"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, March 19, 2017

In what amounts should judges be bribed so that the public would be confident in their integrity and impartiality? The State of Wisconsin version

In 2009, the U.S. Supreme Court has decided a case, Caperton v A.T. Massey Coal, Inc. where it ruled that financial contributions to judicial election campaigns that are followed by the judge's swing vote in favor of the contributor may raise to constitutionally intolerable appearance of impropriety, see background of the case here.

Caperton did not set a "bright line rule" as to how much money should be paid to a judge in election campaign to make his decisions in favor of contributor questionable.

Recently, political satirist John Oliver mocked the process of financial contributions to judicial campaigns, and claimed that financial contributions by parties and attorneys to judges are questionable in any amounts - which is a reasonable view that I share (I do not share John Oliver's views regarding Alabama Chief Judge Roy Moore who refused to obey federal court decision and the U.S. Supreme Court precedent on gay marriage claiming that it is against the U.S. Constitution, see my blog on that subject here).

Enter 50 retired (note that) judges from Wisconsin who somehow considered that they have standing to question Wisconsin rules of judicial recusal and filed a petition to Wisconsin Supreme Court (not to Wisconsin Legislature) to change rules of recusal of judges.

Wisconsin has an interesting history of reacting to Caperton.

After Caperton was decided in 2009 by the U.S. Supreme Court, Wisconsin refused to follow that rule and pronounced, by a judicial decision, that financial contributions to judicial election campaigns in ANY amounts will NOT be considered as a stand-alone mandatory reason for judicial recusal, and Wisconsin Supreme Court ruled in 2015 that candidates to elective office (including judges) are free to coordinate their efforts in judicial election campaign with any advocacy groups, and that those advocacy groups can spend any amounts of money without triggering mandatory disqualification for the elected official from cases relating to the advocacy group or its causes.

Moreover, in 2015, as the retired judges point out in their petition, the Wisconsin State Legislature increased 20 times limits on campaign contributions to elected public officials as compared to limits in place in 2010.

So, what do the retired judges propose?

A very simple thing called "a bright line rule".

They propose to set a rule NOT requiring mandatory disqualification of judges from cases of financial contributors to their judicial campaign (whether the contributor was a party or an attorney of record in a certain case), if the contribution was up to the following amounts:

This request raises interesting questions, especially that judges ask to establish this "bright line rule" in order "to insure the public's confidence in the ultimate fairness and integrity of the entire Wisconsin judicial system":

So, according to the retired judges' proposal, the following amounts of BRIBES to Wisconsin judges not only do not undermine, but actually ensure "the public's confidence in the ultimate fairness and integrity of the entire Wisconsin judicial system":

  • a bribe of up to $10,000 - if given to a candidate for the highest state court;
  • a bribe of up to $2,500 - if given to a candidate to the intermediate appellate court;
  • a bribe of up to $1,000 - if given to the judge of a trial-level court of general jurisdiction; and
  • a bribe of up to $500 - if given to a judge of a municipal court
Of course, the question is - why such a gradation is even proposed?

Why not the same amount to judges of all levels?

Why it costs more to get elected to a higher level of the judiciary and why, the higher the level of the judiciary, the more in bribes they should be allowed to accept under the guise of "campaign contributions" without a requirement of disqualification from cases of contributors?

This petition clearly shows how much judges in the State of Wisconsin (and in the United States in general) are disconnected from reality and from critical self-review - they openly and seriously consider that restricting bribes to a judge by amounts somehow will insure and enhance the public's confidence in the integrity of the bribed judges, even when the rule clearly implies that the only "rule of law" the judiciary acknowledges is the following rule:

"the higher the court - the higher the stakes - the higher the price of a judge making the decision".

It is also interesting that the Wisconsin Supreme Court has taken the case off the calendar (no, did not dismiss it for lack of standing, as it should have done) because another "advocacy group" that claims that a "no-limits" approach (that exists now) is just what the public (and, of course, the judiciary) needs sent an e-mail to the court and claimed that the petition is nonsense, and that the rule should be presented for review and comment by the public.

I wonder where the public of the State of Wisconsin is in all of that.

I see where the Legislature (overwhelmed by attorneys regulated by the judiciary) is - in the pockets of judicial lobbying groups.

But I wonder where the public is - does the public really consider that legitimizing bribes to judges by setting legitimate sliding scale of bribes for judges - the higher the judge, the higher the "allowed" bribe - will help enhance and ensure their confidence in integrity of the state judiciary?

Moreover, I wonder about the legislative process in the State of Wisconsin - how come that questions of such astounding, fundamental importance as establishing constitutional access to justice, to an impartial judicial review, is a matter of a petition of a group of people without standing to make such a petition, and a matter of a court case for several parties, instead of a legislative enactment?

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