"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Wednesday, April 9, 2014

To pay $359 to "Learn Civil Court Judges' Individual Preferences and Pet Peeves" "without your clients' lives depending on the outcome of the exploration"? Seriously?

As any attorney licensed in the State of New York, I must comply with Continued Legal Education (CLE) requirements.  Such requirements can be complied remotely or by personal attendance.  Once you attend a seminar, you join the mailing lists of companies handling such seminars.  So, I am on one of those mailing and e-mailing lists.

Today I received a notification about a seminar that I believed I must share with the public.

Here it is.   What completely blew my mind are the two headings:

"What Civil Court Judges Want You to Know" and the subheading in the "Program description"  "Learn Civil Court Judges' Individual Preferences and Pet Peeves".

The Program Description is worth quoting in the full:



Learn Civil Court Judges' Individual Preferences and Pet Peeves

What if you could explore the different cultural climates of the judges' courtrooms without your clients' lives depending on the outcome of the exploration? Now you can. Take advantage of the unique opportunity to gain years of courtroom experience in one engaging discussion with civil court judges. Discover what the presiding triers of fact think of the litigation process and learn their personal rules and preferences. Register today!

  • Review the elements of what the judges consider to be a strong case theme.
  • Find out what trial judges think of the use of ADR and its role in the litigation process.
  • Learn tips and tricks to implement in your next set of voir dire questions.
  • Explore the specific nuances of each judge's presiding style so that you can tailor your practice to suit that courtroom.
  • Learn to make expert witness testimony work for - not against - you.
  • Time your objections right to achieve maximum impact without alienating the judge or jury.
  • Review the most prominent ethical dilemmas and get compliance and resolution tips from the judges.
  • Gain judges' tips and pointers for being more efficient and effective in their courtrooms.
  • Identify the most common witness and evidence errors that judges hope you'll avoid.
Get precious face-time with the local judges.
 (An update as of August 28, 2016 - since content interlinked above was removed, I am posting the snippets I made of the e-mail sent to me about that program:

Please, note that " precious face time with local judges" is sold for money - $359 per lawyer.)
The seminar is meant as a "basic-to-intermediate level program", which means it allows entry-level attorneys, fresh from law school, to attend.  In New York, for the first two years out of law school attorneys are not allowed to review CLE materials remotely and must attend such CLE seminars in person. 

This seminar gives attorneys, for the price of $359.00 and full attendance, 7 credits toward the 24 credit requirement of attorneys practicing over 2 years and toward his or her 16 "transitional" credits for the first year and another 16 transitional credits for the second year of practice.

For New York, the 7 hours awarded for this seminar split into 6 hours of skills and 1 hour of ethics.
Since it is CLE seminar for the young attorneys, given for officially approved credit, this is how young attorneys are supposed to be indoctrinated in legal skills and ethics.

Now, I know absolutely nothing about the presiding panel of judges.  I never appeared in front of them, I practice mostly in another area and likely will never appear in front of them in the future.

Since I do not know anything about these judges, I cannot say anything bad about them, and presume they are impartial judicial officers of the court.  I make this presumption on a condition that these judges did not know how the seminar was going to be advertised, and that it will concern their individual preferences, personal rules and "pet peeves". 

The agenda of the seminar which I provided in a separate snippet could be considered neutral and appropriate, if it was not delivered with two headlines on top of it, "What Civil Court Judges Want You to Know" and "Learn Civil Court Judges' Individual Preferences and Pet Peeves".

The organizers of the seminar indicate by these two headlines that civil court judges want litigants and attorneys to "Learn Civil Court Judges' Individual Preferences and Pet Peeves".

A "pet peeve" is "a minor annoyance that an individual identifies as particularly annoying to themselves, to a greater degree than others may find it".

What catches my attention in the context of pet peeves of a judge is that, well, a judge is not supposed to have pet peeves.  If he or she has a pet peeve, he or she is not supposed to humor them, and much less to announce them to the world, at an expensive ethical seminar where attorneys are learning about judges' pet peeves in exchange for a hefty payment and for state-authorized credit as if they are actually learning how to ethically practice law. 

Same refers to judges "individual preferences" or "personal rules".  As we know from the concept of separation of powers, judges are not lawmakers have no authority to make personal rules that may substantially affect litigation.

Once again, I do not know these judges who are members of the upcoming panel.  And I do not know their "individual preferences", "personal rules" and especially their "pet peeves", or, in other words, what irks and annoys them more than other mortals.

But you know what?  The concept of equal protection of laws and the concept of the rule of law presupposes that if I see these judges for the very first time in my life and never paid $359.00 to learn about their "individual preferences" and "pet peeves", my client and I will still have to be afforded by these judges the same protection under the law as clients of attorneys who have been in front of these judges, have been to these "preferences and pet peeves" seminars and know how to navigate waters around these judges.

What concerns me to no end, as an attorney, litigant, citizen, taxpayer and voter, is the teaser in this e-mail flyer that paying for this seminar to learn about personal rules, preferences and pet peeves of judges is risk-free and can be done without jeopardizing my clients' lives.

To me, such an advertising teaser means to me as the target of this advertisement, in my personal opinion, that entering a courtroom and exploring these same preferences, personal rules and pet peeves without a paid sneak preview through such a seminar, may jeopardize my clients' lives.  I cannot accept that.  A judge is supposed to have integrity, impartiality, proper temperament and intellectual discipline to put his pet peeves, personal preferences and individual rules away and treat every single party and attorney in the courtroom equally.

