EVOLUTION OF JUDICIAL TYRANNY:

"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).


“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.


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 cos
t.
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.







Friday, March 31, 2017

Williams v Pennsylvania, "officer of the court" status and invalidation of ALL criminal convictions in the United States

In 2016, the U.S. Supreme Court, through Williams v Pennsylvania, said that a judge cannot be at the same time an "accuser" and an "adjudicator".

So, judge and prosecutor cannot be ONE.

In other words, judge cannot be prosecutor, and prosecutor cannot be judge (part of adjudicating court).

But, every prosecutor is a sworn "officer of the court".

And, attorney disciplinary prosecutors are also deemed an "arm of the court" - see the saga of how I sought a FOIL request from such a disciplinary prosecutor who kept claiming she was part of the court, here and here.

So, if a judge is the court, and the prosecutor is the court (officer of the court), the judge = prosecutor, and prosecutor = judge in EVERY criminal case.

Now, every criminal case in the United States, due to this "officer of the court" requirement for all prosecutors, has been invalidated by Williams v Pennsylvania, including the death penalty cases which are scheduled for execution?  Including those where people were already executed?






The concept of officers of the court and the right to practice law

No attorney in the U.S. is allowed to practice law without first being sworn in as an "officer of the court".

Yet, all State Constitutions prohibit judges - "officers of the court" - to practice law.

So, the practice of law is conditioned in the U.S. upon joining a class of people who, by State Constitutions, are prohibited to practice law.

And, the rule for lawyers to be "officers of the court" (who are not allowed to practice law) in order to be able to practice law was concocted by lawyers themselves, who are the best experts in the practice of law.

Mamma mia. 

Pennsylvania leads in deregulation of the legal profession - again

First, it suspended Attorney General Kathleen Kane's law license, but Kathleen Kane remained the head of the Attorney General's office.

Then, Philadelphia District Attorney Self Williams agreed to temporary suspension of his law license, but will continue to head his prosecutorial office.

Somehow, in real life, in real time, one case after the next, law licenses become disjointed from law practice - or whatever it is lawyers are doing in their jobs.

The road to the demise of attorney regulation continues...

Impugning integrity or competence of a judge is bad or constitutionally protected? And, if attorneys waived that constitutional protection, does it mean that the declared purpose of attorney regulation (protection of consumers) is fake?

43 years ago, the U.S. Supreme Court has announced in Gertz v Robert Welch, Inc., 418 U.S. 323, 339-40 (1974) that:

"Under the First Amendment, there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas."                                     


3 years after that, 40 years ago, New York recognized that criticizing the judge's competence or integrity, is still a matter of opinion, not sanctionable against non-attorney critics, "no matter how unreasonable, extreme or erroneous these opinions might be", Rinaldi v Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 366 N.E.2d 1299, 397 N.Y.S.2d 943 (1977).


In Rinaldi, New York top court (NY Court of Appeals) rejected the idea that an investigative journalist writing about judges in the criminal justice system of the State of New York could be sued for libel for saying, among other things that "the plaintiff was and is a corrupt, venal, biased, incompetent and unqualified justice of the Supreme Court of the State of New York who should be removed from office", and that "plaintiff "is very tough on long-haired attorneys and black defendants, especially on questions of bail, probation, and sentencing. But his judicial temper softens remarkably before heroin dealers and organized crime figures."


So, impugning integrity or competence of a judge in New York, calling a judge corrupt, incompetent, and who should be taken off the bench is not actionable, because it is an opinion, and an opinion, no matter how wrong, cannot be sued upon (according to the top court of the State of New York), and, there does not exist anything such as a "false opinion", according to the U.S. Supreme Court in Gertz above.

Yet, rules of professional conduct for attorneys, in New York and in all other jurisdictions, continue to contain a rule prohibiting to make "false statements" about competence or integrity of a judge.

But, competence or integrity is what is called by scientists not "falsifiable" concepts (you say "black" about a white object - sheet of paper, dog, cat, sheep, dove, you falsified FACTS, you said that the judge is not competent or not honest - there is no way to measure his competence or honesty without involving subjective opinions, and thus, the concepts of competence and integrity are not falsifiable and cannot be false).

So, statements about competence or integrity of judges cannot possibly be false - because competence and integrity are non-falsifiable concepts.

Those statements are opinions.

 And, as opinions, they are not actionable in New York.

And, as opinions, they are subject to the protection of the 1st Amendment to the U.S. Constitution, as there is no such thing as a false opinion - according to the U.S. Supreme Court in Gertz above.

So, why such an unconstitutional rule still exists and is enforced not only in New York but across the United States against attorneys?

Well, as to attorneys, there suddenly emerges the doctrine of waiver - that attorneys waive their constitutional rights, including their right to free speech about judges under the 1st Amendment, and attorneys supposedly waive those rights "in exchange for" the "benefit" of the "special status" of being "members of the bar".

