#JudgeShirleyKornreich's decision protects the turf of her family members from (assumed) out-of-state competition, or an essay on the "brave" and "responsible" legal journalism by Joel Stashenko, of the New York Law Journal - Part I

Two days ago the New York Law Journal, Joel Stashenko, published an article about  judicial decision where a Manhattan judge, #JudgeShirleyWernerKornreich, dismissed a court case because it was filed by an out of state attorney. 

The New York Law Journal's commentary of the case was sterile and "professional" and did not go into Judge Kornreich's personal background, nor did it try to uncover any personal reasons for Judge Kornreich's interpretation of New York Judiciary Law 470 requiring, since April 2016, a physical office within the State of New York as a condition of being able to practice law in New York, after being admitted and licensed -  while not requiring such an office from in-state attorneys.

Here is the registration information of attorney Barry Goldin:

From this registration information containing only attorney Goldin's office address, Judge Kornreich assumed, without any evidence presented in her decision, that attorney Barry Goldin:

1) Lives in Pennsylvania;
2) Does not live in New York (people may have two homes, in two different states, and share their time between them); and
3) is subject to the reach of Judiciary Law 470.

Yet, Judiciary Law 470 applies only to attorneys who reside in adjoining states, not to those who have offices in adjoining states, and there is nothing in Judge Kornreich's decision referencing any proof that attorney Barry Goldin resides in the State of Pennsylvania.

He might reside in PA, for all I know - what I am saying is that Judge Kornreich dismissed a case filed by attorney Goldin, on behalf of one corporate entity, against another corporate entity, two years ago, on the basis of a statute that is applicable to non-resident attorneys, without referring to proof that attorney Goldin actually resides in the State of Pennsylvania, and not simply has an office in that state.

In her decision, Judge Kornreich indicated that Barry Goldin, in his registration information, did not mention his New York office address.

Yet, following Judge Kornreich's logic of assuming residence of an attorney from his office address, had Barry Goldin posted his New York office address as his primary registration address, his residence will be presumed in New York, and that would take him out of the reach of Judiciary Law 470.

In other words, Judge Kornreich was not seeking logic, evidence, or lawfulness for her decision.

Her decision is even more bizarre that she specifically dismissed the case because it was filed - in 2014 - by a "non-resident" attorney (of which she provided no proof in her decision) residing in an adjoining state (of which she provided no proof in her decision either) who, in 2014 did not have to have a physical address in New York as a matter of law, because in 2011 Judiciary Law 470 was struck by the U.S. District Court for the Northern District of New York as unconstitutional, and that decision was not overturned on appeal by the U.S. Court of Appeals for the 2nd Circuit until April of 2016.

Between September 2011 and April 2016 Judiciary Law 470 was deemed unconstitutional based on an order of a federal court, and attorney Barry Goldin, even if he was an attorney residing in the State of Pennsylvania, of which Judge Kornreich mentions no proof whatsoever in her decision, attorney Barry Goldin did not have to have an office in New York in 2014, when he filed the case, or up until April 2016, when he prosecuted the case.

Because from September 7, 2011 to April 22, 2016 Judiciary Law 470 was struck as unconstitutional, Attorney Barry Goldin, even if he was a resident of an adjoining state (for which there is no reference in Judge Kornreich's decision) did not have to comply with Judiciary Law 470 when he filed the case - and that is the only reason why Judge Kornreich dismissed it in 2016 - because it was filed in 2014 by an attorney not complying, at that time, in 2014, with Judiciary Law 470.

Was it difficult for Joel Stashenko, of the New York Law Journal, to pull from Pacer.gov the applicable decisions in Schoenefeld - from 2011 and from 2016, read Judiciary Law 470 (free online access), consult attorney information of Barry Goldin (free online access, no information about Barry Goldin's residential address in his New York State registration) - and make a determination that something is drastically wrong with how Judge Kornreich decided the case?

