The American Bar Association's new piece of hypocrisy, a "professional manual" about lawyers' "reckless criticism of judges"

What is "reckless criticism" on issues of public concern?

How do you define "reckless" if you are criticizing a judge of:

1) a conflict of interest;
2) appearance of corruption;
3) bias or appearance of bias?

Is it "reckless" to even consider such a sacrilege?

This document came as a tip from my reader.

It shows that the American Bar Association, in its "analysis" of its members' 1st Amendment rights to criticize a judge - as part of their jobs no less - does not consider the main court precedent prohibiting ANY sanctions to be imposed for such criticism, at least without using the strict scrutiny test, which is never used in attorney disciplinary proceedings.

The ABA manual of "professionalism" for attorneys does not touch on the slippery topic (slippery for judges who sanction lawyers for criticism of judges) that content-based regulation in general, and especially content-based regulation of protected speech, and criticism of ANY public official for misconduct is protected speech, is presumptively unconstitutional.

Here is the masterpiece of the American Bar Association's advice to its members on "reckless criticism of judges".

I will analyze this piece at length and will publish more posts about it.

At this time, I would like to point out five things.

I.  Attorney disciplinary proceedings are used as substitute defamation actions on behalf of criticized judges where judges cannot legally win such actions, do not file such actions, and often when such actions are time-barred

The ABA points out to the use of the so-called "New York Times v Sullivan" DEFAMATION standard applied to criticism of public officials - applied to attorney disciplinary proceedings, thus EQUATING attorney disciplinary proceedings with a PRIVATE ACTION by judges that judges do not make against lawyers - because such actions will run into 1. truth as an absolute defense,  2. discovery against the judge that may reveal that the judge is, in fact, corrupt, and the extent of the judge's conflicts of interest and misconduct and 3. that judge's lawsuit is barred under the 1st Amendment.

So, when a judge cannot win a defamation lawsuit, attorney disciplinary proceedings are, instead, used as a substitute of a defamation lawsuit on behalf of a judge that is never filed because it cannot succeed and can reveal in discovery more than the judge wants to reveal, to suit the judge's rage - and to strip consumers of legal services of their most courageous providers.

II.  Means of investigations of judicial misconduct are limited, if at all available, stalled by authorities, and attorneys are sanctioned for actually doing thorough investigations that produce irrebuttable proof of judicial misconduct

Since the judge is not a party in attorney disciplinary proceedings, and in many states attorneys in such proceedings do not have a right to discovery, the claims that the attorney must be sanctioned for the lack of "investigation" are hypocritical.

I was actually sanctioned - by the then-judge Carl F. Becker - for my efforts to investigate Carl F. Becker through available means, Freedom of Information requests as to his semi-annual financial disclosures, which were also stalled from disclosure by the New York State Court Administration.

Christine Mire, an attorney from the state of Louisiana, was sanctioned because of her extremely thorough and diligent investigation against a judge which turned up PROOF in form of SWORN TESTIMONY of witnesses that not only transcripts, but even audiotapes of judge's alleged disclosure of conflicts of interest, were cooked, and the only person with an interest to cook those audiotapes and transcripts was the criticized judge.

Instead of taking the side of an attorney and castigate judicial corruption in how Christine Mire's - and, I am sure, many other attorney disciplinary sanctions - were imposed, the ABA "manual" authors had the audacity to quote Christine Mire's case as a case of "reckless disregard to truth or falsity" of Christine Mire's statements:

See my blogs about Christine Mire's case here, and here.

Since Christine Mire could not sue the judge because of absolute judicial immunity, and the judge did not sue Christine Mire for defamation, instead using the disciplinary process to avenge on the judge's behalf, the judge was not called to depositions, and no discovery against the judge was possible, as I understand.

Another bright example of attorney discipline used against an attorney for investigations of judicial misconduct is Pennsylvania Attorney General Kathleen Kane - whose law license was suspended by a panel where a criticized judge was part of - because of her investigations, in her capacity as an Attorney General, of judicial misconduct.

Ms. Kane's law license was suspended not because she did not do a thorough investigation, but, on the opposite, because she DID do a thorough investigation, uncovered many instances of judicial misconduct, Judge Eakin and many other public officials in Pennsylvania lost their positions because of what Ms. Kane uncovered - but attorney regulation was used against her to punish her as a whistleblower.

It was not the disciplined attorney's "subjective belief is not enough", the actual rule is that - NOTHING IS ENOUGH, no level of evidence, is enough to save an attorney from losing her license if the attorney dares to criticize a judge.

So, claiming that "subjective belief is not enough", and that thorough "investigation" needs to be done is pure hypocrisy of the ABA.

