"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, May 4, 2017

Americans from across the country are ordered by a fundraising-for-Obama federal judge to pay for illegal aliens - Part II. You ain't need to follow any pleading rules - for the right cause.

I started writing some time ago about the order of a federal judge in San-Francisco (who reportedly fund-raised $200,000 for Obama) who ordered a nationwide stay of President Trump's Executive Order ordering the Justice Department and the Attorney General to put in measures to cut off, in compliance with all federal laws, federal funding to "sanctuary cities".

At that time, I promised to go through the mountain of pleadings and to publish my analysis of it on this blog.

I am starting to do it.

This blog is just the analysis of 3 pleadings:

(1) the complaint of the City of San Francisco and Santa Clara County;
(2) S-F's motion for a preliminary injunction against the Executive order; and
(3) President Trump's opposition to that motion.

We already know that the S-F motion for a preliminary injunction was granted by Judge William Orrick III.

There were a lot of celebratory comments about that decision.

Yet, reading the pleadings of the City of San-Francisco - just the pleadings, without the opposition or Judge Orrick's order on that motion - even a 2nd year law student (that's when Evidence is usually taught in law schools) must inevitable come to a conclusion that the injunction could not possibly be granted, because the pleadings were not only woefully legally insufficient, but give an impression of amateurish drafting, and drafting pitched at emotions, feelings and political affiliations and leanings of the judge, and not at any kind of legal standards.

First of all, the lawsuit by San-Francisco is a so-called "pre-enforcement" lawsuit - no monies were yet yanked from San-Francisco because it is a self-proclaimed sanctuary city, and has been so since 1987, according to its own pleadings.

Pre-enforcement actions are usually dismissed left and right because of a failure to establish the "plausible risk" of constitutional violation in the future.

Here, the Executive Order of the President has a 1-year horizon during which the U.S. Justice Department and the U.S. Attorney General must first promulgate some regulations and then undertake some steps based on those regulations before any threat to S-F's budget will even surface.

So, it is obvious that S-F was safe as to this year's budget, and the only reason for the lawsuit was to "challenge Trump at every opportunity" - lawful or unlawful, meritorious or baseless.

Since S-F was safe as to this year's budget, there was no basis for a pre-enforcement action, and it should have been dismissed, with sanctions and attorney fees against S-F, paid out of the pockets of its taxpayers.

Since a motion for a preliminary injunction turned on the "likelihood to prevail on the merits", and the lawsuit is frivolous from the pre-enforcement point of view alone, no preliminary injunction could be granted either.

But, there is more.

S-F claimed as its only "constitutional injury" a threat of economic harm, specifically, the alleged risk of yanking of the federal funds - 1.2 BILLION dollars annually we all are paying out of the federal budget to S-F for supporting the illegal alien population.

According to established precedents - that was pointed out in President Trump's opposition to the motion for a preliminary injunction - a threat of only economic harm is not enough to establish a constitutional violation.

Moreover, all precedents cited by the City of S-F in its favor on the issue of constitutional injury, were cited incorrectly (and, obviously, knowingly incorrectly, since the City of S-F is represented by professional attorneys who should know what they are doing), because those precedents were asserting harm to individuals of personal nature (excessive force etc.), not harm to cities of financial nature.

Additionally, any 2nd year law student knows that pleadings of a lawyer have no evidentiary value, only the testimony, or written sworn affidavits of witnesses do.

Not only that, but supporting affidavits of witnesses must answer to a certain standard, too.

There is what is called "the best evidence rule", applied in both state and federal courts equally.  The "best evidence rule" dictates that whenever a witness is talking about a document, the witness's statements about the document are inadmissible without, first, admitting an original or certified copy of the document the witness is testifying about.

Even though the federal "best evidence rule", FRCP 1002, is restricted by FRCP 703 (expert evidence), where the basis of expert testimony do not have to be excluded, and even though all declarants who filed sworn declarations in support of S-F motion for injunctive relief would qualify as experts by their training and experience, there was one major disqualification that made FRCP 703 inapplicable - lack of expert neutrality.  All declarants were part of the Plaintiff, on salary from the Plaintiff, dependent for their continued employment with the Plaintiff, and had a stake in the outcome of proceedings, as the city of S-F was claiming that salaries of its personnel were to be cut if the President's EO was not to be stopped.

