THE EVOLUTION OF JUDICIAL TYRANNY IN THE UNITED STATES:

"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, August 30, 2026

Pro Se Blunder #1 that Costs the Case

One of the main issues of my work - as, formerly, an attorney, now as an investigative journalist - is concentration on issues of access to justice, particularly of pro se litigants, those who cannot afford a lawyer or otherwise decide to represent themselves in court.

A considerable portion of my reporting is dedicated to these issues.

I continue to do case studies on the issue.

Several cases in New York state courts have recently caught my attention with the same recurring errors pro se litigants make - that cost them the case.

The error is: engaging the court too soon.

Example:  a pro se plaintiff filed a complaint, and a defendant - often also pro se, but does not matter - filed an answer, instead of a pre-answer motion to dismiss (MTD).

Filing an answer does not involve assignment of a judge.

Unlike federal courts, in New York State court a judge does not have to be assigned and to enter the case unless and until a party asks for it - and pays for "judicial intervention", RJI.

So - if there is an answer instead of an MTD, the pro se plaintiff needs to jump up and down in joy and to happily and immediately proceed with discovery.  Research Article 31 of the CPLR and serve upon defendant all kinds of discovery devices - relevant to the case.

What pro se litigants do though - often, too often - is that they immediately pay for RJI and ask a judge to be assigned - for a conference.  Why?  What do they hope to achieve by that?  I simply do not know.

And - what do judges often do?  They come in, and through a conference, strongarm a settlement or dismiss the case sua sponte - on the court's own motion, right there at the conference.  

That decision not only ends the case before it really started, without any discovery, but since it is sua sponte, by law and precedent in New York State courts, a sua sponte decision is not appealable as of right.  So, the pro se litigant brought upon himself or herself - for their own money, mind, RJI application has a $90.00 filing fee - an order of dismissal AND an order that is not appealable as of right.

And, it is very, very difficult to have a sua sponte decision vacated and discovery rights restored.

So, the pro se litigant now has the additional pain of having to pay a $45.00 motion fee and to file a motion to vacate that sua sponte determination in order to create an appellate record, and may only appeal from the denial of such motion, not straight from a sua sponte dismissal.

So - where a pro se plaintiff sees an ANSWER, the pro se plainitff had better immediately forget of the existence of an RJI unlesss he wants to immediately make a written motion on notice - and that would be extremely rare (such as an application for a preliminary injunction).

An Answer means an opportunity for discovery.

I wish pro se litigants get at least one consultation from an attorney who knows what he/she is doing before applying for RJI under the circumstances.  It can cost them the case.








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