"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.

Saturday, April 30, 2016

The Younger abstention died, and the right to sue in federal court was restored - in the bathroom in North Carolina

I already wrote on this blog, numerous times as to how easy it is to derail a federal civil rights lawsuit - for example, here and here.

The Younger abstention, a doctrine by which federal courts refuse to review civil rights lawsuits, instead imposing upon the litigant the choice of forum in the state court, the choice of forum that is not allowed by the Civil Rights Act, 42 U.S.C. 1983.

Since federal courts are courts of limited jurisdiction governed under Article III of the U.S. Constitution which does not allow federal courts to change the U.S. Constitution or statutes enacted by the U.S. Congress - including the U.S. Civil Rights Act or the U.S. Congress's determination of jurisdiction of federal courts to hear civil rights lawsuits - any "doctrines" presenting a bar to federal civil rights lawsuits are unconstitutional as outside the power of federal courts within Article III and usurping exclusive power of Congress to legislate under Article I of the U.S. Constitution.

That said, in a paroxysm of sycophancy, the legal profession and scholars parade the doctrine as a doctrine based on "comity" and "equity".

There is no equity in blocking a victim of civil rights violation by the STATE government by dismissing a properly filed federal civil rights lawsuit (without compensation of court costs spent on filing and prosecuting it) and directing the victim of constitutional violation by STATE government to argue that issue before a STATE court.

That doctrine has nothing to do with equity, but everything to do with caseload control - because such cases, and the federal court dismissing the lawsuit knows it very well - will die a violent death in state courts, often with sanctions for "frivolous conduct" - which sanctions the federal court then will refuse to review, now under a Rooker-Feldman doctrine.

Nor does Younger abstention have anything to do with "comity".  Comity is DEFERENCE.

Deference to the state government that is a DEFENDANT in a civil rights action is called BIAS.

Bias is a constitutional problem tainting jurisdiction of the particular presiding judge.

When comity=deference is asserted on a doctrinal level, then bias against a particular class of plaintiffs in favor of a particular class of defendants is asserted on an institutional level in federal courts.

The pretense justification for the Younger abstention is that state courts are "capable" or "competent" (nobody is concerned whether they are willing or unbiased) to hear federal constitutional claims.

Yet, as of March 23, 2016 the Younger abstention simply died in the state of North Carolina.

Specifically, this "scholarly" doctrine has died in North Carolina bathrooms, or was flushed down the toilet - whichever you prefer.


A very fitting end.


Because on March 23, 2016 the North Carolina Legislature has issued the "transgender bathroom bill" which also included, reportedly, a prohibition to sue in state courts for ANY kind of discrimination.

Is it bad?


It is most glorious.

Now, no federal court in North Carolina may state, as a matter of law, that a state court in North Carolina is fully capable and competent to review federal constitutional issues of discrimination.


Now, by statute, North Carolina state courts are precluded from doing so.

And thus, federal courts may not use the pretense of the state North Carolina courts being allegedly capable and competent to review federal constitutional claims.

They will have to actually do their jobs.

And, civil rights litigants will actually have a possibility to get their civil rights lawsuits into federal court (unless more restrictions on civil rights litigation are invented by federal courts located in North Carolina districts) - and prosecute it in their chosen forum.

As the old saying went - every cloud has its silver lining.

Here, the silver lining unexpectedly came out of an overzealous bigotry of state legislators.

I wonder - maybe other states would join North Carolina in prohibiting their courts to review federal constitutional questions (it will not alter the current status quo much anyway, since courts across the country review federal constitutional questions raised in front of them as sanctionable conduct)?

I am just hopeful. 

Then, across the country, people will finally be able to sue for human and civil rights violations the way the U.S. Congress planned for them in an enacted Civil Rights Act all along.

No comments:

Post a Comment