Moreover, to skip the best evidence rule requirement of FRCP 1002, expert statement must satisfy not only FRCP 703 and the due process requirement of expert neutrality, but also should satisfy FRCP 702:

S-F in its motion did not even care to establish that it satisfied FRCP 1002, 703 or 702, it just added declarations from interested witnesses (salaried City employees and officers) who pointed out at contents of documents without providing A SINGLE DOCUMENT that they were referring to.

Judge Orrick, in finding that the Plaintiffs (City of S-F and Santa Clara County), satisfied their "burden" of demonstrating, BY CLEAR AND CONVINCING EVIDENCE (that's the standard for preliminary injunction) that the stay - nationwide stay - should be imposed, apparently threw away the Rule book of Federal Procedure, because there was not only no "clear and convincing" evidence presented by Plaintiffs in support of their motion, but no ADMISSIBLE evidence whatsoever.

Instead, Judge Orrick accepted as "clear and convincing evidence" the "slightly hysterical" (not my characterization, but one by another legal commentator of those same pleadings) lamentations of the City employees that had nothing to do with satisfying the elementary pleadings standards and rules of federal civil procedure.

Since Judge Orrick did not follow the elementary rules of Federal Procedure and disregarded pre-enforcement standing requiring ripeness (which was not there, there was no threat of imminent denial of funds for this year's budget) and an imminent threat of constitutional injury (and purely economic harm could not constitute that injury), and accepted as "clear and convincing evidence" lamentations of interested witnesses of the City of San Francisco that were not even admissible evidence under the federal best evidence rule FRCP 1002, and failed to qualify under expert evidence rules, FRCP 702 and 703 - Judge Orrick obviously had reasons other than furthering his oath of office when he, nevertheless, not only granted a preliminary injunction to S-F, but made it nationwide.

As a result, all of us, American taxpayers, are made hostages of the extremely rich - and spoiled - public officials of the City of SF, a city where the cost of living is exorbitant, to pay for that cost of living of illegal aliens, because all of American taxpayers have to contribute, as captives, to federal coffers under the threat of criminal FELONY prosecution.

So, we have to pay in, otherwise we will be charged with a federal felony.

Yet, those who harbor illegal aliens (a federal felony) and knowingly not report such harboring (another federal felony, 18 USC 4) - get to receive the funds forcibly extracted out of all of us in order to fund their illegal activities.

And, a federal judge, supposedly furthering his oath to support and faithfully apply federal laws, blocks enforcement of federal laws, and blocks discretionary disbursement of funds by the federal government - on 10th Amendment grounds no less.

You know what the 10th Amendment is about?

The State's right to take care of safety and health of their citizens without interference from the federal government.

But, the City of S-F and the County of Santa Clara, and those cities and counties that supplied the amicus briefs in support of the injunction against the President, do not claim that they are blocked from discharging their duties.

They are claiming that somehow the federal government owe them a duty to FINANCE the states' "independent" 10th Amendment duties.

Well, that is simply not so. 

If states have independent 10th Amendment right and duty to protect safety and health of their citizens, the states have to be able to provide their own financing of those duties, independently of any outside source.

And, since the imposed injunction is nationwide, one more glaring question also comes to mind - how did a nationwide injunction happen in an action which is not a class action? 

Judge Orrick claimed that a nationwide injunction is appropriate when a law is facially unconstitutional.

Yet, facial constitutionality is extremely difficult, nearly impossible to establish, and requires to establish that under NO CIRCUMSTANCES the challenged law and statute can be lawful.

S-F claimed in its own pleadings that it is not clear for them, which funds are going to be targeted for prohibition, and the Executive Order itself directs federal agencies to promulgate additional rules that will further state which funds are going to be prohibited to sanctuary cities, if at all.  Moreover, the Executive Order clearly states that the funds will be withheld "in accordance with federal law".

Under such wording, the Executive Order is not "facially" unconstitutional, and the nationwide injunction is, thus not appropriate and not legal.

As to a class action, S-F did not designate the lawsuit as a class action in the caption and did not apply for class certification.  Throwing a heap of amicus briefs from other jurisdiction at the court does not substitute for lack of designation as a class action.

So, is it a political action by Judge Orrick under the guise of a court order?

There is no doubt about it.

Will Judge Orrick be impeached for that?

We'll see, but he should be.

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