THE EVOLUTION OF JUDICIAL TYRANNY IN THE UNITED STATES:
"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, March 31, 2017
Williams v Pennsylvania, "officer of the court" status and invalidation of ALL criminal convictions in the United States
So, judge and prosecutor cannot be ONE.
In other words, judge cannot be prosecutor, and prosecutor cannot be judge (part of adjudicating court).
But, every prosecutor is a sworn "officer of the court".
And, attorney disciplinary prosecutors are also deemed an "arm of the court" - see the saga of how I sought a FOIL request from such a disciplinary prosecutor who kept claiming she was part of the court, here and here.
So, if a judge is the court, and the prosecutor is the court (officer of the court), the judge = prosecutor, and prosecutor = judge in EVERY criminal case.
Now, every criminal case in the United States, due to this "officer of the court" requirement for all prosecutors, has been invalidated by Williams v Pennsylvania, including the death penalty cases which are scheduled for execution? Including those where people were already executed?
The concept of officers of the court and the right to practice law
Yet, all State Constitutions prohibit judges - "officers of the court" - to practice law.
So, the practice of law is conditioned in the U.S. upon joining a class of people who, by State Constitutions, are prohibited to practice law.
And, the rule for lawyers to be "officers of the court" (who are not allowed to practice law) in order to be able to practice law was concocted by lawyers themselves, who are the best experts in the practice of law.
Pennsylvania leads in deregulation of the legal profession - again
Then, Philadelphia District Attorney Self Williams agreed to temporary suspension of his law license, but will continue to head his prosecutorial office.
Somehow, in real life, in real time, one case after the next, law licenses become disjointed from law practice - or whatever it is lawyers are doing in their jobs.
The road to the demise of attorney regulation continues...
Impugning integrity or competence of a judge is bad or constitutionally protected? And, if attorneys waived that constitutional protection, does it mean that the declared purpose of attorney regulation (protection of consumers) is fake?
"Under the First Amendment, there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas."
3 years after that, 40 years ago, New York recognized that criticizing the judge's competence or integrity, is still a matter of opinion, not sanctionable against non-attorney critics, "no matter how unreasonable, extreme or erroneous these opinions might be", Rinaldi v Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 366 N.E.2d 1299, 397 N.Y.S.2d 943 (1977).
- Speiser v Randall, 357 U.S. 513 (1958) - "To deny an exemption to claimants who engage in certain forms of speech is in effect to penalize them for such speech";
- Perry v Sindermann, 408 U.S. 593, 597 (1972) - "For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to 'produce a resuslt which it could not command directly'";
- Regan v Taxation with Representation of Washington, 461 U.S. 540, 545 (1983) - government may not condition a benefit to a person on forfeiture of a constitutional right.
- ACLU and other non-profit corporations have THEIR OWN interest in litigation and THEIR OWN POLITICAL ideas and purposes (while IRS prohibits to non-profits such as ACLU, because of their tax-exempt status, to participate in political activities at all) protected by the First Amendment, in addition to their clients' goals and ideas in litigation (a statement contradicting the standing requirement under Article III of the U.S. Constitution - standing being the case or controversy of the client, not of his lawyer), BUT
- a "private attorney" (without making an exception when the "private attorney" works as a pro bono, government-assigned, civil rights attorney, or when that "private attorney" is raising constitutional rights on behalf of his client) works in litigation only for money (that's the "private gain only" argument what Judge Cardozo in New York and Judge Richards in California says the legal profession is NOT about)
- an equivalent of a privileged membership in an "ancient fellowship" (=guild) (Cardozo, New York);
- not meant only for financial gain (Cardozo, New York, and Judge Richards in California in 1922, but see the 2nd Circuit saying, as of March 22, 2017, 8 days ago, that it really depends, a private attorney, even a private civil rights attorney is only there for the money); and
Federal judge Edwin Kosik found alive - but questions arise now about his performance
The yesterday's press reports indicated that the 91-year-old Judge Edwin Kosik stopped hearing cases because he was recovering from rib fractures he suffered at home. Putting those things together, I asked whether investigators are taking these issues seriously and considering foul play, both in Judge Kosik's alleged fall at home with rib fractures, and his disappearance.
