"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.

Sunday, July 31, 2016

On constitutional restrictions of peremptory challenges of judges: opinion of Judge Richard King, California

In my previous blog, I provided an overview of the fight between Orange County (California) District Attorney Anthony Rackaukas and judge Thomas Goethias, and later Judge Richard King, against disqualification of judge Thomas Goethias from criminal proceedings brought by DA Rackaukas, where DA Rackaukas used the peremptory disqualification statute where he did not have to claim actual prejudice and could change a judge in his case one time without any explanations, only a "good faith" affidavit alleged belief there is prejudice and there cannot be impartial judicial review with a particular judge presiding over the case.
In California legal jargon, removing a judge from a case using a the peremptory challenge statute is called "papering" the judge.
Another trial judge, Judge Richard King, was assigned to hear the peremptory challenge to judge Thomas Goethias, denied the motion and stated in his opinion:
“the People’s “blanket papering’ of Judge Goethias ensued from his rulings in three cases: rulings in which he found that prosecutors and police officers had committed misconduct”.

That could have been true, but the statute under which the prosecutors sought disqualification of Judge Goethias was a peremptory challenge statute, and the reasons for a motion to disqualify were irrelevant.

Yet, Judge King denied the motion to disqualify claiming that the motion to disqualify a judge, even one that followed the peremptory challenge statute, violated the doctrine of Separation of Powers.

It was true that after Judge Goethias disqualified prosecutors based on misconduct, prosecutors reciprocated by peremptory strikes of the judge – in accordance with California statutory law.

Nevertheless, when Judge Goethias, an experienced judge in felony cases, was stricken off “too many” felony cases, Judge King used the “judicial economy” and “administration of justice” arguments to disregard the peremptory strike statute and allow Judge Goethias to preside over cases, because otherwise the court system would have had to do too many adjustments in reassigning other judges.

Judge King made a statement in his opinion denying to the Orange County DA yet another disqualification of Judge Goethais that

“[t]o allow a party to manipulate the court into removing a judge from hearing certain criminal cases  - when that judge, in the performance of his judicial duties, has conducted a hearing which exposed that same party’s misconduct – not only goes against the very cornerstone of our society: the rule of law, but would be a concession against judicial independence”.

Yet, in making such a statement, under the circumstances of the case, Judge King was fighting against an enacted state peremptory challenge statute and was, thus, himself violating the separation of powers doctrine, legislating from the bench and refusing to apply an enacted statute the way it was written, whether the judge agreed with it or not.

Despite the clear statutory procedure in California for peremptory challenge of a judge that judge King described in his opinion:

·      “Filing of an affidavit or declaration which states that the judge assigned to the case is prejudiced against:

o  A party;

o  His attorney, or

o  His interest “so that the party or attorney cannot, or believes that he or she cannot, have a fair and impartial trial or hearing before the judge…” (King’s decision at p. 20, citing to Code of Civ. Proc paragraph 170.6(a)(2) of the State of California).

·      The affidavit does not have to show actual prejudice, only a “good faith belief in prejudice”.

Yet, King, in a parallel with peremptory strikes of jurors, overturned by the U.S. Supreme Court on defendants’ right to a racially diverse jury (Batson v Kentucky, 476 U.S. 79, 91 [1986]), tried to claim that statutory grounds for peremptory strikes of judges are not absolute, even if the statute says they are, and are subject to constitutional limitations.

Judge King referenced the first California statute, the former CCP 170.5 which was deemed unconstitutional as an interference by litigants and attorneys, as well as the legislature, with judicial independence and “with constitutional and orderly processes of the courts”.

Judge King engaged in a long overview of legislative history of the California peremptory judicial disqualification statute and referenced a case with a carved-out judicially created exception to the statute on the basis of “group” or “racial” bias against the judge – similar to Batson v Kentucky prohibition on racial bias towards jurors.

Judge King also referenced court decisions in three “sister states”, the states of Illinois, Arizona and Minnesota, where peremptory challenges to judges are also allowed by statute, but where courts ruled that the statutory grounds for judicial disqualifications are not absolute and that “unconstitutional use of a constitutional statute” may not be allowed.

Judge King then stated that:

“The record here demonstrates the disqualification of a judge on almost fifty murder cases because he conducted hearings and made findings of prosecutorial misconduct.  The record also shows that these disqualifications have substantially disrupted the operations of the court”.

Because of that, Judge King denied the prosecution’s motion to disqualify Judge Goethais, finding the use of peremptory challenge statute abusive, unconstitutional and seeking to interfere with independent discharge of judicial duties.

The top Court of Appeals of the State of California reversed.

I will address the reversal and Judge King's opposition to that reversal through his attorney Professor Erwin Chemerinsky, in a separate blog.  Stay tuned.

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