After all, it is indisputable - from the texts of the three decisions:

1. by the NDNY court in September of 2011;
2. by the 2nd Circuit in April of 2016; and
3. by Judge Kornreich in July of 2016 dismissing the case because Barry Goldin did not comply with Judiciary Law 470 in 2014 when it was unconstitutional based on the NDNY decision -

that Judge Kornreich's decision was wrong, for the following reasons:

1) Judge Kornreich assumed residence of an attorney (a) out of state and (b) in an adjoining state, in violation of Judiciary Law 470, without referring to any evidence of that supposed fact, and assumed it, without any basis for it, from his office address; if a person has an office in China does not mean he lives there, and Judiciary Law, including the reversal of the 2nd Circuit do not require attorneys to reside where their office is - so there was no reason to assume from an office an attorney's residential address;  thus, Judge Kornreich did not establish in her decision that Judiciary Law 470 applied to Attorney Goldin even if it was valid in 2014 when attorney Goldin filed the case;

2) The reversal of the 2nd Circuit in 2016 of the decision of the federal court in 2011 striking Judiciary Law 470 as unconstitutional could not create a "notice in arrears" for the past conduct of attorney Barry Goldin in 2014, which was completely legal in 2014, even if attorney Goldin resided at the time of filing in Pennsylvania, because in 2014, based on NDNY decision, Judiciary Law 470 was unconstitutional, and attorney Goldin relied upon that decision in his actions. 

The reversal of that case in 2016 did not change the fact that, at the time of filing of the case by attorney Goldin, Judiciary Law 470 was deemed unconstitutional, and actions of attorney Goldin, even if he resided at that time in the "adjoining" state of Pennsylvania - for which, once again, Judge Kornreich referenced no proof in her decision - were completely legal.

In other words, Judge Kornreich dismissed a court case based on

• completely legal actions of an attorney,
• based on a certain statute, on the grounds that the statute applied in 2014,
• while there was proof in the record that the statute did not apply in 2014
• because it was deemed unconstitutional at that time, and thus governing the attorney's actions, and
• without any proof that the statute, even after its constitutionality as a matter of law was restored, applied to that particular attorney.

An extraordinary combination of errors, errors that were easily visible simply from the date (2014) of filing of the case, as compared to the constitutionality status of Judiciary Law 470 at the time of filing, and presence (or absence) of reference to any proof that would make Judiciary Law 470 applicable to attorney Goldin as an attorney RESIDING in an "adjoining" state (not having an office there).

Did Joel Stashenko, an experienced legal journalist, point out these egregious errors of Judge Kornreich made in Judge Kornreich's decision?

He did not even have to discover it from comparison of the dates - Judge Kornreich actually mentions in her decision that attorney Goldin RAISED the issue of inapplicability of Judiciary Law 470 to him in 2014 at the time of filing:

I must note that, in raising his defense, attorney Goldin made an error of referring to the decision of the New York State Court of Appeals made in 2015 in answer to the 2nd Circuit's certified question.

Yet, the decision made by the New York State Court of Appeals did not change the legal status of Judiciary Law 470 as unconstitutional, because the New York State Court of Appeals does not have authority to vacate or reverse the decision of the U.S. District Court for the Northern District of New York made in 2011, and an answer to the certified question of the 2nd Circuit during the pendency of appeal from the NDNY decision - at the time when the 2nd Circuit did not apply any stay upon the enforcement of the NDNY decision - did not have any legal force or relevancy as to constitutional validity of Judiciary Law 470 at the time the case was filed, July of 2014, the time which defined lawfulness of the actions of attorney Goldin, by what was lawful at that time, and not 2 years later.

Nevertheless, attorney Goldin, who was practically accused by defendants in the case and the defendant's attorney Jeffrey Korn of criminal conduct - unauthorized practice of law - for the period of 2 years, did raise the question that the time of filing, and up until the reversal, for those entire 2 years, his conduct was actually legal, based on a decision of federal court.

Judge Kornreich rejected that argument as being "without merit" - without an explanation as to why it is so.