Of course, waivers of constitutional rights should be voluntary, knowing and intelligent, and in writing.  Thus, the claim that attorney waive any constitutional right simply be accepting a state license to practice law, has no merit.

It has even less merit when we consider a strong of cases decided by the U.S. Supreme Court clearly saying that government may not regulate speech (a constitutional right under the 1st Amendment) by giving or withholding a state benefit (a law license):

  1. Speiser v Randall, 357 U.S. 513 (1958) - "To deny an exemption to claimants who engage in certain forms of speech is in effect to penalize them for such speech";
  2. Perry v Sindermann, 408 U.S. 593, 597 (1972) - "For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited.  This would allow the government to 'produce a resuslt which it could not command directly'";
  3. Regan v Taxation with Representation of Washington, 461 U.S. 540, 545 (1983) -  government may not condition a benefit to a person on forfeiture of a constitutional right.

So, the claims that attorneys somehow "implicitly" waive their constitutional rights, especially the right to free speech - when speech is their working tool - are nonsense from all points of view.

In reality, being "members of the bar" is a euphemism of having a license to work as a lawyer from the government, which is part of the general scheme of occupational regulation by states and the federal government.

And, regulation of professions by states is done only for the declared purpose of benefits for the consumer, for protection of the consumer.

Lawyers - when cornered - ardently claim that they are not in there for the money only.

For example, in the case People ex rel Karlin v Culkin, 248 N.Y. 465, 4710-471, 162 N.E. 487, 489 (1928) the famous (or, rather in-famous) judge Cardozo, stated: "Membership in the bar is a privilege burdened with conditions. ... The appellant was received into that ancient fellowship for something more than private gain."

So, suddenly state licensing of attorneys is the equivalent of "receiving [the attorney] into an ancient fellowship" as a matter of "privilege burdened with conditions", and the privilege is so beneficial for attorneys that they are deemed to have implicitly waived their constitutional rights while entering that "ancient fellowship" (guild, right?).

Well, guilds existed NOT for the benefit of consumers.  They existed as closed societies to obtain benefits from rulers in exchange of bribes and other benefits provided directly to rulers.  And, the "ancient fellowships" of lawyers existed specifically as guilds, which, again, had no goal of benefiting the consumer, only themselves.

Of course, in a California decision, which is (like the Cardozo's decision in New York) is used as the basis of definition of the practice of law (because no clear definition exists of what it is that states license and prosecute so vigorously for practicing without a license), the judge calls treating the legal profession as a business as "sordid" - when discussing that lawyers cannot come together into corporations and work for corporations (something that, 95 years down the road, is happening without any problem):

""The relation of attorney and client is that of master and servant in a limited and dignified sense, and it involves the highest trust and confidence.

It cannot be delegated without consent and it cannot exist between an attorney employed by a corporation to practice law for it, and a client of the corporation, for he would be subject to the directions of the corporation and not to the directions of the client.

There would be neither contract nor privity between him and the client, and he would not owe even the duty of counsel to the actual litigant.

The corporation would control the litigation, the money earned would belong to the corporation and the attorney would be responsible to the corporation only.

His master would not be the client but the corporation, conducted it may be wholly by laymen, organized simply to make money and not to aid in the administration of justice which is the highest function of an attorney and counselor at law.

The corporation might not have a lawyer among its stockholders, directors or officers.

Its members might be without character, learning or standing.

There would be no remedy by attachment or disbarment to protect the public from imposition or fraud, no stimulus to good conduct from the traditions of an ancient and honorable profession, and no guide except the sordid purpose to earn money for stockholders.

The bar, which is an institution of the highest usefulness and standing, would be degraded if even its humblest member became subject to the orders of a money-making corporation engaged not in conducting litigation for itself, but in the business of conducting litigation for others. The degradation of the bar is an injury to the state."

  • ACLU and other non-profit corporations have THEIR OWN interest in litigation and THEIR OWN POLITICAL ideas and purposes (while IRS prohibits to non-profits such as ACLU, because of their tax-exempt status, to participate in political activities at all) protected by the First Amendment, in addition to their clients' goals and ideas in litigation (a statement contradicting the standing requirement under Article III of the U.S. Constitution - standing being the case or controversy of the client, not of his lawyer),  BUT
  • a "private attorney" (without making an exception when the "private attorney" works as a pro bono, government-assigned, civil rights attorney, or when that "private attorney" is raising constitutional rights on behalf of his client) works in litigation only for money (that's the "private gain only" argument what Judge Cardozo in New York and Judge Richards in California says the legal profession is NOT about)



So, membership in the legal profession is:
But, people only waive certain rights in exchange for benefits FOR THEMSELVES.

When we talk of constitutional rights, there must be tremendous benefits for an attorney attained by membership in the state bar (= receiving a state law license) in order to waive (or "implicitly waive") their 1st Amendment rights and to shut up for a lifetime.

