"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.

Sunday, January 20, 2019

More on access to justice in the United States - Wolff v McDonnell, punishment for helping people access the court, and the judicial lobbying to make that pesky civil rights litigation go away

Wolff v McDonnell.

In 1974, an inmate was 
  • stripped of good time credits, 
  • put into solitary confinement, 
  • a record of disciplinary misconduct was created against him - 
for what?

"In 1974, Robert O. McDonnell, an inmate at the Nebraska Penal and Correctional Complex, filed a class action lawsuit against Warden Charles Wolff Jr., charging, among other complaints, that the disciplinary proceedings hearings at the prison were biased and violated due process, that the inspection of all incoming and outbound mail (including mail to and from attorneys) was unreasonable, and that the legal assistance available to inmates was lacking. At the time, the process for disciplinary proceedings involved the prisoner being orally informed of the nature of the charges against them, a report being written by a committee, and the report being read to the inmate. If the inmate denied the charge, they could inquire as to the charging party, but could not cross-examine or present any witnesses. Penalties imposed by the hearings could include loss of good-time credits".

So - an inmate helped other inmates in suing prison authorities for civil rights violations, to draft and file a CLASS civil rights lawsuit against the Nebraska prison system.

The prison system retaliated - which was obviously a political, content-of-speech retaliation otherwise prohibited by the U.S. Supreme Court under the 1st Amendment.

But not in this case.

While the U.S. Supreme Court magnanimously reaffirmed its earlier decision in Johnson v Avery (of 1969) - that if the state does not provide a "reasonable alternative" to proceeding pro se in litigation to indigent/poor inmates, they "may" use a "lay" inmate to draft their litigation documents for them,

the U.S. Supreme Court affirmed the lower court's decisions that good credits stripped from the inmate for doing just that cannot be restored, and his misconduct record created against him in retaliation for that help by prison authorities - for helping other inmates sue the prison authorities, cannot be expunged.

In other words, the U.S. Supreme Court upheld punishment of that particular inmate with the loss of good time - which means in everyday language prolonging the time he was to spend in prison.

For what? 

For encroaching on the judicial monopoly - usurped monopoly, nobody gave it to the judiciary - to control access to court by the American poor.

In fact, the Chief Justice of the U.S. Supreme Court at the time of the "sharp rise" of civil rights litigation, the Chief Justice Warren Burgher - practically openly considered civil rights litigation a breach of attorney ethics for attorneys and called upon the "organized bar" to "remedy" the situation - to discipline "uncivil" civil rights attorneys (which the organized bar started to do happily):

"Warren Burger, in his pleas for civility,90 gave substantial blame for the impending downfall of the profession to lawyers in political trials, or as Burger called them, the “new litigation.” He encouraged the legal profession to apply “rigorous powers of discipline” to the misbehaving lawyers by either the judicial or bar enforcement systems. Failure to do so, he warned, would allow “the jungle [to] clos[e] in on us.”91 Bar leaders and commentators followed the Chief Justice’s lead.92"

Moliterno, James E.. The American Legal Profession in Crisis: Resistance and Responses to Change (pp. 81-82). Oxford University Press. Kindle Edition. 

"In a wide variety of contexts, civil rights lawyers and activists, and early federally supported legal aid lawyers disrupted the calm social professional serenity of the late 1950s. Their collective fault in the eyes of the organized, traditional strength center of the bar was the disruption to the legal, social, and cultural status quo that their work promised. The organized bar treated the civil rights movement itself as a crisis and targeted lawyers who disrupted the legal profession’s settled norms. The profession saw the civil rights lawyers as introducing a new form of lawyering with social engineering as its goal. Thought inappropriate and unprofessional, the bar sought to dampen this reform-minded lawyering. When civil rights activist lawyers began stirring the pot, the profession was still reeling from its anticommunist fervor. Some saw the civil rights lawyer as no different from the communist. Eventually, Warren Burger decried the work of activist lawyers as a key element of the emerging “civility crisis,” warning that “the jungle [was] closing in.”1"

Moliterno, James E.. The American Legal Profession in Crisis: Resistance and Responses to Change (p. 63). Oxford University Press. Kindle Edition.

That speech, about the "jungle closing in", by the SCOTUS Chief Justice Warren Burgher, was made in 1971, 3 years before the decision in Wolff v McDonnell:

Warren E. Burger, Address Before the American Law Institute: The Necessity for Civility (May 18, 1971), in 52 F.R.D. 211 (1971). 