The rule of law presupposes that the law must be applied equally and uniformly, to every party litigant, no matter what is his status, familiarity with the judge or familiarity with the judge's personal rules, individual preferences and especially pet peeves.   In practical terms, if a litigant or attorney has irked the judge's particular pet peeve, the judge must absolutely disregard it and rule as if that never happened.  If the judge cannot make such an effort, he or she must step off the case.  It's called a requirement for impartiality of a judge.

If pet peeves of judges are to be learned for money, with a view to take advantage of them in the future, obviously to the disadvantage of the less knowledgeable attorney opponents or, even worse, opposing pro se litigants, this is not the rule of law, but the rule of judicial whim, which constitutes judicial misconduct and should be eradicated, not catered for and learnt by attorneys for money and CLE credit.

Also, as a practical point, what kind of dialogue is supposed to be had between attorneys and judges, members of the panel?

If attorneys are forewarned in the flyer that attorneys' "exploration" of judges individual preferences, rules and pet peeves in the courtroom can jeopardize their clients' lives (!!), who would dare ask the panelist judges any pertinent questions as to why they even discuss their individual preferences, personal rules and pet peeves with the members of the bar?

As I have written earlier in this blog, there is a clear inequality in such a "communication" "between the bench and the bar": 

Protections of the bench from the bar
Protections of the bar from the bench
Self-imposed absolute judicial immunity for malicious and corrupt acts
If an attorney or his/her client is maliciously and corruptly hurt by a judge, he only can complain to the Judicial Conduct Committee, and has no recourse if the Committee tosses his valid complaint
He cannot sue the judge – as absolute judicial immunity applies
He can be disbarred through retaliative sanctions of a judge imposed because of his complaints or lawsuits
The bench regulates the bar through licensing and sanctions, even if those sanctions are malicious and corrupt
The bar has no effective impact upon regulating misconduct on the bench, in other words, an attorney has no real say in anything that a judge says or does, no matter how wrong, while the judge has a lot of say whether the attorney complaining about him will be able to feed his family and earn a livelihood or not

Does it seem to you like a fair distribution of power for purposes of “communication between the bench and the bar”?

Does it seem to you like a discourse between the independent judiciary and the independent bar?

Instead of having independent advocates for people who badly need such advocacy, what we have is the state of New York authorizing CLE credit to a group of people who are paying money to learn judges’ whims in order to survive and continue to earn a livelihood.

It is certainly not what ethics or the rule of law were supposed to be, in my view.

To have beginning attorneys pay $359.00 and to award ethical credits for an opportunity to "learn the pet peeves" of judges in order not to jeorpadize clients' lives?

Am I missing something or is it an "Orwell meets Kafka" situation?

Tuesday, April 8, 2014

Is universal public legal education in order?

When I went to law school, I had concerns that native speakers of English do not normally have.

Will clients accept me, a foreign-born attorney?

Will clients come to me irrespective of my foreign (Russian) accent, especially that Russia was a boogey-man to so many Americans since the Cold War era?

Will I be able to adequately explain the law to my clients and to adequately represent them in court?

Not that my command of English was lacking at the point when I went to the Albany Law School.

I have been a consecutive and simultaneous interpreter and written translator of English for years in complex and high-level commercial negotiations involving construction of pharmaceutical plants, I lived for 6 years in the U.S. before going to law school and I worked in a trial attorney's office.

When I actually started to practice law, my fears as to my ability to attract clients and convey my advice to clients and my arguments to the courts disappeared and what appeared was a distinct feeling that the American public is generally undereducated and specifically short-changed on the issue of universal public legal education.

So many people came to me trying to hire me either for free or offering me what could not sustain costs of my practice.  I did and still do my share of pro bono work, but I cannot work entirely pro bono, I need to earn a living for myself and my family.

At the same time, so many people came to me after they have botched up their cases by either defaulting and failing to address certain issues in a timely manner, or making catastrophic erroneous steps because at a certain point they needed to make quick decisions and no attorney was accessible or affordable to them.  Of course, there was a fair amount of cases where other attorneys botched their rights for them, so representation of counsel is not always a guarantee of adequate protection of people's rights, but sloppy work happens in any profession. 
Yet, I believe that, had some of my clients been exposed to basic legal concepts and rules of litigation since high school, their lives would have been entirely different.

It is not a secret that the U.S. is, quite possibly, the most litigious country in the world.  Rules are continuously introduced legislatively, through court administrative systems and through court precedents that require from people more and more legal knowledge in their everyday lives.

New York acknowledges, year after year, that the overwhelming majority of litigants in its courts, cannot afford an attorney and proceed pro se.

Yet, even though pro se litigants are in the majority, court rules and laws are not geared for the majority's understanding.

New York reportedly has 2.7 mln people lacking basic literacy, math and employment skills, with the general population of 19.6 mln people - nearly 14% of the population lack basic literacy, math and employment skills!  That's a huge percentage, too high a percentage for a civilized country and state.
Literacy advocates state that "low-level reading and math skills are the common thread of poverty, incarceration, high dropout rates in schools, and a barrier to understanding basic health, financial and consumer issues".

There is a definite disconnect in the requirement that certain issues such as a divorce, division of real property, probate, guardianship of elderly and disabled adult family members must necessarily be decided through court, yet, in none of these complex legal proceedings attorneys are provided for free while such a high percentage of New Yorkers lack basic literacy skills and 80% of New Yorkers cannot afford an attorney.