By arguing the concept of WAIVER of constitutional rights to criticize judges - something that is allowed, and is constitutionally protected for anybody else, as cases with which this blog article started, demonstrate - as a condition to receive the privilege of "entering ... the ancient fellowship" (Cardozo), the judiciary (licensing agency for attorneys) acknowledges that it is the ATTORNEYS, and not the CONSUMERS (whose protection is claimed to be the whole reason for existence for attorney regulation in the U.S.) who receive benefits under the attorney regulation scheme.

Courts lied again?

What a surprise...





Federal judge Edwin Kosik found alive - but questions arise now about his performance

I ran a blog yesterday about a federal judge missing who rejected the plea of Marc Ciavarella, the Kids-for-Cash judge in Pennsylvania, and who has sentenced Ciavarella for 28 years in a regular (not "country club" in Florida) federal prison.

The yesterday's press reports indicated that the 91-year-old Judge Edwin Kosik stopped hearing cases because he was recovering from rib fractures he suffered at home.  Putting those things together, I asked whether investigators are taking these issues seriously and considering foul play, both in Judge Kosik's alleged fall at home with rib fractures, and his disappearance.

Today, the media reported that Judge Kosik was located in the woods outside Scranton, PA, within 100 yards of his car, that he was taken to a hospital and that it is hoped that he will make a full recovery.

While I am happy that a 91-year-old man did not freeze or starve to death in the woods, what was reported next was disturbing.



There is a significant gap in this reporting.

The judge stopped hearing cases only last month, but he is taking medication for memory loss for how long?  And why is his taking of memory loss medication not reported to the public, parties and attorneys, so that they at least have a chance to make a motion to disqualify?

Privacy of a judge?

We all have a right to know whether our President has health issues while holding his finger on the big red nuclear button.

Yet, we do not get to know about health issues of a judge who holds his finger on the big red button of our lives?

Come on.

The man appeared to be functional enough to drive a car without crashing it, but demented enough not to know where he is - so, he only "stopped hearing cases" last month?  How many cases did he botch over time?

I bet he botched a lot, otherwise why would the court system lie in initially telling reporters that Judge Kosik stopped hearing cases last month not because of dementia, but because he made a conscious decision to stop hearing cases because he was recovering from a physical injury (rib fracture) from a fall at home?

That lie had to be authorized by the Chief Judge of that federal district court Christopher C. Conner, and that lie had to be issued in order to try to do damage control because Chief Judge Conner had to know that Judge Kosik was, probably, TOLD to stop hearing cases because of his dementia issues.

Yet, even when it was outed that the judge was "out there", and not only in the woods near Scranton, the court system was still trying to do some damage control and pretend that the judge had all his wits around when found.

First, it was not the local police, but the federal court marshall who has found the judge - even though it was the job of the local police to do it.

Apparently, the court system was very concerned as to who will find the judge first and what the judge would tell to that person, and how it will be reported.

So, it was one of the court's own employees to see the judge first when he was found - I wonder how it happened that a U.S. Marshall from the judge's own courthouse was on the scene quicker than the police.

And look what that U.S. Marshall reported about the judge's reaction to seeing him.




Here is a man off medication for a long time, out in the woods in freezing weather, not contacting his family, and having his family launch a police search for him.

Yet, being found "conscious", the first thing he says to his rescuer is that the rescuer has cut his hair?  While that indicates some memory retention about basic things - how people looked, that kind of memory level does not mean that the judge was lucid, or at least, lucid enough to be on the bench until last month.

Once again, our Legislative representative in the U.S. Congress MUST finally pass the much-needed and much-overdue law REQUIRING federal judge to report their disabilities and medications and REQUIRING them to step down if asked on motions to disqualify based on such medical reports.

Otherwise, right now people whose cases Judge Kosik decided - for how long? - are left in limbo as to whether he was entirely lucid when he was making his determinations.

And we, the taxpayers, may have to pay for retrials, or, if such retrials are denied, will be left with a bitter taste that the federal court has cheated us - and litigants involved - out of justice and out of their proper performance.

And, the question remains.  How many MORE demented and mentally unstable judges remain on the bench while courts are bent on concealing this information until situation gets so bad that the judge has to be let go - and even then the courts would like, as they did in Judge Kosik's case, about reasons why he was let go, in order to not allow the judge's decisions to be vacated because of his mental disability?

Quite like it happened with Chief Judge Solomon Watchler in New York (a convicted felon who was disbarred, but is now restored as a lawyer and is a "distinguished" law professor in the Touro Law Center in New York) where judge Wachtler is commended by the New York Court system for defrauding federal courts and playing yo-yo with his mental health issue with the federal prosecutors and the federal sentencing judge when he was charged, and later convicted, for extortion and intimidation of a woman - claiming he was mentally ill before and after the plea bargain, but claiming he is absolutely healthy for the purposes of the plea bargain, and doing it specifically because he did not want lawyers and parties to be massively filing motions to vacate decisions made by a mentally unstable judge.




No honor in such behavior.

