The U.S. Supreme Court And Their Power To Declare Legislation Unconstitutional

Brad Reid

Managing Director, Dean Institute for Corporate Governance and Integrity, Lipscomb University

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May the Supreme Court Declare Actions Unconstitutional?

Posted: 03/27/2012 10:15 am

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The oral argument of two combined cases (U.S. Department of Health and Human Services v. Florida and National Federation of Independent Business v. Sebelius) before the Supreme Court concerning the "Patient Protection and Affordable Health Care Act of 2010" focuses national attention on the powers possessed by the Supreme Court. Where does the Supreme Court obtain the power to declare actions by the other branches of government unconstitutional?

Article III Section 1 of the U.S. Constitution states; "the judicial power of the United States shall be vested in one Supreme Court and in such inferior Courts as Congress may from time to time ordain and establish." Noteworthy is the fact that Congress creates all federal courts except the Supreme Court. Article III Section 2 of the U.S. Constitution provides a broad grant of judicial powers but does not expressly state that the Supreme Court may declare actions unconstitutional, hence unenforceable.

In fact, the early Supreme Court did not have the prestige that the modern court enjoys. The Eleventh Amendment ratified in 1795 overturned a 1793 Supreme Court decision addressing state sovereign immunity (Chisholm v. Georgia). However, the landmark Supreme Court decision, Marbury v. Madison, in 1803 was to dramatically change the role of the Court.

In Marbury v. Madison Justice Marshall wrote:

"It is emphatically the province and duty of the judicial department to say what the law is... .If two laws conflict with each other, the courts must decide on the operation of each. So, if a law be in opposition to the constitution ... the court must determine which of these conflicting rules govern the case. This is the very essence of judicial duty. If, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply."

In other words, the Supreme Court may declare legislation unconstitutional.

Thomas Jefferson, Andrew Jackson, and Franklin Roosevelt are three notable presidents who have been critical of this asserted power. Nevertheless the Supreme Court's power to decide constitutionality is a basic feature of U.S. law. As recently as March 20, Marbury v. Madison was cited by Justices Scalia and Thomas (Martinez v. Ryan). It is unlikely to be overturned without a major realignment of the federal government. Indeed many wondered if President Nixon would create a crisis by ignoring the Supreme Court's order to turn over subpoenaed recordings (United States v. Nixon). He obeyed the Court.

Consequently under current understanding, the two ways to reverse the Supreme Court are to amend the Constitution or persuade the Court itself to change its decision. Over many years numerous proposals to curb the power of the Supreme Court have included allowing a super-majority vote of Congress to overturn a decision, limiting the jurisdiction of the Supreme Court, electing justices, limiting their terms in office, or impeaching justices. President Roosevelt's proposal to increase the number of Supreme Court justices died after the Supreme Court stopped declaring New Deal legislation unconstitutional.

The Supreme Court's power to declare actions unconstitutional is frequently perceived as desirable or undesirable depending upon reactions to a given ruling. Whatever the Supreme Court decides in the current health care cases will be controversial. The resulting commentary concerning the Supreme Court's powers will doubtless sound familiar. What does the classic statement, rule of law and not men, mean when it comes to constitutional issues?

Dennis G. Jacobs: Case study in judicial pathology

ACLU

Thursday, Sep 22, 2011 6:23 AM Eastern Daylight Time
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Dennis Jacobs

The last decade has spawned a massive expansion of the domestic Surveillance State.  Worse, the U.S. Government has vested itself with the virtually unchallenged ability to operate this surveillance regime in full secrecy and even beyond the reach of judicial review, which is another way of saying: above and beyond the rule of law.
Each time U.S. citizens in the post-9/11 era have accused government officials in federal court of violating the Constitution or otherwise acting illegally with how they spy on Americans, the Justice Department employs one of two secrecy weapons to convince courts they must not even rule on the legality of the domestic spying: (1) they insist the spying program is too secret to allow courts even to examine it (the Bush/Obama rendition of the “state secrets” privilege); and/or (2) because the spying is conducted in complete secrecy, nobody can say for certain that they have been subjected to it, and the DOJ thus argues that the particular individuals suing the Government — and, for that matter, everyone else in the country — lacks “standing” to challenge the legality of the spying (because nobody knows on whom we’re spying, nobody has the right to sue us for breaking the law).

A government that can spy on its own citizens without judicial review is a government which, by definition, operates outside of the rule of law; as Alexander Hamilton put it in Federalist 15:

It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation.

These are the two secrecy doctrines which the Bush and Obama DOJ have repeatedly invoked to shield even the Bush NSA warrentless eavesdropping program from all forms of legal accountability, notwithstanding the fact that three separate federal judges ruled (ultimately without consequence due to reversals on secrecy grounds) that the program violated the Constitution and/or criminal laws such as FISA.  Most amazingly, the Obama DOJ has aggressively used these same secrecy doctrines to ensure that no courts ever review or adjudicate any government surveillance programs, including Bush’s NSA warrantless program, even though then-Sen. Obama — when opposing the 2005 nomination of NSA Chief Michael Hayden to become CIA Director — accused Bush of breaking the law in spying on Americans without warrants and then said this on the Senate floor:

We don’t expect the President to give the American people every detail about a classified surveillance program. But we do expect him to place such a program within the rule of law, and to allow members of the other two coequal branches of government – Congress and the Judiciary – to have the ability to monitor and oversee such a program. Our Constitution and our right to privacy as Americans require as much.

