"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.

Friday, September 9, 2016

Rob a waiter, share a footnote

An oh-so-witty footnote from a dissenting opinion filed in the U.S. Court of Appeals for the 9th Circuit on September 6, 2016 is being spread like wildfire by legal scholars and lawyers alike.

Here it is:

It is expounded as a witty pronouncement of dissent from the powerful judge Alex Kozinski and several of his colleagues, here is the full panel of dissenters:

  1. Judge Alex Kozinski,
  2. Judge Diarmuid Fionntain O'Scannlain,
  3. Judge Ronald Murray Gould,
  4. Judge Richard C. Tallman,
  5. Judge Jay S. Bybee,
  6. Judge Consuelo Maria Callahan,
  7. Judge Carlos T. Bea,
  8. Judge Milan D. Smith, Jr.,
  9. Judge Sandra S. Ikuta, and
  10. Judge N. Randy Smith.

The 10-judge dissent is from a decision denying review of a certain decision by the 9th Circuit "en banc" - by all judges of the court.

Here is the full list of 9th Circuit's judges listed on the court's website today:

So, why such a substantial number of judges - even though not a majority - "just" 10 out of 28 judges - voted to hear a certain case by a all judges of the U.S. Court of Appeals for the 9th Circuit?

What kind of case that was?

A death penalty case?

A wrongful conviction case?

Police misconduct, prosecutorial misconduct, judicial misconduct?

Abuse of power by social services?

Discipline of attorneys for criticism of judges as part of their jobs for their clients?

Let's remember that federal appellate court toss nearly 100% of civil rights cases through 2-3 page summary orders authored mostly by 80-year-old senior judges, and, as the same Judge Alex Kozinski acknowledged, without proper review of the case - because it requires, according to Judge Kozinski, "exponentially" more time to produce a full-fledged opinion of the court than a summary order.

So, civil rights cases are put on a fast-and-sloppy track and are tossed without looking by octogenarian judges.

As to topics, see above - that's nearly all civil rights cases.

So, what was SO IMPORTANT for the 9th Circuit judges to so vigorously dissent in a 25-page opinion?

A question, no doubt, of paramount importance, already decided by a 3-judge panel of the 9th Circuit:

Whether employers whose employees get tips as part of their jobs (in restaurants, casinos and the like) may involuntarily force such employees to share those tips with other people, like kitchen staff, who do not get tips for doing their work.

In other words - can employers, instead of paying the kitchen staff straight and proper living wages, force their servers/waiters to act as employers of kitchen staff and contribute to the portion of their wages, involuntarily?

The decision by 3 judges of the 9th Circuit said "no" - quite fairly, in my opinion.  Moreover, the 3-judge decision did not rule in favor of the tipped workers - not yet, it only reversed a decision precluding a jury trial for such workers and sent the case back to the district court to be tried.

That was the most offending part.  You know those juries - what if they actually rule for the poor, not for the employers?

So.  10 well-paid, privileged, men and women, used taxpayers' scarce resources, yours and mine, to produce a 25-page full-fledged dissenting opinion explaining in top-lofty legal theory terms why that is wrong.

In that opinion, they talk:

  • separation of powers;
  • division of powers between the executive and legislative branches;
  • what the U.S. Congress may and may not delegate;
  • how to read and interpret federal regulations;
  • what can and cannot be found through interpretation in federal regulations.
All of that stuff.

And, remember, the famous footnote that spread like wildfire on Twitter.  About separation of powers, circuit splits and being lonely in the universe.

All in favor of powerful employers, restaurants, hotels, casinos, supporting a proposition that such powerful employers may "legally" rob a waiter, a bell-boy, a casino workers who get the majority of their income from tips - of a share of their tips in favor of their other underpaid employees.

I wonder how loud a scream will come from the same 9th Circuit if we "pool" the judges' salaries with those of support staff - secretaries, security officers, custodians.  To even it out, so to say. 

I also wonder, out of the 10 dissenting judges, how many were taken on trips to casinos, were catered for free in restaurants and in hotels, "to sweeten their views of the issues" in this case.

And, you know what I DID NOT see in that 25-page opinion?

A whole bunch of issues that self-respecting jurists should have put for consideration in a case like that.

I did not see in the entire 25-page dissent a verification whether the offending federal regulation in question, the "tip pooling restriction" of the U.S. Department of Labor, that allegedly extended the tip pooling restrictions of Section 203(m) of the Fair Labor Standards Act of 1938, was promulgated by the agency, the U.S. Department of Labor, for the declared purpose of the legislation and for the declared purpose of regulation - protection of the class of individuals covered by the statute and regulation, employees.

Actually, the regulation did seek to protect employees from being deprived by their employers from part of their wages, so it did act for the declared purpose.

After that, usually judicial review of propriety of a regulation STOPS (see, for example, how it usually happens explained from the horse's mouth - by the U.S. Supreme Court Justice Antonin Scalia, in a law review article).  Often it stops even earlier than that.  In most court cases where administrative regulations are being reviewed by courts because of civil rights lawsuits claiming civil rights violations through such regulations, all that courts look at is whether the regulations have a rational basis.  Any rational basis.  Not necessarily the basis declared as the primary goal of the regulation.