Joel Stashenko did not mention in his article the obvious errors of Judge Kornreich.

#JoelStashenko did not mention that the motion made by attorney Jeffrey Korn, of Wilkie, Farr & Gallacher, LLP on behalf of defendants, to dismiss because the filing in 2014 was deficient, because in 2014, at the time of filing, attorney Barry Goldin did not comply with Judiciary Law 470 (then struck as unconstitutional by a federal court) - was frivolous and, if Judge Kornreich had a scintilla of integrity (I do not doubt her competence) - she would have denied the motion with sanctions and attorney fees against the defendants and against attorney Jeffrey Korn personally.

By the way, since attorney Korn's residential address was similarly not mentioned in Judge Kornreich's decision, there is no way to see whether attorney Korn had a right to make that motion to dismiss.  Who knows, maybe he resides in the "adjoining state" of New Jersey and only claims he works in Wilkie, Farr & Gallacher, LLP in New York City on the site of NYS Court Administration while his law firm's website does not list him among their attorneys (I printed out the name of attorneys of Wilkie, Farr & Gallacher, LLP, saved the printout and am providing a link to that saved printout - if the law firm decides to change the information after this publication). 

Many people do commute from NJ to NY, after all.

Judge Kornreich made no attempt to look into attorney Korn's residential status, even though his name is not even listed among attorneys of the law firm where he is officially registered - assuming once again that he is a resident of the State of New York - without no basis for such an assumption in the record.

In fact, since registration of all attorneys requires only providing, in the attorney's public registration information, an office address and not the attorney's residential address, there is no way to tell from attorney's registration - for the judge, for the attorney's own client (unless the attorney works out of a home office), or for attorney's opposing party and their attorneys, whether the attorney in question is or is not an out of state attorney subject to requirements of Judiciary Law 470.

So, what are judges going to do now, in the wake of Judge Kornreich's decision - require each and every attorney litigating in a New York courtroom disclosure of his residential address as a pre-condition of allowing him to file court papers?

It seems as a logical outcome of judge Kornreich's decision - which Joel Stashenko, of New York Law Journal also did not write about.

As Joel Stashenko did not write about Judge Kornreich's personal financial interest in her decision, requiring from an attorney, in order to satisfy an "office" requirement:

• not a "rent-a-desk" in somebody else's office, as her own court, a different judge, held in 1989 as satisfying Judiciary Law 470 - see that case mentioned in the NDNY decision of 2011,

• not just an office allowing service of process upon the attorney - as the 2nd Circuit's decision interpreted Judiciary Law 470;
• but a functioning office, listed on the attorney's letterhead, registration and with the attorney's actual presence - with many cases, not just one - in the state.

Neither the statute itself, Judiciary Law 470, nor the 2nd Circuit declaring the statute constitutional, went that far.

In fact, the defendants in the constitutional challenge upon Judiciary Law 470, the State of New York and New York Attorney General actually claimed that the "rent-a-desk" situation and "of counsel" status of an attorney will satisfy Judiciary Law 470, see an excerpt from the plaintiff's memorandum of law quoting the State of New York's argument on the subject:

Yet, what was enough for the State of New York and was used by the State of New York to obtain a reversal from the 2nd Circuit, was not enough for Judge Kornreich relying on the 2nd Circuit's reversal.

Why?

Why did Judge Kornreich disregarded all the applicable law that she should have considered?

Why did Judge Kornreich granted blatantly frivolous motion to dismiss instead of denying it with sanctions against defendants and their attorney?

Well.

Judge Shirley Kornreich's income, and income of her adult daughter depended on her decision.

Judge Shirley Kornreich's husband Edward S. Kornreich is a Manhattan attorney.

Judge Shirley Kornreich's daughter Mollie Melissa Kornreich is a Manhattan litigation attorney.

By the way, Judge Kornreich's husband specializes, as his contribution to "thought leadership", in "anti-kickback" laws. 

