"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, February 24, 2018

Did you only annoy a judge or did you vex him? It is time for a legislative overhaul of the law of judicial recusal, otherwise courts as we have it now is just a waste of our money, and a harmful waste, too

The word "annoy" is described by the Webster dictionary as:

The word "vex" is described as:

As dictionary definitions of these two words show, "vex" may mean "annoy", so it is the same.

Yet, 5 judges-"linguists" from the New York State Appellate Division 1st Judicial Department Renwick, J.P., Andrias, Kapnick, Gesmer, Moulton, JJ.  recently made law - not that they are allowed to make law, that is the exclusive authority of New York State Legislature, but why would they care - regarding their own recusals.

The brand new spanking law of judicial recusals in New York is now that if the judge is "annoyed" by a party or the party's attorney, but not "vexed", he does not have to recuse from a court case.

They also said that "[t]he court also acted within its discretion in ordering a sanctions hearing to ascertain whether the recusal motion was frivolous (see 22 NYCRR 130-1.1[a], [c]; see also 22 NYCRR 130-1.1[a][b])", paving the way for possible proceedings - now as regulators of attorney John O'Kelly's license to discipline attorney John O'Kelly for making a motion to recuse a judge protecting his clients' constitutional right to impartial judicial review.

After all, the 3rd Department had already suspended an attorney - John Aretakis - in 2008 for criticizing a judge in a motion to recuse without a hearing, based on sanctions of "annoyed but not vexed" judge whose was annoyed enough to sanction an attorney for daring to criticize him, and his colleagues in the Appellate Division 3rd Department agreed that criticism by an attorney of a judge is a no-no offense.

And, the 4th Department has done the same, too - suspending me in 2015 - also for criticizing a judge in a motion to recuse and for " additional complaints, filings and charges of “gross continuing judicial misconduct” against the court", and also I was denied a hearing, since I already had all the "process due me" in having a "frivolous conduct" proceedings instituted and decided by an "annoyed, but not vexed" judge sanctioning me for criticizing his own precious self.

Here is how a judge "tries" a proceeding for sanctions the judge institutes for criticizing the judge's own self - note that the judge is at the same time 
  • the alleged victim;
  • an unsworn witness;
  • a prosecutor;
  • a judge - 
  • and even marks his own exhibits at that "trial" that was all the "process due" that an attorney in New York deserved before he was stripped of his license and livelihood.
Also note that after that the judge was elevated to the position of a federal magistrate, where he is now continuing to toil, "with no record of public discipline".

Why the 1st Department should be any different?  They may also now pursue attorney John O'Kelly so that he would not dare criticize the supposed cousin of Sheldon Silver for being biased against tenants in favor of landlords - surprise, surprise!

Of course, the trial judge, #Judge ShlomoHagler who was "annoyed" enough to hold a sanctions hearing against attorney John O'Kelly for criticizing the judge's precious self for his supposed cozy relationship with landlords and bias and hostility towards tenants and their attorneys, recently himself got sued for a supposed illegal sale of a lucrative real property lot as a president of a synagogue in violation of a ruling of a rabbinical court - sued by board members of his own synagogue, and the lot is adjoining an institution that was run by NYS Assembly leader (resigned and prosecuted for corruption ) Sheldon Silver.

Given that I was sanctioned by a judge who, before I was suspended based on his sanctions for criticism of his precious self, ran from the bench during a triple investigation:

  • by the New York State Comptroller;
  • by the New York State Judicial Conduct Commission, and
  • by the FBI
the ire of Judge Shlomo Hagler may be of the kind characterized back by William Shakespear as "the lady doth protest too much, methinks".

After all, Silver is not out of the woods with the criminal prosecution for corruption yet, and who knows what can be dug up by the investigation of his ties, including his familial ties.  Striking at a critic who comes close to explore those familial ties does look like "protesting too much".

It does raise the issue of Sheldon Silver's looming presence (and influence?) as to why Judge Shlomo Hagler is still a judge, after his atrocious behavior in John O'Kelly's proceedings, why the 1st Department glossed over Judge Hagler's misconduct, why Judge Shlomo Hagler was dropped as a defendant from the lawsuit that he illegally sold a lot belonging to his synagogue, reportedly without revealing to the members of the synagogue board that the synagogue will not be able to use the proceeds for its needs because of some stipulation regarding resale of the property.

Now, John O'Kelly alleged in his motion to recuse that Judge Hagler was actually Sheldon Silver's cousin - and Judge Hagler could not have it.