An awful waste of money.

And, such secretive and dishonest behavior, both of former Chief Judge Wachtler of New York State court system, and of Chief Judge Christopher C. Conner of the U.S. District Court for the Middle District of Pennsylvania, or of Judge Edwin Kosik and his family, does not inspire much respect to the justice system, including federal courts.

So now, with any decision coming from federal courts, especially from an elderly judge, we need to think - how demented this judge is?  Did he or she take his medication on time?  Does medication work?

This is a lot of speculation we do not need as a nation.

We need transparency.

We need the truth.

We need our public servant to properly do their work, and to properly disclose to us when they cannot do that work because of their disability.

It is not too much to ask.




Thursday, March 30, 2017

PA Supreme Court agreed to hear, in April of 2017, whether suspended or disbarred attorneys should be singled out into a special class for whom it will be UPL to do what people can do without any law license


On March 22, 2017, Supreme Court of the State of Pennsylvania denied reinstatement to civil rights attorney Andrew Ostrowski based on, among other things, his criticism of judges, the fact that he organized a "civil rights network", engaged in advocacy (not practice of law) for certain causes, the main cause being court reform and the fight against judicial corruption, because, having been deprived of opportunity to earn a living, attorney Ostrowski has debts that he cannot start to pay as he has no income, and based on claims that he practiced law during suspension period - even though his supposed "practice of law" was representing clients in front of the Pennsylvania State Unemployment Compensation Board, where representation, by state Statute, is not deemed the practice of law.

The legal community found nothing better than to laugh about it.

The self-righteous Unemployment Compensation Board, irate by being overruled by the Court of the Commonwealth because the court indicated that the UCB improperly deprived Andy Ostrowski's client of a "representative" (not attorney) of his choice despite clear law stating that representation before that board does not constitute the rule of law, the UCB now wants the Pennsylvania Supreme Court to single out suspended and disbarred attorneys into a "special class", and to prohibit to this class more than is prohibited to people who were never licensed to practice law.




Of course, where the statute is clear that representation in front of Unemployment Compensation Board is not practice of law, there is nothing to "mull over".



Rules of statutory construction are clear - a court does not have authority to "interpret", or, rather, change through interpretation, clear statutory text, it is the prerogative only of legislature.

What constitutes contempt of court, and unauthorized practice of law, are both criminal statutes and must also be clearly defined by the Legislature, not by courts on an "ad hoc" basis, specifically because two suspended civil rights attorneys dared not to just go broke, but to try to earn a living helping people by doing what was not the practice of law, by statute.

So, the corrupt Supreme Court of the State of Pennsylvania that refuses to discipline corrupt judges (including the Kids-for-Cash judge Marc Ciavarella, until the feds indicted him and had him convicted and sentenced to 28 years in prison), that allows judges who were former prosecutors on the same case to decide appeals, who allows judges who are subject of investigation to suspend attorney licenses of their own investigators, like it was with Judge Eakin to PA former AG Kathleen Kane - now refused reinstatement of yet another civil rights attorney, and is claiming that it is because he stood his ground in criticism of three judges, and because he provided legal services (which are not legal services in Pennsylvania by statutory law and the court's own precedent).

And, that court magnanimously "agreed to review" the question whether it will violate the statutory law of the State of Pennsylvania, after all (while the court had no right to do that, as it would constitute legislative amendment, for which the court has no authority), and single out suspended or disbarred attorneys into a class from which the public must be specifically protected - so, even certain ways to earn a living is allowed to everybody else (including to convicted felons, including to felons convicted for fraud or theft or any other crimes of "moral turpitude"), it would not be allowed to suspended or disbarred attorneys.

I raised this specific issue, of unequal treatment of suspended attorneys and never-licensed individuals in prohibitions for earning a living, in 2013 in the U.S. .District Court for the Northern District of New York, on behalf of my husband - the case name is Neroni v Zayas.  The court rejected the equal protection challenge as baseless, claiming such discrimination does not exist.

In 2015, though, New York decided the case regarding attorney Joel Brandes, and recently the New York State Court of Appeals affirmed denial of reinstatement of a disbarred attorney because he allegedly engaged in the practice of law (paralegal services) while to anybody else in New York engaging in paralegal services is not the practice of law.

In January of 2017, the Appellate Division 3rd Judicial Department in New York eagerly jumped on the bandwagon, declaring, in response to a motion of suspended attorney Gaspar Castillo, that 21 activities (not all of them listed in the decision, but I have just sent in money for the records to obtain the full list) as practice of law if done by a suspended attorney, even though the same activities are not practice of law for unlicensed individuals.

South Carolina and many other states prohibit attorneys to work as paralegals or even legal secretaries or investigators, activities which are allowed to individuals who have no law licenses: "A lawyer who resigns for reasons of ethical misconduct or who is disbarred or suspended may not be employed by any member of the Bar as a "paralegal, investigator, or in any other capacity connected with the practice of law." Rule 34."