And, the FBI investigation probed into Judge Shirley Kornreich helping out her husband and his law firm by dismissing a case related to the case where the husband's law firm represented the defendant - creating an advantage for her husband in litigation.

Of course, Judge Kornreich feigned lack of knowledge that her husband's law firm was involved in a related case and said that "she would never" had she known - but there is no indication that Judge Kornreich vacated her order of dismissal and recused from that case. 

Would you believe for a split second that Judge Kornreich did not know that her husband's law firm represented a party in a related case?  Not likely - and especially not likely that judges in related cases habitually talk to one another and habitually look at the progress of related cases.

And, to claim that judges do not have "pillow talks" with their spouses, especially attorney spouses, and do not discuss cases with them - is to live in a dream world.

Considering the above circumstances, Judge Kornreich's husband's specialization in "anti-kickback laws", as his contribution to "thought leadership", appears especially poetic.

And, Judge Shirley Kornreich's son-in-law Matthew David Podolsky is a also Manhattan attorney - or, he at least pretends to be a Manhattan attorney, since, same as attorney Jeffrey Korn whom Judge Shirley Kornreich unlawfully favored in dismissing the lawsuit filed by attorney Goldin, Judge Kornreich's son-in-law is not listed as working at the firm he claims through his registration he works for:

Judge Kornreich's decision created favorable conditions for her own husband, eliminating competition for him in New York and in Manhattan - which helped Konriech herself financially, since spouses live off combined income.

Judge Kornreich's decision created favorable conditions for her own daughter, a Manhattan attorney, and the daughter's law firm, and for the claimed Manhattan law firm of her son-in-law.

Actually, Judge Kornreich's son-in-law, while claiming he works in private employment, surfaced at Preet Bharara's U.S. Attorney General's office, prosecuting "sexual exploitation and enticement of minors and receipt of child pornography and alleged illegal attempts to export high-grade carbon fiber to China. 

Since there is only one attorney Matthew Podolsky registered in the State of New York,

it is unquestionable that it is Judge Shirley Kornreich's son-in-law who, in violation of attorney registration rules, is registered as employed in a private Manhattan law firm, while in reality works for more than a year as a prosecutor for the U.S. Attorney's office - the very office that "coincidentally" handles high-ranking corruption and just obtained convictions of the two (now former) heads of the New York State Legislature - Assembly Leader Sheldon Silver and the Majority Leader of the Senate Dean Skelos.

Attorney registration rules require attorneys to update information about their employment within 30 days of changes occurring. Obviously, that law is not applicable to the newly-minted federal prosecutor and son-in-law-of-a-judge Matthew Podolsky.  After all he is prosecuting violations of the law of others, and he is related to the judge, the regulator of the legal profession - so he should not bother with complying with the law himself.

Great hedging by Judge Shirly Kornriech, isn't it? - both in employment of her daughter at an influential law firm that "owes" the judge (see below), and in specialization of her husband in kickback laws, and employment of her son-in-law in the office prosecuting high-ranking state officials for corruption.

So that an FBI investigation that targeted her in 2004, as described below, would never happen again.

Why didn't Judge Kornreich disqualify herself from the case in view of the appearance of impropriety and her obvious conflict of interest - which Joel Stashenko of New York Law Journal also did not write about when writing about this case?

Because involving herself in giving favors to friends through her job is usual behavior for Judge Kornreich.

Because Judge Kornreich was already the target of an FBI investigation based on her favoritism and conflicts of interest.

When caught, she admitted that she may have missed her conflict in owning stocks while presiding over cases of companies whose stock she owned, in 11 cases, without specifying the cases:

The FBI probe was regarding possible case-fixing for friends:

Reportedly, Judge Kornreich got rid of the stock that presented a conflict only when she became the target of the FBI investigation.

Another point of the FBI investigation was because Judge Kornreich reportedly refused to recuse from a foreclosure case where she had a conflict of interest.

So, to escape accountability - as a judge, as an attorney and criminal accountability, when caught red-handed, Kornreich sold the stock which was a source of a conflict of interest, and claimed that "she would never" intentionally have a conflict of interest.