In 2008, the Democratic Congress enacted the FISA Amendments Act, which not only retroactively immunized telecoms from all liability for their role in Bush’s illegal eavesdropping programs (thus terminating all pending lawsuits and ensuring no judicial adjudication of that program), but also, going forward, legalized much of Bush’s previously illegal warrantless spying activities.  The FAA was the most drastic expansion of government eavesdropping powers in decades.  Numerous scholars documented how blatantly the new surveillance powers it vested violated the Fourth Amendment (the FAA was the bill which candidate Obama, when seeking the Democratic nomination, had unambiguously promised to filibuster, only to turn around, once he secured his Party’s nomination, and vote against a filibuster and then in favor of the underlying bill).
* * * * *
When Congress enacts a law vesting new domestic spying powers in the NSA that very likely violate the Fourth Amendment, the only solution — at least in theory, as the American system is designed — is for citizens to sue the Government in federal court and argue that the new law is unconstitutional.  The Supreme Court unanimously explained back in 1803 in Marbury v. Madison (emphasis added):

It is emphatically the duty of the Judicial Department to say what the law is. . . .If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply. . . .
[W]here a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy.

That’s as basic as it gets to the ostensible American design.  If citizens are not able to do that — if they have no mechanism to deny the Government the power to transgress the limits imposed by the Constitution — what is the point of even having a Constitution?
Immediately after Bush signed the FAA into law, numerous journalists, human rights activists, and groups such as Amnesty International — represented by the ACLU — adhered to this design by suing the U.S. government, claiming that the FAA was unconstitutional under the Fourth Amendment.  They argued that although the secrecy behind which the program was conducted prevented them from proving that they were subjected to it, their well-founded fear that they would be (and the steps they were forced to take in response) was enough harm to confer “standing” on them and allow them to challenge the law’s constitutionality.
In response, the Bush DOJ raised its standard secrecy claims and convinced a lower court judge to dismiss the suit based on “standing.”  When the ACLU appealed this ruling to the Second Circuit Court of Appeals in New York, the Obama DOJ raised the same arguments to demand dismissal.  But in March, a unanimous three-judge appellate panel rejected the Bush/Obama argument and reinstated the ACLU’s lawsuit, holding that the plaintiffs’ credible fear of being subjected to the FAA’s eavesdropping power entitled them to proceed with their claims that the new law was unconstitutional.  The Obama DOJ then sought a review of that decision by the entire Circuit, insisting that plaintiffs should be barred from contesting the constitutionality of the FAA.
Yesterday, the full Second Circuit panel issued its ruling on the Obama DOJ’s request.  Six of the judges voted against a full review of the decision by the three-judge panel, while six voted in favor of reviewing it.  Because a majority is needed for a full-circuit review, the 6-6 tie means that there will no further review, and the March decision of the three-judge panel — allowing the lawsuit challenging the FAA’s constitutionality to proceed — will stand.  This significant victory for the rule of law may well be temporary, as the unusual 6-6 vote (and the numerous contentious opinions accompanying the vote) makes it likely (though by no means guaranteed) that the Supreme Court will accept this standing dispute for resolution.  But at least for now, this is a good and important development.
* * * * *
The bulk of the opinions issued by the Second Circuit judges were devoted to fairly standard arguments over the requirements of ”standing.”  Here, for instance, was the crux of the argument for recognizing plaintiffs’ standing, as expressed by Judge Gerard Lynch after he reviewed the Goverment’s substantive arguments for why the FAA was constitutional:



The dissenting judges argued that mere fear of being subjected to this spying was insufficient to allow plaintiffs to sue; instead, they must prove they have been or will be spied upon (that nobody can prove this, due to the secrecy in which the program is shrouded, is a Kafkaesque Catch-22 of no apparent concern to these jurists).
But by far the most remarkable aspect of this ruling was the dissenting opinion issued by Dennis G. Jacobs, the Chief Judge of the Second Circuit.  Notably, no other judges joined the Chief Judge’s opinion, and it’s not difficult to see why.  Jacobs’ opinion is one of the most intemperate, childish, nakedly ideological, and just plain obnoxious judicial outbursts you will ever encounter in writing.  But it highlights some important facts about the federal judiciary that make it worth examining.
After accusing the plaintiffs of harboring anti-Americanism for daring to enforce the mandates of the United States Constitution against precisely the activities most feared by the American Founders: unchecked domestic government spying (Jacobs announced his discovery that the plaintiffs’ argument rests on a “buried assumption that the United States is the only threat to liberty that anyone anywhere needs to worry about”), he turned his scornful ire to the ACLU for the crime of representing these plaintiffs — for free — in a lawsuit to enforce the privacy rights of all American citizens.  Unprovoked, Jacobs posed the question of what could possibly motivate the ACLU and its clients to bring this lawsuit — apparently, an actual belief that the law is unconstitutional and dangerous could not possibly be the real motive — and this is the answer he supplied:

At the risk of being obvious, the purpose of this lawsuit is litigation for its own sake — for these lawyers to claim a role in policy-making for which they were not appointed or elected, for which they are not fitted by experience, and for which they are not accountable. As best I can see, the only purpose of this litigation is for counsel and plaintiffs to act out their fantasy of persecution, to validate their pretensions to policy expertise, to make themselves consequential rather than marginal, and to raise funds for self-sustaining litigation.

