"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, December 17, 2016

Judge Gary Rosa of Delaware County Family Court, New York, introduces a brand new rule of constitutional analysis - U.S. Supreme Court precedents are now applicable, or inapplicable based on "matters" and "fact patterns", not the unifying legal issues

Imagine somebody suing Judge Gary Rosa, of Delaware County Family Court (New York).

And says in the lawsuit - hypothetically, this:

  1. "Judge Gary Rosa solicited and obtained, in his two election campaigns, in 2012 and in 2015, votes of a party in a certain court proceeding, based on Judge Rosa's statements that, if the party gives him her vote and if Judge Rosa is elected as a result, Judge Rosa will clean up the judicial stables in Delaware County Family Court, will not commit misconduct that his predecessor, Judge Carl F. Becker, was in-famous for - and that Judge Rosa specifically condemns sanctions imposed upon the party and her attorney by Judge Becker, for pointing out Judge Becker's misconduct and conflicts of interest;
  2. Once Judge Rosa obtained the party's vote in two elections, he then turned around and asserted validity of Judge Becker's misconduct in the very cases, when the party's attorney made a motion to vacate those same 2011 sanctions based on later-decided (2015 and 2016) U.S. Supreme Court precedent, the very case which Judge Rosa discussed with the party, ex parte, out of court, making an election campaign pledge that those sanctions are judicial misconduct and that Judge Rosa will come to the bench to prevent such behavior and to prevent people from suffering like the party and her attorney suffered from Judge Becker's sanctions;
  3. Judge Rosa was not supposed to be assigned to that case because of his ex parte communications with the party and because of his pledges in his election campaign based specifically on discussion of that case and sanctions imposed by Judge Becker in that case that Judge Rosa characterized as judicial misconduct and the reason whey he was running for judicial office - to clean the bench;
  4. Judge Rosa failed to disclose his self-assignment to the case (which he did because the attorney, since then, criticized Judge Rosa for misconduct and appearance of corruption) - and made it so that the attorney who moved to vacate her sanctions on submitted basis learnt about the change of judge only when Judge Rosa already made his decision - denying her motion despite a clearly applicable U.S. Supreme Court precedent, and while refusing to conduct analysis of legal issues required by the U.S. Supreme Court;
  5. Judge Rosa's failed to disclose he even talked with the party ex parte about the case, and proceeded without disclosure, which is a gross ethical violation and fraud upon me as a person whose constitutional rights were hurt through fraud upon voters by Judge Rosa;
  6. I want Judge Rosa to be held accountable for his fraud and violations of my constitutional rights."

And imagine that, once a lawsuit is filed and served, Judge Rosa, engages an attorney - at yours, the taxpayer's, expense.

Judge Rosa's attorney in such a lawsuit will be the New York State Attorney General Eric Schneiderman who claims he is protector of civil rights while he is, on the opposite, fights to keep civil rights complaints dismissed and the filers, victims of constitutional violations, sanctioned and persecuted.

And,  the self-proclaimed fighter for civil rights Eric Schneiderman, on Judge Rosa's behalf, will immediately file a motion to dismiss on behalf of Judge Rosa - claiming absolute judicial immunity for malicious and corrupt acts on the bench, based on the U.S. Supreme Court precedent from 1978 Stump v Sparkman.

And that you, as a plaintiff in that civil action, oppose that motion and say in that opposition the following:

The U.S. Supreme Court precedent Stump v Sparkman that Defendant Rosa cites in his defense is entirely inapplicable because that decision was made by the U.S. Supreme Court

There, the U.S. Supreme Court decided that the judge was immune from liability where he 
  • conspired with the mother of a minor child, 
  • without proper court proceedings, 
  • without jurisdiction, 
  • without notifying the mother's minor daughter, and 
  • without appointing an attorney for that minor daughter;
  • agreed with the mother that her minor teenage daughter was "promiscuous" and that the "cure" for the child's supposed "promiscuity" lies in persuading the child to undergo a false surgery that the child did not medically need, after persuading the surgeon to agree to such a surgery, too - supposedly for appendicitis, while it will be in reality to sterilize her.

