"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.

Thursday, September 24, 2015

Kathleen Kane as an involuntary Kim Davis and the role of criminal cartels in democratic process

Ok, so millions of voters in the State of Pennsylvania voted to put in office the State Attorney General, Kathleen Kane.

Then, Pennsylvania Supreme Court, consisting exclusively of licensed attorneys, and based on behind-the-doors proceedings conducted by a cartel of attorney-dominated disciplinary committee appointed by that same court, "temporarily" suspended Kathleen Kane's law license, with a delay of suspension for 30 days -

Now, considering that Kathleen Kane was recently asked, together with other State AGs, by a consumer union and its representative, a former federal antitrust prosecutor, to see that attorney disciplinary proceedings comply with the new U.S. Supreme Court decision of February 25, 2015, it is interesting that the disciplinary committee that was supposed to be disbanded or reformed in compliance with that decision that has won the race to disband her as their prosecutor before she as the prosecutor disbanded the disciplinary committee, following federal law.

Now, Kathleen Kane is in an "involuntary Kim Davis" kind of situation.

Kim Davis willfully refuses to do her duties, and instead, her deputies have to discharge them, while Kim Davis keeps drawing her salary for refusing to do her duties.

Kathleen Kane, after her license was suspended (she's got a 30-day stay of suspension) will be able to do only those duties of her office (if such duties still remain) that do not involve the practice of law.

And, the courageous woman continues to refuse to resign from the office for which millions of voters in Pennsylvania have chosen her despite the unprecedented pressure from the old boys' club.

Imagine, an Attorney General cannot practice law.

An easy way for the subjects of potential prosecution to eliminate their own prosecutor, isn't it?

So, while Kathleen Kane refused to resign, the old boys' club devised a way to remove her from office through the disciplinary proceedings, which does not involve the voters, or their elected representatives, and which actually FORCE the hand of the voters' public representatives, because the legislature might have no choice but remove Kathleen Kane from office (or change the law requiring that State Attorney General must be a "member of the bar in good standing").

Because, if the "bar" is run as a criminal cartel, and members of the bar in good standing are removed from that good standing because they want to end the criminal cartel, following their duties, then it is the criminal cartel's actions and not of those who want to eliminate it, should be addressed by the government.

Which brings us to the next issues.

In New York, multiple witnesses in the Statewide Commission for Attorney Discipline raised the issue that New York is second only to Texas in the number of wrongful convictions, but prosecutors responsible for those thousands of convictions were never disciplined (and, I am sure, some of them are now judges, because the DA's office is a sure career part to become a judge in New York, as it is in other states and at the federal level).

New York Legislature is considering Bill S24 to institute a Commission on Prosecutorial Conduct.

Now, in view of what happened to Kathleen Kane, let us, as the sovereign in this country, the People, consider the implications of having laws:

  • that require that certain public officials must be licensed attorneys;
  • giving immunity to such public officials from prosecution by members of the public through civil rights lawsuits;
  • having no effective mechanisms of discipline of those public officials for their real misconduct in office

On the one hand, it is grossly unfair - and unconstitutional - to have an elected public official who is actually doing her job and fighting misconduct and corruption in the ranks of the organization she is heading to be removed from office not by the voters, not by the legislature, not following constitutional procedures of impeachment, but by the back-room dealings of a  criminal cartel that was faster to remove her than she removed them.

On the other hand, what remedies do we have against rampant prosecutorial misconduct when it occurs?

Remedies are suggested by:

  • Kathleen Kane's conduct in pursuing prosecutorial misconduct, 
  • the U.S. Supreme Court decision of February 25, 2015 and 
  • a recently-decided 2nd Circuit case refusing to grant immunity to prosecutors for presentation of fabricated evidence to the Grand Jury.


The State Attorney General must be charged ONLY with a statutory duty to PROSECUTE misconduct in the government, not to DEFEND it against plaintiffs in civil rights action, which is what is happening every day in federal courts.  If you think about it, the Supreme Court eliminated the law license of ITS OWN COUNSEL IN FEDERAL CIVIL RIGHTS LITIGATION - as did the disciplinary committee.

It is clearly visible that the two hats worn by State Attorneys General, defending the same misconduct  of public officials in federal civil rights actions as they are supposed to prosecute, are completely incompatible.

The government can hire court representatives to represent them in a civil rights lawsuit, as do other litigants, and those court representatives should not be the government's own prosecutors, because such a situation constitutes an ongoing bribing situation.

When the government/client of a State Attorney General is also holding her license and livelihood in their hands, as it is with disciplinary committees and the licensing courts, the conflict of interest gets even worse.

Now the State Attorney General not only has to pick and choose 
  • whether to defend or prosecute her own clients for the same conduct;
  • whether to violate the attorney-client privilege rule by prosecuting her own clients for what may be covered under that privilege;
  • but also to be in fear of losing her own law license, reputation and livelihood if he/she dares to prosecute instead of defend misconduct in the government - because her livelihood and reputation can be stripped by her own client, no malpractice lawsuits or arbitration necessary

Such conflicts of interest and such bases for fear in the State Attorneys General for their own law licenses must be eliminated.



Laws must be abolished that expose elected public officials to arbitrary removal from office by interest groups without any input from the public.

Laws must be abolished that require that

  • an Attorney General;
  • a judge
any other public official - absolutely must be a "member of the bar in good standing".

The requirement that elected public officials must have law licenses (where licensing is regulated secretly by private interests) is an extraordinary requirement that hurts the democracy in this country, as Kathleen Kane's license suspension just demonstrated.

But, what to do with discipline of public officials?


Very easy.

  1. Make the terms in office short.  Do not allow people to become entrenched and form cliques.
  2. Create financial disincentives for public service, so that incompetents who cannot survive in private practice do not go into the government to get a cushy pension with benefits, as it happens now.
  3. Make public service similar to a jury duty - a duty, rotational, short and not compensated, the than for travel and lunch expenses.  It will eliminate a lot of corruption in the government, if not its major part.
  4. Make prosecution and adjudication blind - so that prosecutors and judges bring and decide cases, without having an opportunity to know identity of the litigants.  There are technological mechanisms in our modern society to make that happen. 
  5. Establish a direct right of citizens to convene and address grand juries to address official misconduct through criminal proceedings.
  6. Eliminate immunities from civil lawsuits for fraudulent and malicious conduct of public officials in office.

You may disagree with my proposals.

But, Kathleen Kane's case shows that, at the very least, changes must be considered and made in, at the same time, ensuring effective mechanisms of accountability of public officials for misconduct in office and for removal of conditions that a public official must satisfy, other than his or her constitutional oath of office, to be able to serve the public.  

And my proposals are simply my contribution to the much-needed public discussion of what changes need to be done to preserve this country as a democracy.

No comments:

Post a Comment