So, Pennsylvania is not unique in discriminating against suspended or disbarred attorneys and making sure they go broke and cannot maintain a living (by the way, being broke was also one of the reasons why attorney Ostrowski was denied reinstatement - because, being deprived of a right to earn a living, he, naturally, could not pay his debts).

Yet, one thing is very clear - the court system, the supposedly "honorable" court system where each and every judge took an oath of office to be faithful to the U.S. Constitution would rather break that oath, legislate from the bench as to the meaning of Unauthorized Practice of Law statute to be completely different depending on who the defendant is (which is a violation of due process, separation of powers principle, ex post facto laws and bill of attainder clause, to name a few), than allow a civil rights attorney who criticized judges back to practice law.

The system is not protecting the public from civil rights attorneys.

The system is protecting itself from criticism.






The federal judge who rejected a plea of Kids-for-Cash judge and sent him to prison for 28 years is missing

The 91-year-old federal #judgeEdwinKosik, the judge who rejected as insincere the plea bargain of the Kids-for-Cash judge Mark Ciavarella and who has sent him to a federal prison that is not a country club like the other judge (who did plead guilty) got (in Florida), is now missing.

First, he sustained rib fractures, allegedly in a fall at his home, and stopped hearing cases.

Then, he is now missing.

I wonder whether the authorities are taking Judge Kosik's disappearance seriously enough and whether the possibility of foul play is considered.

After all, not many judges, as it was admitted in a recent article, go to jail even if they are convicted of crimes, and there was plenty of reasons for revenge against Judge Kosik in establishing a precedent that a judge not only was convicted for felonies, not only his plea was rejected as insincere, but that he was sent to a general prison for 28 years.

Monday, March 27, 2017

President Obama's legacy: surveillance of defense attorneys in federal prisons

Video surveillance of defense attorneys in a prison by the U.S. Attorney General's office in Kansas that was going on for "months" (which means, during the presidency of the former president) was just discovered.

The true legacy of President Obama?

Kansas Supreme Court is pitching a brand new spanking "rule" to the U.S. Court of Appeals for the 10th Circuit: blame the victim (litigant) who obtained recusal of judges for errors in formation and errors in rulings of replacement courts

An interesting case has been reported out of Kansas.

A litigant (an attorney in a disciplinary proceedings) asked 5 out of 7 judges of the presiding panel to recuse.

Now, usually judges do not recuse no matter what.

The stakes and the fervor of the fight against judicial recusals (and thus against litigants' constitutional rights for impartial judicial review and access to court) has reached epic heights in the State of Wisconsin, for example, where:

Of course, "independent judiciary" may not be independent from their own oath of office, which is what happens when the judiciary operates without any real "checks and balances" and while giving themselves a gift of absolute judicial immunity for malicious and corrupt acts on the bench (and, thus, for breaking the oath of office the moment it is taken).

Yet, judicial tyranny and freedom from all laws, all accountability and all criticism, as well as suppressing criticism is being promoted by lawyers who get their bread (via licenses to practice) from the very hands of the judiciary, is being thrust upon the public under the guise of advertisement of the idea of judicial "independence".

In New York, two attorneys that I know (John Aretakis in 2008 and myself in 2015) were suspended from practice for making motions to recuse, the same happened to attorney Christine Mire in Louisiana in 2016, the statistics of attorneys disciplined (including suspended and disbarred) for criticism of judges are ever growing across the country, the latest victim being, as far as I know, James G Miller, a 70+-year-old attorney who was suspended last week in Illinois for criticizing judges, who was considered so dangerous for the public that he was first suspended in April of 2016 while disciplinary proceedings were still pending and was then suspended again as a result of those proceedings, while the court rejected both the defense of truth and the defense of 1st Amendment protection.

But, even after a litigant has gotten himself through all the risks of sanctions for himself and his attorney, applied for recusal of judges and obtained recusal of judges, that does not mean that his right to impartial judicial review will now be maintained.

At least, not in the blessed state of Kansas where the Supreme Court of the State of Kansas has just come up with a most brilliant (read: obtuse) decision on judicial recusal I have ever seen in years, and I've seen a lot, specializing on active research of this particular topic for more than a decade.

The Kansas Supreme Court has stated to a litigant that, since he "has got what he wanted" (recusal of judges deciding his case), and "invited the error".

Just read the sleight of hands of how judges came to that conclusion:

  • you have a constitutional right to access to court (1st Amendment) and due process right to impartial judicial review (14th Amendment);
  • in order to obtain true access to court and that impartial judicial review, you make a motion to recuse;
  • once you obtained that recusal and once another judge is assigned to the case, it is the understanding of the top court of the State of Kansas that your constitutional rights of access to court and to impartial judicial review (the rights that you were trying to secure by making the motion to recuse in the first place) suddenly disappears, and whatever the replacement-after-recusal judge does, including bias, is now your own "invited error", blamed against you.