Apparently, only “fantasies of persecution” — as opposed to the most basic knowledge of history — can lead someone to believe that spying powers conducted in secret will be abused.  He then added that this Constitutional challenge to the Government’s secret spying powers “bears similarity to a pro se plaintiff’s allegation that the CIA is controlling him through a radio embedded in his molar.”  Not content with maligning their motives and patriotism, he then all but accused the ACLU and its clients of lying in order to sustain the lawsuit (“these affidavits employ all the lawyer’s arts to convey a devious impression . . . affidavits that are craftily worded to skirt actual falsehood”).
* * * * *
Let’s spend a moment comparing Dennis G. Jacobs to the ACLU lawyers whose alleged motives he just smeared based on his armchair assessments of their psychology (all while ironically criticizing them for “pretenses” to “expertise” for “which they are not fitted by experience”).  This comparison not only demonstrates how deceitful and malicious is his attack, but it also speaks volumes about the corrupted role the federal judiciary is playing in our system of government.
Virtually every ACLU lawyer is very smart and well-educated; for instance, the lead ACLU lawyer in this case, Jameel Jaffer, is a graduate of Cambridge University and Harvard Law School, where he served as an editor of its law review.  Every one of these lawyers could therefore easily have joined (and could still join) the nation’s most lucrative Wall Street law firms, or enter government and serve in various functionary capacities — presumably what they would do if actually motivated by a need for self-importance, policy influence or financial gain, as Jacobs accuses.
Instead, they labor very long hours in exchange for a salary that is a small fraction of what they could earn at any moment they choose.  They work for a non-profit organization that is systematically excluded from the halls of Washington power, often representing the most marginalized, powerless, and scorned segments of society (which, by definition, are most vulnerable to rights abridgments).  They do so knowing that they will be continuously smeared and maligned in the most vicious, McCarthyite and public ways by the Dennis Jacobses — or the Lee Atwaters and Weekly Standards — of the world.  Nobody with their background and opportunities would do that for any reason other than genuine convictions about basic Constitutional liberties and a passionate commitment to defending them, thus fulfilling what Thomas Paine, in his 1790 Dissertations on First Principles in Government, described as the prime duty for preserving freedom for everyone (a passage Dennis Jacobs, if he would ever read it, would likely castigate as “fantasies of persecution”):

An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.

All of that stands in very stark contrast to Dennis G. Jacobs.  Immediately after graduating law school, he went to work for a large Wall Street law firm — Simpson, Thacher & Bartlett — and stayed there for the next 19 years, until George Bush 41 appointed him to a life-tenured federal judgeship.  How noble.  So the entirety of Jacobs’ law career before becoming a judge was devoted to snorting up as much cash as he could as he represented large corporations and banks.  That’s the person who just anointed himself the arbiter and smearer of the integrity, psychology and motives of ACLU lawyers and their human-rights-activists clients for daring to challenge a government spying law on Fourth Amendment grounds.
But far more notable is that Jacobs has remained every bit as loyal — indeed, more so — to these large corporate institutions as a federal judge.  He has developed a bizarre contempt for pro bono legal work: i.e., lawyers who work for free on behalf of poor and otherwise marginalized clients against the types of clients Jacobs enriched himself representing, in order to provide some minimal degree of fairness and balance in the justice system.  In 2008, Jacobs delivered a speech to the right-wing Federalist Society mocking and scorning pro bono work — he entitled the speech ”Pro Bono for Fun and Profit” — and began by depicting himself as some sort of courageous, politically incorrect martyr for bravely attacking pro bono lawyers in front of this right-wing audience:

When lawyers gather and judges speak, you can count on hearing something on the subject of pro bono service. It is always praise of all that is done, with encouragement to do more.  This evening I am going to articulate a view that you may not have heard: I will touch on some of the anti-social effects of some pro bono activity.

He then devoted his entire speech to attacking lawyers who challenge government acts as unconstitutional and those who bring civil rights cases on behalf of large numbers of discriminated-against citizens.  Most of the rhetoric he spat yesterday at the ACLU, Amnesty and others in his “judicial opinion” was just pre-packaged politicized tripe that he delivered years ago to the Federalist Society.  He’s on a one-man ideological crusade to convince the nation of the evils of pro bono work and, especially, effective challenges to government and corporate power.
In 2010, Jacobs again appeared before the Federalist Society’s annual conference and delivered the “Barbara K. Olsen Memorial Lecture,” named after the Fox News legal scholar who spent the 1990s churning out every tawdry allegation against Bill and Hillary Clinton before she died in the 9/11 attack.  Ironically, Jacobs delivered a 2006 speech — entitled “The Secret Life of Judges” — in which he purported to reveal a pervasive “bias” among the judiciary: reliance on law and legal procedure in lieu of policy judgments.
Of course, Jacobs is the living, breathing embodiment of judicial bias: a devoted servant to corporate and government power, a right-wing hack who barely attempts to hide his political loyalties, and — most of all — a declared enemy of the very few mechanisms that exist to enable the poor and marginalized to receive competent legal representation and for political power to be subject to some minimal checks (what we call “the Constitution”).  It should be anything but surprising that a corporate-serving, political-power-revering, highly politicized figure like this produces judicial opinions that are slightly more restrained versions of a Rush Limbaugh or Bill O’Reilly rant.  He churns out right-wing agitprop masquerading as legal reasoning.
But the reason he’s worth examining is because he’s anything but aberrational.  He’s the Chief Judge of the second- or third-most important court in the country.  He works in a judicial system that more and more does the opposite of what it was ostensibly designed to do: it is now devoted to shielding political officials from legal accountability and transparency rather than exposing them to it, enabling rather than halting transgressions of the Constitutional limits imposed on them, and most of all, further empowering the most powerful factions against the least powerful rather than equalizing the playing field.  In that regard, the life of Dennis G. Jacobs — and his slanderous, contemptuous outburst of yesterday — should be studied as a perfect embodiment of how the American judicial branch has become so corrupted as a tool for the nation’s most powerful factions.

NYS Commission On Judicial Conduct and The Censure Of Judge Nilda Horowitz

Was enough done to curb Judge Nilda Horowitz' violation of the rules for judicial conduct?  

I think not.