III.  Courts and the ABA continue to ignore the implication of the U.S. Supreme Court new precedent on content-based regulation of speech decided in June of 2015, Reed v Town of Gilbert

There is no Reed analysis of constitutionality of content-based regulation, and no application of the Reed strict-scrutiny test - not by the ABA, not by courts imposing discipline after Reed (Reed was decided in June of 2015).

In other words, courts and attorney associations continue to adamantly defy the U.S. Supreme Court precedent.

IV.  Attorney discipline for criticizing judges has nothing to do with the declared SINGLE purpose of attorney regulation - protection of consumers from BAD attorneys

The root of the matter is that attorney regulation is declared to be done for purposes of protecting the public from bad providers of legal services.

All cases of attorney discipline for criticism of judges is cases where GOOD and COURAGEOUS providers of legal services were sanctioned - for doing their jobs for their clients, for trying to ensure for their clients their constitutional right for impartial judicial review.

If the legal provider did not do any harm to his or her clients, criticism of a judge must not be part of any disciplinary rules or subject of any disciplinary proceedings, since it has nothing to do with the declared SINGLE purpose of attorney regulation - protecting consumers from bad providers of legal services.

Attorneys-critics of judicial misconduct are GOOD providers of legal services, trying to ensure constitutional rights for their clients, to impartial judicial review and access to court.

V.  Courts imposing attorney discipline and the ABA makes no attempt to comply (for ABA - address non-compliance) with the U.S. Supreme Court precedent regarding antitrust activities in occupational regulation

When attorney discipline is imposed by competitors of the attorney, without any supervision from a neutral state body, that constitutes an antitrust violation, a criminal activity in this country.

In February of 2015 the U.S. Supreme Court has stripped disciplinary bodies imposing discipline in regulated professions, of their "state" antitrust immunity if their markets, run by competitors of disciplined professionals, are not supervised by neutral bodies.

Attorney regulation is not supervised by a neutral body, as described in the U.S. Federal Trade Commission's "Guidelines to Staff".  

See how markets regulated by active market participants are defined by FTC.

See how the necessary neutral active state supervision of such market player-regulated professions is defined by FTC:

See where the "active state supervision" requirement is not satisfied:

Courts that preside over attorney disciplinary cases and that legislate the rules and appoint members of disciplinary commissions, are not neutral bodies for purposes of such supervision, because they themselves consist of licensed attorneys (judges).  

The State Attorney General is him/herself a licensed attorney, and what has been done to Pennsylvania Attorney General Kathleen Kane (her license was suspended for investigation and criticism of judicial misconduct) shows that AGs are themselves not "neutral" in supervising the process upon which their own licenses, livelihood and positions depend.

Even federal courts where judges are allegedly "sit during good behavior" for life, are state-licensed attorneys, and revocation of their law licenses will result in their impeachment and removal from office, and revocation of their law licenses can be done by attorneys who are not  happy because of a federal judge's ruling, so there is no real judicial independence in federal judiciary either.

The ABA manual does not even mention the impact of the 2015 U.S. Supreme Court's antitrust precedent upon attorney regulation and attorney discipline - because it does not serve the purposes of this PRIVATE professional organization (American Bar Association) to perpetuate itself, its business run as an antitrust cartel, and its favors and privileges from the judiciary if their members "are good".

So, "to be good" - DO NOT CRITICIZE JUDGES.

ABA did not have to run such a long manual, with so many cases incorrectly cited (like it did Christine Mire) and so many key cases on point avoided.

Just say - "YOU WILL NOT SURVIVE AS A PROFESSIONAL IF YOU CRITICIZE A JUDGE", no matter how right you are and how wrong the judge is.

Period.

That's the law.

The racist Louisiana court strikes against a black attorney. And a black judge participates in that racist decision. No surprises where a black judge can only get into a Louisiana state court through a federal lawsuit. And no surprises where black judges are disciplined for fighting racism in the court system.

I've just put in a blog about the outrageously unconstitutional, personally motivated, pre-judged and - yes, racist - decision of the Louisiana Supreme Court in denying rehearing in the disciplinary case of Christine Mire .

Attorney Mire's only "sin" was that she courageously made a motion to recuse in the face of criminal behavior (doctoring audio tape of a hearing regarding her own non-disclosure of conflicts of interest, a piece regarding disclosure was added to the tape) of a judge, Judge Phyllis Keaty who was since elevated to an appellate court.

Here is attorney Mire.

Attorney Mire DID NOT raise the issue of her race in her disciplinary proceedings, while racism - in my white woman's view - was screaming from the pages of the disciplinary decision against her.