Today, the media reported that Judge Kosik was located in the woods outside Scranton, PA, within 100 yards of his car, that he was taken to a hospital and that it is hoped that he will make a full recovery.
While I am happy that a 91-year-old man did not freeze or starve to death in the woods, what was reported next was disturbing.
There is a significant gap in this reporting.
The judge stopped hearing cases only last month, but he is taking medication for memory loss for how long? And why is his taking of memory loss medication not reported to the public, parties and attorneys, so that they at least have a chance to make a motion to disqualify?
Privacy of a judge?
We all have a right to know whether our President has health issues while holding his finger on the big red nuclear button.
Yet, we do not get to know about health issues of a judge who holds his finger on the big red button of our lives?
The man appeared to be functional enough to drive a car without crashing it, but demented enough not to know where he is - so, he only "stopped hearing cases" last month? How many cases did he botch over time?
I bet he botched a lot, otherwise why would the court system lie in initially telling reporters that Judge Kosik stopped hearing cases last month not because of dementia, but because he made a conscious decision to stop hearing cases because he was recovering from a physical injury (rib fracture) from a fall at home?
That lie had to be authorized by the Chief Judge of that federal district court Christopher C. Conner, and that lie had to be issued in order to try to do damage control because Chief Judge Conner had to know that Judge Kosik was, probably, TOLD to stop hearing cases because of his dementia issues.
Yet, even when it was outed that the judge was "out there", and not only in the woods near Scranton, the court system was still trying to do some damage control and pretend that the judge had all his wits around when found.
First, it was not the local police, but the federal court marshall who has found the judge - even though it was the job of the local police to do it.
Apparently, the court system was very concerned as to who will find the judge first and what the judge would tell to that person, and how it will be reported.
So, it was one of the court's own employees to see the judge first when he was found - I wonder how it happened that a U.S. Marshall from the judge's own courthouse was on the scene quicker than the police.
And look what that U.S. Marshall reported about the judge's reaction to seeing him.
Here is a man off medication for a long time, out in the woods in freezing weather, not contacting his family, and having his family launch a police search for him.
Yet, being found "conscious", the first thing he says to his rescuer is that the rescuer has cut his hair? While that indicates some memory retention about basic things - how people looked, that kind of memory level does not mean that the judge was lucid, or at least, lucid enough to be on the bench until last month.
Once again, our Legislative representative in the U.S. Congress MUST finally pass the much-needed and much-overdue law REQUIRING federal judge to report their disabilities and medications and REQUIRING them to step down if asked on motions to disqualify based on such medical reports.
Otherwise, right now people whose cases Judge Kosik decided - for how long? - are left in limbo as to whether he was entirely lucid when he was making his determinations.
And we, the taxpayers, may have to pay for retrials, or, if such retrials are denied, will be left with a bitter taste that the federal court has cheated us - and litigants involved - out of justice and out of their proper performance.
And, the question remains. How many MORE demented and mentally unstable judges remain on the bench while courts are bent on concealing this information until situation gets so bad that the judge has to be let go - and even then the courts would like, as they did in Judge Kosik's case, about reasons why he was let go, in order to not allow the judge's decisions to be vacated because of his mental disability?
Quite like it happened with Chief Judge Solomon Watchler in New York (a convicted felon who was disbarred, but is now restored as a lawyer and is a "distinguished" law professor in the Touro Law Center in New York) where judge Wachtler is commended by the New York Court system for defrauding federal courts and playing yo-yo with his mental health issue with the federal prosecutors and the federal sentencing judge when he was charged, and later convicted, for extortion and intimidation of a woman - claiming he was mentally ill before and after the plea bargain, but claiming he is absolutely healthy for the purposes of the plea bargain, and doing it specifically because he did not want lawyers and parties to be massively filing motions to vacate decisions made by a mentally unstable judge.