At the same time, taxes on public schooling continue to grow while there is an overproduction of lawyers and well-paid, or any paid legal jobs become more scarce.

The solution practically prompts itself:  it may be a good investment to start providing public legal education in high school.

It will not increase the tax burden dramatically, but it will, in only several short years, increase the legal literacy of New York population and will allow New Yorkers to better protect their rights, with or without an attorney.

Of course, such a measure must be coupled with dramatic simplification of court rules, by introduction of universal electronic filing and service if court papers, whether at the courthouse, through litigant-operated input scanners, or remotely, from litigants' homes, over the Internet, as it is currently done in federal courts (with one caveat that in federal court only attorneys must and may file electronically by default, and pro se litigants must make motions for permission to do so).

Such a measure will also provide employment to a great number of individuals with a law degree who are currently diverted to other professions simply because the number of people who can afford legal services is ever shrinking while the legal profession is ever expanding.

Sunday, April 6, 2014

It's time for the U.S. legislators to abolish judicially created rules and doctrines restricting access of civil rights litigants to court

Article III of the U.S. Constitution defines jurisdiction of federal courts.
U.S. Congress has a right, under the U.S. Constitution, to define jurisdiction of federal courts, within constitutional limits.
Federal courts have a right to apply the law, not change it through interpretation.
The U.S. Constitution is the Supreme Law of the Land, and that is written in the U.S. Constitution itself, Article VI, Supremacy Clause.
Therefore, any law that is repugnant to the U.S. Constitution is void, not voidable, but void, as if it never existed.  The U.S. Supreme Court recognized as much in Marbury v. Madison, by which case the U.S. Supreme Court assigned to itself the power of interpretation of the U.S. Constitution.
Judging from my practice in both state and federal courts, courts have a tendency to consider the U.S. Supreme Court decisions as the law of the land, and not the actual text of the U.S. Constitution.
A fine example is the 11th Amendment.
The text of the 11th Amendment says:  "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State".
The U.S. Supreme Court has "read" the 11th Amendment in the following way: "an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another state", Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (quotation marks and quoted cases omitted).
The U.S. Supreme Court has no right to amend a constitutional amendment by interpretation, but that's exactly what it did by expanding the 11th Amendment to apply not only to lawsuits by citizens of other states and foreign countries, but also to lawsuits against a state by citizens of that same state.  Anybody who can read can see that 11th Amendment does not include citizens of the same state.  Yet, not only the U.S. Supreme Court has read the constitutional amendment contrary to its clear plain-English text, but lower federal courts follow it till this day.
The interesting part is that 15 years after the Pennhurst case,  in Alden v. Maine, 527 U.S. 706 (1999) the U.S. Supreme Court now found that 11th Amendment had nothing to do with immunity of the states to lawsuits of their own citizens, but still found a "common law sovereign immunity" that allegedly pre-existed before 11th Amendment was enacted.  
Of course, if such sovereign immunity did exist, there would have been no reason to introduce the 11th Amendment to begin with, but, I guess, the high Court does not have to explain its logic to the public.
Yet, even after the announcement by the U.S. Supreme Court that sovereign immunity has nothing to do with 11th Amendment, federal courts continue to apply the concept of 11th Amendment and sovereign immunity interchangeably, granting motions to dismiss in federal civil rights actions against state defendants on 11th Amendment grounds as if 11th Amendment and sovereign immunity is the same thing.
Moreover, in the "in-between" case decided after Pennhurst but before Alden v. Maine the U.S. Supreme Court factored in 11th Amendment immunity when interpreting congressional intent in enacting 42 U.S.C. 1983 in 1871, Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989).  In Will the U.S. Supreme Court refused to recognize states as "persons" for purposes of application of the Civil Rights Act, even though it did recognize municipalities as such persons in Monell v. Department of Soc. Svcs, 436 US 658 (1978).
Thus, interpretation by the U.S. Supreme Court of 42 U.S.C. 1983 in denying "personhood" to the states and state officials sued in their official capacity was clearly done in order to remove state officials and the states from the reach of 42 U.S.C. 1983.  Such a removal based on 11th Amendment that does not provide a bar to lawsuits of citizens against their own states, was obviously wrong.

Yet, federal courts continue to apply Will in denying civil rights suits against the states and state officials sued in their official capacity, even though the U.S. Supreme Court did not amend its decision in Will which was based on the 11th Amendment, and was invalidated according to its own decision in Alden v Maine, because 11th Amendment has nothing to do with "state sovereign immunity".

The concept of state sovereign immunity, same as the issues of prosecutorial immunity, absolute judicial immunity in general and as to judges' malicious, corrupt acts and unconstitutional acts on the bench specifically, qualified discretionary immunity or any other immunity, is not reflected in the U.S. Constitution.  In fact, public officials who take their office on a condition of an oath of office to support the U.S. Constitution may not be given immunity to violate that same Constitution the moment they took that oath to support it.  The U.S. Constitution contains a Nobility Clause and Equal protection Clause which would prohibit creating unequal conditions for the government. The U.S. Constitution does not contain a clause allowing anybody to violate it for any reason and under any circumstances.  Therefore, judicially created absolutions to constitutional violations are clearly unconstitutional.

The Civil Rights Act of 1871 through which Americans are allowed a private cause of action to enforce their federal Constitution against their state governments, must be liberally construed, as any enforcement statute is.

