"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.

Wednesday, April 5, 2017

Judge's divorces and a brand new format of statutes of limitations on discipline against judges, but not attorneys. A Michigan story.

All states (as I have heard from readers of this blog and based on my own research) claim that there is no statute of limitations on attorney discipline.

The same, of course, should apply to the regulators of attorneys - judges - whose misconduct can and do result in much more dire injuries to the public and to individual parties.

Yet, in the blessed state of Michigan, proposals for new rules have been reportedly introduced imposing a short statute of limitations upon discipline of judges, prohibiting even INVESTIGATIONS of judges past the "statute of limitations".

And that is extraordinary.

Because in all states, statutes of limitations are also "affirmative defenses", to be raised after the investigations are completed and after the charges are already filed - and such a defense may be waived if not timely raised by the charged party.

For judges, the invented new format of statute of limitations is different, not only because it was introduced (while statute of limitations for attorney discipline, imposed by Michigan judges, does not exist), but because it will prohibit even to investigate them past the statute of limitations.

That said, the proposed rule might not (if applied honestly) help #MichiganJudgeTheresaBrennan

to escape investigation of misconduct - because it was not discoverable within the statute of limitations.

The only people privy to that misconduct was the judge, the prosecution witness who kept mum, and the judge's now-estranged husband who was under spousal privilege when he was married, but voluntarily disclosed that the judge (1) had an affair with a prosecution witness during a murder trial;  (2) talked to that prosecution witness during that murder trial.

So, it is important for judges not to divorce their spouses.

They know too much and, if pissed, can reveal it.

And, once again, the Michigan Supreme Court, the one that is regulating lawyers and appears to be regulating its own conduct, too, is considering whether to allow to even investigate complaints filed against judges 3 years after the alleged offense "unless upon a good cause shown".

More incentive for judges in Michigan to be even more secretive in their misconduct than they are now, so that they are protected from discipline completely.

By the way, federal judges invented an even better solution - .they lobbied the U.S. Congress for the Judicial Disability Act, which prohibits discipline of judges completely if misconduct occurred in relation to a court case.

Judge Brennan reportedly had an affair with a prosecution witness and had ex parte communications with her lover during a murder trial.

So, had Judge Brennan been a federal judge, a complaint against her would have been tossed, statute of limitations or no statute of limitations.

Michigan should learn from the best (subverters of law) - the federal judiciary.

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