No honor in such behavior.
An awful waste of money.
And, such secretive and dishonest behavior, both of former Chief Judge Wachtler of New York State court system, and of Chief Judge Christopher C. Conner of the U.S. District Court for the Middle District of Pennsylvania, or of Judge Edwin Kosik and his family, does not inspire much respect to the justice system, including federal courts.
So now, with any decision coming from federal courts, especially from an elderly judge, we need to think - how demented this judge is? Did he or she take his medication on time? Does medication work?
This is a lot of speculation we do not need as a nation.
We need transparency.
We need the truth.
We need our public servant to properly do their work, and to properly disclose to us when they cannot do that work because of their disability.
It is not too much to ask.
Thursday, March 30, 2017
PA Supreme Court agreed to hear, in April of 2017, whether suspended or disbarred attorneys should be singled out into a special class for whom it will be UPL to do what people can do without any law license
On March 22, 2017, Supreme Court of the State of Pennsylvania denied reinstatement to civil rights attorney Andrew Ostrowski based on, among other things, his criticism of judges, the fact that he organized a "civil rights network", engaged in advocacy (not practice of law) for certain causes, the main cause being court reform and the fight against judicial corruption, because, having been deprived of opportunity to earn a living, attorney Ostrowski has debts that he cannot start to pay as he has no income, and based on claims that he practiced law during suspension period - even though his supposed "practice of law" was representing clients in front of the Pennsylvania State Unemployment Compensation Board, where representation, by state Statute, is not deemed the practice of law.
The legal community found nothing better than to laugh about it.
The self-righteous Unemployment Compensation Board, irate by being overruled by the Court of the Commonwealth because the court indicated that the UCB improperly deprived Andy Ostrowski's client of a "representative" (not attorney) of his choice despite clear law stating that representation before that board does not constitute the rule of law, the UCB now wants the Pennsylvania Supreme Court to single out suspended and disbarred attorneys into a "special class", and to prohibit to this class more than is prohibited to people who were never licensed to practice law.
Of course, where the statute is clear that representation in front of Unemployment Compensation Board is not practice of law, there is nothing to "mull over".
Rules of statutory construction are clear - a court does not have authority to "interpret", or, rather, change through interpretation, clear statutory text, it is the prerogative only of legislature.
What constitutes contempt of court, and unauthorized practice of law, are both criminal statutes and must also be clearly defined by the Legislature, not by courts on an "ad hoc" basis, specifically because two suspended civil rights attorneys dared not to just go broke, but to try to earn a living helping people by doing what was not the practice of law, by statute.
So, the corrupt Supreme Court of the State of Pennsylvania that refuses to discipline corrupt judges (including the Kids-for-Cash judge Marc Ciavarella, until the feds indicted him and had him convicted and sentenced to 28 years in prison), that allows judges who were former prosecutors on the same case to decide appeals, who allows judges who are subject of investigation to suspend attorney licenses of their own investigators, like it was with Judge Eakin to PA former AG Kathleen Kane - now refused reinstatement of yet another civil rights attorney, and is claiming that it is because he stood his ground in criticism of three judges, and because he provided legal services (which are not legal services in Pennsylvania by statutory law and the court's own precedent).
And, that court magnanimously "agreed to review" the question whether it will violate the statutory law of the State of Pennsylvania, after all (while the court had no right to do that, as it would constitute legislative amendment, for which the court has no authority), and single out suspended or disbarred attorneys into a class from which the public must be specifically protected - so, even certain ways to earn a living is allowed to everybody else (including to convicted felons, including to felons convicted for fraud or theft or any other crimes of "moral turpitude"), it would not be allowed to suspended or disbarred attorneys.
I raised this specific issue, of unequal treatment of suspended attorneys and never-licensed individuals in prohibitions for earning a living, in 2013 in the U.S. .District Court for the Northern District of New York, on behalf of my husband - the case name is Neroni v Zayas. The court rejected the equal protection challenge as baseless, claiming such discrimination does not exist.
