"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, August 12, 2016

An exception for "court corruption" was carved for the #Rooker-Feldman jurisdictional bar

There is a saying in the legal profession - "hard cases make bad law".

Yet, what the U.S. Court of Appeals did recently (even though for wrong reasons) was not bad law, it was good law.

While bending over backwards to save a corporate giant Chevron, successor in interest to Texaco, from a $9+ BILLION judgment affirmed by the Ecuadoran court, the U.S. Court of Appeals for the 2nd Circuit actually paved the way to civil rights litigation and opened the door to civil rights plaintiffs formerly barred from access to the federal court with their lawsuits by the so-called Rooker-Feldman doctrine.

I have written many times about the Rooker-Feldman doctrine on this blog - you can read all blog posts dedicated to this subject by putting the words "Rooker-Feldman" in the search window on the right of the blog.

It is a judicially created doctrine barring jurisdiction of federal courts (the courts say) because the federal constitutional issues raised in a particular civil rights lawsuit were already raised (or COULD be raised, but were not, in a state court proceeding).

Never mind that the Civil Rights Act, 42 U.S.C. 1983, does not mandate civil rights plaintiff to raise any issues in a state court proceedings, and thus not raising such issues in a state proceeding does not constitute a waiver of a federal statutory right to sue for civil rights violations.

Never mind that the doctrine leaves civil rights plaintiffs no chance to sue in federal courts at all and thus practically eliminates the Civil Rights Act, 42 U.S.C. 1983, because, according to the doctrine, victims of civil rights violations either HAVE TO raise federal constitutional issues in the prior state court proceedings - and will be then barred from raising those issues in federal court, whether they did actually raise such issues in the state court proceedings or not.

Through the Rooker-Feldman doctrine, federal judges re-wrote the Civil Rights Act, in violation of their restricted authority under Article III and while usurping the exclusive power of the U.S. Congress to legislate under Article I of the U.S. Constitution.

Federal courts in the U.S. so far religiously applied the Rooker-Feldman doctrine, tossing thousands of civil rights cases every year - because, in the federal courts' unanimous opinions, "losers" (the language of the federal court "test") in state court proceedings must not be allowed to complain about what state courts did to them - even what state courts did to them was biased, unconstitutional and corrupt.


That's a key word now.

Because, just to save a corporation from a $9 billion dollar judgment, the 2nd Circuit carved out an exception to the Rooker-Feldman bar to its JURISDICTION and now claimed that it can impose an injunction on enforcement of that judgment because allegedly the proceedings in the Ecuadoran court were corrupt.

I will analyze in separate blogs the 497-page (!) decision of the district court affirmed by the 127-page opinion of the 2nd Circuit - and especially the order denying judicial notice of certain documents, issued by the 2nd Circuit after the 127-page opinion.

Since there are over 2,000 pages of documents involved, I will certainly have to take my time to review all this extremely interesting case, to get to the bottom of what made the 2nd Circuit carve out an exception in its usually cemented-tight claim that the Rooker-Feldman doctrine precludes losers in other courts to come in front of the 2nd Circuit complaining of that loss, for any reasons whatsoever.

The 2nd Circuit also disregarded the doctrine of comity, giving full faith and credit to judicial decisions of other countries - and it is especially interesting how the 2nd Circuit could exercise jurisdiction where the litigated events occurred in another country.

It is very interesting that the district court dedicated 497 pages to its opinion justifying the unjustifiable - denying legitimacy to a final judgment from another country.

Imagine what will be the long-ranging consequences to U.S. businesses outside of the United States after this decision - if American companies violate local laws and pollute local environments of foreign countries, and then American courts block court decisions of those foreign countries awarding judgments for recovery of victims of those environmental (or other) violations - why do business with American companies at all?

As to the 127-page opinion of the 2nd Circuit - the zeal of the 2nd Circuit is especially amazing since the same court is notorious for tossing civil rights appeals with 2-3 page "summary orders" of octogenarian judges, coughed up a nearly 100-page opinion to justify what has previously been unjustifiable for any other litigants in federal court - overcoming the Rooker-Feldman doctrine.


Now that the precedent has been created, in the agricultural terms, the horse has left the barn and what is good for the goose is good for the gander.

Now civil rights plaintiffs, those whose cases are pending in federal courts, and those whose cases were tossed on Rooker-Feldman grounds, can make arguments to overcome the Rooker-Feldman bar based on the Chevron precedent of the 2nd Circuit, and raise corruptness of state courts as an exception to the Rooker-Feldman doctrine.

And again - I am not the author of that idea.

That authorship belongs entirely to the U.S. Court of Appeals for the 2nd Circuit.

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