Instead of being taken off the bench, charged with a felony case-fixing (theft of honest services of a judge, wire fraud, mail fraud if case fixing was handled over the phone and mail), incarcerated and disbarred, Judge Kornreich continued on the bench - garnering the following "accolade" of reviews in her post-FBI-investigation activities:

Here are Judge Kornreich's ratings and ratings criteria:

Reviews

Kesha case - comment

Please, note that there are only two praising comments, one calling any criticism of Judge Kornreich as coming from "grumbling by sore losers" - I wonder why those "sore losers" would be upset if Judge Kornreich would fix cases for her friends by using her official position - but otherwise the reviews are consistent throughout the years post-dating the FBI investigation and pre-dating Judge Kornreich's decision regarding attorney Barry Goldin.

I will, of course, conduct an additional investigation of the party defendants and their attorneys in the case where Judge Kornreich held that an out-of-state attorney (without proof that the attorney resided out of state) must maintain a physical working office in-state handling more than one case, which does not reflect the state law or the decision of the U.S. Court of Appeals for the 2nd Circuit validating that state statutory law.

By the way, after the dust settled from that FBI investigation back in 2004, resulting in nothing and leaving Judge Shirley Kornreich standing - not disbarred, not taken off the bench, not criminally prosecuted or incarcerated - Judge Kornreich apparently considered that a sign of approval and encouragement to do more of the same.  

And, Judge Kornreich got handsomely reimbursed for her troubles.   and got reimbursed by her troubles with the FBI from at least one prominent law firm she benefited - and thus became the target of the FBI investigation.

I do not know whether Judge Kornreich got a monetary "incentive" from the law firms and parties she was favoring, but Judge Kornreich certainly got employment for her daughter Mollie Melissa Kornreich exactly at the law firm for which Judge Kornreich arranged a $1 million dollar settlement while associating with partners of that firm through a charity and holding ex parte meetings with members of that firm at the firms' office ostensibly as a Board member of that charity.  

Judge Kornreich then proudly announced her daughter's employment at that firm in New York Times in 2013:

It would have been stupid for the bride not to keep her last name - after all, her name would be sending a message to any judge she is appearing in front of to provide her a special treatment, as a daughter of a colleague, judge Shirley Kornreich.

Mollie Melissa Kornreich is still employed now at Skadden, Arps, Slate, Meagher & Flom, the law firm for which her mother the judge arranged earlier a $1 mln settlement under circumstances suggesting ex parte communications and conflicts of interest which became the subject of an FBI investigation.

Skadden, Arps, Slate, Meagher & Flom is one of those influential law firms that hire former high-ranking judges and relatives of judges to drum up business and protect themselves from attorney discipline - I showed how the "live shield" tactic operates here.

As the apparent part of those tactics, Skadden hired the retired New York State Chief Judge Judith Kaye (who died last year), and now has as its employee Judge Kornreich's daughter Mollie Melissa Kornreich, only the hiring of Mollie Melissa Kornreich

definitely looks like a payback for the $1 mln settlement Judge Kornreich arranged for the firm under the circumstances suggesting appearance of impropriety and for her resulting troubles with the FBI.

A perfect quid pro quo from the firm that created a "live shield" for itself, after being exposed to the FBI investigation, by employing the former Chief Judge Judith Kaye - and now employing Judge Kornreich's daughter.

With Judge Kornreich's apparent arrogance, her tendency to get her hand into the cookie jar, and the prior history of being caught with her hand in that cookie jar, nothing appears impossible.

And, of course, the "brave" and "responsible" law journalist Joel Stashenko of the New York Law Journal prefers to pristinely report of how a judge decided a case, without any analysis whether the decision was right or wrong, and without any investigative work of the judge's personal motivations to make the grossly, outrageously unlawful decision.

Why ruffle any feathers when judicial corruption is screaming in your face?

I will continue to provide more details of this story in further blogs.

Stay tuned.