In 2015, though, New York decided the case regarding attorney Joel Brandes, and recently the New York State Court of Appeals affirmed denial of reinstatement of a disbarred attorney because he allegedly engaged in the practice of law (paralegal services) while to anybody else in New York engaging in paralegal services is not the practice of law.
In January of 2017, the Appellate Division 3rd Judicial Department in New York eagerly jumped on the bandwagon, declaring, in response to a motion of suspended attorney Gaspar Castillo, that 21 activities (not all of them listed in the decision, but I have just sent in money for the records to obtain the full list) as practice of law if done by a suspended attorney, even though the same activities are not practice of law for unlicensed individuals.
South Carolina and many other states prohibit attorneys to work as paralegals or even legal secretaries or investigators, activities which are allowed to individuals who have no law licenses: "A lawyer who resigns for reasons of ethical misconduct or who is disbarred or suspended may not be employed by any member of the Bar as a "paralegal, investigator, or in any other capacity connected with the practice of law." Rule 34."
So, Pennsylvania is not unique in discriminating against suspended or disbarred attorneys and making sure they go broke and cannot maintain a living (by the way, being broke was also one of the reasons why attorney Ostrowski was denied reinstatement - because, being deprived of a right to earn a living, he, naturally, could not pay his debts).
Yet, one thing is very clear - the court system, the supposedly "honorable" court system where each and every judge took an oath of office to be faithful to the U.S. Constitution would rather break that oath, legislate from the bench as to the meaning of Unauthorized Practice of Law statute to be completely different depending on who the defendant is (which is a violation of due process, separation of powers principle, ex post facto laws and bill of attainder clause, to name a few), than allow a civil rights attorney who criticized judges back to practice law.
The system is not protecting the public from civil rights attorneys.
The system is protecting itself from criticism.
The federal judge who rejected a plea of Kids-for-Cash judge and sent him to prison for 28 years is missing
First, he sustained rib fractures, allegedly in a fall at his home, and stopped hearing cases.
Then, he is now missing.
I wonder whether the authorities are taking Judge Kosik's disappearance seriously enough and whether the possibility of foul play is considered.
After all, not many judges, as it was admitted in a recent article, go to jail even if they are convicted of crimes, and there was plenty of reasons for revenge against Judge Kosik in establishing a precedent that a judge not only was convicted for felonies, not only his plea was rejected as insincere, but that he was sent to a general prison for 28 years.
Monday, March 27, 2017
President Obama's legacy: surveillance of defense attorneys in federal prisons
The true legacy of President Obama?
Kansas Supreme Court is pitching a brand new spanking "rule" to the U.S. Court of Appeals for the 10th Circuit: blame the victim (litigant) who obtained recusal of judges for errors in formation and errors in rulings of replacement courts
A litigant (an attorney in a disciplinary proceedings) asked 5 out of 7 judges of the presiding panel to recuse.
Now, usually judges do not recuse no matter what.
The stakes and the fervor of the fight against judicial recusals (and thus against litigants' constitutional rights for impartial judicial review and access to court) has reached epic heights in the State of Wisconsin, for example, where:
- the commission that disciplines judges is sought to be subordinated to the same judges it disciplines (why not, the same setup has been in existence in federal courts for decades),
- attorneys are allowed to practice even when rejected by the State's Character and Fitness Committee, under the state's "state diploma privilege";
- a bunch of retired judge are even asking the State Supreme Court to act as a Legislature and set a rule allowing a certain sliding scale of judicial election campaign contributions (bribes) to the judge, while not mandating judges who received such bribes to recuse from cases of contributors, and where
- the state bar governors, over protest of attorney members, filed a collective statement disparaging the U.S. President for criticizing judges and attempting to instill into the public the notion that criticizing judges is wrong, and is equivalent with attacks on the U.S. Constitution and democracy in the United States, see the statement of the Wisconsin State Bar Governors here.
