Critiques of the Judiciary
Reinforcing Judicial Immunity
Revoking the license of attorneys who are openly critical of judicial conduct is an effective means of discouraging criticism and protecting the immunity that judges have bestowed upon themselves, which exempts them from accountability for abuses of discretion, conflicts of interest, and even malicious conduct. Such immunity flies in the face of justice, is unethical, and at its core is unconstitutional.
“Lawyers Who Criticize Judges Are Being Punished” Jonathan TurleyM. C. MOEWEJuly 28, 2014
One is a California family law attorney documenting alleged judicial crimes, the other a Pennsylvania civil rights attorney who has lost his law license for speaking out against judges. Both say they will continue to do what most lawyers won’t.
"They don’t speak up. The reason is you get targeted and you could lose your license," said Barbara Kauffman of lawyers who witness judicial misconduct. Last month the California attorney contacted state officials alleging that a family court judge in Marin County tampered with court records.
Civil rights attorney Don Bailey had his law license suspended for five years in October by the Pennsylvania Supreme Court. "The reason I lost my license is because I criticized judges," said Bailey, a former Democratic Congressman and state auditor general, in a phone interview last week.
The pattern of attorneys losing their careers or facing hefty fines after speaking out against judges has legal experts worried. The law professor and legal analyst Jonathan Turley wrote of Bailey’s license suspension, "While some would agree with the case, there is a worrisome line of cases targeting lawyers who criticize judges."
America’s judicial system is extremely ineffective at removing bad judges, said Kathleen Russell, the founder of the Center for Judicial Excellence, a non-profit that is working to stop family court judges from giving child custody to domestic abusers and pedophiles. "Judges are judicially trafficking children to abusers by ignoring evidence of child abuse. Even when judges behave maliciously, there is no law that holds them accountable."
Over the past 40 years, court rulings have given judges increasingly strong immunity from civil suits under the principle that judges shouldn’t be sued by anyone unhappy with their decisions in court. Most notable is the 1978 Supreme Court decision Stump v. Sparkman that rejected a suit filed against an Indiana judge who ordered a 15-year-old sterilized without her knowledge.
The Democratic nominee for Congress in Pennsylvania’s 11th District has made a focus of his campaign curbing judicial abuses and protecting lawyers who criticize judges. Andy Ostrowski points to the Pennsylvania kids-for-cash scandal, where two county judges were convicted of charges involving millions of alleged kickbacks to send children to private juvenile detention facilities, as an example where lawyers failed to do the right thing.
"That didn’t happen in a vacuum," Ostrowski said. "There were lawyers who were in there watching as these children were led into the courtroom in shackles without representation and led out in shackles to prison. They all knew it was wrong. Why didn’t they speak up? Simple because they were afraid."
The Pennsylvania Supreme Court has taken the law license of several lawyers for criticizing judges, as described in the table that follows.
Pennsylvania Lawyers Who Criticized Judges and Lost Their License to Practice Lawyer Decision Date Quote from Ruling Neil Werner Price 6/24/1999 Respondent, Neil Werner Price, was therein charged with filing court documents that contained false allegations against two District Justices and an Assistant District Attorney. Robert B. Surrick 4/23/2000 The Pennsylvania Supreme Court had suspended appellant Robert Surrick from the practice of law for a period of five years after it concluded that he had violated a provision of the Rules of Professional Conduct by falsely accusing two lower court judges of "fixing" cases. Eugene Andrew Wrona 3/31/2006 The Petition charged Respondent with violating seven Rules of Professional Conduct by making false statements of material fact and false accusations against a judge and engaging in conduct involving dishonesty or misrepresentation and conduct prejudicial to the administration of justice. Donald A. Bailey 10/2/2013 This matter is before the Disciplinary Board for consideration of the charges against Respondent of professional misconduct arising from a series of allegations made by Respondent against members of the Federal Judiciary in a Motion for Reharing En Banc.
Fearful lawyers combined with strong immunity laws keep bad judges on the bench. Even in the kids-for-cash scandal, where the judges were criminally convicted and are serving lengthy prison sentences, experts say that civil suits filed on behalf of the children will likely have a tough time piercing judicial immunity.