And that was done, in conspiracy with doctors, also involved in deceiving the child.  And, when the child grew up and married and tried for children and could not get them - and the mother still did not tell her why that is so - and got her medical records and learned of the real reasons for "appendicitis" surgery, the woman sued the participants, including Judge Sparkman.

And, your Honor, says the plaintiff suing Judge Gary Rosa (hypothetically): unlike Stump v Sparkman, the present lawsuit against Judge Rosa does not involve a minor being unlawfully sterilized outside of a court proceeding, in conspiracy with the mother, without notice to the child or an attorney assigned to the child.

It involves a decision 

And Judge Rosa, through his attorney Eric Shchneiderman, files a reply to that opposition and pleads to the court that your arguments are frivolous, and that you lack the very basic understanding as to how precedential law works, and how U.S. Supreme Court precedents apply.

And, Judge Rosa argues to the federal court that it is not "fact patterns" or "matters" that are uniting cases and makes them precedents applicable to a certain case, but unifying legal issues.

And the legal issue in his case supporting applicability of immunity defense from Stump v Sparkman is not the issue of unlawful sterilization of a minor by a judge in conspiracy with the mother in order to prevent fruits of the child's supposed "promiscuity", but whether Judge Sparkman's act in issuing a court order (an unlawful court order) was a "judicial act" at all.  If it is - the analysis stops there, and absolute judicial immunity applies.

But you say to the judge - but, your Honor, I have just cited to you what Judge Gary Rosa himself said about how U.S. Supreme Court precedents apply or do not apply, in the very case I am suing him for.

He said that later-decided U.S. Supreme Court precedents on point, with a unifying issue of content-based regulation of speech and accuser-adjudicator prohibition, are inapplicable because they are decided

- one dealt with contents of a commercial sign, and another - with a prosecutor in a criminal case assigning himself as an appellate judge to a civil habeas corpus petition of the same defendant, now a prisoner condemned to death.

And that those "matters" and "fact patterns" are not the same as in my case, your Honor, because my case is not of a commercial sign and is not - thank God - of a death penalty.

And, because of it, Judge Rosa said that U.S. Supreme Court precedents prohibiting content-based regulation of speech and prohibition on accuser-adjudicator decisions of court cases, do not apply.

Since it did not matter to Judge Rosa that the unifying issue in my case was, 

  • in the first precedent,  content-based regulation of speech without strict scrutiny (whether regulation of content of speech was of a commercial sign or of a pleading), and,
  • in the second, precedent, that a judge acted in the same proceeding as an accuser (brought proceedings for sanctions, acted there as an investigator, prosecutor and unsworn witness on his own behalf, alleged harm to himself personally from my pleadings), and as an adjudicator, imposing sanctions upon me - 
please, your Honor, apply to Judge Rosa's immunity defense his own principle of applicability of U.S. Supreme Court precedents - and deny it to him, after all, that is his own principle, it will not be an undue burden to have your own law applied to you.

And, absolute judicial immunity, your Honor, covers "malicious and corrupt" acts, not stupid and incompetent acts.

As Judge Rosa said in his own (hypothetical) pleadings, referencing "matters" and "fact patterns" instead of the unifying legal issue in Stump v Sparkman and claiming that Judge Rosa is not entitled to immunity because the lawsuit does not involve unlawful sterilization of a minor, demonstrates my fundamental misunderstanding of how precedents of the U.S. Supreme Court apply.

So, since Judge Rosa just said that he lacks a fundamental understanding of how U.S. Supreme Court precedents apply, and that only "facts" and "matters" matter - and, apparently, not unifying legal issues, so, please, please, your Honor, apply Judge Rosa's legal principle to Judge Rosa.

Nope, the judge will tell me.  That will create too dangerous of a precedent for all of us judges.  Unlawful sterilizations of minors are freak things nowadays, and never happen.  If I apply precedents of the U.S. Supreme Court the way you suggest, I will never be able to give any judges absolute judicial immunity for malicious and corrupt acts on the bench, and they will not be happy.