In New York, two attorneys that I know (John Aretakis in 2008 and myself in 2015) were suspended from practice for making motions to recuse, the same happened to attorney Christine Mire in Louisiana in 2016, the statistics of attorneys disciplined (including suspended and disbarred) for criticism of judges are ever growing across the country, the latest victim being, as far as I know, James G Miller, a 70+-year-old attorney who was suspended last week in Illinois for criticizing judges, who was considered so dangerous for the public that he was first suspended in April of 2016 while disciplinary proceedings were still pending and was then suspended again as a result of those proceedings, while the court rejected both the defense of truth and the defense of 1st Amendment protection.
But, even after a litigant has gotten himself through all the risks of sanctions for himself and his attorney, applied for recusal of judges and obtained recusal of judges, that does not mean that his right to impartial judicial review will now be maintained.
At least, not in the blessed state of Kansas where the Supreme Court of the State of Kansas has just come up with a most brilliant (read: obtuse) decision on judicial recusal I have ever seen in years, and I've seen a lot, specializing on active research of this particular topic for more than a decade.
The Kansas Supreme Court has stated to a litigant that, since he "has got what he wanted" (recusal of judges deciding his case), and "invited the error".
Just read the sleight of hands of how judges came to that conclusion:
- you have a constitutional right to access to court (1st Amendment) and due process right to impartial judicial review (14th Amendment);
- in order to obtain true access to court and that impartial judicial review, you make a motion to recuse;
- once you obtained that recusal and once another judge is assigned to the case, it is the understanding of the top court of the State of Kansas that your constitutional rights of access to court and to impartial judicial review (the rights that you were trying to secure by making the motion to recuse in the first place) suddenly disappears, and whatever the replacement-after-recusal judge does, including bias, is now your own "invited error", blamed against you.
The rule that is asserted in this case, unfortunately, is not restricted to the unique way attorney discipline is imposed in the State of Kansas (and elsewhere in the U.S.), which is in stark contrast, and in violation of equal protection of attorneys, as compared to all other regulated profession - here, based on the uniqueness of attorney regulation, Kansas Supreme Court yet forged a general rule that will be applicable to all litigants in the state and, if affirmed on appeal by the 10th Circuit, to all states that are part of the 10th Circuit - the new rule of judicial recusals announced by Kansas State Supreme Court in its Appellee's brief.
Here is where this claim is not only erroneous, but is frivolous and highlights one of the major inconsistencies of attorney regulation in all states - the use of the highest state court as the trial court in attorney disciplinary proceedings.
I have explored procedural differences between how attorneys and other professions are regulated in a lawsuit I filed on behalf of my husband in 2013 in the U.S. District Court for the Northern District of New York, and am exploring more fully in my upcoming book, in Russian and in English, about conceptual inconsistencies in attorney regulation in the United States.
The use of the highest state court not only as the legislator, prosecutor and adjudicator (conflation of three branches, violation of the principle of separation of power) in one proceeding, but also the use of the highest state court as the initial license revocation administrative agency and the first and last adjudicating court at the same time created exactly the problem that attorney Kline challenged in his lawsuit, if not in those same words.
Here is the structure of judicial system in the State of Kansas:
Note that, while Kansas Supreme Court has only 7 justices, the lowest trial courts of general jurisdiction, District Courts, have 31 judicial districts, each with more than 1 judge, and often, with 6 or more judges.
Now, let's compare procedural steps in contesting suspension or revocation of a professional license in Kansas by an attorney and non-attorney.