In a blog post published on Thursday, Turley described how judicial immunity was used to dismiss a civil suit against a Michigan judge who was having an affair with the wife of a man before him in a custody case. "By any measure, former Wayne County Circuit Judge Wade McCree was a disgrace to the bench," Turley wrote. "His case unfortunately could embolden other judges who consider abandoning the most basic ethical demands of their office."
Ostrowski is one of only two political candidates in the U.S. who has signed a pledge to eradicate judicial corruption started by the Campaign for Judicial Integrity, an effort founded by disbarred California attorney Richard Fine, who was jailed for 18 months by a judge who found him in contempt.
Fine’s 2009 disbarment stemmed from court filings he submitted against judges for taking $57,000 in side pay from the county to supplement their state salaries. "Fine has long contended that the charges against him are politically motivated," the State Bar of California summary of Fine’s disbarment explained. "The cases he filed against judges were not retaliatory, he said, but instead were based on his belief that judges who accept money from a county fund to augment their compensation have a conflict of interest in any matter involving government municipalities. Fine was jailed indefinitely in March on contempt of court charges for refusing to answer a judge’s questions and practicing law without a license."
Fine, 74, said he is still not sure why the judge finally set him free after 18 months. But Allan Parachini, who was the Los Angeles Superior Court spokesman while Fine was in jail, compared his incarceration to actions more common in authoritarian countries. "Fine was effectively a political prisoner for a year and a half," Parachini, who no longer works for the superior court, told Full Disclosure Network in 2012. "This wasn’t about contempt. This wasn’t about getting him to disclose whatever it was he was directed to disclose. It was about getting back at him."
The California Bar has not opposed three successive motions in the state Supreme Court to set aside the disbarment, but the court has yet to reinstate his law license, said Fine, a former Department of Justice prosecutor. A case to force the justices to restore his license is now before the U.S. Court of Appeals for the Ninth Circuit.
"I understand why lawyers are not speaking up when they witness corruption. They want to protect their income and they want to protect their families," Fine said. "They took an oath to uphold the laws of the United States. If they did not intend to fulfill the oath and uphold the laws, they should have saved themselves and the public from their hypocrisy."
Kauffman, the California attorney who notified officials last month of alleged criminal wrongdoing by a judge, said protecting the integrity of the U.S. justice system can be a lonely task. Last year, she filed a lawsuit against a retired Shasta County judge who had been appointed to preside over cases 208 times since 1994, never having to face election to hold the position. "I couldn’t get anyone to serve him. I had to go to his house and do it myself," Kauffman said. The state barred the judge from serving shortly after she filed the lawsuit.
Losing her law license is not the 58-year-old attorney’s only worry. "I have concerns about safety," Kauffman said. "For a while my office was getting broken into on a regular basis. For months, each night the alarm would go off. I had a strange man knock on my door and tell me he knew where my kids were playing."
Being vocal is her best protection, Kauffman said. "I share all the information I have with everyone."
Whether her efforts will actually impact the judicial system is not clear. "These are all little drops in the bucket and hopefully they will add up to something," she said. "But the corruption is so big, where do you even start to clean it up?"Copyright 2014, Kos Media, LLC
From: M. C. Moewe, “"Lawyers Who Criticize Judges Are Being Punished" Jonathan Turley,” Daily Kos, July 28, 2014, http://www.dailykos.com/story/2014/07/28/1317251/-Lawyers-Who-Criticize-Judges-Are-Being-Punished-Jonathan-Turley, accessed 11/24/2015. This is the eighth in a series of articles for Daily Kos about the treatment of abused children in the U.S. family court system. M. C. Moewe can be reached at: www.moewe.com. Reprinted in accordance with the "fair use" provision of Title 17 U.S.C.
§ 107for a non-profiteducational purpose.
MYTH OF JUDICIAL IMPARTIALITY FIXING THE JUDICIARY JUDICIAL INSPECTOR GENERAL POLICE STATE IN NEW ORLEANS THE END OF JUSTICE OCCUPY THE COURTS! JUDGING AS A SPORTING EVENT JUDICIAL NON-DISCLOSURE
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