Yet, while federal courts make the necessary disclaimers each time they introduce a restriction on its own jurisdiction in civil rights lawsuits, stating that such a restriction is an exception and not the rule, exceptions did become the rules of civil rights litigation long time ago, and civil rights litigation unnecessarily became a judicially created minefield with practically no chance of survival for the civil rights litigants, who are mostly poor, uneducated and left without recourse.

There are strong dissents in cases where the U.S. Supreme Court created doctrines restricting jurisdiction of federal courts.  Yet, in federal jurisprudence dissents are not considered part of the law.

There are numerous scholars writing on the subject and criticizing decisions of the U.S. Supreme Court in creating bars to federal jurisdiction for civil rights litigant as exceeding authority of federal courts to rule this way.  Yet, the only body in the United States which can "overrule" the U.S. Supreme Court, the U.S. Congress, sleeps at the wheel since 1871 and has failed to legislatively abolish judicially created restrictions to federal jurisdiction. 
The result is that innumerable civil rights cases have been dismissed and are continued to be dismissed as we speak, based on judicially created unconstitutional bars to federal jurisdiction.
Federal jurisdiction under Article III of the U.S. Constitution requires only that the court must accept cases for review that involve controversies that arose under federal law or the U.S. Constitution.     The Civil Rights Act allows a private cause of action for enforcement of such cases and controversies.
As early as in 1821 the U.S. Supreme Court has recognized that federal courts have “no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given”, Cohens v. Virginia, 6 Wheat 264, 19 U.S. 264, 5 L. Ed. 257 (1821).
Yet, since then the U.S. Supreme Court has practically amended the Civil Rights Act, 42 U.S.C. 1983 by inventing multiple doctrines barring a civil rights' litigants case from proceeding.
As an example, the Civil Rights Act contains no statute of limitation, and for a good reason, because unconstitutional actions of the government are void and thus challenges to such unconstitutional actions can be brought, pursuant to the language and spirit of the Supremacy Clause, at any time.

Yet, the U.S. Supreme Court did create such a statute of limitations for the Civil Rights Act of 1871, 42 U.S.C. 1983, even though it is nowhere to be found in the statute itself.

Moreover, the U.S. Supreme Court matched the judicially created statute of limitations to statutes of limitations for torts in state law of various states.  Thus, there is no uniform statute of limitations for the federal claim under the Civil Rights Act.  There are instead, multiple statutes of limitations matching state law, which is completely unacceptable for prosecution of a federal claim.

In New York the judicially created statute of limitations is 3 years.  It means that if the constitutional violation, or unconstitutional conduct of a government official occurred more than 3 years before the litigant brought the lawsuit, the litigant is without recourse, no matter that unconstitutional conduct is considered void under the Supremacy Clause and Marbury v Madison.  There are multiple reasons why poor and uneducated people, often intimidated by the government, either do not know their rights to sue, or do not have enough funds for access to court within the statute of limitations.

Making statute of limitations for federal claims in federal courts different in different states, in my opinion, defies the Equal Protection Clause and the Petitions Clause of the U.S. Constitution, but federal courts consistently apply state-generated statutes of limitations to federal civil rights claims.
When civil rights movement, and accompanying civil rights litigation, became more vigorous in mid-20th century, the courts which were supposed to vigorously apply existing law, started to vigorously change the law, preventing a mass of civil rights cases from reaching the jury.
I provide here just a conservative list of bars to civil rights lawsuits.  I plan to explore each one of these bars in separate books, to be published in 2014-2015.
  1. Abstentions:
    1. Pullman (1957)
    2. Younger (1971)
    3. Colorado River (1976)
  2. Constitutional avoidance
  3. Comity
  4. Federalism
  5. Deference
  6. Judicial Immunity construed as covering a multitude of non-judicial court employees and experts, even for malicious and corrupt acts and constitutional violations
  7. Sovereign Immunity
  8. Prosecutorial immunity
  9. Qualified immunity of any public official
  10. The Rooker-Feldman doctrine
  11. The Twombly/Iqbal specific factual pleading requirement (amending Rule 8 of Federal Civil Procedure that does not require specific pleading for civil rights claims)
  12. Res Judicata
  13. Collateral Estoppel
  14. Narrowly defined standing concept
  15. Playing games with mootness and ripeness concepts
  16. Statute of limitations
  17. Impracticable page limits for memoranda of law in opposition to motions to dismiss civil rights lawsuits and on appeals
  18. Impracticable time limits for response to motions to dismiss and appeals of dismissals of civil rights claims
  19. Impracticable filing fees making civil rights lawsuits unaffordable for majority of the population in the United States
  20. Impracticable numbers of copies to the U.S. Supreme Court (40) in the era of electronic filing, making it impracticable and unaffordable to file for writs of certiorari to most of U.S. litigants
  21. Refusal of federal courts to allow pro se parties to file electronically as of right, which discriminates pro se parties as compared to represented parties
  22. Allowing state Attorneys General to use public funds to represent violators of their oaths of office instead of prosecuting them and ousting them out of office;
  23. Rules of frivolous conduct against civil rights litigants and their attorneys, requiring constitutional arguments to be "reasonable", or mainstream.  Such a requirement does not make any sense when any new constitutional precedent declared a victory over an old rule which was previously a mainstream rule.  If the mainstream thinking is set in stone for an eternity, at no time can constitutional law develop and such an approach stifles social change in how the society views basic human rights.  At some point in the past it was acceptable to treat women as commodities of men, deny them education, employment, right to own property, marry them against their will.  It was allowed under the same U.S. Constitution under which it is not allowed now.  Therefore, some attorney or party at some point made a breakthrough argument and overturned the previous "well settled law".  Constitutional arguments must not be subject, as a matter of due process of law, to a majoritarian rule.
None of these doctrines are part of the enacted Civil Rights Act.  None of these doctrines are part of the written U.S. Constitution or its Amendments.