In his furtherance of the need for "civility" - in the peculiar way Chief Justice Burger understood it, he proceeded to mastermind a series of various behind-the-scenes organizations - like

  • the American Inns of Court (providing for free travel of SCOTUS law clerks who de facto decide cases while judges of the court travel for speeches, write books and otherwise entertain themselves);

  • State-Federal Judicial Councils, a secret-membership quasi-judicial organization that was designed to "relieve tension" between state and federal courts brought, obviously, by civil rights litigation (where state judges appeared as defendants in civil rights lawsuits in front of federal judges - in other words, the organization serves to fix federal civil rights cases behind closed doors, in secret consultations between state and federal judges - which, on retirement, one of state participants in such "Council", the retired (attorney licensing) judge Thomas Mercure freely admitted:

Both of these Burger-inspired organizations are funded by attorneys and attended, for free, by judges, behind closed doors, where the wining-and-dining of judges occurs, ex parte communications with judges occur (all for promoting civility and excellence in the legal profession, no doubt),  "sponsoring" of national and international "learning" trips for judges and members of their families, as well as hiring judicial clerks, relatives and friends in order to make certain law firms impenetrable for claims of attorney ethics violations, occur - all under the guise of promoting "civility".

Note that Judge Mercure mentions his participation in the State-Federal Judicial Council, this way:

"...for 10 years (2003-2013) on the Federal-State Judicial Council as one of five state judges meeting regularly with five federal judges to facilitate the disposition of cases in both court systems

(talking about ex parte communications of defendants in federal court and presiding federal judges, and about independence of state and federal government from one another, checks and balances and all)

as part of his ATTORNEY ADVERTISING - for himself and for the law firm Carter and Conboy where Judge Mercure now toils, for money, as an "of counsel" attorney.

He is asking you "Why Judge Mercure" - why should you hire Judge Mercure?

In this capacity:

  • appellate advocacy;
  • ethics and complex civil litigation;
  • alternative dispute resolution services, including mediation and arbitration.
Why hire Judge Mercure?

Because he knows everybody, has a history of having had every finger in every pie and already has a history (for 10 years, 2003 to 2013) of fixing cases with federal judges who he, naturally, knows personally - not to mention that he regulated the federal judges' law licenses while fixing cases against himself and against other judges on his court in "facilitating resolutions" of civil rights lawsuits with federal judges during that time.

Why not hire Judge Mercure?

He has proven that corruption works - and it will work for you, too, if you pay him the established fee.

By the way, in 1996, when the Chief Justice of the U.S. Supreme Court was William Rehnquist (the one who promoted women's rights by putting on the same court his former lover, Sandra Day O'Connor - and she accepted that position from the hands of her lover, with no qualms), Chief Justice Rehnquist continued in the shameful footsteps of his predecessor Warren Burger in lobbying yet another blow to civil rights litigation of the predominantly minority/black prison population in the United States.

Federal courts then helped the states lobby obtaining from the U.S. Congress yet another "helping legislation" - the Prison Litigation Reform Act, requiring prisoners to first "exhaust administrative remedies" before suing for horrible conditions, including guard brutality, in prisons.

In real language that meant that prisoners, in order to file a civil rights lawsuit challenging human rights violations by prison authorities, should first humbly file a complaint with those same prison authorities - and wait for retaliation (loss of good time, being beaten up by guards with the claim next that it is the inmate who beat up the guards - outside of the reach of security cameras, of course, and put for years into solitary confinement and starved with "the loaf"). 

The statute of limitations on filing such administrative complaints varies in different state prison systems and is, in some, as short as 3 days - making it impossible for prisoners to file a complaint.

Without an attorney, a prisoner cannot navigate the complex quagmire of precedents, judicial amendments to the Civil Rights Act, the various abstentions, deferences, comities, additional pleading requirements etc. 

Yet, at federal courts' request to reduce their workload and not to have to deal with the pesky civil rights litigation of the predominantly minority/black prisoners, 

the U.S. Congress (overwhelmed by licensed attorneys controlled by the judiciary) allowed trial courts, 

when seeing that an illiterate pro se prisoner who cannot afford an attorney (because of attorney monopoly regulated by those same courts that made attorneys not affordable for the majority of the population in the U.S. and to practically all inmates in the U.S.) 

did not satisfy jumping through all the hoops/judicial amendments to the Civil Rights Act that the judiciary made without constitutional authority to legislate, 

to also 

  • dismiss such pro se civil rights lawsuits of inmates (convicted of a crime) and pretrial detainees (presumed innocent) for human rights violations during incarceration/detention;
  • certify for the appellate court that the appeal from their own decision will be frivolous; and
  • impose an anti-filing injunction if the inmate dared to file such a "frivolous" lawsuit three times.
In other words, if an inmate's civil rights were violated by prison authorities 3 times (which can happen every day), but an inmate cannot plead to the court's specification (as an expert civil rights attorney), which is also a given - after three lawsuits shot by courts without even allowing their service upon opponents, perpetrators of civil rights violations, his access to court will be simply blocked by courts.

"The Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e, is a U.S. federal law that was enacted in 1996. Congress enacted PLRA in response to a significant increase in prisoner litigation in the federal courts."