She was trying to be professional.

She was trying not to be identified by the color of her skin, but by what she was doing as a professional, as an attorney.

Apparently, professionalism has nothing to do with how things are done in Louisiana court system - and across the country.

Here is Chief Judge of the court Bernette Johnson (who agreed with Judge Knoll to deny Christine Mire a rehearing without putting in her own opinion):

A wise decision, Judge Johnson.

Support a racist stance of one old white judge 

on behalf of her old white judge-friend 

against a young female black attorney 

- who is right while the judges are wrong (which is the worst sin for any attorney in this country - especially if he/she does not shut up and reports the issue).


After all, see what happened to a Kentucky black judge Olu Stevens when he fought against racism in the Kentucky court system?

Judge Johnson, of all people, must know how alive is racism in Louisiana and how racist the Louisiana court system is: after all, Judge Johnson got her position as Chief Judge, despite obvious seniority, only after a federal lawsuit.

And Judge Johnson must remember the stinging racist comments to articles regarding your election/appointment as the Chief Supreme Court judge made 4 years ago.

These ones:

There was only one voice of reason buried in those racist comments:

Judge "Theriot" is Judge Jeannette Theriot Knoll, obviously.

But, what commentators clearly pointed out is that - people of the state of Louisiana did not vote this black judge in.

She had to be appointed, because she wouldn't have won the elections.

Because she would have been filibustered at the polls by the racist white population of the State of Louisiana?

That's what it is?

And, it appears that, once Judge Johnson overcome racial discrimination against herself, she is now trying hard to retain her position and connections by PARTICIPATING in racial discrimination against attorney Mire, by participating in a completely unconstitutional decision where attorney Mire is right - and that is the whole danger about it.

Judge Johnson knew what race attorney Mire was.

Judge Johnson should have seen from the circumstances of the case how racist the disciplinary proceedings against attorney Mire were.

Even if attorney Mire, based on her professional pride, did not raise that issue, didn't Judge Johnson have to?

Well, she didn't.

Out of self-preservation, obviously.

After all, once again - remember what happened to the black judge Olu Stevens in Kentucky?

Appears that Judge Johnson remembers well.

Is it easy or difficult to enforce the federal constitutional right to impartial judicial review in the state of Louisiana

An interview with a practicing Louisiana attorney Christine Mire, in English, with Russian subtitles.

This material is unique, as the topic - judicial misconduct and motions to recuse judges based on judicial misconduct - is mostly taboo in the US amongst members of the legal profession.

Yet, sun, as a US Supreme Court Justice have told us long time ago, is the best disinfectant, so here is the discussion of points of law and of facts of one motion to recuse to contribute to public debate as to how to improve access to justice in the United States.

You won't regret listening to what attorney Christine Mire has to say on the topic.

I admire her beautiful English language, her expertise as a professional lawyer, her dedication to her clients - and, last, but not least at all - her courage.

Christine Mire, the conscience of the American legal profession.

Louisiana #JudgeLaurieWhite wastes scarce taxpayer funded judicial resources on wielding her fury against supporter of her opponent in judicial elections

In an extremely rare case, in Louisiana, a judge held a prosecutor in contempt of court for texting the judge and requesting the judge to stop badmouthing the prosecutor.

Of course, how many defense attorneys would know the judge's cell phone number to be able to text her, and it is a big issue that the prosecutor in question did know the judge's cell phone number, raising questions of possible longtime ex parte communications of that particular prosecutor's office with this particular judge, and with other judges, requiring, in my opinion, a disciplinary investigation.

Yet, as to contempt proceedings brought against the prosecutor by that particular judge, there were constitutional prohibitions for such a contempt prosecution that the judge, with an admittedly bad temper,

disregarded in holding the prosecutor in contempt.

Despite the clear due process prohibition for the judge to act as a "witness, prosecutor, judge and jury" in a contempt hearing that she had herself brought and that involved an alleged "insult" to herself, despite a most recent prohibition on being n "accuser and an adjudicator" in the same case issued in 2016 by the U.S. Supreme Court in Williams v. Pennsylvania, and where her own misconduct was the reason for the text messages, a misconduct that was brought up in testimony of witnesses other than the prosecutor charged with contempt, Judge Laurie White

still held the prosecutor Jason Napoli in contempt of court for texting her.

That judge White was biased against the prosecution, and against that particular prosecutor, is an understatement of the century.