Thus, none of these doctrines are part of the Supreme Law of the Land and should have any part in constitutional jurisprudence.
Moreover, none of these doctrines may be honored by federal courts as they are outside of the written Constitution and written federal law.
Yet, these doctrines are routinely applied in federal courts to deprive civil rights litigants, often indigent and often people of low social and educational status, of any remedy for egregious violations by the government of their constitutional rights.
The U.S. Congress silently watched encroachment upon its authority by the U.S. Supreme Court to be happening since the enactment of the Civil Rights Act of 1871. 
It is time for the American people to assert to their legal representatives in the U.S. Congress that the U.S. Supreme Court is acting beyond its authority by restricting federal jurisdiction, by amending the U.S. Constitution and its amendments through interpretation and by engrafting upon the Civil Rights Act of 1871 what is not there, in order to clear its dockets and allow the government to continue violating people's civil rights with the discretion the government does not have in a constitutional democracy.
The mere recital of the above far from full list of the judicially created bars to the civil rights litigation that I presented here shows that it is impossible for a pro se civil rights litigant to navigate the barrage of judicially created doctrines barring his or her lawsuit in federal court.
Civil Rights Act was supposed to be liberally construed in favor of civil rights plaintiffs.  The Civil Rights Act was introduced when the majority of the U.S. population was illiterate, and thus the U.S. Congress could not possibly contemplate that the pro se illiterate litigants must know complex judicial common law doctrines or presuppose application of such doctrines to the Act.  Since the Act was created at the time of nearly complete illiteracy of the population, what was in it was what the Congress intended it to be. 

Now, when multiple scholars and courts disagree on the scope, meaning and legitimacy of judicially created restrictions to federal jurisdiction, it is unconscionable to assert that pro se civil rights litigants, mostly lacking legal education or any higher education, proceeding in large numbers pro se because attorneys are increasingly weary of sanctions and refuse to take civil rights cases, must know the quagmire of judicial doctrines now required for a federal civil rights lawsuit to survive.  Civil rights litigants are practically set up for failure by the amount and breadth of judicially created doctrines barring their access to federal courts.

It is my sincere and good faith belief that such doctrines, taken in their totality, represent a gross violation of the Petitions Clause of the 1st Amendment, and exceed authority of federal courts restricted by Article III of the U.S. Constitution. 

Federal courts' refusal to abide by the text of the U.S. Constitution and instead regarding the U.S. Supreme Court precedents as the Supreme Law of the Land, which view does not correspond with the contents of the Supremacy Clause of the Article VI of the U.S. Constitution, is a separate violation by each federal judge who follows this misconception of the judge's own personal oath of office to be faithful to the U.S. Constitution, which is intolerable, unconstitutional and must not be accepted by the American people as the "rule of law".

Federal courts have no authority to rule that judicially created doctrines and rules cited above somehow "require" the court, according to the rulings of the U.S. Supreme Court, unsupported by the Article III jurisdictional restrictions, to refuse to exercise the court's jurisdiction, toss cases for exceeding time or page limits, even though courts take months to decide cases and write cases on hundreds of pages sometimes.

The U.S. Supreme Court recognized that it has “no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given”, Cohens v. Virginia, 6 Wheat 264, 19 U.S. 264, 5 L. Ed. 257 (1821).  Each federal judge of the lower district and appellate federal court is taking an oath of office not to the U.S. Supreme Court, not to the state governments that federal courts but to the U.S. Constitution, and should not engage in protecting state governments from civil rights lawsuits by applying unconstitutional judicially created restrictions to the courts' jurisdiction.

Thus, if a precedent of a higher court, no matter how high, including precedents of the U.S. Supreme Court, contradicts the U.S. Constitution, a lower federal court must apply the Supremacy Clause and not follow such precedents, instead of claiming as federal courts do now that the unconstitutional precedent of the U.S. Supreme Court is somehow "well settled law" and punishing any litigants or attorneys who dare to spawn a heresy of challenging that law on the basis of the text of the U.S. Constitution and its plain meaning and fair and reasonable interpretation. 

We need to return the cart behind the horse and have our courts stick to the U.S. Constitution and not to their own "common law" generated by amending that Constitution and amending the enacted federal laws through interpretation, for which federal courts have no constitutional authority.
In other countries, as I have already written in this blog, people whose basic human and civil rights are violated can at least sue their governments and obtain a remedy through, in Europe, European Court of Human Rights and, otherwise, through the International Covenant of Political and Civil Rights adopted by many countries - members of the United Nations Organization.
No such remedies are permitted to American citizens by courts and the U.S. Congress, even though such rights would be clearly within that same Supremacy Clause of Article VI considering international Treaties as part of the Supreme Law of the Land.  Therefore, all that has to be done is to amend ratification of a Treaty, the International Covenant for Political and Civil Rights, to include the private right for U.S. citizens to sue their own government.

All it takes is for the U.S. Congress to finally wake up from its beauty sleep and to legislatively abolish judicial amendments to the Civil Rights Act and to the U.S. Constitution, thus clearing the rightful path of civil rights litigation.