But, your Honor - I will say, that is exactly the same thing that will happen to any litigant appearing in Judge Rosa's courtroom and invoking constitutional precedent!  Judge Rosa will apply the principle that content-based regulation of speech in a commercial sign proceedings can only be applied in commercial sign proceedings, and we are in Family Court where contents commercial signs are never litigated.

It is the same, your Honor, as Judge Rosa - and other judges sued for misconduct on the bench - not receiving immunity because the case did not deal with unlawful sterilization of a minor.

It is equal protection of law, Your Honor.

It is fair, Your Honor.

Nope, the judge will say.

Nice try, but no.

What Judge Rosa argued may have been stupid and incompetent - but it was a "judicial act", thus he is immune.

This is how U.S. Supreme Court precedent applies.

"Matters" and "fact patterns" don't matter.

Unifying legal issues do.

As to what Judge Rosa did in the court proceedings - stupid and incompetent as it is, that is subject to an appeal and a new motion to vacate.

So, I say, taxpayers must fund Judge Rosa's stupidity and incompetence, more court time for more motions, and more time for more appeals - where the precedents were on point and could have been decided in 2 seconds by a competent and unbiased judge?

That is, of course, a hypothetical lawsuit, and a rhethorical question - but a very real case and "fact pattern". 

Judge Rosa's newly invented principle of applicability of U.S. Supreme Court precedent is to be applied, there is nothing that unifies these 1st Amendment content-based regulation of expression and speech cases:

1)     Flag burning, Texas v. Johnson, 491 U.S. 397 (1989);
2)     Cross burning, R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), Virginia v. Black, 538 U.S. 343 (2003),
3)     a Nazi march through a city of Holocaust survivors, National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977);
4)     a protest with nasty slogans in front of a fallen soldier’s funeral, Snyder v. Phelps, 562 U.S. 443 (2011);
5)     false claims of valor in battle, United States v. Alvarez, 567 U.S. ___ (2012);
6)     regulation of content of commercial signs – Reed v Town of Gilbert, 576 U.S. ___ (2015),

and the U.S. Supreme Court sits in vain in their marble palace, because their precedents are useless and can be applicable only in the narrowest of circumstances - a funeral case to a funeral case, a flag burning case to a flag burning case, a fallen soldier funeral case to a fallen soldier funeral case - ONLY.

With one exception to this precedential rule - absolute judicial immunity will still cover stupidity and incompetence of judges, and not only malicious and corrupt acts, even in cases where unlawful sterilization of minors to prevent their "promiscuity" is not involved.

Because judges will never hurt their own.

Like Judge Rosa did.

He first duped very real voters into voting for him based on his claims that Judge Becker's sanctions in a particular case are inappropriate, constitute judicial misconduct, and that the reason why Judge Rosa is running for judicial office is to change that.

Then, Judge Rosa, without disclosure to other parties that that discussion of the case and solicitation of votes took place, assigned himself to the case and ruled that Judge Becker's sanctions that he condemned in order to fraudulently obtain votes, are perfectly OK, and even invented a new rule of how precedents apply or do not apply.

But, no hope for me suing Judge Rosa - even though the case did not involve unlawful sterilization of a minor, like in Stump v Sparkman.

Because Eric Schneiderman and the federal judge will hold a different view on precedential application - not the one created on the spot by Judge Rosa to protect the very Judge Becker whom he ardently criticized to the voters claiming that he, Judge Rosa is going to be different.

Federal judges will view Stump v Sparkman from the point of its legal issue, viewed in the broadest and most liberal way possible, in a way that will continue to protect judges from lawsuits for malicious and corrupt, and for stupid and incompetent, conduct on the bench, giving their victims no recourse and no true legal remedy (because an appeal to a similarly-minded judge who has a policy of "constitutional avoidance" is a waste of time, money and effort).

Remember - the lawsuit described was hypothetical, but Judge Gary's misconduct - real.

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