The 2nd Circuit refuses to release records of the State-Federal Judicial Council under Freedom of Information Act claiming exemption of the "judiciary" under FOIA, while the D.C. Circuit grants access to records of complaints against immigration judges to the American Immigration Lawyers Association

I wrote on this blog about my Freedom of Information Act (FOIA) request regarding records reflecting membership, structure, agenda, meeting schedule and other available records of the so-called New York State-Federal Judicial Council, a shadow secret organization where state and federal judges, and some select attorneys, meet behind closed doors, and do that under circumstances where state judges may be defendants appearing in front of federal judges - members of the Council, see my blog here.

Initially, both judges D'Agostino (the U.S. District Court for the Northern District of New York) and Katzman (the U.S. Court of Appeals for the 2nd Circuit) simply ignored my FOIA request.

I repeated it after President Obama signed into law at the end of June, 2016 the FOIA's presumption of access to records.

Today I received a response from a "Circuit Executive" of the U.S. Court of Appeals for the 2nd Circuit denying my FOIA request - in the court's  alleged "discretion", claiming that information I am seeking is exempt from FOIA, because "the judiciary" is allegedly not subject to FOIA.

Yet, I was not asking for information regarding judicial acts of "the judiciary", but instead regarding administrative activities of a body where members are appointed by the Chief Judge of the 2nd Circuit. 

Moreover, the "Circuit Executive"'s webpage indicates that the office of the Circuit Executive handles administrative activities of the 2nd Circuit.

Such a statement is an admission that not all activities of the 2nd Circuit are judicial activities.

Administrative activities are definitely subject to FOIL, same as administrative activities of, let's say, New York State Court Administration are subject to the state Freedom of Information Law.  In fact, I obtained the only document I could regarding the New York State-Federal Judicial Council through a FOIL request to the New York State Court Administration.

Simply because members of that body are judges, does not mean that records of that body are concealed from public review, and that is especially so that FOIA exempts information only about federal judiciary, while the body is a mixed body, and thus information about state judges who are members of that council is definitely discoverable. 

State judges have no official place in the federal judiciary - they are neither appointed as magistrates, nor nominated by the President, nor confirmed by the Senate.  Thus, state judges' - and attorneys' - participation in such "councils" certainly does not fall within exemptions from FOIA.

Administrative activities of any governmental body, including the court, are subject to FOIA, and FOIA has, since June of 2016, a presumption of disclosure.

As an illustration as to how "inapplicable" FOIA is to "the judiciary", I provide the July 29, 2016 decision of the U.S. Court of Appeals for the D.C. Circuit regarding information sought by the American Immigration Lawyers Association regarding names of immigration judges against whom complaints were filed.

These two decisions - one from the 2nd Circuit, and the other from the D.C. Circuit, on the same subject of access to records regarding non-judicial activities of judges, are only one day apart.

Here is also an article about the lawsuit to get access to records of complaints against immigration judges.  (As a side note, in New York, for example, complaints against judges are deep secret and are not recoverable under FOIL on "privacy" grounds.  Apparently, not so under the federal Freedom of Information Act.  As a matter of public concern and ability to review performance of their high-powered public officials, such information must be available to the public - and the D.C. Circuit's decision of July 29, 2016 is a huge step in that direction.

As far as denial of my FOIA request is concerned, judges are judges, whether they work in the actual court, or for and administrative agency, such as the Board of Immigration, and information sought by the American Immigration Lawyers Association is not related to the judicial decisions, same as my information was not seeking court records.

The D.C. Circuit's precedent is fully applicable to the denial of FOIA request on July 28, 2016 (one day prior) by the 2nd Circuit.

Please, note that the 2nd Circuit did not say it does not have the records I was seeking - only that it will not give the records to me, in the court's alleged "discretion".

Apparently, the information I am seeking is too sensitive for judges of the 2nd Circuit to be disclosed - all the more reason for me to try to get it.

I will certainly appeal the denial of my FOIA request, and if my appeal is denied, am contemplating a court action to compel production of records I seek.