Otherwise, a situation where the United States continues to claim itself to be the beacon of democracy and the example of respect to human rights for other countries while it refuses to allow its own citizens effective access to courts and a right to effective redress of their basic human rights violations, is completely unconscionable.
American citizens, part of the People of the United States, part of the sovereign of the United States, are not permitted any rights to enforce their own Constitution against their own public servants, their own government, for violation of their own constitutional rights. 

Judicially created doctrines created a situation where the public servants are abusing their sovereign and master, the American People, and are not allowing the master any redress for the abuse.  Such a situation puts the concept of fairness, constitutionality and sovereignty on its head.

Judicially created doctrines and rules gradually created a situation where federal courts which are supposed to be strictly adhering to and strictly applying the law and the U.S. Constitution, pursuant to their limited Article III jurisdiction, are instead acting as protectors of the state governments and creating conveniences for themselves to reduce their dockets, while at the same time denying civil rights litigants remedies for egregious constitutional violations by the government.

It is my sincere and good faith belief that such a situation is unacceptable, it presents the U.S. to the international community as not acting in good faith in fighting for human rights anywhere but not within its own borders, and this situation surely must be changed.
I call for the People of the United States of America, readers of this blog, to contact their legal representatives and to request them to legislatively abolish all judicially created amendments to the Civil Rights Act and to remove any barriers from enforcement of the International Covenant for Political and Civil Rights by private citizens against the United States in the United Nations Organization.

Tuesday, April 1, 2014

Will New York ever allow peremptory challenges of fact-finding judges, to make the procedure equal to juror challenges New York already has in place?

In Nevada, a party or attorney can strike a judge out of the case without revealing the cause, a so-called peremptory challenge.

It is done for a hefty fee of $450.00, and recently the statistics of how much particular judges are preempted was subject of some interesting publicity.

Researchers James Sample and Michael Vong reported in 2008 that, as of that time, 19 states had some form of peremptory challenges to judges presiding over court cases, including:

New Mexico
North Dakota
South Dakota

It is possible that now, in 2014, even more states allow peremptory challenges to judges.
Unfortunately, New York state is not one of them.

Peremptory challenges to jurors existed for a long time in all states of the United States and in federal courts.

Such challenges are unconditional, subject only to the so called "Batson" restrictions in criminal courts prohibiting racial discrimination against jurors.

Peremptory challenges to juror candidates are preceded by (1) questionnaires collected from juror candidates,  (2) questioning of juror candidates by the judge; (3) questioning of juror candidates by attorneys for all parties in litigation.

This questioning, or voir dire, is comprehensive and is meant to bring out any possible basis of bias.  Such elaborate procedures for exploring qualifications of jurors exist to ensure parties' constitutional right to a fair trial by an impartial fact-finder.

Moreover, attorneys receive lists of potential jurors, or jury pool lists, some time before trial and can hire private investigators to investigate the juror candidates' background prior to and for the use in voir dire.

It goes without saying that juror candidates do not decide issues of their own bias when challenged for cause.

Yet, when a judge is the fact-finder in a case, the same protections do not apply.

Peremptory challenges to judges have been introduced only recently, not in all states, and with cautions and, in some states, conditions.

In those states, like in New York, where such peremptory challenges do not exist, what also does not exist is the questionnaires of judges, which would be similar to juror questionnaires, or a possibility to voir dire the judge as to the judge's potential biases. 

Good luck doing your own investigation and trying to make a motion to recuse such a judge-factfinder who can choose to treat your motion to recuse as a personal attack and to sanction you, and then turn those sanctions into attorney disciplinary authorities, as it was done to me (see my previous posts on this blog).

Yet, peremptory challenges to judges can be a godsend both to litigants and their attorneys, and to the public and authorities dealing with judicial misconduct who can see, by statistics of peremptory challenges, which judges are most often taken off cases.

When a judge is struck off the case, there is no guarantee which other judge is going to be assigned instead.

Thus, the peremptory strike only guarantees that the judge currently presiding over the case will be removed from the case.

If an attorney or party is willing to pay for such an uncertainty a hefty fee of $450.00, that is a clear signal that the attorney or party thinks that any judge is better than the currently presiding one.

An appeal before a biased court is a monumental waste of money, effort and time.

To make a motion in front of a biased judge pointing out his errors is futile and dangerous, as it can invite sanctions.

Thus, attorneys who are practicing in states where peremptory challenges to judges are not allowed, are in a material disadvantage with attorneys (and parties) in states where peremptory challenges to presiding judges are not allowed and, moreover, the judge whose bias or qualification is challenged is presiding over the motion to recuse/disqualify and rules upon it in his sole discretion.

An attorney can investigate juror candidates from the jury pool, through public sources and by directly hiring a private investigator.

Try to investigate a judge-factfinder.

My FOIL requests about financial semi-annual reports of a particular judge to NYS Court Administration were repeatedly stalled, my FOIL requests to Boards of Election (County and State) returned empty because these bodies do not retain disclosures of judicial candidates for the length of their terms in office, the fact that I investigated the judge in the first place, was reported to the judge  in question and brought his ire on my head and on the head of my clients.

My FOIL requests as to security tapes of what happened in a courthouse on a certain date where, I believed, one of the judges made an unlawful order unrelated to any court proceedings was denied to me under the pretext that I, for some reason, am not allowed to get the copies of the tapes, but am only allowed to see the originals, and only before or after hours.  

First, it is impossible to see an 8-hour tape before or after hours of the court.

Second, Public Officers Law allows review of public records only during the hours of the entity whose records are being reviewed.

