"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.

Monday, June 6, 2016

Does Trump have a right to impartial judicial review - even though he is Trump?

The social media is buzzing with discussions whether it was appropriate for Donald Trump to raise the issue that there was an appearance of impropriety for a judge with:

1) Mexican immigrant parents and
2) who is a former colleague of one of the plaintiffs' attorneys

to preside over the class action for fraud against the Trump University and to rule adversely against Trump.

My personal opinion (and I am NOT a supporter of Trump as president of the United States) is - Trump has a right to raise that issue, publicly and in a motion to recuse and disqualify, and to vacate any rulings if such rulings were made by Judge Curiel without proper disclosures of what constitutes a potential appearance of impropriety, 28 U.S.C. 455(a).

Here is a most interesting statement in such a discussion.  I raised the issue that the threshold basis for disqualification is "appearance of impropriety", not "evidence" of impropriety - and that this law is established by statute, 28 U.S.C. 455(a) and by the U.S. Supreme Court precedent, Caperton v. A. T. Massey Coal Co., 556 U.S. 868 (2009).

To this, I received a response that, I believe, is at the heart of many problems with judicial partiality and favoritism:

The person (who I do not know), but who represents herself to be a lawyer, says:  

"there are dozens of lawyers from my old law firm and former undergraduate and law school acquaintances of mine who are now judges.  They might even remember my name.  We may have even spoken at a company picnic years ago or sat at a table where we shared an occasional lunch ... but that does not make them predisposed to rule in my favor".


Wouldn't you, if you are on the other side of this attorney, like to know whether a particular judge is:

(1) her former colleague;
(2) her former college or law school classmate;
(3) socialized with her at any time at picnics or other social events;
(4) has lunch with her, and thus a potential to talk to her outside of court?

Wouldn't you?

Imagine that the situation that is represented to you as innocent - a judge is a human being and has to eat his lunch somewhere, and people happen to be close to him, or even at the same table, right - is happening between a juror and a defense attorney.

It will be an instant disqualification of the juror and sanctions against the defense attorney, for non-disclosure of a potential conflict of interest.

Somehow, the situation with judges is deemed to be different - because it is apparent that the lawyer is concerned for the potential for disqualification of judges who are spawned by large law firms who continue to appear in front of such judges.

The whole problem is that lawyers and judges who made their careers out of large law firms, in order to preserve their ability to appear in front of their former colleagues, (or classmates) who are now judges - have engaged in efforts, for years and decades, to "desensitize" the public to the idea that appearing, without disclosure, in front of a judge who you personally know from out-of-court socialization or work - must be subject to disclosure to opponents in court, and may be subject to motions to disqualify, the law firm and the judge.

That means to lawyers loss of business where they would not be able to appear in certain courts.

Each such disclosure would mean for a judge a nick in his reputation - inadvertently so.  And, judges do not disclose such potential conflicts.

And, when such information emerges, judges engage in self-defensive tactics and often lash against the messenger.

Here, the mass media jumped in to kick Trump for raising the issue which is important for all of us - judicial impartiality, a right of an "unpopular" litigant to impartial judicial review.

Trump's motive to raise the issue is obviously subjective - he is doing it for himself.  Yet, because he is a presidential candidate, he just raised the issue as part of a presidential campaign, and that is extremely important.

Trump is wrong on many issues.

On the issue that a litigant has a right to impartial judicial review, he is absolutely right.

What Trump was raising is not only the Mexican heritage of the judge (which was bad enough, because Trump made multiple public statements that could ignite against him anybody with Mexican immigrant parents), but also that the judge worked in the same office as one of the plaintiffs' attorneys - and apparently did not disclose it when he got assigned to the case and before he ruled adversely against Trump.

If we start to judge, which is exactly what is being done in mass media, who is and who is not entitled to impartial judicial review by their identity or public statements, that means that the rule of law in this country has ended.

Because Trump is Trump, he is not entitled to raise an issue that bothers him, that the judge (1) should have disclosed his potential conflicts of interest, (2) should have recused from the case or at least (3) should have allowed, after disclosure, to Trump to make a motion to recuse - before the judge made adverse rulings against Trump University?

If the judge had a potential to socialize with the plaintiffs' attorney, he had a duty to disclose that, and Trump has a right to raise that issue in a motion to disqualify for appearance of impropriety, under the statute and under a U.S. Supreme Court precedent.