On constitutional restrictions of peremptory challenges of judges: opinion of Judge Richard King, California

_{In my previous blog, I provided an overview of the fight between Orange County (California) District Attorney Anthony Rackaukas and judge Thomas Goethias, and later Judge Richard King, against disqualification of judge Thomas Goethias from criminal proceedings brought by DA Rackaukas, where DA Rackaukas used the peremptory disqualification statute where he did not have to claim actual prejudice and could change a judge in his case one time without any explanations, only a "good faith" affidavit alleged belief there is prejudice and there cannot be impartial judicial review with a particular judge presiding over the case.}

_{In California legal jargon, removing a judge from a case using a the peremptory challenge statute is called "papering" the judge.}

_{Another trial judge, Judge Richard King, was assigned to hear the peremptory challenge to judge Thomas Goethias, denied the motion and stated in his opinion:}

_{“the People’s “blanket} papering’ of Judge Goethias ensued from his rulings in three cases: rulings in which he found that prosecutors and police officers had committed misconduct”.

That could have been true, but the statute under which the prosecutors sought disqualification of Judge Goethias was a peremptory challenge statute, and the reasons for a motion to disqualify were irrelevant.

Yet, Judge King denied the motion to disqualify claiming that the motion to disqualify a judge, even one that followed the peremptory challenge statute, violated the doctrine of Separation of Powers.

It was true that after Judge Goethias disqualified prosecutors based on misconduct, prosecutors reciprocated by peremptory strikes of the judge – in accordance with California statutory law.

Nevertheless, when Judge Goethias, an experienced judge in felony cases, was stricken off “too many” felony cases, Judge King used the “judicial economy” and “administration of justice” arguments to disregard the peremptory strike statute and allow Judge Goethias to preside over cases, because otherwise the court system would have had to do too many adjustments in reassigning other judges.

Judge King made a statement in his opinion denying to the Orange County DA yet another disqualification of Judge Goethais that

“[t]o allow a party to manipulate the court into removing a judge from hearing certain criminal cases  - when that judge, in the performance of his judicial duties, has conducted a hearing which exposed that same party’s misconduct – not only goes against the very cornerstone of our society: the rule of law, but would be a concession against judicial independence”.

Yet, in making such a statement, under the circumstances of the case, Judge King was fighting against an enacted state peremptory challenge statute and was, thus, himself violating the separation of powers doctrine, legislating from the bench and refusing to apply an enacted statute the way it was written, whether the judge agreed with it or not.

Despite the clear statutory procedure in California for peremptory challenge of a judge that judge King described in his opinion:

·      “Filing of an affidavit or declaration which states that the judge assigned to the case is prejudiced against:

o  A party;

o  His attorney, or

o  His interest “so that the party or attorney cannot, or believes that he or she cannot, have a fair and impartial trial or hearing before the judge…” (King’s decision at p. 20, citing to Code of Civ. Proc paragraph 170.6(a)(2) of the State of California).

·      The affidavit does not have to show actual prejudice, only a “good faith belief in prejudice”.

Yet, King, in a parallel with peremptory strikes of jurors, overturned by the U.S. Supreme Court on defendants’ right to a racially diverse jury (Batson v Kentucky, 476 U.S. 79, 91 [1986]), tried to claim that statutory grounds for peremptory strikes of judges are not absolute, even if the statute says they are, and are subject to constitutional limitations.

Judge King referenced the first California statute, the former CCP 170.5 which was deemed unconstitutional as an interference by litigants and attorneys, as well as the legislature, with judicial independence and “with constitutional and orderly processes of the courts”.

Judge King engaged in a long overview of legislative history of the California peremptory judicial disqualification statute and referenced a case with a carved-out judicially created exception to the statute on the basis of “group” or “racial” bias against the judge – similar to Batson v Kentucky prohibition on racial bias towards jurors.