Third, review of security tapes before or after court hours will require the staff to arrive early or to leave late, and thus will unnecessarily pit the attorney against the court personnel.
In other words, the "offer" to review security tapes before or after hours was a form of constructive denial of access to such tapes to me by the New York State Court Administration.
That was in August/fall of 2010.

On another occasion i requested copies of security tapes when I believed that were "coincidentally" unavailable on the day when I asked for those tapes to verify whether there was an ex parte communication between the Assistant NYS AG, presiding Judge James Tormey and defendant tot he civil lawsuit Judge Becker on the 2nd floor of the Delaware County Courthouse.

The response of the court administration to my FOIL request at that time was that the video recorder allegedly broke, and the Court Administration refused to provide to me copies of the repair checks for that video recorder, which indicates to me an appearance that the video recorder was never broken in the first place.

My third request for security tapes happened last week, in relation to the ex parte communication of the Ulster County Supreme Court Justice Christopher Cahill who attempted to threaten me with a complaint to the Committee for Professional Conduct when I, as a witness to how my opponent was called into his chambers and how I was denied access by Judge Cahill's employee, challenged the judge and asked him to recuse.

I am still waiting for those security tapes, but, in view of my previous lack of success of getting such security tapes, I am not too hopeful to get them this time, either.

Under circumstances described and considering sanctions that these judges have rained upon me after I made those FOIL requests, to engage in such type of investigation, even though it is a lawful way of doing it, is a suicide act for an attorney's career.

Rules of disqualification in New York are overly narrow as compared to the due process jurisprudence and are applied in favor of judges.

Judges are notoriously reluctant to recuse from cases, even where their conflicts of interest are glaring obvious to an impartial reasonable outside observer.

Unfortunately, it is not the impartial reasonable outside observer who is going to decide the motion to recuse, but the challenged judge himself, who is not an outside observer, obviously not impartial to make a judgment about his own biases and whose reasoning is subjective and not objective.

New York Judiciary Law Section 14 provides for complete disqualification of judges under certain circumstances, and disqualification under Judiciary Law 14 strips the court of jurisdiction and makes decisions of disqualified judges void.

Disqualification under Judiciary Law 14 is mandatory, while New York courts find that recusal of the judge lies within the judge's own discretion, even though such position is in glaring contradiction with the Canons of Judicial Conduct, 22 NYCRR 100 and due process of law.

Yet, as strong as a rule of disqualification as Judiciary Law 14 appears to be, it is only as strong as its enforcement, and its enforcement is practically non-existent.

New York courts habitually confuse disqualification with recusal, and habitually rule that disqualification was discretionary, which is then affirmed on appeal, and the wrong party is without recourse.

New York State courts also usually ignore challenges to impartiality of judges under due process of law under the judicially created "constitutional avoidance" doctrine.  Often, no explanation as to why constitutional challenges are not considered is even given by the court.

It is practically futile to appeal refusals to recuse under court rules, 22 NYCRR 100.  Usually appellate courts claim that such recusals are discretionary to the challenged judge, even though 22 NYCRR 100 has mandatory and not discretionary language. 

If challenges under Judiciary Law 14 are even considered by the court, they narrowly focus on two areas:  financial interest and family relations.

Financial interests of New York State judges are at least partially verifiable through FOIL requests for semiannual disclosures of such judges to the New York State Court Administration - that is, if the investigating attorney has the stamina and money to break through the wall of stalling that NYS OCA erects to such FOIL requests, and if the investigating attorney is not afraid of the rain of sanctions from the investigated judge that can follow.

Familial interests might not be verifiable at all, especially in New York's rural counties, the proverbial land of "kissing cousins" where vast areas are thinly populated and there might be limited choices for romantic or marriage partners, other than amongst your own kinsfolk.

Challenges to jurors in New York

As is announced on the site of New York State Court administration, "[s]tatutory grounds for a challenge for cause include but are not limited to that a juror is: an employee or stockholder of a corporate party; a stockholder, director, officer or employee or has an interest in any liability insurance carrier; or related to a party within sixth degree of consanguinity", CPLR 4410.

According to reports in the press, at this time, over half of babies in the U.S. are born to unwed mother.

The tendency departing from the "traditional" family with married parents to all kinds of non-traditional families has been around in the U.S. for a while, with the resulting quagmires of family trees.

Moreover, when women marry they may take their husband's last names, and it is difficult, if at all possible to trace down the entire large families down to the 6th degree of consanguinity. 

If the juror was born out of wedlock and has his mother's maiden name, there is no way to trace that juror to the father and his family, as any custody proceedings in New York are closed to the public.

Similarly closed to the public in New York are birth certificates, marriage certificates and judgments of divorce.

Unavailability of investigation and voir dire of fact-finding judges

Under the circumstances where a counsel at voir dire would be able to ask juror candidates questions pertaining to their possible relationships with a party, a counsel is barred by unavailability of public records and fear of sanctions to ask the fact-finding judge the same questions.

In fact, trying to ask a judge a question whether he is related to a party to the 6th degree of consanguinity is a professional suicide which not many attorneys would agree to.  I was never courageous enough to ask a judge such questions, I had my own share of sanctions for making motions to recuse.

Moreover, judges do not publish family trees and do not keep such family trees in their records for the purview of parties and counsel, so that parties and counsel would be able to verify the judge's compliance, for a particular case, with Judiciary Law 14.

Private investigations of a judge may be perceived as stalking, with resulting criminal charges.  I did not dare do that, even though I was sorely tempted, given various circumstances.

