"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, February 27, 2017

What is in common between college football players and attorneys

I was reading an article on unionization of NFL college football players by George Leef, and one phrase really struck me:

"In no other job does a worker's ability to remain on the job depend on a factor having nothing to do with his or her job performance".

That was about football players, and that was about academic performance of those same football players.

I would disagree that "ability to remain on the job depend[s] on a factor having nothing to do with his or her job performance" for college football players - or for any other college athletes.

After all, they are students who were admitted into college on an athletic scholarship, and the scholarship requires them to maintain a certain academic standing to remain students. 

If they drop out of college, not being able to maintain their academic standing, they drop out of the job.

Because, otherwise, if it is simply "a job", it should be a separate job, with hiring and firing process, not a "kind of a job" acquired through application for an athletic scholarship.

Apparently, student athletes are in college to get not only to play football, but also to receive college education, so the phrase about their remaining on the job depends on a factor (academic performance) unrelated to the actual performance on the job is somewhat stretched.

But, what drew my attention to that particular phrase was also that the "no other job" argument seems to be even more incorrect.

Lawyers are yet another such job. 

In this blessed profession, and especially in civil rights litigation, the better you are, the more your are eligible to be kicked out on some contrived disciplinary charge - and the better you dig for evidence of governmental misconduct - like, for example, attorney Christina Mire from Louisiana did - the more you are prone to be kicked out for actions "interfering with proper administration of justice".

Just another paradox of the profession.

And, by the way, while the ABA paid lip service to the fact that attorneys must be entitled to the same 1st Amendment rights as anybody else, and to a right to do their job criticizing a judge in motions to recuse - even though there are hints dropped that attorney Mire's criticism of a judge - who, as I described before in a blog:
  1. did not disclose a disqualifying conflict of interest;
  2. had the court stenographer fight and even sue Christine Mire in order not to give her minutes from a hearing where such conflict of interest was supposed to be, but was not disclosed;
  3. and, when the court did order disclosure of the minutes,
  4. the audio file was sent to a professional technician to "splice" (add, glue in) a piece of audio file, and the judge's disclosure of conflict of interest (that Christine Mire who was present at the hearing says was never mentioned by the judge) was put into the audio file and into the minutes.
That was major league fraud on behalf of the judge and everybody who was helping her.

The judge was supposed to be taken off the bench and criminally prosecuted for this.

Yet, the judge was elevated to an appellate court, and, instead, attorney Mire was suspended for a year - and made to pay for "costs" of the fabricated disciplinary proceedings against her, on the shameless complaint of that same judge.  The government made Christine Mire, as a measure of "protection of consumers" (because that's the declared reason for existence of attorney licensing in the first place) to pay around $30,000 for being right when the judge was wrong, exactly as Judge Andrew Napolitano describes in this book:

So, being kicked off the job FOR BEING RIGHT is, same as George Leef says about football players, a "factor having nothing to do with his or her job performance".

In fact, being kicked off the job for doing the job well is counter-intuitive.

And, in this case, illegal.

But who cares, right?

The ABA ran a lip-service piece about Christine Mire's case, ran it only after Christine Mire was reinstated as an attorney.

At the very same time as the ABA ran the piece on Christine Mire's fate, my certiorari on the very same subject - punishment of an attorney for making a motion to recuse a judge while the attorney was right, punishment that is being increasingly imposed on civil rights attorneys and is widening the justice gap in the U.S. - was pending with the U.S. Supreme Court.

Had the U.S. Supreme Court taken the case, it then would have had to decide in my favor - its own precedents were on my side.

But, the ABA did not consider it worth its time to support the certiorari, and the U.S. Supreme Court, including Justice Sonya Sotomayor whose personal statements about the justice gap I quoted in the certiorari petition, refused to review the petition without an explanation.

Instead, the ABA continues to treat wrongfully suspended and disbarred attorneys, suspended and disbarred for being right when the government is wrong as not worthy to be part of the ABA, and that applies to civil rights attorneys subject to persecution by courts within the U.S. and by foreign governments - in other words, the ABA distances from wrongful suspensions and disbarments in order not to put itself into a situation when it has to criticize judges, as a matter of cowardly and self-serving self-preservation.

Because, the ABA's president recently produced a formula in connection with President Trump's criticism of a wrong and corrupt decision of the 9th Circuit and of the underlying district court decision:

to criticize a judge = to attack the U.S. Constitution.

No, we cannot have that.

We cannot "attack the U.S. Constitution" by criticizing those who violate it.

Especially when it can hit us in the pocket - as it is in the case of the ABA.

So, as things are now, since the ABA did not consider it important to support a certiorari about the use of disciplinary proceedings to remove from the reach of consumers a civil rights attorney for doing their job and making a motion to recuse for an indigent client where the case so required - and since the U.S. Supreme Court similarly refused to uphold its own "mandatory" precedent - the country's litigants' rights to impartial judicial review will continue to be illusory and resting upon the unlikely chance that an attorney will sacrifice himself or herself in order to help their client.

I will quote from my certiorari petition:

"Litigants cannot seriously rely upon a federal right that can be secured only by an attorney willing to sacrifice his or her entire investment into his law education and career, and his own and his family's lifetime's well-being for one client".

But that, ladies and gentlemen, is now "the law" in the U.S.

And being good is a "factor" qualifying a lawyer in this country for being deprived of a right to work.

So, college football players are not the only ones whose "ability to remain on the job depends on a factor having nothing to do with his or her job performance".

For lawyers the "law" is even worse.

Here it is, once again:

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