During Jason Napoli's contempt proceedings instituted by Judge White, a witness testified that the judge made the following unsolicited comments about Jason Napoli to his subordinate, attorney Brian Ebarb, during their very first meeting:

First, a judge who holds such views, has no business presiding over proceedings represented by attorneys she so acutely dislikes, it is called a mandatory disqualification for bias.

Second, a judge has no business using four-letter language in court proceedings, that's another point of immediate disqualification.

Third, a judge has an ethical prohibition against badmouthing an attorney to the face of his subordinate in the attorney's absence, where the badmouthed attorneys have no ability to defend themselves, and where the subordinate attorney is used as a captive audience.

And fourth, but definitely not least problem here is that the judge badmouthed attorney Napoli and Cannizzaro, comparing them to "Satan and Lucifer" after the judge has lost her election campaign to a higher, appellate, court, to a "candidate backed by Cannizzaro", Judge Regina Bartholomew-Woods.

In the election campaign, which reportedly got "ugly" and where both candidates "took their gloves off", according to Judge White herself, Judge Bartholomew-Woods pointed out the following problems with Judge White's candidacy for a higher judicial seat:

So, Judge White's opinion that prosecutors Napoli and Cannizzaro are "Satan", "Lucifer", "a**holes", lazy and stupid could very well be attributable not only to the judge's admittedly bad temper, but to the fact that attorney Cannizzaro supported Judge White's successful opponent to a seat with higher power and salary, and to attorney Cannizzaro's opinion that Judge White is "unfit for the appellate court" - and, by extension, for any other court as well.

Of course, hell hath no fury as a woman scorned, but that woman should not be on the bench wielding her rage in criminal cases.

Apparently, the state of Louisiana is so strapped for cash that

• public defenders refuse to represent felony cases for lack of personnel and time to be able to provide effective assistance of counsel, and are sued for it,
• and courts, as an escape from the situation, assign any attorney with a pulse and a license, even without any knowledge of criminal law, to represent criminal defendants, in order to satisfy the U.S. Supreme Court's mandate for EFFECTIVE legal representation of the indigent in criminal proceedings - Gideon v Wainright.

Yet, the same State of Louisiana has enough money to allow its criminal judge Laurie White, who admitted to her bad temperament, but was not removed from the bench at the time of her admission, to continue to waste taxpayers' money by instituting and prosecuting a frivolous contempt proceeding against an attorney she hates for personal reasons.

I wonder if the Louisiana judicial disciplinary authorities will have a say against Judge Laurie White - or, whether, like they did in the case of #attorneyChristineMire who exposed egregious misconduct of #JudgePhyllisKeaty (see my blogs about Christine Mire's case as it developed, here, here, here, and here), instead, the attorney disciplinary system will be used against prosecutor Napoli to further retaliate against him for daring to raise the issue of judicial misconduct .

Prosecutor Napoli, once again, raised Judge White's misconduct improperly, in a text message to the judge.

He was supposed to do that in a motion to recuse.

Yet, because attorneys in the State of Louisiana were intimidated against daring to make motions to recuse, even with irrefutable evidence of judicial misconduct in hand, given the recent fate of attorney Christine Mire who was suspended from the practice of law and made to pay tens of thousands of dollars for being prosecuted for seeking for her client a constitutional right for impartial judicial review, after making a proper motion to recuse (while Judge Phyllis Keaty was promoted to an appellate court), who can blame attorney Napoli for seeking more discreet ways to point the judge's misconduct to the judge?

And once again, a question - will Judge Laurie White be investigated and disciplined for her misconduct in this case?

I am starting to publish materials of my disciplinary proceedings - here is my cross-motion to dismiss, raising constitutional issues and describing Judge Carl F. Becker's misconduct in detail

Now that I am safely (for the court system) suspended and materials of my disciplinary proceedings became public in all senses and for all purposes, I am starting to publish them.

Before, when I published evidence of misconduct and fabrication of transcripts in my proceedings, I was charged with criminal contempt of court - for violating my own privacy (charges were dismissed sua sponte by the court, but not after putting stress on me for 4.5 months and driving me out of the State of New York to prevent further harassment).

Now that there is not a single reason not to consider the materials of my disciplinary proceedings public, but knowing that the court will not make it public even if the law says they are public (as the court already did before, on multiple occasions), I am staring to publish those materials (there are a lot of them) myself.

It is a lot of work, I have to scan a lot of documentary exhibits, misconduct of the judge upon whose sanctions my law license was ultimately suspended was legendary and spanned many years, many cases and was targeting many attorneys, not just myself.

Since Becker ultimately ran from the bench and was allowed to use "early retirement" to hide his misconduct and was not disciplined in any way, I think these materials must be published as a matter of public service, so that people know at least the small extent of his misconduct - in my case and in cases that I knew and complained about.

