"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, August 4, 2016

"Personhood" of corporations after "Citizens United" and pro se representation of corporations in court - if corporations are "persons" enough to have 1st Amendment rights in political campaigns, and to sue as "persons" for civil rights violations against them, why not to represent themselves pro se in court?

The word "corporations" has become something of a misnomer in the United States, especially in the so-called "liberal" circles.

It has become a sign of belonging to a certain "school of thought" to blast "corporations" - all of them - for about anything wrong that may happen in society.

I've encountered that approach by the young intellectuals in the American law school where I went at the same time as my oldest child went to college.  "Corporations" are bad - said the young people with starts in their eyes.  "We should not serve the interests of corporations" was the motto of the day among a large number of my classmates (of course, that changed rapidly once student loans, graduation and the necessity to provide for the family set in).

I see this same approach in, let's say, Bernie Sanders' supporters.

Yet, a corporation is simply a legally available way to protect the assets of individuals doing business - so that the obligations and liabilities incurred by the business do not wipe out the participants' personal assets. 

A "Mom and Pop", or a small family, or a small "group of friends out of a garage" business can still incorporate - simply to protect assets, sometimes very small assets, the only residence or car, for example, that business owners/ entrepreneurs have.

Yet, once a "Mom and Pop" business incorporates, the protection of assets comes at a hefty price of having to hire and pay an attorney to represent the corporation in court, because in both state and federal courts, corporations are not granted personhood in order to represent themselves pro se.

In New York, such prohibition operates through a statute called Judiciary Law Section 495, which states, in part:

"495. Corporations and voluntary associations not to practice law. 1.  No  corporation or voluntary association shall (a) practice or appear as an attorney-at-law for any person in any court in this state or before any judicial body ..."

So, for purposes of self-representation in court, a corporation is not a "person".

Yet, corporations have been given political free speech rights guaranteed by the 1st Amendment as a person for decades:

And, through the case Citizens United v Federal Election Commission, decided in 2010, corporations were given a right of political donations in election campaigns - also as an exercise of their political free speech right, even though corporations are not allowed to vote as persons in those same elections.

I am not aware of any challenges brought in court yet by corporations of the prohibition on pro se representation in court because corporations are, apparently,
  • persons enough to SPEND money - pour funds into the coffers of political candidates, and that rule favors, naturally, big businesses and their donations to political campaigns, 
  • but are not persons enough to SAVE money where a corporation is a very small business and hiring an attorney to represent such a corporation in court may very simply be such a drain that having to hire an attorney alone may end the business.
It is obvious that the discrepancy created by (1) allowing corporations "personhood" for spending, but not for saving purposes - where spending in the political campaigns is equated with free speech, but saving on an attorney somehow does not infringe access to court guaranteed to any "person" by the same 1st Amendment.

Somehow legislators and judges (all of whom are sworn to protect the U.S. Constitution in its entirety, not by bits and pieces, based on what benefits it provides to them and those close to them) overlooked the fact that when they give a corporation enough "personhood" to exercise free speech in an election campaign, that same "personhood" must be enough for self-representation.

Moreover, corporations are considered "persons" in the United States for purposes of a lawsuit for civil rights violations under 42 U.S.C. 1983, the Civil Rights Act, and are allowed to sue as plaintiffs in civil rights actions.

Yet, corporate plaintiffs are put at a disadvantage in such civil rights actions, because, unlike individual plaintiffs, they are not allowed to sue on their own, pro se - and thus have to hire an attorney. 

Yet, a 1983 civil rights action is an action that may be brought, by a clear statutory language, by "citizens" and "other persons":

If corporations are "persons" enough to sue as civil rights plainiffs for civil rights violations, to have their "speech" protected on 1st Amendment grounds, and exercise their 1st Amendment political free speech rights by donating money to political candidates because they are "persons" enough for those purposes - corporations are certainly "persons" enough for purposes of self-representation.

The only corporations that would even want to represent themselves pro se are small businesses with not many assets.  For large corporations, an expense of legal representation will not put them out of business, as it my happen with small corporations.

Thus, granting rich corporations "personhood" enough to spend money upon political candidates, and giving all corporations standing to sue as "persons" for civil rights violations against them as "persons", but not recognizing them as "persons" for purposes of pro se representation is an equal protection problem.

Since corporations have standing to sue in civil rights actions, they my very well do that - asserting that if they are "persons" enough for one purpose protected by one section of the 1st Amendment (free speech), they are certainly enough of "persons" to represent themselves in court, under the protection of another section of the 1st Amendment, the Petitions Clause.

As the economy becomes tougher and tougher on small businesses, I believe, a legal challenge on this discrepancy by a small incorporated business striving to survive and needing to be able to defend its rights or prosecute violations of its rights in court is only a matter of time.

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