Had attorney Kline been not a licensed attorney, but, let's say, a licensed real estate broker, the procedure would have been as follows:
Stages of license revocation and attendant issues
Real estate broker
Revokes professional license
District Court - the lowest court of general jurisdiction - review by one judge
Judicial review of license revocation, role reversal, license-revoking agency becomes a respondent (defendant) sued by the professional whose license is revoked
Appellate process - Kansas Court of Appeals, review by a panel of judges
Intermediate appellate court
Appellate process – highest appellate court, the Supreme Court of the State of Kansas, review by a panel of judges
Final appeal in the matter
Judicial review by legislator-prosecutor-adjudicator court and licensing agency;
License revocation is combined with judicial review of the same;
No role reversal in judicial review;
No right for professional whose license is revoked to sue the agency that revoked the license
Appellate process out of state
The U.S. Supreme Court – discretionary appeal
The U.S. Supreme Court – discretionary appeal
Alternative judicial review
A civil rights case, no Rooker-Feldman bar, since professional license was not revoked by a court
(jury trial, full discovery rights)
Right to file a civil rights action is blocked by the Rooker-Feldman doctrine since license was revoked by a court and revocation order is deemed as “final court decision” – jurisdictional bar
Alternative appellate process
(appeal of all issues as of right)
Appeal of revocation decision is doomed, the only issues allowed to be raised outside the Rooker-Feldman bar are direct challenges to constitutionality of rules and statutes, but not practices of the state court in a specific proceeding
Alternative appellate process
The U.S. Supreme Court – appeal is discretionary and likely doomed because of the court’s unwritten policy not to review appeals from cases of attorney discipline, no matter what
The U.S. Supreme Court – appeal is discretionary and likely doomed because of the court’s unwritten policy not to review appeals from cases of attorney discipline, no matter what; plus a Rooker-Feldman-barred case, most likely, will be considered by the U.S. Supreme Court as an additional bar for court review
Observe that for attorneys, THREE procedural steps of litigation in license revocation process are skipped, as compared to non-attorneys, and the first and last stage of review in the State of Kansas in attorney license revocation is:
- by a licensing agency - unlike for real estate broker;
- by a licensing agency acting as the first (and last) trial court - unlike for real estate broker;
- without the right for judicial review where the licensing agency is subject to role reversal and a lawsuit by the professional who lost his license - unlike for real estate broker;
- without the right for 2-tiered appeal - unlike the real estate broker; without the alternative for review of license revocation, together with federal constitutional issues, in federal court - because, unlike in the case of the real estate broker, revocation of attorney license is subject to the Rooker-Feldman bar, even though the nature of proceedings (revocation of a professional license) is the same, and thus procedural protections, and levels of procedural protections, should also be the same.
- 7 elected justices in the Supreme Court of the State of Kansas;
- Kansas Supreme Court is not equipped, due to jurisdictional restrictions, to act as the lowest trial court;
- Judges of Kansas Supreme Court must sit in panels with certain quorums, unlike judges in District Courts who sit just a single judge at a time;
- When a District Court judge recuses, there are over 150 other District Judges to choose from, while if Kansas Supreme Court judges recuse (especially, all of them, or 5 out of 7, as happened in this case), appointment/certification of questionable constitutionality is then triggered to provide an alternative panel.
Moreover, in the case of the former Attorney General of the State of Kansas (as Kline was), ALL state judges were attorney Kline's clients, attorney Kline was privy to ALL dirty little secrets of ALL state judges (including Kansas Supreme Court judges), including constitutional violations, and thus ALL state judges had a conflict of interest in presiding over license revocation against attorney Kline.
Additionally, in his complaint, attorney Kline mentioned bias of the new (appointed after recusal) panel because of political affiliations and campaign contributions to Kline's political opponents:
Attorney Kline mentions the following problems with the politicized disciplinary panel:
Attorney Kline's disciplinary case was tried in 2 TRIALS:
After those two trials, the panel issued a
- 185-page report finding
- 21 violations of disciplinary rules under
- 10 various factual scenarios.
It is obvious that more space on paper is needed to address 21 than 1 violation, and more space is needed to address legal issues that can be found in a 185-page report after 2 trials over 12 days, generating a considerable volume of transcripts.
Therefore, attorney Kline asked to give him adequate time to address all errors in the administrative panel's recommendations.
