"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.

Sunday, November 22, 2015

The Civil Rights Litigation Protection Act has become a necessity

Most people do not track what is going on in the federal Legislature.

So, my readers might be surprised to learn that there is a bill being prepared that will kill the remnants of civil rights litigation, the way it exists (or nearly does not exist) today, and it has already passed House and is in the Senate for further legislative proceedings.

Here is the text on the bill.

Here is the voting record on the bill.

And here is the call to democrats by the minority leader to vote "NO" on that bill because of the potential and history of Rule 11 to be disproportionately used against civil rights plaintiffs and their attorneys to chill civil rights litigation against government abuses.

The call to vote "No" to the bill (above) contains ere is the description of the history of Rule 11 showing that Rule 11 was already used to chill civil rights litigation.

After it was "reformed" and a "safe harbor provision" put into it, Rule 11 motions are simply not used by government defendants.

Instead, they resort to motions asking for penalties against civil rights plaintiffs and their attorneys under the so-called "inherent power of the court" and 28 U.S.C. 1927.

The penalties are still for "frivolous conduct", and, as democrats who dissented, were fearing, they are already used to chill civil rights litigation.

The same is occurring in state courts.

In New York, the rule of frivolous conduct, 22 NYCRR 130.1, as far as I know, is used ONLY, EXCLUSIVELY and ENTIRELY to chill civil rights issues.

I was sanctioned 3 times by a judge whom I sued on behalf of my clients, right after I sued him.

The judge sanctioned me for raising constitutional arguments in motions to recuse.

The State of New York, a defendant in actions where I sued it on behalf of clients, took my state law license, without a hearing, based on my constitutional arguments on behalf of my clients.

Please, note that constitutional arguments are especially vulnerable to the "frivolous conduct" rule, because the "frivolous conduct" rules allow judges discretion (use their whim, practically) for arguments that are not "mainstream", not "supported by authorities".

For judges reviewing motions under the rules of frivolous conduct, "authorities" are not the U.S. Constitution itself, interpreted by the litigant or the litigant's attorney (which is completely legal and part of the attorney's duty), but additional state and federal statutes and cases where another court or another government body would first say what the litigant or the litigant's attorney is saying.

In other words, the rule of frivolous conduct does not allow certain novel ideas to be raised for the first time in the pleading, it prohibits the so-called "cases of first impression", thus stifling development of constitutional jurisprudence, and stifling social progress.

As dissenting democratic Senators correctly stated regarding House Bill 758, if penalties are imposed for novel or unusual constitutional arguments, there would have been no "Brown v Board of Education" and other important precedents of the U.S. Supreme Court that changed how we all live and prohibited various forms of discrimination.   

I wrote on this blog long time ago about the "mysterious rule of frivolous conduct", its vagueness, overbreadth, reaching protected conduct and disproportionately targeting civil rights attorneys and attorneys raising constitutional arguments in any other litigation.

I wrote on this blog long time ago about the whole "tree" of thoughts (and that tree is far from complete) that an attorney needs to go through before making a motion to recuse a judge, for fear of retaliation.

The target of these rules is not "lawsuit abuse".

The target of these rules is civil rights litigation.

These rules are used to intimidate litigants and especially their attorneys not to take civil rights cases.

Even while 42 U.S.C. 1988 was enacted to encourage civil rights litigation by providing incentives to civil rights attorneys for taking cases without being paid up front, with the hope that, if the case is successful, the attorney will be paid by the governmental defendants, the courts managed to hack up even that statute and put it on its head, instead using it now to award attorney fees to governmental defendants, perpetrators of constitutional violations, making their victims pay their perpetrators' attorney fees, which is completely contrary to the legislative intent of 42 U.S.C. 1988.

So, while the U.S. Congress is toiling on whether to pass or not to pass H.R.L. 758 that seeks to amend Rule 11 back to where it was in the year 1983 and was used to stifle civil rights litigation, the U.S. courts are quietly laughing at the efforts and are bypassing Rule 11 anyway, stifling civil rights litigation just the same, by other means.

And state courts are contributing to that stifling by simply revoking licenses of civil rights attorneys who raise constitutional arguments - and are sanctioned for them as if "for frivolous conduct".

The legislation that is really needed is the Civil Rights Litigation Protection Act, imposing an absolute prohibition on the courts against penalizing civil rights plaintiffs and their attorneys.

After all, judges and prosecutors are immunized for malicious and corrupt acts in office, as a matter of public policy (even though courts that invented that rule may not create public policy decisions, it is the exclusive matter of legislating for the U.S. Congress). 

Enforcement of the U.S. Constitution against government encroachments is no less important.

It is necessary to enact federal legislation prohibiting ANY rules, regulations or court decisions imposing ANY penalties on litigants and/or their court representatives who raise constitutional issues in litigation.

I mean, once a constitutional argument is raised, the litigant or attorney must be immune to penalties, otherwise it is too easy for courts to invent a reason other than a penalty for a constitutional argument to impose a penalty for filing a pleading CONTAINING a constitutional argument.

Ask your U.S. representative in Congress to introduce and enact Civil Rights Litigation Protection Act.

Otherwise, you can say goodbye to civil rights litigation, because ANY of your pleadings in court may now, at a judge's whim, be considered "frivolous", and NO attorney, whose licenses are in the hands of those same judges before whom they are raising constitutional arguments, will want to raise constitutional issues of sensitive nature - such as on a motion to recuse, or raising an issue of misconduct of a government official.


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