The public should also be able to see how New York courts squash criticism of judicial misconduct and misconduct of politically connected attorneys.

The motion I am publishing today was made in March of 2014 to the New York State Supreme Court, Appellate Division 3rd Judicial Department.

The 3rd Department did not know what to do with it and transferred it, in an ex parte manner, as a hot potato, to the 4th Department.

The 4th Department did not know what to do with it either, and, probably, it was just too much to read for the lazy court, so the 4th Department did the following with this motion:

1) denied it without an explanation or reasoning in September of 2014 - I made a motion to vacate, renew and rehear, as allowed by law, and for a REASONED decision.

Enraged by that, the 4th Department then

2) denied the motion once again, once again without an explanation and reasoning (the motion was raising constitutional issues of public importance, but treaded too much, I guess, on protected turf that the court had a self-interest not to reach), but with an imposition of an anti-filing injunction (without notice or opportunity to be heard on that) and with a sealing order aimed against me, even though the sealing order was based on the statute that protects my privacy that I did not need, 

then

3) the, one of the charges that I sought to dismiss and that the 4th Department denied to dismiss - twice, without an explanation or reasoning, but with an anti-filing injunction against me for asking for it - was withdrawn by the Committee and one other charge that I sought to dismiss, and the motion was denied twice without an explanation or reasoning, was ultimately granted.

No sense in all of that at all.

The charges that were sustained were clearly unsustainable, as my Affidavit/Memorandum of Law in support of this motion says.

There are over 100 documentary exhibits supporting the motion.  They are referenced in the affidavit.  It takes a lot of time to scan them, but I will do that.

At this time, I am publishing the Affidavit/Memorandum of Law only, so that it gives people an idea what exactly I was punished for by suspension of my law license for 2 years, and why the 4th Department and its attorney disciplinary Committee fought tooth and claw to deny me my right to an open public disciplinary proceeding.

Especially because my order of suspension mentions only that I was suspended because "a judge" sanctioned me "for frivolous conduct", but does not mention that the "frivolous conduct" was making motions to recuse that same judge for egregious misconduct - or that that judge, Carl F. Becker recused from one of my cases BEFORE he sanctioned me and AFTER he sanctioned me, and then quickly "retired" before his term was out under circumstances suggested that he ran from the bench before he was booted from there (the NYS Judicial Conduct Commission's annual report for 2015 mentioned that several judges went off the bench during investigation without making public that the reasons were disciplinary, and I there are reasons to believe that Becker was one of them).

The motion was scanned in 4 batches because of my scanner's limitations.

Here is the motion:

Part 1
Part 2
Part 3
Part 4

Supporting documentary exhibits to this motion will be scanned and published at a later time, when I have time to do that (again, it is a lot of work), but I will do that.  

My disciplinary case has startling similarities with the recent disciplinary case in Louisiana, also against a female attorney, Christine Mire, also because of motions to recuse a judge, see my blogs on the matter here and here.

I did not finish covering Christine Mire's case either, I will post some more analysis of some additional materials I was able to obtain in that case shortly.

Stay tuned.

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.

Recently:

• a California attorney Linda Shao gave a video interview to a journalist about her efforts to recuse 8 justices of the U.S. Supreme Court for financial conflicts of interest in a case, and about shameful (Linda Shao said - "felonious", and she is right) tricks the U.S. Supreme Court clerk's office played not to even file her motion to recuse or not to file the most relevant portions of her motion into the docket; and
• "Law and Liberty" published an article questioning propriety of behavior of the "notorious RGB", the U.S. Supreme Court Justice Ruth Ginsburg who makes repeated statements about the U.S. President, a party in litigation in front of her, makes trips to Hawaii at the expense of Hawaii State Law School, a part in interest in a litigation against President Trump while a judge whose three law clerks are professors in that same law school is "deciding" the case within 7 miles from where Ruth Ginsburg is gallivanting at the State of Hawaii's expense - but continues to stick to his cases like glue and refuses to recuse - as well as refuses to recuse from Linda Shao's case involving as an issue a judge's connection with American Inns of Court while RGB has an American Inn of Court named after herself and has American Inns of Court "sponsor" trips of her law clerks to England.

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.

	Issue	Model C	Model K	Model used in NY
1.	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
2.	Who are the subjects	None	The people
3.	What is the government	Servant to the sovereign – the people	Servant to the sovereign – the King
4.	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
5.	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
6.	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.	K
7.	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
8.	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	K
9.	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 Christine Mire's case in Louisiana 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
10.	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	K
11.	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	K
12.	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	K

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.