Judge Curiel's "stellar" reputation has nothing to do with his:

(1) failure to disclose what can be perceived by a reasonable person as a potential conflict of interest; 
(2) failure to recuse in a case where his impartiality can reasonably be questioned, and
(3) adverse ruling against a person who could have insulted, badly, the judge's heritage and parents.

It is clear as day that judges are humans, and that insults to anybody's heritage can inflame a person with the most "stellar" reputation.

That's why insults going to the person's heritage are considered "hate speech" and are often not protected by the 1st Amendment.

If the judge has Mexican immigrant parents, and Trump is gathering crowds (rightly or wrongly) by claims that, if he is elected as President, he is going to build a wall blocking illegal immigrants from crossing the Mexican border into the U.S., and, basically, equates Mexicans with criminals -  the judge had to have the decency to recuse himself, or to disclose it.

"“When Mexico sends its people, they’re not sending their best. They’re not sending you. They’re not sending you. They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.”

Donald Trump, presidential announcement speech, June 16, 2015

In that statement, Trump does not make a distinction whether the people "Mexico sends" are legal immigrants or illegal immigrants.

I have no access to documentary evidence as to whether Judge Curiel's parents were legal or illegal immigrants, there are claims that Judge Curiel's father came to the U.S. as a temporary worker under some war-related labor agreement between the U.S. and Mexican government, but, once again, such documents were not published, and thus, whether that was true or not, we do not know.

But, Trump's statement above maligns all Mexican immigrants, whether they immigrated legally or illegally.  

To Trump, only "some" of Mexican immigrants are good people, but otherwise, to Trump, they are criminals - including rapists.

To say that a judge with parents who are both Mexican immigrants, is unaffected by those statements, is to insult anybody's intelligence.

 “What can be simpler or more accurately stated? The Mexican Government is forcing their most unwanted people into the United States. They are, in many cases, criminals, drug dealers, rapists, etc.”

–Trump, statement about his June 16 comments, July 6, 2015".

It is an appearance of impropriety, to me, when a judge continues to claim that heritage of his own parents has nothing to do with his adverse rulings against Trump who may have deeply hurt the judge's parents, and the judge himself, where it hurts the most - by making hate-speech statements about the judge's heritage, about Mexican  immigrants as potential criminals, drug dealers and rapists.

It is as good as telling anybody with Mexican heritage - you've come from the stock of rapists, criminals, drug dealers.

To even assign a judge with a Mexican heritage to a case of such a litigant is, to me, an appearance of impropriety because, with such a judge presiding, the litigant has no chance for impartial judicial review, and here it is not just Trump personally who is sued, but his organization, the Trump University.

There IS an appearance of impropriety in that a judge with Mexican immigrant parents created a sensational ruling, adverse to Trump, taking away potential votes, and making it during Trump's election campaign. 

Appearance of impropriety, as a legal threshold for making a motion to recuse, is subject to reasonable perception of the person who is making the motion.

What constitutes a "reasonable" perception, differs from one reasonable person to another, that's why we have juries to decide court cases, and that's why we have rules requiring for a unanimous jury verdict in criminal cases and for a supermajority jury verdict in civil cases.

All of the jurors picked through the appropriate voir dire process are presumed to be reasonable fact-finders, and yet, their opinions differ.

And, because opinions may differ as to whether there was or there wasn't appearance of impropriety in Judge Curiel presiding over the case against Trump University - it does not make Donald Trump's perception "improper" or his criticism of the judge inappropriate.

Donald Trump has a right to feel the way he feels, under the circumstances, and to raise the issue of appearance of impropriety.

If we deny the right to challenge impartiality of a judge under the statutory and constitutional appearance of impropriety standard to Donald Trump, we deny it to everybody else, including ourselves.

And, what is important the most is - a potential for the judge of knowing the litigant or litigant's attorney outside of the court proceeding that creates an unfair advantage in litigation, most often relates to the judge's prior employment in the government or a large law firm.

Pro se litigants and small-firm lawyers most often do not have a chance to boast, like the lawyer on Facebook did, that "dozens" of her former law firm colleagues have become judges.

So, to even out the scales of justices, information about being a classmate or a former colleague of a judge, or having lunches with judges, or socializing at picnics with judges - should be disclosed, by both the judges and by attorneys appearing in front of judges.

And, if that disclosure is not done, that should already be a proper ground for a motion to recuse, if discovered.

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