"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, November 1, 2017

New York acknowledges that the trial judge may not decide an appeal from his own decision - but abstains from calling judicial misconduct judicial misconduct.

On October 24, 2017, the top court of the State of New York acknowledged that there is a due process, constitutional, violation for a trial judge to review an appeal from his own trial decision.

From the decision of the New York Court of Appeals, I have learnt, with astonishment, that the New York Court system allegedly tries to "purge" judicial bias, and even appearance of such bias from its system.

To support that interesting contention, the court makes references to multiple rules.


"Because this is a constitutional matter, the People's argument that County Court committed no statutory violation misses the mark. In any case, while there currently exists no explicit statutory or constitutional provision in New York prohibiting judges from reviewing their own judgments on appeal,[FN1] our laws and court rules have long sought to purge actual bias and the possibility of bias from our courtrooms (see e.g. Judiciary Law § 14 ["A judge shall not [*4]sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding . . . in which [the judge] has been attorney or counsel, or in which [the judge] is interested, or if . . . related by consanguinity or affinity to any party to the controversy within the sixth degree."]; 22 NYCRR 100.2 ["A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities[.]"]; 22 NYCRR 3[E][1] ["A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned."]). Although there was no evidence of partiality here, due process must still safeguard the appearance of impartiality to promote public confidence in the courts."


The New York State Court of Appeals obviously forgot to mention, trying to keep face in an absolutely atrocious situation when a judge refused to recuse from reviewing an appeal from his own decision (which he had to do under both Judiciary Law 14 and 22 NYCRR 100.2 and 22 NYCRR 3(e)(1)) that all of these three authorities they cite to:

Judiciary Law 14;
22 NYCRR 100.2;
22 NYCRR 3 (e)(1) 

are stillborn provisions, because:

  1. there is no mechanism of enforcement of these provisions in the State of New York but a motion to recuse;
  2. the motion to recuse is reviewed by the same judge who is sought to be recused;
  3. judges who are sought to be recused routinely punish attorneys and parties for making such motions;
  4. attorneys are stripped of their law licenses for making such motions - see cases of John Aretakis in 2008, suspension for criticism of a judge in criminal proceedings, and of myself, suspension for criticism of a judge in motions to recuse in civil proceedings in 2015 - different methods were used in civil and criminal proceedings, but the result was the same, suspension of attorney's law licenses based on sanctions of a judge disgruntled by a motion to recuse,
  5. despite mandatory language of all three of these rules ("shall", "shall not"), courts deem it within the "discretion" of the very judge whose recusal is sought to decide whether to recuse or not, after "searching his own conscience".
  6. what constitutes the judge's "interest" in the case under Judiciary Law 14 is interpreted by judges in favor of judges in an extremely permissive way - you will never be able to prove a disqualifying "interest", no matter how common sense it would be;
  7. as to disqualifying "consanguinity or affinity" "within the sixth degree" in accordance with Judiciary Law 14 - guess what, judges do not publish their family trees and do not make disclosures as to who they befriend, date, or sleep with, and many judges and their spouses have different last names, and I wonder why would that be but to make detection of such an association more difficult.
It is a good decision - but a very narrow decision.

It was decided on a very narrow issue, whether a judge deciding a case at the trial level without a jury may unilaterally decide an appeal from his own decision.

It is not clear whether the same would be permitted if it were a jury trial, and whether it would be permitted if the judge was not single judge deciding the appeal, but was a member of an appellate court panel.

Nor did the court reach the issue of the obvious judicial misconduct, when a judge failed to recuse when he saw his own signature on the verdict in the record on appeal.

Appeals are made on records, and there is no point arguing - as an attempt was made during oral arguments in the New York State Court of Appeals - that the judge in question had so many cases that he ostensibly "forgot" that he decided a particular case as a trial judge.

If he "forgot", that only means that he did not read the record on appeal where his name was on the bottom of the verdict.

What did not help is unsworn testimony of appellate attorney during oral argument where the attorney conceded points on behalf of their clients that the judge in question was "fair through and through" according to attorney's personal knowledge, see also that same statement in the official court webcast, here.

That allowed the Court of Appeals to skip the obvious issue of judicial misconduct and state that "there was no evidence of partiality here".

As I said before, an appellate attorney has no right to testify in an appellate oral argument, no right to add her personal experiences to the record, and no right to concede her client's major points (presence of actual bias, which was very likely in this particular case) because of her personal views, experiences, interests in keeping in the good graces of a judge, a former colleague, before whom she is bound to appear in the future in cases of other clients.

The judge in question, who is, quite "coincidentally", the particular defense attorney's former law school classmate and colleague, owes the defense attorney - she acted contrary to her client's best interests and saved his ass, which could otherwise have been grilled by the Court of Appeals, the Commission of Judicial Conduct.

This case is still a unique case.

For the first time the New York State Court of Appeals recognized - not in so many words though - that a judge HAD to recuse from a case on constitutional grounds.

Of course, there was no need to go into constitutional grounds here, it was a matter of common sense.

Does any person in their right mind order audit of a company by the same company?

Of an accountant by the same accountant?

Why, then, judges are "masters" of their own recusal?

Why do they get to decide whether they SHALL stay or go?  Why it is their whim - choice - "discretion" to decide?

Especially when, as the same New York State Court of Appeals suddenly acknowledged in People v Novak, 

What constitutes a "basic requirement of due process" is at the same time a DISCRETION (whim, choice) of the presiding judge who are challenged for actual bias or appearance of bias - or for misconduct - in a motion to recuse?

What kind of mangled mind should a person, much less a jurist, possess to arrive at that decision - and that's how New York courts ROUTINELY decide such issues.

Even in this case, the obvious issue of ACTUAL bias, of the judge SEEKING OUT the case which he decided on appeal and knowingly doing an audit of his own decision was simply skipped by the court, through a claim that "there is no evidence of partiality here" because of the appellate counsel's concession of that point.

Of course, the taste of the pudding in the eating.

We have a lot of beautiful precedents on the issue of judicial disqualification on due process grounds - all of which are usually rejected by courts, often with sanctions (as it was in my case when I quoted the same case, In Re Muchison, which the Court of Appeals cited to in People v Novak).

This one, most likely, will be no different.  It is a victory in one case, a victory on paper, legally a precedent, but I doubt that the judiciary will be any harder on itself than before, when the judiciary, while giving itself the gift of immunity for malicious and corrupt acts on the bench, also deemed itself a master of its own recusal, and where judges routinely allow themselves to "search their own consciences" in order to decide whether they are biased or corrupt or not.

Imagine if you get to decide - as a matter of law - if you are biased or corrupt.

What a joke.

I urge my readers to send me examples of citations to and enforcement of this case, People v Novak, and of constitutional principles of recusal it announced.

I will publish your examples and comment on them.

Stay tuned.

No comments:

Post a Comment