The brand spanking new "rule of invited error" was submitted on behalf of Kansas Supreme Court in appellee's brief to the U.S. Court of Appeals for the 10th Circuit (the current U.S. Supreme Court nominee Judge Gorsuch's court).

The rule that is asserted in this case, unfortunately, is not restricted to the unique way attorney discipline is imposed in the State of Kansas (and elsewhere in the U.S.), which is in stark contrast, and in violation of equal protection of attorneys, as compared to all other regulated profession - here, based on the uniqueness of attorney regulation, Kansas Supreme Court yet forged a general rule that will be applicable to all litigants in the state and, if affirmed on appeal by the 10th Circuit, to all states that are part of the 10th Circuit -  the new rule of judicial recusals announced by Kansas State Supreme Court in its Appellee's brief.



Here is where this claim is not only erroneous, but is frivolous and highlights one of the major inconsistencies of attorney regulation in all states - the use of the highest state court as the trial court in attorney disciplinary proceedings.

I have explored procedural differences between how attorneys and other professions are regulated in a lawsuit I filed on behalf of my husband in 2013 in the U.S. District Court for the Northern District of New York, and am exploring more fully in my upcoming book, in Russian and in English, about conceptual inconsistencies in attorney regulation in the United States.

The use of the highest state court not only as the legislator, prosecutor and adjudicator (conflation of three branches, violation of the principle of separation of power) in one proceeding, but also the use of the highest state court as the initial license revocation administrative agency and the first and last adjudicating court at the same time created exactly the problem that attorney Kline challenged in his lawsuit, if not in those same words.

Here is the structure of judicial system in the State of Kansas:



Note that, while Kansas Supreme Court has only 7 justices, the lowest trial courts of general jurisdiction, District Courts, have 31 judicial districts, each with more than 1 judge, and often, with 6 or more judges.

Now, let's compare procedural steps in contesting suspension or revocation of a professional license in Kansas by an attorney and non-attorney.

Had attorney Kline been not a licensed attorney, but, let's say, a licensed real estate broker, the procedure would have been as follows:


Stages of license revocation and attendant issues

Real estate broker
Attorney Kline

Administrative agency
Revokes professional license


District Court - the lowest court of general jurisdiction - review by one judge

Judicial review of license revocation, role reversal, license-revoking agency becomes a respondent (defendant) sued by the professional whose license is revoked


Appellate process - Kansas Court of Appeals, review by a panel of judges

Intermediate appellate court


Appellate process – highest appellate court, the Supreme Court of the State of Kansas, review by a panel of judges

Final appeal in the matter
License revocation,
Judicial review by legislator-prosecutor-adjudicator court and licensing agency;
License revocation is combined with judicial review of the same;
No role reversal in judicial review;
No right for professional whose license is revoked to sue the agency that revoked the license

Appellate process out of state

The U.S. Supreme Court – discretionary appeal
The U.S. Supreme Court – discretionary appeal

Alternative judicial review

A civil rights case, no Rooker-Feldman bar, since professional license was not revoked by a court

(jury trial, full discovery rights)


Right to file a civil rights action is blocked by the Rooker-Feldman doctrine since license was revoked by a court and revocation order is deemed as “final court decision” – jurisdictional bar

Alternative appellate process
10th Circuit
(appeal of all issues as of right)

Appeal of revocation decision is doomed, the only issues allowed to be raised outside the Rooker-Feldman bar are direct challenges to constitutionality of rules and statutes, but not practices of the state court in a specific proceeding

Alternative appellate process
The U.S. Supreme Court – appeal is discretionary and likely doomed because of the court’s unwritten policy not to review appeals from cases of attorney discipline, no matter what

The U.S. Supreme Court – appeal is discretionary and likely doomed because of the court’s unwritten policy not to review appeals from cases of attorney discipline, no matter what; plus a Rooker-Feldman-barred case, most likely, will be considered by the U.S. Supreme Court as an additional bar for court review



Observe that for attorneys, THREE procedural steps of litigation in license revocation process are skipped, as compared to non-attorneys, and the first and last stage of review in the State of Kansas in attorney license revocation is:

  • by a licensing agency - unlike for real estate broker;
  • by a licensing agency acting as the first (and last) trial court - unlike for real estate broker;
  • without the right for judicial review where the licensing agency is subject to role reversal and a lawsuit by the professional who lost his license - unlike for real estate broker;
  • without the right for 2-tiered appeal - unlike the real estate broker; without the alternative for review of license revocation, together with federal constitutional issues, in federal court - because, unlike in the case of the real estate broker, revocation of attorney license is subject to the Rooker-Feldman bar, even though the nature of proceedings (revocation of a professional license) is the same, and thus procedural protections, and levels of procedural protections, should also be the same.
Most importantly for purposes of attorney Kline's federal lawsuit though, the judicial system of the State of Kansas does not provide for ensuring attorney's rights to impartial judicial review: there are only

  • 7 elected justices in the Supreme Court of the State of Kansas;
  • Kansas Supreme Court is not equipped, due to jurisdictional restrictions, to act as the lowest trial court;
  • Judges of Kansas Supreme Court must sit in panels with certain quorums, unlike judges in District Courts who sit just a single judge at a time;
  • When a District Court judge recuses, there are over 150 other District Judges to choose from, while if Kansas Supreme Court judges recuse (especially, all of them, or 5 out of 7, as happened in this case), appointment/certification of questionable constitutionality is then triggered to provide an alternative panel.