The investigation of a judge pertaining to his or her family tree and potential involvement with the party are reduced to:

  • rumors - not a reliable source;
  • public records - may not have necessary information, is not a quick discovery tool, NYS OCA stalls FOIL requests and reports them back to the investigated judge, leaving the attorney at the judge's mercy;
  • publicly available obituaries of the judge's family members;
  • judge's own disclosures to attorneys (happens) regarding judge's family tree;
  • for federal judges - judges' disclosures during public confirmation hearings, available in open access
As compared to the set of tools of investigation and voir dire available to an attorney or party in regards to juror candidates, the set of tools pertaining to judge-factfinders in New York is severely, and, in my view, unjustifiably restricted.  It is especially unjustifiable that in some types of proceedings, trials by jury are unavailable by law, and the attorney and party is stuck with the judge as a fact-finder, without having any idea whether the judge may be disqualified under Judiciary Law 14.

It is important for parties and their attorneys to have an equal opportunity to investigate and challenge fact-finding judges, same as jurors are investigated and challenged, simply because judicial factfinding in New York prevails.

Jury trials are rare in New York courts, most of factual issues are, in fact, resolved by judges, and it is, thus, of paramount importance for an attorney to be able to conduct investigations and voir dire of fact-finding judges the same way as counsel does that with juror fact-finders.   It is my firm belief as an attorney that such procedures must be provided to parties and counsel as a matter of equal protection of laws.  Unfortunately, at this time it is just a hope and not reality of court proceedings.

Proceedings where trials by jury are unavailable in New York include, but are not limited to the following:

  1. All "special proceedings", such as:
    1. sale of homestead to satisfy a debt;
    2. Article 78 proceedings to challenge arbitrary determinations of governmental officials;
  2. All Family Court proceedings, including, but not limited to:
    1. Child support, including civil contempt of court for non-payment of child support;
    2. Child custody and visitation;
    3. Paternity of children;
    4. Family offenses/domestic violence;
    5. Child abuse and neglect;
  3. Frivolity proceedings against attorneys and parties under 22 NYCRR 130
In all of these proceedings important rights, including fundamental constitutional rights, are being litigated.

In other proceedings, like regular civil actions, where jury trials are allowed by law and even mandated by New York State Constitution, the rule is frequently obviated by summary judgments, where the decision-maker as to whether there are or there are no "material disputable issues of fact" are judges and not jurors.

Even in criminal cases, judges and not jurors rule on factual issues and mixed issues of fact and law in pre-trial hearings, and such rulings most often define the outcome of the later jury trials.

Thus, importance of uninhibited challenges to judges, whether for cause or as peremptory challenges, is crucial to all types of cases in New York state court proceedings.   At this time, attorneys have no possibility to do their jobs for their clients in securing an impartial fact-finder for any particular case, given the legal framework of how the judges can, or rather, cannot, be challenged, either peremptorily or for cause.

I did have cases when a particular judge concealed his conflicts of interest, extrajudicial knowledge of material facts, friendship with a party, and I had such cases aplenty, but I had only one case over 5 years of practice when the judge actually disclosed that his law clerk is married to a partner in my opponent's law firm and requested counsel to address the issue, whether they would or would not agree for him to proceed on the case.

Not many attorneys would agree to stick their heads up the noose for their clients and to challenge the judge for cause based on available record where peremptory challenges are unavailable.

Moreover, the courts sanctioning attorneys for criticizing judges elevated attorneys' burden of proof from "appearance of impropriety" requiring from the attorney to establish only the attorney's own reasonable perception of impropriety in order to bring a meritorious motion to recuse, to hard proof of judge's misconduct, which may be undiscoverable because discovery tools are unavailable on a motion to recuse, and discovery through FOIL may be ineffective and dangerous for reasons stated above. 

The bottom line is, the law of recusal and disqualification exists in New York, but does not work, and parties constitutional right to impartial tribunals remain unprotected.

It is easy to remedy the situation, simply by introducing peremptory challenges to judges and equalizing voir dire and investigation of judges as fact-finders with similar procedures pertaining to jurors.
A party and attorney should be able to take a certain number of judges off their cases, same as it happens with jurors, without explaining their reasoning.

As to challenges for cause, or, in other words, motions to recuse and disqualify judges, it will make sense to legislatively prohibit judges to decide motions to recuse against themselves and to sanction attorneys for making such motions. 

In fact, I would appeal to the public of the State of New York to support a legislative ban on imposing any sanctions upon either attorneys or parties for making motions to recuse and disqualify judges, because such sanctions unduly chill attorneys' zealous representation of clients, undermine attorneys' independence and result in deprivation of litigants of their constitutional right to an impartial tribunal.

I understand that abuses of such motion practice can happen, but the same society where the law exists that immunizes malicious and corrupt behavior of judges on the bench, attorney independence in attempting to secure their clients' constitutional right to an impartial tribunal must be accorded no less value than judicial independence.

The public as a whole will gain if peremptory challenges to judges are introduced in the State of New York.

First, New York then will even out the playing field between cases where jury trials are allowed and cases where such trials are not allowed, and if the state of New York simply allow, in any court case, a certain number of peremptory challenges to a judge, for a fee if necessary, with a clause relieving indigent parties of necessity to pay such fees if they cannot afford them.

Second, when an attorney or party receives an ability to remove a judge from a case without explaining his or her reasoning, both the judge and the attorney and his or her client are spared much grief and personal anguish, and the attorney is spared the risk of being sanctioned, and later disciplined, simply for trying to ascertain for his or her client a constitutional right to an impartial court.