cannot spell "due" and "manner" and use those words appropriately, do you think he knows how to pick up a constitutional problem and how to apply existing law?  

I highly doubt it.

You might just as well not say the word "Constitution" in trial-level courts, the word causes judges to be very upset and angry, unless it is on their swearing-in day, then they are happy, because that one word paves a path for them to their salary and power.

2) After you are screwed in trial court, you pay your filing fees, put your record together, pay your attorney and go to the appellate court - again with your pesky constitutional issues.

Appellate court is the court where judges go to "serve" before their retirement.  

They are very busy - and very tired - people.  

Here is what Judge Pigott, of the NYS Court of Appeals, said about "PJs" - that's not "pajamas", that's "Presiding Justices of Appellate Divisions":

Ok, so the appellate judges are very, very, very tired.  

You, the taxpayers, are paying them close to $200,000 a year to do their jobs, with benefits, while you, average New Yorkers earn - what?  Well, you know how much - and they are "tired" to review your constitutional issues.

You know what they do with your constitutional issues?

No, I will not use four-letter-language on this blog, not even Russian "mat".

I will use the legal terminology appellate judges use: they use the so-called "constitutional avoidance".

You may read the interlinked law review article, or you might not waste your time.

"Constitutional avoidance" means - "TL'DR" - too long, do not read.

So, the very busy and very tired appellate court screwed you, as the trial court did, with all your money paid for filing, records and attorney fees, and refused to hear your constitutional issues.

What's next?

You can still try to crawl up and up, you have two more levels to reach in the appellate pipeline from a state court decision - NYS Court of Appeals and U.S. Supreme Court.

NYS Court of Appeals says this (we get to pick our cases):

Even though CPLR 5601(b)(1) trails the above text of Article 6, § 3 (b) (1)  of the New York Constitution disagree and give NYS Court of Appeals no discretion to reject your constitutional appeal "as of right", this is what Judge Pigott (a real cute, witty guy, isn't he?) says on the subject:

He says: "we are not last because we are right, we are right because we are last".

And they are.

They will simply toss your constitutional question, because it is "insubstantial" - and what will you do when you are screwed?

Where will you go?

To the U.S. Supreme Court?

The U.S. Supreme Court, with its 8 elderly judges (or 9, doesn't matter), has too little time on its busy collective hands to handle all the hunting trips, all the book signings and to "serve" on all the boards and to give all the speeches - to address your petty constitutional issues.

The U.S. Supreme Court, really has a "discretion" to take or not to take a case.

And, that discretion is usually used - well, you know how.  

Have you been on a hunting trip with a U.S. Supreme Court justice?  No.  Well, you are screwed, again.

And, even if you are intending to beat through a brick wall with your head, there is this little thing called "expenses".  The U.S. Supreme Court does not allow e-filing and does not allow filing of computer-generated briefs.

Instead, it requires filing "typographically typeset" by certain companies (I wonder what kind of hunting trips they go to with the heads of those companies).

42 copies of your paid-for "typeset" petitions must be submitted to the U.S. Supreme Court, together with a filing fee, so that they throw it away, at their pleasure.

BUT BUT BUT BUT - you can say

We have federal courts!!!!!

We have the Civil Rights Act, we can file that famous 42 U.S.C. 1983 action!


There are two answers to this question/exclamation - long and short.

Let's start with the short one.

Yes, you can.

Do you want the long one?

First, you will not find an attorney who would be willing to sue on your behalf - too many of them were sanctioned, suspended and disbarred as of late, for "frivolous constitutional arguments".

Second, even if you file pro se - your case can be dismissed even before service, by the court itself, because, once again, the court is busy and you are a pest.

There is a zillion "deferences" ,"immunities" and other hoops that you might not be able to overcome with your petty constitutional questions.

If you sue in federal court BEFORE your state court case ends - they will dismiss your case on Younger abstention grounds.

If you sue in federal court AFTER your state court case ends - they will dismiss your case on Rooker-Feldman, sovereign immunity, prosecutorial immunity and judicial immunity grounds.

But they will dismiss it.

And will sanction you.

And will make you pay your abuser's attorney fees.  Possibly, tens of thousands of dollars.

Oh, and there is an appeal "as of right" to the federal courts of appeals? Right?


Again, two answers - short and long.

Short:  yes, you do have such a right.

Long:  your case will be put on a "fast-and-sloppy track" for three octogenarian judges who rubber stamp "those civil rights cases" in non-precedential dismissals by the dozen.

Your filing fee is gone.

Where else can you go?

The U.S. Supreme Court.



So - if you have a constitutional question, you know you are screwed.

And, if a constitutional violation cannot be enforced by a "person from the street", the U.S. Constitution is unenforceable, and - for all reasons that matter to you - does not exist.

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