That right was denied, and attorney Kline was given permission only for 80 pages - so, he had to cut off MORE THAN ONE HALF of his exceptions, making further dismissal of his federal claim on Rooker-Feldman grounds, as if he already had opportunity for JUDICIAL REVIEW, a travesty of justice.
Attorney Kline also correctly points out that, while 21 rule violations were found against him, he was given only 30 pages more pages to argue legal errors as compared to attorneys charged with a single violation.
In fact, attorney Kline was given just 8% percent (over 13 times less) of space to argue per violation, as compared to an attorney charged with a single violation.
Permitted page limit
Pages permitted to argue per violation
My husband and I raised the same issues of unconstitutionality (denial of due process and access to court) by one-size-fits-all appellate briefs irrespective of number of claims, number of parties, number of court decisions involved and the volume of generated proceedings and transcripts (and legal errors) to be addressed in such briefs - which were all rejected by courts who deem their own convenience, and restricting their own work to short briefs, even if such short briefs cut off necessary issues, and cut off in effect the right of judicial review - as it was done in attorney Kline's case.
Attorney Kline moved to recuse several judges of the court - in fact, all of them had to recuse due to the fact that attorney Kline was their own attorney, but that did not deter Pennsylvania judges in suspending State AG Kathleen Kane in the same and worse situation (during an ongoing investigation by AG Kane of one of the judges, Michael Eakin, while Judge Eakin found it acceptable for himself to be part of the suspension panel of attorney Kane).
In Kansas, 5 judges recused, other judges were appointed, but results were nevertheless, as attorney Kline claims, not different from the biased report of the politicized disciplinary panel:
All of the above are reversible errors, and, bias of the panel can be inferred from the mass of errors and their character.
Attorney Kline claims that there exists no authority under Kansas State Law to appoint replacement judges to Kansas Supreme Court when the majority of the court recuses, as happened in his case:
It is that error that Kansas Supreme Court, implicitly acknowledging the error, claims to the U.S. Court of Appeals for the 10th Circuit to have been "invited" by attorney Kline.
Yet, a litigant, such as attorney Kline was in the recusal situation, has a FEDERAL constitutional right to impartial judicial review, and, when making a motion to recuse, does not have to:
- consider whether the STATE court handling his proceedings, under STATE law, has an ABILITY, a LAWFUL PROCEDURE to provide replacement judges instead of the recused judges.
- stop review, and
- apply to the Legislature to create legal procedure that would provide for replacement of the majority of recused judges of the court in order to allow litigants to secure their federal constitutional right for impartial judicial review.
- New Mexico;
- Portions of the Yellowstone National Park;
- portions of Montana;
- portions of Idaho:
- New Mexico;
- Portions of the Yellowstone National Park;
- portions of Montana;
- portions of Idaho:
I believe, whatever the controversy in question was, a court of law may not break the law in order to discipline an attorney, and especially if such discipline (in the name of "protection of the public") puts the public in jeopardy by taking away from the public in 9 JURISDICTIONS the right of impartial judicial review.
It is very clear what Attorney Kline wanted when he made a motion to recuse - an impartial judicial review by a lawfully composed panel.
If the State of Kansas does not have in its State Constitution and the laws:
- the mechanism of replacement of recused judges of the State Supreme Court if the majority (or all judges) of the court recuse, such lack of mechanism does not deprive state court litigant from:
- seeking recusal of Kansas Supreme Court judges, and from
- seeking that the replacement be in accordance with existing law.
- The mechanism of providing an impartial judicial review to the former State Attorney General who represented, by law, ALL state judges, and thus is blocked from disclosing their dirty little secrets as his CLIENTS in motions to recuse, the attorney is not to blame for the lack of mechanism creating this mess and this conflict of interest - he is STILL entitled to assert his right to impartial judicial review, and it is for the State Legislature to change laws of the state, and for the people of the State of Kansas to change the State Constitution accordingly in order to provide to the former AG his federally required right to impartial judicial review - by creating state laws, and by amending State Constitution, by referendum if that's the required process, for importing neutral judges from out of state if necessary.