"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, March 27, 2017

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

An interesting case has been reported out of Kansas.

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:

Of course, "independent judiciary" may not be independent from their own oath of office, which is what happens when the judiciary operates without any real "checks and balances" and while giving themselves a gift of absolute judicial immunity for malicious and corrupt acts on the bench (and, thus, for breaking the oath of office the moment it is taken).

Yet, judicial tyranny and freedom from all laws, all accountability and all criticism, as well as suppressing criticism is being promoted by lawyers who get their bread (via licenses to practice) from the very hands of the judiciary, is being thrust upon the public under the guise of advertisement of the idea of judicial "independence".

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 brand spanking new "rule of invited error" was submitted on behalf of Kansas Supreme Court in appellee's brief to the U.S. Court of Appeals for the 10th Circuit (the current U.S. Supreme Court nominee Judge Gorsuch's court).

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
Attorney Kline

Administrative agency
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
License revocation,
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
10th Circuit
(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.
Most importantly for purposes of attorney Kline's federal lawsuit though, the judicial system of the State of Kansas does not provide for ensuring attorney's rights to impartial judicial review: there are only

  • 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:

Whether attorney Kline was right or wrong in investigating abortion centers as the State Attorney General, appointing to his disciplinary panel attorneys who contributed to election campaign of his political opponents was clearly wrong and deprived attorney Kline of due process of law.

Attorney Kline mentions the following problems with the politicized disciplinary panel:

Attorney Kline then asserts that Kansas Supreme Court picked up where the disciplinary panel recommending discipline left of, by not providing to Attorney Kline even an opportunity to properly relate his claims to the court for purposes of judicial review (while the court was also the licensing agency, legislating the rules of conduct, and appointing prosecutors and investigators - a constitutionally impermissible conflict of interest under Williams v Pennsylvania, decided by the U.S. Supreme Court in 2016).

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.

Attorney Kline filed a 175-page report of exceptions (errors) in the 185-page panel report (not to mention that there were also transcripts to back up those errors):

Now, let's address this peculiar moment:  while there is no time restrictions in trials before a trial court, since the FIRST and LAST stage of court review was handled by the top state APPELLATE court, rules of page limit on APPELLATE BRIEFS was applied to REVOCATION proceedings (first stage trial level of judicial review).

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.

1 violation
21 violations
Permitted page limit
50 pages
80 pages
Pages permitted to argue per violation
50 pages
3.81 pages

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.
If such procedure is ABSENT in state law, that is not the litigant's problem.

In such a case, it is a legislative problem, or a state constitutional problem, and the reviewing court must then:

  • 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.

But, that is not what Kansas Supreme Court did.

What it did is it utilized some self-made (and thus unconstitutional, under the State Constitution) procedure and appointed judges which generated a decision which was void under Kansas State Constitution because appointment of judges of lower courts on a temporary basis as Kansas Supreme Court judges was not approved by Kansas State Constitution - and that was definitely not the problem of the litigant asking for recusal, in order to secure for himself his federal constitutional right to impartial judicial review.

And, Kansas Supreme Court now is arguing to the 10th Circuit court of Appeals (judge Gorsuch's court) to spread this rule of judicial recusal - that the litigant asking for recusal is somehow to blame for the errors in formation or ruling of the replacement court because "he's got what he asked for" and should be estopped (blocked) from any review of a void-ab-initio order.

The claims is egregiously frivolous, and the only reason why Kansas Supreme Court judges and their attorneys were not sanctioned for this claim is because of their status.

If the court panel was not properly formed, as required by the State Constitution, attorney Kline is correct in claiming that decisions of such a court are void ab initio.

Void meaning "done without jurisdiction", null, as if it never existed.

Collateral estoppel argued by Kansas Supreme Court (by ALL of the court, including the RECUSED judges) presupposes jurisdiction.

Collateral estoppel argument to "estop" an argument that a decision was VOID, or without jurisdiction, is thus conceptually inconsistent and frivolous.

But, the worst in this argument is that Kansas Supreme Court is trying to spread the "blame the victim" argument and is trying to make the already nearly impossible plight of litigants trying to recuse biased judges into an even more impossible task - if the 10th Circuit buys this argument that the litigant is to blame for any errors of the replacement court after recusal, it will now be applied upon the entire jurisdiction of the 10th Circuit, and that is:

  1. Oklahoma;
  2. Kansas;
  3. New Mexico;
  4. Colorado;
  5. Wyoming;
  6. Utah;
  7. Portions of the Yellowstone National Park;
  8. portions of Montana;
  9. portions of Idaho:

So, now, because some pissed-off political opponents of former Kansas AG Phil Kline wanted a piece of him, all litigants in

  1. Oklahoma;
  2. Kansas;
  3. New Mexico;
  4. Colorado;
  5. Wyoming;
  6. Utah;
  7. Portions of the Yellowstone National Park;
  8. portions of Montana;
  9. portions of Idaho:
will be to blame for errors of incompetent, biased or illegally formed courts as "invited error", even if they accomplish the nearly impossible task of obtaining recusal of biased judges - and if such biased, incompetent or illegally appointed judges are replaced by no-less biased, incompetent and/or illegally appointed replacement judges?

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:
  1. 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:
    1. seeking recusal of Kansas Supreme Court judges, and from
    2. seeking that the replacement be in accordance with existing law.
If the State of Kansas does not have in its State Constitution and the laws:

  1. 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.
Litigants do not have to bear the brunt of lapses of State Legislatures or for lapses in the State Constitution.

Litigants do not lose their federal constitutional rights because of lapses in State laws.

Instead, lapses in state laws that prevent litigants from securing their federal constitutional rights are separate constitutional violations.

Let's see what the 10th Circuit will say to that.

I will continue to monitor this case, and report my findings.

Stay tuned.

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