Betsy Combier

Embattled Judge Nilda Horowitz (center) with Janet DiFiore and Jose Alvarado

NEW YORK STATE COMMISSION ON JUDICIAL CONDUCT

In the Matter of the Proceeding Pursuant to Section 44, subdivision 4, of the Judiciary Law in Relation to NILDA MORALES HOROWITZ, a Judge of the Family Court, Westchester County.

THE COMMISSION: 

Lawrence S. Goldman, Esq., Chair

Honorable Frances A. Ciardullo, Vice Chair

Stephen R. Coffey, Esq.

Colleen C. DiPirro

Richard D. Emery, Esq.

Raoul Lionel Felder, Esq.

Christina Hernandez, M.S.W.

Honorable Daniel F. Luciano

Honorable Karen K. Peters

Alan J. Pope, Esq.

Honorable Terry Jane Ruderman

APPEARANCES:

Robert H. Tembeckjian (Alan W. Friedberg, Of Counsel) for the Commission

Deborah A. Scalise for Respondent

The respondent, Nilda Morales Horowitz, a judge of the Family Court, Westchester County, was served with a Formal Written Complaint dated July 21, 2004, containing three charges.  Respondent filed a verified answer dated August 13, 2004.

On November 30, 2004, the Administrator of the Commission, respondent’s counsel and respondent entered into an Agreed Statement of Facts, stipulating that the Commission make its determination based upon the agreed facts.  The Commission approved the agreed statement on December 10, 2004.

Each side submitted memoranda as to sanction.  On February 7, 2005, the Commission heard oral argument, at which respondent and her counsel appeared, and thereafter considered the record of the proceeding and made the following determination.

1. Respondent has been a judge of the Family Court, Westchester County, since 2001.  Respondent previously served as an administrative law judge and as a law guardian and hearing examiner in Family Court.  Respondent is an attorney.

As to Charge I of the Formal Written Complaint:

2. Beth Martin is a personal friend of respondent and was a teacher of respondent’s child.

3. Beth Martin had appeared as a litigant in a Family Court matter before Westchester Family Court Judge David Klein prior to May 30, 2003.

4. Within a few days of May 30, 2003, respondent spoke to Ms. Martin, who stated that she was considering the commencement of additional proceedings in the Family Court in the future and wished to have her case assigned to a judge other than JudgeKlein.  At the time, respondent informed Ms. Martin that she could not preside over her matter.

5.On May 30, 2003, respondent telephoned Judge Klein’s court attorney, Kathryn Ritchie, Esq., who formerly served as respondent’s court attorney, and requested her help in getting Judge Klein to recuse himself from Ms. Martin’s matter, by leaving the following voice mail message for Ms. Ritchie:

It’s Nilda.  How you doin’?  Give me a call on Monday.  I need to ask a favor and see whether or not this can be done.  Basically, I’ll tell you briefly so you have an idea.  There was a matter, there have been matters before your judge dealing with Beth Martin.  She’s a personal friend of mine.  She’s my kids’ teacher for a couple of years and she’s beside herself, something happened recently with her husband and she said she’s had issues with Judge Klein and she’s written letters against him.  So, I told her to file her petitions in White Plains.  [Supervising Family Court] Judge Cooney said that unless Judge Klein recuses himself we wouldn’t be able to hear her case here, not me obviously but somebody else. So, I’m reaching out to you to get suggestions, as to how we could get him to do that.  I don’t know if he would, for whatever reason.  But apparently they have not had a good rapport and she definitely has major issues she needs to modify with regard to her divorce decree and her husband.  So if you want to get back to me I’ll give you a little more information and you could give me your ideas.  Call me back Monday.

6. Ms. Martin did not subsequently commence additional proceedings in Westchester County Family Court or have any additional conversations with respondent concerning the proceedings.

7. Respondent now recognizes that her conduct in paragraph 5 above was improper.

As to Charge II of the Formal Written Complaint:

8. Respondent is a close friend of Jeff Higdon and Barbara Antmann, a married couple, and has socialized often with them over the past several years.

9. Respondent knew that Mr. Higdon and Ms. Antmann were involved in a custody dispute in the New Jersey courts concerning a child who was living with them, but who was not their biological or adopted child.  Respondent frequently came into contact with the child when visiting at the Higdon/Antmann home.  Respondent advised Mr. Higdon and Ms. Antmann that she could not preside over their matter should a proceeding be commenced in Westchester County Family Court because of the personal nature of their relationship.

10. On June 5, 2003, Mr. Higdon called respondent at her court and advised her that the matter had been dismissed in New Jersey and that he and his wife were considering commencing a proceeding in respondent’s court against the child’s biological parents, Motke and Shoshona Barnes.

11. On June 5, 2003 and June 6, 2003, Family Court Supervising Judge Joan O. Cooney was assigned to preside over emergency applications and ex parte proceedings.

12. On June 5, 2003, without identifying them by name, respondent advised Judge Cooney that her friends, meaning Mr. Higdon and Ms. Antmann, would be coming to court seeking an order of protection.  Judge Cooney advised respondent that the matter must proceed in the normal manner.

13. On June 6, 2003, immediately prior to Judge Cooney’s presiding over the matter commenced by Mr. Higdon and Ms. Antmann, respondent advised Judge Cooney that the petitioners were respondent’s friends.  Judge Cooney reiterated that the matter must proceed in its normal course.

14. Judge Cooney presided over the matter on June 6, 2003, issued an ex parte order of protection in favor of Mr. Higdon and Ms. Antmann and against Mr. and Mrs. Barnes, and granted Mr. Higdon and Ms. Antmann temporary custody of the child.  Judge Cooney then assigned the matter to Family Court Judge Sandra B. Edlitz.

