"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, March 30, 2016

A certiorari petition to the U.S. Supreme Court challenges the 6th Circuit's decision to uphold occupational licensees' 5th Amendment rights in disciplinary proceedings

An interesting petition for a writ of certiorari has been filed and is pending before the U.S. Supreme Court about occupational licensing.

The appeal is by the Michigan Gaming Commission and it is challenging the last year's decision of the U.S. Court of Appeals reversing the district court's grant of summary judgment to the Gaming Commission, the text of the case is available here.

The two questions before the court are:

2) are occupational licensees entitled to 5th Amendment protection in disciplinary proceedings?  The U.S. Court of Appeals for the 6th Circuit said they are:

The case is out of the state of Michigan.

What is not presented in the "questions presented" (no pun intended) of the petition for a writ of certiorari is that the 6th Circuit denied even qualified immunity (as a matter of law) to the Licensing (Gaming) Board, and remanded the case back for trial on the issue of immunity.

A strong brief in opposition of the petition has been filed by the occupational licensees - race drivers who lost their licenses (and jobs) because of their refusal to make self-incriminating statements in licensing disciplinary proceedings, which the 6th Circuit considered an unconstitutional action by the licensing board.

An amicus curiae brief from California Sheriffs' Association asks the U.S. Supreme Court to reverse the 6th Circuit's decision:

 So, what are the "disastrous consequences" to the interests of police as to 5th Amendment protection against compelled self-incrimination "during investigations"?

The position of the Sheriffs' Associations is that:

Or, in other words, the Sheriffs' Association want to be able to continue to compel self-incrimination in interrogations under SOME grounds - as long as they do not CRIMINALLY prosecute the individual from whom the self-incrimination was exacted by compulsion.

Yet, the Sheriffs' Association's "interest" in compelling testimony of PUBLIC EMPLOYEES (not of private occupational licensees) in administrative proceedings has nothing to do with occupational licensing, and, if the U.S. Supreme Court rejects the writ of certiorari or affirms the decision of the 6th Circuit, that will not create the problems the Sheriffs' Association are claiming will be created for them 

As much as I would like public employees to be disciplined for misconduct (that was, as I understand, the Sheriffs' Association's point), I would prefer it to be done following the U.S. Constitution, and without the use of compelled self-incrimination.

Because - if one of us can be compelled to incriminate oneself, and thus lose his or her job, it is applicable to anyone.

And that's just wrong - as the 6th Circuit, fortunately, has recognized in reversing the grant of summary judgment to the Michigan Gaming Board on 5th Amendment grounds.

It is an interesting case, I will cover how it will develop - and will run a separate blog on a separate issue regarding occupational licensing that the case raises.

Stay tuned.


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