"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.

Monday, August 15, 2016

Disregarding federal court precedent is a basis for disciplinary prosecution of judges in Alabama, Oregon and Wyoming, but not of an attorney in Texas

I recently wrote in this blog about the disciplinary prosecution against Chief Judge Roy Moore of the State of Alabama, who is accused of directing probate judges to defy the U.S. Supreme Court precedent legitimizing same sex marriage and to deny same sex couples marriage licenses.

Previously, I wrote on this blog about a Wyoming judge Ruth Neely who was taken off the bench for refusing to marry same sex couples.

The disciplinary case against judge Neely continues at this time.

Earlier, in September of 2015, an Oregon judge, Vance Day, also refused to perform same sex marriages.

In January of 2016, the Oregon judicial conduct panel recommended removal of Judge Day from the bench based on that conduct.

Yet, another state, the state of Texas, just refused to bring disciplinary charges against the State Attorney General Ken Paxton - for the same thing.

So, Oregon, Wyoming and Alabama consider behavior of a judge refusing to follow the U.S. Supreme Court a disciplinary violation (in Judge Moore's case - at least, to the point of bringing disciplinary charges and ordering a trial on them, there is no disciplinary decision yet), while in Texas the same conduct is not regarded by the state disciplinary authorities as a basis to bring disciplinary charges against an attorney.

Such a discrepancy must at some point reach the U.S. Supreme Court.

The fight, as I noted in my previous blog on Roy Moore, is whether to consider the U.S. Supreme Court precedent binding upon state courts if state court judges - who are individually sworn to uphold the U.S. Constitution - consider the decision legitimizing same state marriage an unconstitutional infringement on the state 10th Amendment privileges and a judicial re-writing of the Due Process and Equal protection clause of the 14th Amendment to the U.S. Constitution.

The Supremacy Clause of the U.S. Constitution does not include judicial decisions, even those of the U.S. Supreme Court - yet lawyers in this country are taught and federal courts continue to adhere to the "understanding" that the U.S. Supreme Court decisions are not only part of the Supremacy Clause, but are over and above what is actually in the Supremacy Clause and that U.S. Supreme Court decisions control - at least some of those decisions.

Judge Roy Moore is already openly stated that judicial decisions are not Supreme Court of the Land.

Nothing revolutionary about it, Judge Moore simply quoted the text of the U.S. Constitution, its Supremacy Clause and logically and reasonably asserted that, since the U.S. Supreme Court's - or any other federal court's - decisions are not part of the Supremacy Clause, such decisions are not the "Law of the Land" and are not binding on state courts, and that state court judges have their own individual right to interpret the U.S. Constitution and refuse to abide by federal court decisions they consider unconstitutional.

Yet, Judge Moore is on a disciplinary trial for that.

And I already noted the righteous ardor of the interview, New York State Governor's brother Chris Cuomo, as a reaction to that plain statement, asserting instead that the U.S. Supreme Court decisions ARE the law of the land - I wonder if Chris Cuomo ever read the U.S. Constitution he was sworn to uphold as an attorney 20 years ago.

It is wrong to jam somebody's personal religion down other people's throats.

Yet, it is no less wrong to impose upon the nation the non-existing authority and dominance of the U.S. Supreme Court decisions as "the Law of the Land" when

  1. such decisions are not part of the Supremacy Clause, and when
  2. the right of judicial review by the U.S. Supreme Court was established through not through the U.S. Constitution itself, but through a judicial decision, Marbury v Madison, fraught with irreconcilable conflicts of interest where the author of the decision, Chief Judge John Marshall, was the public official whose actions were challenged in the court case, so Marbury v Madison is not even a legitimate decision - and certainly cannot be used as a decision changing the text of the U.S. Constitution and having a grip on what is going on in this country for 213 years.

I would note that judicial discipline is not being imposed upon judges Roy Moore in Albama,  Ruth Neely in Wyoming and Vance Day in Oregon for their discriminatory behavior, or for establishment of religion in the courtroom - but for their alleged defiance of the U.S. Supreme Court precedent, in other words, for insubordination based on personal interpretation by state judges of the U.S. Constitution and its Supremacy Clause that does not include U.S. Supreme Court decisions.

And, having been personally sanctioned in the decision by the former Chief Judge Gary L. Sharpe of the U.S. District Court for the Northern District of New York for the correct reading of the 11th Amendment to the U.S. Constitution, a sanction repeated by Judge Sharpe against my husband appearing pro se in another case and repeating the perfectly legal argument that the 11th Amendment does not bar the citizens of the State of New York from suing their own State (not to mention that New York waived sovereign immunity through the Court of Claims Act since the beginning of the 20th century), and followed by an anti-filing injunction upon my husband - I do have a problem with sanctions for the correct reading of the U.S. Constitution, of any part of it.

There are no grounds, in my belief, for the state or federal government to take any adverse action against public officials - or private attorneys who are required to take constitutional oath of office as a condition of getting a license and practicing law - for following their constitutional oath of office, the way they understand it based on the text of the U.S. Constitution. 

Such prosecutions are prosecutions of those who can't read against those who can - and it is downright scary when the brazen illiteracy is promoted as the Supreme Law of the Land in such a powerful country as the U.S.

I will continue to follow this trend and report it on this blog.

Stay tuned.


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