In other words, if the regulation declares that it seeks to protect people from something, but actually does the opposite, courts still refuse to review it - saying that, based on the doctrine of "comity", they will not "look behind" the rationally-based text of the regulation to see how it ACTUALLY works.

So, in this case, there was a rational basis, and the court should have stopped.

The 10 judges know that.  They regularly DO that in civil rights cases.

Yet, they disregarded their own principle, and proceeded further.

In this case, however, not only there was a rational basis for the regulation, but the rational basis coincided with the declared goal and the actual effect of the regulation, protection of employees from robbery by employers.

Do the 10 judges know that?  Of course, they do.  They did not get where they are without, mostly an Ivy League law school education, a long career as prosecutors (usually) and, mostly, a long career as judges.

The next point the 10 dissenters are raising is - but, the regulation EXCEEDED protections that the statute provided.

What the 10 dissenters are talking is about excess of authority, by the executive branch (the U.S. Department of Labor), and by their own colleagues, judges of the 3-judge panel, who reversed and remanded the case back to the district court, deciding that the Department of Labor acted properly even if their tip-pooling restrictions are MORE protective than the underlying legislation.

But, wait a minute, are the same judges so consistent in their separation of argument arguments if the matter concerns their own well-being, judges as a class?

Not at all.

There are not just one, not just two, but MULTIPLE, MANY judicially-created "principles" and "doctrines": immunities, deferences, comities, the Rooker-Feldman doctrine, you name it...

To arrive at illegal judicial lawmaking decisions that have introduced immunities-deferences-comities etc. doctrines barring victims of civil rights violations from access to court, courts engaged in all kinds of tricks - the main ones being exploring the so-called "history and tradition", and claiming that "even if the U.S. Congress did not say [this and that] in so many words, it clearly must have implied [for example, to give absolute judicial immunity for malicious and corrupt acts on the bench]" - without any basis for such claims.

These ILLEGALLY created bars to federal jurisdiction - illegally created because determination of the scope of federal jurisdiction is the exclusive prerogative of the U.S. Congress - are applied as if it is "the Law of the Land".

And, the 10 dissenters did not engage in any meaningful analysis of what the U.S. Congress "may have implied" in enacting the Fair Labor Practices Act of 1938, the source of power for the U.S. Department of Labor to promulgate the rules that were sustained as lawful by the 3-judge panel.

Why such a discrepancy in attitude of judges?

Why such high cries, such lofty theory, so much effort extended to a case seeking, simply put, to legalize robbery of the poor (waiters' tips) by the rich (restaurant owners), why all these cries of violation of the doctrine of separation of powers

when the same courts, the dissenters included, SPIT at that same separation of powers from a high bell-tower, so to say?

Of course, courts disregard issues of separation of power when it concerns protection of government officials from lawsuits for treasonous conduct, violations of the U.S. Constitution, filed by victims of such violations - and that's the only, and the whole of the difference, all lofty legal theory in this 25-page dissent aside, witty footnotes and all.

Because here, the 3-judge panel that decided the case (and caused the ire of the 10 dissenters), actually did something right, actually - right by the people, right by the law, but wrong by the courts' self-imposed implied duty to protect the powerful in this country from the reach of statutes and regulations designed to protect the less-powerful from discrimination and infringement upon their civil rights.

Among issues that I did not see in the 25-page dissent, I did not see discussion of this very clear issue - is the involuntary taking of ALL tips of the servers/waiters by the restaurant owners and then involuntary distribution of such tips the way the restaurant owners like - a violation of the tipped waiters/servers due process of law right to property?

I do not share the popular belief that ANY and ALL waiters/servers in a restaurant MUST be tipped each time by every customer.

There are enough stories on the media where angry non-tipped servers describe the bad customers who left without a tip.

If the server provided good service - that is unfair.

If the server provided a bad service - that is exactly fair.

To me, it all depends on the quality of service.

If you come to eat out at a restaurant, and pay extra for your food, as compared to just cooking and eating at home, you expect your experience to be pleasant, and a good server may either enhance the pleasant experience from food and company, or take away from it.

The server cannot answer for the quality of food.

But, the server can answer for being polite, considerate, efficient, and, generally, for making a customer feel welcome.

Why is all of this relevant?

Well, because when a person tips a waiter, the person does not pay the restaurant for the quality of food, it rewards the particular person for doing their job in such a manner that that person, the server, deserves extra from the customer.

And, that extra belongs to the server, and to him or her alone.  Not to be grabbed by the employer, not to be spread out to the kitchen staff or other, less hospitable servers who did not get tipped or who got tipped less.

Stripping the server of that money is not only wrong, it is illegal - as says the rationally based regulation of the U.S. Department of Labor, promulgated for the purpose of protecting those same servers - and actually protecting them.

That privileged and well-paid judges (each of the 10 dissenters gets paid by us the taxpayers $213,300 per year, with benefits), regularly tossing civil rights appeals without a review, found time and resources to expound on how wrong it is not to allow the rich to rob the poor - is simply disgusting.

Despite all the witty footnotes.

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