Judge Hagler commenced a sanctions hearing against John O'Kelly for "frivolous conduct", for his supposed failure to properly investigate his allegations - even though the constitutional standard for a motion to recuse is APPEARANCE of impropriety, and appearances are based on REASONABLE PERSONAL PERCEPTIONS  and not on hard proof, especially that judges do not necessarily trumpet about their misconduct and bias at every corner.

More and more people going public regarding impropriety of the current "law" of recusal, which has nothing to do with the law and everything to do with the judiciary usurping the power to decide whether to step down from a case or not - no matter how conflicted they are.


It is interesting to compare
  • what the law of recusal and criticism of judges should be in a constitutional democracy, based on the structure of power in a constitutional democracy and constitutional rights involved in such judicial recusals - let's call it "Model C";
  • what the law of criticism of judges was in medieval England, "the Old Country" - let's call it "Model K"; and
  • to try and place the "law" of recusal as it exists in the U.S. and in the State of New York today based on these models.

Model C
Model K
Model used in NY

Who is the sovereign

The People (Constitution, Preamble “We the People”, the Dredd Scott case – People are the sovereign, there are no subjects in the U.S.)

The King

Who are the subjects

The people

What is the government

Servant to the sovereign – the people
Servant to the sovereign – the King

What is criticism of the government
People’s way to check on their servant, the government

A challenge by the subjects of the divine power of the sovereign, the King

The place of criticism of the government
Theoretically – a good thing, the way allowing the democracy to work and cleanse itself

A criminal offense, seditious libel

Standard of proof to criticize the government

Protected by the 1st Amendment, strict scrutiny (a judicial invention) to punish for criticism

The critic is never right.  Later on – “you need to have iron clad proof” to win a seditious libel case.

Constitutional threshold of recusal

Appearance of partiality of the judge – the public must have, as a matter of due process, not only impartial adjudication, but also the appearance of impartial adjudication

The judge is the reflection of the King and is always right
De facto – K
Burden of proof based on the threshold

Reasonable perception of partiality
Judges require ironclad proof that the judge did something wrong, and when such proof is provided (Christine Mire's case in Louisiana), the attorney is punished for providing that proof

Due diligence to prepare the motion

Judicial collusion, corruption and ex parte communications are not exactly announced from rooftops, so what attorneys can judge upon can only be the reasonable perception and the breadcrumbs picked up from circumstantial evidence, “connecting the dots”.  Circumstantial evidence is good enough even to convict of murder in NY.

Judge Hagler:

1.       Required ironclad proof against himself;
2.       Was upset about criticism of himself by an attorney for doing his due diligence and investigating the judge

Same as John Aretakis' and my case in New York

Two diametrically opposite “standards of due diligence” + I am the King standard

De facto K

Who gets to try the motion to recuse

Should be – somebody other than the object of criticism, common sense and due process

Judge sitting in judgment of himself problem;

Potential of retaliation – accuser/adjudicator problem

Until 1792 in England –

The Star Chamber, a judge sitting in judgment of himself
Right to a jury to review accusations of criticism of the government
Should be, as with trial of any other issue of fact relevant to the party’s adjudication
Introduced in Star Chamber by Act of Parliament in 1792 (the Fox Act).

The bill was prepared by the former Star Chamber judge Sir Edward Coke who knew from his own adjudications how biased a judge reviewing such cases can be.

Seditious libel cases were removed from judges and placed with the jury

Defamation of judges as a separate lawsuit to be brought by judges (idea belongs to Russian attorney Vitaliy Burkin recently stripped of his "advocate" status for criticism of corruption in the Russian judiciary)

If a judge considers himself “defamed” by criticism, as for any other citizen, the path to a remedy for that defamation lies through a separate defamation lawsuit against the party the judge thinks is defaming him.

That requires that:

·         The judge prepares a lawsuit, satisfying enhanced pleading standards for defamation;
·         Files it, with a filing fee;
·         Properly serves it upon the opponent, the critic;
·         Hopes to survive an immediate motion to dismiss for failing to meet elevated pleading standards and on 1st Amendment grounds that the critic will likely win because of high standards – New York Times v Sullivan (deliberate falsehood + malice) + strict scrutiny for content-based regulation of speech
·         Hopes not to be slapped with frivolous conduct sanctions and attorney fees to be paid to the critic;

If the judge survives a motion to dismiss, he still faces exposure through paper discovery, interrogatories, notices to admit under oath, out-of-court depositions and in-court trial by jury and cross-examination