15. Prior to the first appearance of Mr. Higdon and Ms. Antmann before Judge Edlitz, respondent spoke to Senior Court Clerk Edward Edmead, the court clerk assigned to Judge Edlitz’s part, and told Mr. Edmead that the petitioners, Mr. Higdon and Ms. Antmann, were respondent’s friends and were really nice people.  Respondent also asked Mr. Edmead to look out for them.

16. In June 2003, in a courthouse hallway, respondent encountered Judge Edlitz’s court attorney, Susan Pollet, and told Ms. Pollet that the petitioners in the Higdon matter were respondent’s friends.

17. Subsequently, during the summer of 2003, respondent came into Ms. Pollet’s office in the courthouse and stated that she knew Mr. Higdon and Ms. Antmann in the matter from Scarsdale (where respondent, Mr. Higdon and Ms. Antmann reside) and was friendly with them.  Respondent also stated that Mr. Higdon and Ms. Antmann were good people and good parents.  Ms. Pollet would testify that this was the first time since respondent had become a judge that she had come into Ms. Pollet’s office.  Respondent would testify that she had previously been in Ms. Pollet’s office on several occasions.

18. In August 2003, respondent entered Judge Edlitz’s chambers and had a conversation with Judge Edlitz.  Judge Edlitz would testify that, initially during the conversation, respondent told Judge Edlitz that the petitioners, Mr. Higdon and Ms. Antmann, were her friends and that they were very nice people and that respondent and Judge Edlitz then discussed several unrelated matters.  Respondent would testify that, during the course of a conversation concerning several matters, she told Judge Edlitz that the petitioners, Mr. Higdon and Ms. Antmann, were her friends and that they were very nice people.

19. On August 18, 2003, Judge Edlitz recused herself from the matter commenced by Mr. Higdon and Ms. Antmann because of respondent’s unauthorized ex parte communications on behalf of the petitioners, Mr. Higdon and Ms. Antmann.  Judge Edlitz did not state a reason for the recusal on the record.  The matter was then transferred to Rockland County, and was later transferred again to New York County.

20. In September 2003, Judge Cooney told respondent that the matter commenced by Mr. Higdon and Ms. Antmann was transferred out of Westchester County because of respondent’s intervention.  Respondent replied that Judge Cooney was “being ridiculous” and that “everybody does it.”

21. Respondent now recognizes that her conduct in paragraphs 12, 13 and 15-18 above was improper.

As to Charge III of the Formal Written Complaint:

22. On December 4, 2003, respondent testified before the Commission concerning a complaint alleging that respondent had sought special consideration on behalf of Beth Martin.  At the time, the Commission had not received a complaint concerning respondent’s conduct in connection with the matter commenced by Mr. Higdon and Ms. Antmann.

23. On December 4, 2003, respondent testified concerning her voice mail message of May 30, 2003, to Kathryn Ritchie, Esq., concerning Beth Martin.

24. Respondent was asked if there were any other pending or impending matters, involving litigants whom she knew, as to which she had communicated with another judge or court attorney.  Respondent testified as follows:

Q:  Have you ever attempted to communicate with any other judge concerning a pending matter or an impending matter on behalf of an individual?

A:  On behalf?  No.  Conversations about cases that we know, sure, but not on -- no.

Q.  Did you ever have a conversation with a judge about - - another judge about a pending matter or an impending matter in which you knew a litigant?

A.  In which I knew a litigant?

Q.  Yes.

A.  Maybe.

Q.  Could you explain?

A.  I mean, at one point or another, all of us have people in front of us that we know, so - - and we discuss these matters all the time.  “Oh, did you see so-and-so, he was here,” and, you know, “that one’s attorney is, you know, filing for orders of protection.”  And so those conversations are - -

Q.  Other than just referring to a case, that “X” was here, did you have any other conversations?

A.   No, no.

Q.   Of that nature?

A.   No.

Q.   Did you ever have a conversation with another court attorney, not your own court attorney, but another court attorney, concerning a pending or impending matter in which you knew one of the litigants?

A.   Probably the same type of conversation we’ve had with the judge.

Q.   Just informational, “did you see who was here?”

A.  Yes, right, you know.

Q.  Anything other than that?

A.  No, no.

25. Respondent now recognizes that her testimony was not accurate and that, in response to the questions posed to her in paragraph 24 above, she should have advised the Commission about the Higdon matter.

Upon the foregoing findings of fact, the Commission concludes as a matter of law that respondent violated Sections 100.1, 100.2(A), 100.2(B), 100.2(C), 100.3(B)(6) and 100.4(A)(1) of the Rules Governing Judicial Conduct and should be disciplined for cause, pursuant to Article 6, Section 22, subdivision a, of the New York State Constitution and Section 44, subdivision 1, of the Judiciary Law.  Charges I through III of the Formal Written Complaint are sustained insofar as they are consistent with the above findings and conclusions, and respondent’s misconduct is established.

It is improper for a judge to intervene in official matters when he or she is known as a judge, even in the absence of an explicit request for special consideration.  Matter of Edwards v. Comm. on Judicial Conduct, 67 NY2d 153, 155 (1986) (non-lawyer town justice was censured for identifying himself as a judge while inquiring about procedures in his son’s traffic case).   Such conduct constitutes an improper assertion of judicial influence, which has long been condemned as favoritism and “is wrong, and always has been wrong.”  Matter of Byrne, 47 NY2d (b), (c) (Court on the Judiciary 1979); Rules Governing Judicial Conduct, §100.2(C).  

In a 1977 report about the assertion of influence in traffic cases, the Commission stated that such conduct results in “two systems of justice, one for the average citizen and another for people with influence” (“Ticket-Fixing:  Interim Report,” June 20, 1977, p. 16).  A judge who asserts the influence of judicial office by speaking favorably about a litigant to the presiding judge does a grave injustice to the judicial system since such conduct implies that, as a result of such private communications, a litigant with the right “connections” might receive special treatment.   