Judge King also referenced court decisions in three “sister states”, the states of Illinois, Arizona and Minnesota, where peremptory challenges to judges are also allowed by statute, but where courts ruled that the statutory grounds for judicial disqualifications are not absolute and that “unconstitutional use of a constitutional statute” may not be allowed.

Judge King then stated that:

“The record here demonstrates the disqualification of a judge on almost fifty murder cases because he conducted hearings and made findings of prosecutorial misconduct.  The record also shows that these disqualifications have substantially disrupted the operations of the court”.

Because of that, Judge King denied the prosecution’s motion to disqualify Judge Goethais, finding the use of peremptory challenge statute abusive, unconstitutional and seeking to interfere with independent discharge of judicial duties.

The top Court of Appeals of the State of California reversed.

I will address the reversal and Judge King's opposition to that reversal through his attorney Professor Erwin Chemerinsky, in a separate blog.  Stay tuned.

On peremptory challenges to recuse judges - when the challenger is a prosecutor caught red-handed in misconduct

On December 5, 2015 the Superior Court of the State of California for Orange County refused the Orange County District Attorney's motion to disqualify judge Thomas Goethais based on California's peremptory challenge statute.

I wrote on this blog about the concept of peremptory disqualification of judges - the same as it exists for jurors - and about the states that allow that form of disqualification and that do not allow it.

California does allow peremptory challenge, and the Orange County DA has filed motions to disqualify judge Thomas Goethais in nearly all of 49 criminal cases assigned to the judge at the time the decision to - initially - deny the motion to disqualify was issued by the Superior Court of the State of California, Orange County, Judge Richard M. King.

The Orange County DA appealed the denial of disqualification through a writ of mandamus to the Court of Appeal of The State of California, Fourth Appellate District, Division Three.

Judge King was represented in opposition to the writ of mandamus by professor Erwin Chemerinski, a controversial constitutional law professor and a hired lecturer of BarBri, a company accused in a federal lawsuit of underhanded tactics in dominating the market of bar exam preparation by stifling competition and undercutting and eliminating better courses than what BarBri uses.

The Court of Appeal reversed and allowed the Orange County DA to disqualify Judge Thomas Goethais, in another 48-page opinion, with a strong dissent, allowing a peremptory challenge of a judge even when the reason for peremptory strike of a judge is that the challenger, a criminal prosecutor, was caught committing egregious and systematic violations of constitutional rights of criminal defendants - and should have been not only disqualified himself, but also impeached, disbarred and criminally prosecuted.  Of course, none of that happened to the Orange County DA (California), Anthony Rackaukas - even though Rackaukas was not caught in committing misconduct for the first time in 2015.

In 2002 he was accused of political favoritism during grand jury proceedings, in particular towards his campaign contributors - yet, no discipline against him followed.

Instead, in 2009 California State Bar disbarred whistleblower attorney Dr. Richard Fine who caught California judges in the scheme where they were paid not only by the state, but also by the county appearing in front of them - as a result, the whistleblower was disbarred and held in jail for 14 months without criminal charges, on a civil contempt order of a judge Dr. Fine accused of corruption, and the legislators gave California judges retroactive civil and even criminal immunity in charges of corruption.  I understand, otherwise too many judges had to be criminally prosecuted.

Even though criminal immunity in state courts did not extend to criminal immunity in federal courts, FBI did not investigate or prosecute the corrupt California judges, or prosecutor Anthony Rackaukas for political favoritism towards his campaign contributors in grand jury proceedings, or the illegal use by the Orange County DA of jail snitches to elicit confessions out of defendants, including in death penalty cases.

So - the whistleblower attorney Richard Fine was disbarred, for his constitutionally protected conduct.

The prosecutor repeatedly caught in committing misconduct continues with his license, and his public office - and removes judges from his cases who dared to criticize him, something that was not allowed to Richard Fine to do in the same state of California, under the same peremptory challenge law.

That's the short story.

I will analyze Judge King's decision, Professor Chemerinski's brief, and the California Court of Appeal decision, including the dissent of judge Thompson in separate blogs.

Stay tuned.