The King is above the law and can have his servants summarily punish the critic or institute criminal proceedings against the critic instead trying his luck in a civil defamation case

A subject cannot call the King to testify

Judges should not be above the law.  If they think anybody made false statements about them, their remedy is the same as for everybody else - a separate lawsuit for defamation in a court of law where the judge will have to:
  • pay his own way for representing himself in this private legal matter - personal defamation of a judge, like everybody else has to do;
  • put together a non-frivolous lawsuit satisfying the very rigorous special pleading standard, like everybody else has to do;
  • pay all the filing and judicial assignment fees, like everybody else has to do;
  • properly serve the lawsuit upon his critic, his opponent in litigation, like everybody else has to do;
  • expose himself to the rigors of paper discovery and oral depositions, including questions that the judge must answer his critic (defendant in a defamation lawsuit) under oath regarding information in exclusive possession of the judge;
  • expose himself to the rigors of a jury trial in open court before the public and to public cross-examination of himself by his critic;

satisfying all the requirements of the law, as everybody else has to.

If judges are afraid to submit their own personal claims to adjudication by their peers in the judicial system and to the jury - which is what it appears to be with
  • Judges Carl Becker (my case),
  • Cristian Hummel (John Aretakis' case),
  • Phyllis Keaty (Christine Mire's case), and now with
  • Shlomo Hagler (John O'Kelly's case) - and instead try to invent "rules", like the "rule of frivolous conduct" allowing themselves to turn constitutional courts into medieval courts and try cases against themselves by themselves - that IS the best proof that judges do not believe in impartiality of any judges at all, and that anybody can obtain effective and fair legal remedy from the American judicial system.
By the way, the New York State Court of Appeals has struck as unconstitutional, in 2014, "harassment by speech" criminal statute - on 1st Amendment grounds, with a dissent by the then-Chief Judge Jonathan Lippman dissenting only on the grounds that the majority opinion was not far reaching enough and did not dismiss all criminal charges on 1st Amendment grounds.

That did not prevent the same New York State Court of Appeals from dismissing in 2016 my 1st Amendment appeal from suspension for "harassment by speech" and "defamation" of Judge Becker (as decided by Judge Becker in a "frivolous conduct" proceeding instituted and tried by Judge Becker) as lacking a "substantial constitutional question".

That did not prevent the 1st Department in 2018 to rule that it is perfectly hunky-dory for judge Shlomo Hagler who was "annoyed, but not vexed", to start sanctions proceedings for "frivolous conduct" for harassment of his precious self by speech (which was deemed unconstitutional by NYS Court of Appeals in 2014) and, obviously, for making false statements against his precious self - instead of bringing a lawsuit in defamation against attorney John O'Kelly which Judge Shlomo Hagler knows very well he will lose if he files it - with sanctions for frivolous conduct against Shlomo Hagler and attorney fees for such a frivolous defamation lawsuit to be paid by Judge Shlomo Hagler to attorney John O'Kelly.

That is - if the law is to be applied as it exists for every one of us, mere mortals.

That judges do not trust their own court system to provide a fair and effective legal remedy for them in a defamation lawsuit and thus invent shortcuts for themselves turning court proceedings into medieval pre-1792 Star Chamber trials of the Old Country is a litmus test of impartiality of the American judiciary - requiring that legislatures MUST take what is going on in courts seriously, MUST address the crisis in access to justice CAUSED by the judiciary "regulating" itself and the profession it belongs to, attorneys.

When attorneys cannot establish for their clients the clients' constitutional right to impartial judicial review because that would involve breaching the supposed personal pledge of fealty to the likes of judges Becker, Hummel, Keaty and now Hagler, because doing your duty for your clients results in loss of reputation and livelihood for an attorney - it is proof that courts turned into a useless and harmful waste of public money.

Laws of recusal must be set in stone, and fast - by impartial members of legislatures having no connection with the judicial system and over whom judiciary has no control, and that will exclude any legislators who are attorneys with licenses regulated by the judiciary, "officers of the court".

What we have now as a "law" of recusal and "law" of sanctions for motions of recusal - based on judges setting their own "rules of procedure", rules of "judicial ethics", and trying their own cases by themselves in their own favor - has nothing to do with the law or the Constitution each of the American judges, including Becker, Hummel, Keaty and Hagler were sworn to uphold and protect.

Judges should be given a strong legislative kick in the butt to wake up and smell the coffee - it ain't the King's Bench any more.

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