Respondent’s conduct diminishes respect for the judiciary because it strikes at the heart of the justice system which is based on equal justice and the impartiality of the judiciary.

 Here, respondent interceded on behalf of friends in two cases that were pending or impending before other judges in Family Court.  In the first matter, respondent believed a proceeding was about to be filed, and she left a message for the judge’s court attorney (respondent’s former court attorney), seeking the attorney’s assistance in conspiring how to persuade the judge to recuse himself.  In her message, respondent described her personal relationship with the prospective litigant, told the court attorney that her friend did not have “a good rapport” with the judge, and solicited the court attorney’s “ideas” as to “how we could get [the judge] to do that [i.e., disqualify himself].”  This approach was especially harmful since it tried to entice an attorney who worked for another judge to manipulate the system, rather than allow the case to proceed in the normal course.  It is immaterial that no new proceeding was ever initiated.  It is especially troubling that respondent indicated to the Commission that if she had a closer relationship to the presiding judge, she would have gone to him directly with the request (Oral argument, p. 69).  This indicates that respondent lacks an essential understanding of why her conduct was improper.

Five days later, respondent engaged in another improper ex parte communication about a pending matter.  Respondent advised her supervising judge that respondent’s friends would be seeking an order of protection.  The judge informed respondent that the matter must proceed in the normal course.  Undeterred by this response, the next day respondent reminded the judge, who was about to preside over respondent’s friends’ petition, that the litigants were her friends.  Once again, the judge told respondent that the matter must proceed in its normal course.  The judge issued an order of protection in favor of respondent’s friends, granted temporary custody of the child to respondent’s friends, and assigned the case to another judge. 

Despite having twice been warned that the case had to proceed in the normal course, respondent then told the senior court clerk that the petitioners were respondent’s friends and “were really nice people,” and asked the clerk to “look out for” her friends.  Respondent also told the court attorney of the judge assigned to the case that the petitioners were respondent’s friends and, a few weeks later, again told the court attorney that the petitioners were her friends and were “good people” and “good parents.”  Finally, respondent repeated that message—that the petitioners were her friends and were “very nice people”—to the presiding judge while visiting the judge in chambers.  Because of that highly improper ex parte communication, the judge recused herself from the case, which was transferred to another county.

Later, when respondent’s supervising judge commented that because of respondent’s intervention the case had been transferred out of the county, respondent replied, “That’s ridiculous” and said, “Everybody does it.”  Respondent has explained that her comment, “That’s ridiculous” meant that there were other reasons why the case had been transferred, and that “Everybody does it” meant only that judges often speak about their cases to other judges.  Obviously, there is a significant difference between casual discussion of pending cases and communications that convey, implicitly or explicitly, a request for special treatment.  Regardless of what respondent claims she meant, her comments reflect a lack of sensitivity to judicial ethics.

Arguably, respondent’s conduct to advance her friends’ interests was far more harmful than seeking special consideration in traffic cases or telling a prosecutor or even a judge favorable background material about a defendant in a criminal case in regard to a determination of sentence (see Matter of Kiley, 74 NY2d 364 [1989]).  In Family Court cases, there often are opposing parties whose competing interests impact the lives of children.  When a judge seeks to privately impart favorable information about a litigant to the judge presiding over a matter, the entire system of justice in Family Court is subverted.

Respondent was charged with lack of candor during the investigation when, testifying about the earlier incident, she was asked whether she had engaged in similar ex parte communications about any other pending matters.  Respondent testified under oath that she had not done so, which clearly was inaccurate since the events covered by Charge II had occurred only a few months earlier.  Respondent conceded in the Agreed Statement of Facts that she should have disclosed the prior events and that her responses were “not accurate.”

In determining the appropriate sanction, we find precedent in the decisions of the Commission and the Court of Appeals in which judges have been disciplined for the improper assertion of influence.  The Court of Appeals has stated that ‘[t]icket-fixing is misconduct of such gravity as to warrant removal,” even for a single transgression.  Matter of Reedy v. Comm. on Judicial Conduct, 64 NY2d 299, 302 (1985); Matter of Edwards v. Comm. on Judicial Conduct, supra (“as a general rule, intervention in a proceeding in another court should result in removal” [67 NY2d at 155]).  The Court has also observed that mitigating factors should be considered in deciding whether a sanction less severe than removal would be appropriate.  Matter of Edwards, supra.  In numerous cases, both the Court and the Commission have admonished or censured judges for such conduct.  See, e.g., Matter of Lonschein, 50 NY2d 569 (1980); Matter of Calabretta, 1985 Annual Report 112 (Comm. on Judicial Conduct); Matter of Cipolla, 2003 Annual Report 84 (Comm. on Judicial Conduct); Matter of Martin, 2002 Annual Report 121 (Comm. on Judicial Conduct), revised, 6/6/02; Matter of LoRusso, 1988 Annual Report 195 (Comm. on Judicial Conduct); and, recently, Matter of Bowers, 2005 Annual Report ___ (Nov. 12, 2004), http://www.scjc.state.ny.us/Determinations/B/bowers.htm (town justice was censured, upon a joint recommendation of Commission Counsel and the judge, for sending a letter requesting special consideration for a defendant in a traffic case, untruthfully identifying the defendant as his relative).

In Matter of Kiley, supra, the Court rejected a Commission determination that a full-time judge be removed for seeking special consideration from a prosecutor in one case and from a prosecutor and the judge presiding in another case.  Holding that the judge had “lent and appeared to lend the prestige of his office to advance the respective defendant’s private interests,” the Court noted that, as to one case, the judge was motivated by sympathy for the defendant’s family and sought to help his friends through an emotional trauma (74 NY2d at 368, 370).  As to both cases in which he interceded on behalf of defendants, the judge “was not motivated by personal gain, and totally absent from his conduct was any element of venality, selfish or dishonorable purpose”; there were “no aggravating factors and thus a sufficient basis for removal is lacking” (Id. at 370).

