"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, October 8, 2015

More on sanctions for "frivolous" conduct for constitutional arguments

The U.S. Supreme Court prohibited viewpoint-based discrimination pursuant to the 1st Amendment of the U.S. Constitution.

Federal courts do not care and continue to sanction civil rights plaintiffs and their attorneys for the essence of their viewpoints on issues of constitutional law as a policy of docket containment and protection of the government.

I wrote in many memorandums of law and appellate briefs in federal court - which all fell on deaf ears - that a constitutional argument is not a majoritarian argument, constitutional law is not the law of majority, and thus rules of frivolous conduct requiring comparison of an argument as to whether or not it is "reasonable", or, in other words, "mainstream" at the time, chills development of constitutional law, and with it, social progress.

Recently I came across a statement attributed to a  famous law professor Anthony D.Amato:

“The Moment of Truth for a practicing lawyer occurs whenever a prospective client tells a story that seems morally compelling but legally hopelessThat is where the attorney's legal research should begin, not where it should end.  Too much injustice persists in the world because tired legal thinking has accepted unjust patterns as legally inevitable.”

That means, under the current rules of frivolous conduct and the pattern of their application to constitutional arguments and the "evolving rules of decency" argument, that whenever an attorney meets such a "Moment of Truth" challenge, while "the attorney's legal research should begin, not end" at that point, what happens is the attorney runs from such a case like chased by hounds - because  the attorney is afraid of being sanctioned if he raises, based on research and his/her own legal opinion an issue in court that is "morally compelling but legally hopeless".

Many concepts that we accept today as mainstream, were once "morally compelling, but legally hopeless".

Women were property of men, without their own right to decide their own destiny or the destiny of their children, own property, engage in professional activity or business, or vote.

That all changed.

Slavery was abolished.  It was at some point mainstream, and runaway slaves were brutally prosecuted and psychiatrists "diagnosed" their "mental illnesses" for running away from their masters.

Racial discrimination in public places, which was once a raging rule enforced by the government by police force, exists now only in remnants that civil rights movement is continuing to fight, and is declared unconstitutional.

Gay marriage is now legal across the United States, while only over 13 years ago homosexual intercourse was a crime.

Death penalty for juveniles was abolished only 13 years ago.

Abortion and contraception was transformed into legal from being criminal on the lifetime of one generation.

Right to marry.

Right to marry a person of another race.

All of those things were not "mainstream" at some time.

At some time, all of the above things fit into the definition of "morally compelling, but legally hopeless cases".

Existence and vicious application of rules of frivolous conduct against "non-mainstream" arguments chill a lot of potential civil rights lawsuits and slow social progress.

If the U.S. Congress enacted the Civil Rights Act, 42 U.S.C. 1983, and an add-on, a fee-shifting provision, 42 U.S.C. 1988, to help civil rights PLAINTIFFS get attorneys by the statutory promise of payment by opponents if the case is won, that shows that civil rights actions were encouraged by Congress as something beneficial for the people.

Yet, the same Civil Rights Act AND the fee-shifting provision, were put by federal courts on its head, now being the main source of STIFLING , not encouraging civil rights litigation.

It is for you the people to assert that relentless and vicious sanctioning of civil rights plaintiffs and their attorneys for the contents of their viewpoints expressed in novel constitutional cases that are "morally compelling, but legally hopeless" hurts this country's social progress, and hurts citizens of this country by blocking their access to courts, preventing them from getting remedies for government misconduct.

It is for the people to put an end to it, through media campaigns and addressing the issue repeatedly and assertively to the legal representatives people vote into office.

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