Moreover, in the case of the former Attorney General of the State of Kansas (as Kline was), ALL state judges were attorney Kline's clients, attorney Kline was privy to ALL dirty little secrets of ALL state judges (including Kansas Supreme Court judges), including constitutional violations, and thus ALL state judges had a conflict of interest in presiding over license revocation against attorney Kline.

Additionally, in his complaint, attorney Kline mentioned bias of the new (appointed after recusal) panel because of political affiliations and campaign contributions to Kline's political opponents:





Whether attorney Kline was right or wrong in investigating abortion centers as the State Attorney General, appointing to his disciplinary panel attorneys who contributed to election campaign of his political opponents was clearly wrong and deprived attorney Kline of due process of law.

Attorney Kline mentions the following problems with the politicized disciplinary panel:


Attorney Kline then asserts that Kansas Supreme Court picked up where the disciplinary panel recommending discipline left of, by not providing to Attorney Kline even an opportunity to properly relate his claims to the court for purposes of judicial review (while the court was also the licensing agency, legislating the rules of conduct, and appointing prosecutors and investigators - a constitutionally impermissible conflict of interest under Williams v Pennsylvania, decided by the U.S. Supreme Court in 2016).

Attorney Kline's disciplinary case was tried in 2 TRIALS:




After those two trials, the panel issued a


  • 185-page report finding
  • 21 violations of disciplinary rules under
  • 10 various factual scenarios.

It is obvious that more space on paper is needed to address 21 than 1 violation, and more space is needed to address legal issues that can be found in a 185-page report after 2 trials over 12 days, generating a considerable volume of transcripts.

Attorney Kline filed a 175-page report of exceptions (errors) in the 185-page panel report (not to mention that there were also transcripts to back up those errors):


Now, let's address this peculiar moment:  while there is no time restrictions in trials before a trial court, since the FIRST and LAST stage of court review was handled by the top state APPELLATE court, rules of page limit on APPELLATE BRIEFS was applied to REVOCATION proceedings (first stage trial level of judicial review).

Therefore, attorney Kline asked to give him adequate time to address all errors in the administrative panel's recommendations.

That right was denied, and attorney Kline was given permission only for 80 pages - so, he had to cut off MORE THAN ONE HALF of his exceptions, making further dismissal of his federal claim on Rooker-Feldman grounds, as if he already had opportunity for JUDICIAL REVIEW, a travesty of justice.



Attorney Kline also correctly points out that, while 21 rule violations were found against him, he was given only 30 pages more pages to argue legal errors as compared to attorneys charged with a single violation.  

In fact, attorney Kline was given just 8% percent (over 13 times less) of space to argue per violation, as compared to an attorney charged with a single violation.


Issue
1 violation
21 violations
Permitted page limit
50 pages
80 pages
Pages permitted to argue per violation
50 pages
3.81 pages

My husband and I raised the same issues of unconstitutionality (denial of due process and access to court) by one-size-fits-all appellate briefs irrespective of number of claims, number of parties, number of court decisions involved and the volume of generated proceedings and transcripts (and legal errors) to be addressed in such briefs - which were all rejected by courts who deem their own convenience, and restricting their own work to short briefs, even if such short briefs cut off necessary issues, and cut off in effect the right of judicial review - as it was done in attorney Kline's case.

Attorney Kline moved to recuse several judges of the court - in fact, all of them had to recuse due to the fact that attorney Kline was their own attorney, but that did not deter Pennsylvania judges in suspending State AG Kathleen Kane in the same and worse situation (during an ongoing investigation by AG Kane of one of the judges, Michael Eakin, while Judge Eakin found it acceptable for himself to be part of the suspension panel of attorney Kane).

In Kansas, 5 judges recused, other judges were appointed, but results were nevertheless, as attorney Kline claims, not different from the biased report of the politicized disciplinary panel:




All of the above are reversible errors, and, bias of the panel can be inferred from the mass of errors and their character.

Attorney Kline claims that there exists no authority under Kansas State Law to appoint replacement judges to Kansas Supreme Court when the majority of the court recuses, as happened in his case:







It is that error that Kansas Supreme Court, implicitly acknowledging the error, claims to the U.S. Court of Appeals for the 10th Circuit to have been "invited" by attorney Kline.