The decision in Kiley is especially instructive here since the facts are somewhat similar.  In this case, however, respondent ignored warnings by her supervising judge, had improper conversations with court personnel as well as two judges presiding over her friends’ case, and tried to enlist a judge’s court attorney to achieve the result that respondent’s friend wanted:  the judge’s recusal.  Although the misconduct here is more serious than in Kiley, one mitigating factor in that case is applicable here:  respondent’s motivation in advancing her friends’ cause was sympathy for her friends and a strong belief in them as parents. 

The only other mitigating factor in this case is the stipulation by respondent, her attorney and Commission counsel that respondent now understands that her conduct was improper.  

Left to choose between censure and removal, we decide not to remove respondent from office.  We emphasize that the misconduct here is extremely serious and cannot be tolerated.  Every judge is obliged to learn and abide by the ethical rules.  If parties in court proceedings are to have faith in the decisions of judges, they must have assurance that ex parte communications of the kind respondent initiated will be condemned by strong measures.

By reason of the foregoing, the Commission determines that the appropriate disposition is censure.

Judge Ciardullo, Mr. Coffey, Ms. DiPirro, Mr. Emery, Mr. Felder, Ms. Hernandez, Judge Luciano, Judge Peters, Mr. Pope and Judge Ruderman concur.  Mr. Goldman dissents only as to sanction and votes that the appropriate disposition is removal. 

Dated:  March 25, 2005

DISSENTING OPINION BY MR. GOLDMAN

I respectfully dissent from the determination of censure, and vote to remove respondent.  I believe her persistent misconduct in interfering in cases before other judges, her evasive testimony during the investigation by Commission staff and her failure to recognize the gravity of her misconduct demonstrate her lack of fitness to serve as a judge.

Respondent abused her position as a judge in two separate matters before other judges in her own court by making statements that could only have been meant, and understood, as seeking preferential treatment for her friends.  Obviously, such beneficial treatment, if it had been given, would have been to the detriment of the litigants on the other side of the lawsuit. 

In one instance, when a friend was unhappy with the judge previously assigned to her case, respondent by voicemail importuned the judge’s court attorney, who had been her own court attorney, to help her find a way to get the judge to recuse himself so that her friend would have a more favorable judge. 

In another case, she persistently sought favorable treatment for a couple involved in a custody suit:  twice to the supervising judge, to whom she mentioned that the litigants were her friends; once to a court clerk, to whom she said that the litigants were her friends and were nice people and to look out for them; twice to the assigned judge’s court attorney, to whom she said that the litigants were her friends and good people and good parents; and once to the assigned judge herself, to whom she said the litigants were her friends and very nice people.  When told by her supervising judge that the matter had to be transferred out of the county because of her intervention, she replied that the judge was being “ridiculous” and that “everybody does it.”

Under the test enunciated by the Court of Appeals, that conduct alone might well warrant removal.  In Matter of Edwards v. Comm. on Judicial Conduct, 67 NY2d 153, 155 (1986), where the judge intervened in another court concerning his son’s traffic ticket, the Court wrote:  “[A]s a general rule, intervention in a proceeding in another court should result in removal.”  Here, there is far more than the single instance of intervention, and here, of course, the matters were not in “another” court but in the very court in which respondent sat.  Thus, respondent’s misconduct is more pernicious than that in Edwards.  Requests for favorable treatment from a judge of the same court, or from a judge to a lower-ranking official in the same court, are more difficult to ignore and thus more likely to succeed.[1]  On the other hand, the “general rule” has been honored more in the breach than in the observance and cases involving requests for favoritism have generally occasioned a sanction less than removal.  See, e.g., Matter of Kiley, 74 NY2d 364 (1989); Matter of Pennington, 2004 Annual Report 139 (Comm. on Judicial Conduct).

Respondent’s misconduct, however, is not limited to her two (or seven, depending how one counts) instances of intervention.  Called to testify during the Commission staff’s investigation of the first instance, involving the voicemail message,[2] respondent gave evasive, if not false, testimony in denying that she had ever, aside from that single incident, communicated with a fellow judge or court attorney on behalf of a litigant.  I find unconvincing respondent’s explanation, given during oral argument before the Commission, that she had forgotten about the second series of entreaties.  Her testimony occurred only four to six months after she made six requests for favorable treatment and only three months after she was rebuked by her administrative judge for causing the assigned judge to recuse herself so that the case had to be sent to another county.  These events were certainly memorable.  This evasive (or perhaps deliberately false) testimony itself is grounds for severe sanction, possibly removal.  See, e.g., Matter of Collazo, 91 NY2d 251, 255 (1998) (“deception is antithetical to the role of a Judge who is sworn to uphold the truth”).[3] 

Lastly, in her appearance before the Commission (as well as in her remarks to her supervising judge when told of the transfer of the case), respondent demonstrated a lack of awareness of the extent and gravity of her wrongdoing.  Although she stipulated to a finding of misconduct, she continually denied that she had intended to seek favorable treatment and intervene with the judicial process, maintaining that she spoke to court staff only to remind them that she could not hear the case.  She viewed her overtures to court officials as improper only because they may have been misconstrued and appeared improper to others.  While she admitted making “mistakes,” she stated that she “can’t control th[e] perception” of others.  When asked if she thought that she did something wrong, she allowed only that she should not have called people or left messages “that…can…be interpreted in any way, shape or form …as something that is asking for any special consideration” and that she “let the boundaries get kind of fuzzy.” 

