"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).
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,
“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.
"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.
Sunday, August 21, 2016
To pot or not to pot?
As a result, production and distribution of medical marijuana in the U.S. was stifled, under the threat of federal criminal prosecution.
Still, since that time, more and more states legitimize production and distribution of medical marijuana, many with great results in tax revenues.
Yet, people who engage in marijuana industry in states that allow growing and distributing medical marijuana, through properly enacted state statutes, are still operating under the threat of a federal criminal conviction.
Recently, two interesting decisions were made in Ohio and in the U.S. Court of Appeals for the 9th Circuit regarding medical marijuana - two diametrically opposite decisions, I must say.
In Ohio, the so-called Board of Professional Conduct for Lawyers prohibited attorneys to give advice as to how to set up the growing and distribution business.
While that was obviously content-based regulation of speech which is, according to the U.S. Supreme Court, unconstitutional under the 1st Amendment unless it meets the so-called "strict scrutiny" test, in 2010 the U.S. Supreme Court overruled the 9th Circuit and ruled that it is legitimate for the federal government to prohibit, through criminal laws, the giving of legal advice on certain issues - and that such a prohibition somehow meets the so-called "strict scrutiny", the top layer of the artificial review standards invented by the U.S. Supreme Court for constitutional violations, event though the U.S. Constitution, through its text, does not allow to treat some constitutional provisions as more important than others.
Now that the Board of Professional Conduct prohibited to lawyers to advise what the State Legislature stated is legal conduct, the Supreme Court of the State of Ohio is looking into whether to overrule the Board or not.
At about the same time, the U.S. Court of Appeals for the 9th Circuit pronounced a ruling that runs in the face of U.S. Supreme Court's decision in Gonzalez v Reich - it has held that the federal government may not prosecute individuals who grow and sell medical marijuana in compliance with state laws.
Of course, the easiest way to resolve all of that conundrum is for the U.S. Congress to repeal statutes criminalizing marijuana, or to specifically introduce a statute providing that medical marijuana is exempt from the reach of criminal laws.
But, that would be too easy, wouldn't it be?
Too many interests are vested in drug forfeiture laws, in private prison industry housing inmates convicted for selling pot, in "drug counselling" ordered by the court for using pot etc.
But, with the idiotic decision of the Board of Professional Conduct in Ohio - which matches the no less idiotic decision of the U.S. Supreme Court in 2010 that legal advice on a certain subject can be not only deemed a disciplinary violation, but also criminalized, and with the feisty 9th Circuit opposing the U.S. Supreme Court precedent allowing to criminally prosecute people who grow or sell marijuana in compliance with state law - apparently, the interests supporting criminalization of marijuana are waning.
We may see a quick development of the federal law in this area, and soon, and that movement is pushed by parents of sick children who need access to medical marijuana to reduce pain and seizures.
Let's see who wins - the money interests or medical needs of patients.