Yet, a litigant, such as attorney Kline was in the recusal situation, has a FEDERAL constitutional right to impartial judicial review, and, when making a motion to recuse, does not have to:


  • consider whether the STATE court handling his proceedings, under STATE law, has an ABILITY, a LAWFUL PROCEDURE to provide replacement judges instead of the recused judges.
If such procedure is ABSENT in state law, that is not the litigant's problem.

In such a case, it is a legislative problem, or a state constitutional problem, and the reviewing court must then:

  • stop review, and
  • apply to the Legislature to create legal procedure that would provide for replacement of the majority of recused judges of the court in order to allow litigants to secure their federal constitutional right for impartial judicial review.

But, that is not what Kansas Supreme Court did.

What it did is it utilized some self-made (and thus unconstitutional, under the State Constitution) procedure and appointed judges which generated a decision which was void under Kansas State Constitution because appointment of judges of lower courts on a temporary basis as Kansas Supreme Court judges was not approved by Kansas State Constitution - and that was definitely not the problem of the litigant asking for recusal, in order to secure for himself his federal constitutional right to impartial judicial review.


And, Kansas Supreme Court now is arguing to the 10th Circuit court of Appeals (judge Gorsuch's court) to spread this rule of judicial recusal - that the litigant asking for recusal is somehow to blame for the errors in formation or ruling of the replacement court because "he's got what he asked for" and should be estopped (blocked) from any review of a void-ab-initio order.

The claims is egregiously frivolous, and the only reason why Kansas Supreme Court judges and their attorneys were not sanctioned for this claim is because of their status.

If the court panel was not properly formed, as required by the State Constitution, attorney Kline is correct in claiming that decisions of such a court are void ab initio.

Void meaning "done without jurisdiction", null, as if it never existed.

Collateral estoppel argued by Kansas Supreme Court (by ALL of the court, including the RECUSED judges) presupposes jurisdiction.

Collateral estoppel argument to "estop" an argument that a decision was VOID, or without jurisdiction, is thus conceptually inconsistent and frivolous.

But, the worst in this argument is that Kansas Supreme Court is trying to spread the "blame the victim" argument and is trying to make the already nearly impossible plight of litigants trying to recuse biased judges into an even more impossible task - if the 10th Circuit buys this argument that the litigant is to blame for any errors of the replacement court after recusal, it will now be applied upon the entire jurisdiction of the 10th Circuit, and that is:

  1. Oklahoma;
  2. Kansas;
  3. New Mexico;
  4. Colorado;
  5. Wyoming;
  6. Utah;
  7. Portions of the Yellowstone National Park;
  8. portions of Montana;
  9. portions of Idaho:



So, now, because some pissed-off political opponents of former Kansas AG Phil Kline wanted a piece of him, all litigants in


  1. Oklahoma;
  2. Kansas;
  3. New Mexico;
  4. Colorado;
  5. Wyoming;
  6. Utah;
  7. Portions of the Yellowstone National Park;
  8. portions of Montana;
  9. portions of Idaho:
will be to blame for errors of incompetent, biased or illegally formed courts as "invited error", even if they accomplish the nearly impossible task of obtaining recusal of biased judges - and if such biased, incompetent or illegally appointed judges are replaced by no-less biased, incompetent and/or illegally appointed replacement judges?

I believe, whatever the controversy in question was, a court of law may not break the law in order to discipline an attorney, and especially if such discipline (in the name of "protection of the public") puts the public in jeopardy by taking away from the public in 9 JURISDICTIONS the right of impartial judicial review.

It is very clear what Attorney Kline wanted when he made a motion to recuse - an impartial judicial review by a lawfully composed panel.

If the State of Kansas does not have in its State Constitution and the laws:
  1. the mechanism of replacement of recused judges of the State Supreme Court if the majority (or all judges) of the court recuse, such lack of mechanism does not deprive state court litigant from:
    1. seeking recusal of Kansas Supreme Court judges, and from
    2. seeking that the replacement be in accordance with existing law.
If the State of Kansas does not have in its State Constitution and the laws:

  1. The mechanism of providing an impartial judicial review to the former State Attorney General who represented, by law, ALL state judges, and thus is blocked from disclosing their dirty little secrets as his CLIENTS in motions to recuse, the attorney is not to blame for the lack of mechanism creating this mess and this conflict of interest - he is STILL entitled to assert his right to impartial judicial review, and it is for the State Legislature to change laws of the state, and for the people of the State of Kansas to change the State Constitution accordingly in order to provide to the former AG his federally required right to impartial judicial review - by creating state laws, and by amending State Constitution, by referendum if that's the required process, for importing neutral judges from out of state if necessary.
Litigants do not have to bear the brunt of lapses of State Legislatures or for lapses in the State Constitution.

Litigants do not lose their federal constitutional rights because of lapses in State laws.

Instead, lapses in state laws that prevent litigants from securing their federal constitutional rights are separate constitutional violations.

Let's see what the 10th Circuit will say to that.

I will continue to monitor this case, and report my findings.

Stay tuned.