I recognize that respondent’s conduct was not motivated by personal gain, but out of concern for friends.  I realize that the sanction of removal is reserved for “truly egregious circumstances.”  Matter of Steinberg, 51 NY2d 74, 83 (1980).  I believe respondent’s combined misconduct, considered with her inability to comprehend the severity of that misconduct, meets that standard.  Her “failure to recognize and admit wrongdoing strongly suggests that, if [s]he is allowed to continue on the bench, we may expect more of the same.”  Matter of Bauer, 3 NY3d 158, 165 (2004). 

I vote for removal.

Dated:  March 25, 2005

[1] To their credit, those who were approached by respondent gave no favorable treatment to her friends.

[2] At the time Commission staff was unaware of respondent’s requests for favorable treatment in the other matter.

[3] Indeed, if such a serious matter had been in fact so soon forgotten, even after a Commission investigation into similar interference, it would indicate that respondent did not view her misconduct very seriously.

Wednesday, June 23, 2010

FAMILY COURT JUDGE CONTINUES TO DISPLAY QUESTIONABLE BEHAVIOR OFF OF THE BENCH

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Mount Vernon Exposed has been a driving force when it comes to exposing corruption in the Westchester County Court System.  Mount Vernon Exposed has revealed the major pay to play operation that is taking place within the Democratic Party in Westchester County.  From allegations of Democratic Party Chairman Reggie LaFayette attempting to extort candidates for judicial office to judicial candidates offering sex for the endorsement of the Democratic Party, Mount Vernon Exposed has been there to report on these serious allegations of corruption that threaten the democracy of the United States of America.

Mount Vernon Exposed last week revealed allegations that current Westchester Family Court Judge Nilda Morales Horowitz has abused illegal narcotics specifically, cocaine.  Since making these allegations public, Mount Vernon Exposed has received dozens of phone calls pertaining to Judge Nilda Morales Horowitz' conduct on and off of the bench.  Judge Horowitz was publicly sanctioned by the New York State Court of Appeals for attempting to fix cases with her colleagues in Family Court.

A person that identified them self as a court officer, applauded Mount Vernon Exposed for having the courage to expose the above mentioned allegations of corruption.  The court officer said the allegations about Judge Horowitz were right on the money and said to not stop there.  The court officer said that the employees in the Westchester County Court System have given Judge Horowitz a nickname.  Her nickname is named after the initials in her name.  N  M H = Nails Makeup Hair.

Judge Horowitz is referred to as a lazy Judge according to the court officer.  She often calls in sick or leaves work early complaining of illnesses on days she has a heavy caseload.  According to the court officer, there has been many days this year where Judge Horowitz left work early this year citing illness as her reason for early departure.  Later in the day on these so-called sick days, Judge Morales was spotted at fundraisers and various other social events.  If these allegations prove to be true, Judge Horowitz should be investigated and prosecuted for stealing time and getting compensated for it courtesy of Westchester County taxpayers.

Mount Vernon Exposed was forwarded pictures of an event that Judge Horowitz attended.  According to an eyewitness that was present, Judge Horowitz was brown nosing Westchester County District Attorney Janet DiFiore the entire night.  According to sources, Judge Horowitz was overheard speaking to Janet DiFiore about Mount Vernon Exposed publisher Samuel L. Rivers. The source said that Judge Horowitz told Ms. DiFiore that Mr. Rivers is posing a threat to the Democratic Party and the judicial races and that he must be stopped an indication that Judge Horowitz is attempting to once again influence cases currently before judges in Westchester County.  Samuel L. Rivers has a case currently before justices in the New Rochelle City Court directly across the street from Family Court where Judge Horowitz currently presides. Mayor Clinton Young's former Special Assistant John Boykin was tape recorded making threats to Samuel L. Rivers and threaten to use the Mount Vernon Police and Janet DiFiore's office to pursue bogus narcotic charges against Mr. Rivers.  

Judge Horowitz was also schmoozing with Westchester County Legislator Jose Alvarado.  Jose Alvarado's attorney Wilson Soto was arrested earlier this year and prosecuted by Janet DiFiore's office for election fraud.  Wilson Soto was charged with falsifying election documents and voting in a district in which he does not reside.  It is even more disturbing that a sitting Family Court Judge and a sitting District Attorney would pose for a picture with Jose Alvarado. It is because of arrogance as being displayed by Judge Horowitz and Janet DiFiore that many voters no longer have faith in the justice system and the Westchester County Democratic Party.

The eyewitness said that Judge Horowitz consumed an excessive amount of alcohol that evening and reeked of alcohol when he went to greet Judge Horowitz and gave her a kiss on the cheek.  According to the eyewitness, Judge Horowitz' speech was slurred, her eyes were bloodshot, and she even tripped over an object during her stay at this event.  After the event had come to a close, Judge Horowitz got into her car and drove herself home. One can come to the conclusion that associating with  Westchester County District Attorney Janet DiFiore has its perks. If indeed Judge Horowitz was indeed intoxicated, she was ensured a get out of jail free card and quite possibly an endorsement for being such a loyal Democrat.  

Judge Horowitz must immediately withdraw from the race of Family Court Judge because of her creepy association with these shady characters and for the good of the Democratic Party.  Judge Horwitz' poor record as Judge threatens all Democratic races this fall including that of Andrew Cuomo who is seeking to become the next Governor of New York State.

 See also:

NEW ROCHELLE DEM LEADER SEEKS TO OVERTHROW WESTCHESTER COUNTY DEM CHAIR REGGIE LAFAYETTE; TAXPAYERS FUND MAYOR CLINTON YOUNG'S STEAMY LOVE AFFAIR WITH FAMILY COURT JUDGE 

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