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

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

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

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

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

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

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

Wednesday, July 29, 2015

When taxpayers "own the law", why would the State of Georgia sue Carl Malamud for giving the owner access to the owner's own property?

The State of Georgia has filed a lawsuit against a civil rights organization run by a non-attorney Carl Malamud, who for many years has actively advocated for making laws known to the public and who has actually made many laws and regulations available for public access.

So why sue a person who is engaged in such a laudable activity that is so beneficial to the public?

The State of Georgia asserts that it contracted the legal research and legal publications giant LexisNexis to make annotations for State of Georgia's official statutes.

The State of Georgia, in a twisted logic (in my opinion), claimed to the federal court that Mr. Malamud, in making the annotations that belong to the State of Georgia through its contract with LexisNexis (and thus belong to the people of the State of Georgia) infringed upon State of Georgia's "copyright" in those annotations by - guess what - making those annotations to the official states available to - gasp! - the people of the State of Georgia.

Of course, by publishing such annotations on the Internet, Mr. Malamud's organization has made those annotations available to a wider readership than just to the people of the State of Georgia, the true owners of the annotations, but if certain documents are in the public domain of a certain state, by law they are in the public domain, period - even if an alien spy organization wants to read the annotated official code of the State of Georgia for their own evil purposes.

The officials of the State of Georgia who filed the lawsuit (and their attorneys) obviously have the "chicken and egg" problem.  They somehow assert that while the State of Georgia contracted annotations, and thus owns a "copyright"  to those annotations to its own official statutes, then the People of the State of Georgia cannot have free access to those annotations - acquired by their representatives at the expenses of their taxes.

And, by the same twisted logic, a person or organization who provides access to annotations to official law paid for by the state officials with taxpayers' money, is infringing upon the copyright of the State in those annotations.

There is also a clear standing problem - if the State of Georgia gave exclusive rights to sell the "annotated code" to LexisNexis (and the question is - why, on what legal grounds was that exclusive rights given), it is LexisNexis that need to be suing to enforce its exclusive contractual rights.

I am not the only attorney who raises the standing issue.  I encourage my readers to read the excellent blog by attorney Max Kennerly with a thorough analysis of concerning issues in the lawsuit.

Attorney Kennerly does ask the question as to why it is the State of Georgia who is suing, even though it is the LexisNexis' contractual rights which are allegedly violated.

The answer may be - LexisNexis, because it created the annotation by contract with a public entity, does not have copyright in that material and cannot sue for copyright infringement.

But, on the other hand, the public entity has no basis for a lawsuit (in my legal opinion) for copyright infringement based on the fact that somebody gave access to the People of the State of Georgia to annotations to official law that was procured by People of the State of Georgia (through its government, its legal representatives), with public money, because such annotations belong to the People of the State of Georgia, and giving access to the owner to his own property is not copyright infringement.

I hope that the federal court will toss this case.  

It deserves its place in the waste basket.

And I hope that people of the State of Georgia demand to fire everybody who was involved in filing and prosecution of that case and wasting taxpayer's money.

There are many unmet needs in the State of Georgia where the money spent on this nonsensical litigation could be used and actually help people such as, just as one point out of many, childhood poverty of 27%.

I guess, pursuing Mr. Malamud's organization for making public to the People of the State of Georgia information about the law belonging to the People of the State of Georgia that People of the State of Georgia are presumed to know for purposes of civil or criminal liability was a higher priority for the State of Georgia in terms of use of resources so limited that the hourly wage in the State of Georgia remains $5.15, percentage of families that work but are still low income is 36.6%, poverty rate in the state is 19% (every 5th resident of the State of Georgia is poor!), extreme poverty level is the staggering 8.8% (nearly 1 in 10 people are extremely poor!), 40% of single parent families with children are poor...

Mr. Malamud's organization and its efforts to HELP the poor people who obviously cannot afford an attorney, but whose tax dollars are used against them by the government, to at least know the law that is used against them is a bigger problem for the government of the State of Georgia than all the above.

Which makes even more laudable Mr. Malamud's efforts to make laws accessible to the poor people who own those laws, despite lawsuits against him by the establishment to prosecute him for those honorable efforts.

I must add that nobody need free online access to the annotated official statutes of the State of Georgia more than the poor people in the State of Georgia, those who cannot afford to buy those same annotations from LexisNexis.

Nobody outside of the State of Georgia, save for scholars, really needs to know the statutes of the State of Georgia.

Attorneys practicing in the State of Georgia, know the statutes because they their legal training and because they use those statutes on a daily basis and paying for those annotations is their business expense usually passed to the clients.

So, the State of Georgia, by suing Carl Malamud's organization for providing public access to annotations to the official statutes of the State of Georgia, insist on keeping the poor people of the State of Georgia, in the dark about their own laws.

And such efforts are not laudable, honorable or even legitimate for a democratic state government.

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