The U.S. Supreme Court, in 2006, openly admitted that the PLRA was designed to decrease prisoners' civil rights litigation in  Woodford v Ngo:

" Congress enacted the Prison Litigation Reform Act of 1995 (PLRA), 110 Stat. 1321–71, as amended, 42 U. S. C. §1997e et seq., in 1996 in the wake of a sharp rise in prisoner litigation in the federal courts, see, e.g., Alexander v. Hawk, 159 F. 3d 1321, 1324–1325 (CA11 1998) (citing statistics). The PLRA contains a variety of provisions designed to bring this litigation under control. See, e.g., §1997e(c) (requiring district courts to weed out prisoner claims that clearly lack merit); §1997e(e) (prohibiting claims for emotional injury without prior showing of physical injury); §1997e(d) (restricting attorney’s fees)."

Notice that the top court of the country, the final destination for Americans to review their human rights violations 

(because of the provision in human rights treaties ratified by the U.S. that they are not "self-executing", Americans cannot go outside their country to international judicial forums, like the United Nations Human Rights Council or the European Court of Human Rights)

 required the states not to look into WHAT CAUSES the "sharp rise in prisoner litigation in federal courts" as to the reasons for the sharp rise of prison population in the U.S. (which is the highest among civilized nations), the prison conditions and human rights violations in American prisons - but simply to suppress that litigation, "bring it under control".

The district courts were instead charged by the U.S. Congress to act practically as advocates for the state and federal executive branch of the government in such litigation in their task of "weeding out prisoner claims that clearly lack merit" - that, for courts who are mostly populated by judges/former prosecutors, would include every single prisoner lawsuit.

I have written here about the details of that particular statute and how it cuts off human rights complaints by prisoners completely, as well as about is unconstitutionality (that holds up only because no attorney would dare to challenge it, for fear to lose his/her license and livelihood).

That was not the first "cut my workload, there are too many civil rights cases" legislature federal courts asked from the U.S. Congress which the U.S. Congress obliged to give them.

In 1925 it granted such a request of the U.S. Supreme Court and changed its review of all incoming petitions from mandatory to discretionary, thus making the U.S. Constitution discretionary for application by the states:

The Judiciary Act of 1925 (43 Stat. 936), also known as the Judge's Bill[1] or Certiorari Act,[2] was an act of the United States Congress that sought to reduce the workload of the Supreme Court of the United States."

See - an easy solution to the rise of human rights violations in the country (because of increased population - the freed slaves and the incoming immigrants fleeing the 1st World War in Europe and the Russian revolution):  just cut the oxygen, refuse to review the majority of petitions, and the "sharp rise in litigation" will just die.

A great solution, especially considering that "ministers of justice", judges, asked for it, isn't it?

A recently retired federal appellate judge Richard Posner has published a whole book describing how federal courts discriminate against pro se civil rights litigants - including a mention that pro se appeals in federal courts reviewed not by judges, but by law clerks, and judges give only a several-minute overview of their clerks' recommendations as to how to decide this or that case (of the entire massive appellate records, which is impossible to read in that span of time).

Moreover, Judge Posner portrayed the procedure of review by  federal appellate court as considering any pro se litigant as practically feeble-minded, illiterate, low-status person not worthy of a real and full judicial review, but only by review of judicial assistants, clerks.

By the way, going back to Wolff v McDonnell , the start of this article - courts now require all class actions to be represented by a licensed attorney, thus foreclosing any class actions by inmates like those helped by Robert McDonnel to file a class action against the Nebraska prison system.

This is the true state of access to justice in America.

I did not see fighting against attorney monopoly and against the position of the judiciary as the regulator of people's access to justice in the yesterday's Women's March.

I understand, the main cause of preclusion of access to justice to all Americans, including women, including people of color, including members of LGBTQI, binary and non-conforming gender communities - attorney monopoly and judicial regulation on court representation - is not of much concern to organizers of such marchers.

We just march.

We just yell.

We just post asinine slogans.

But, we do not want to look into the actual core of what is hurting us the most.

The God-like power of people who control our access to justice - and do that in a way to make their job much easier, by inventing ways to just "reduce the sharp rise" of civil rights litigation - the God-like power that Brutus has warned about 231 years ago in his Anti-Federalist letters:

I do not object to the judges holding their commissions during good behaviour. I suppose it a proper provision provided they were made properly responsible. But I say, this system has followed the English government in this, while it has departed from almost every other principle of their jurisprudence, under the idea, of rendering the judges independent; which, in the British constitution, means no more than that they hold their places during good behaviour, and have fixed salaries, they have made the judges independent, in the fullest sense of the word. There is no power above them, to controul any of their decisions. There is no authority that can remove them, and they cannot be controuled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself. "

It happened, didn't it?

Now people who feel themselves "independent of heaven itself" rule our access to court, control all three branches of the government - do not fool yourself that we have three branches of the government in the U.S., with "checks and balances" upon one another, when one of them fully, and the other two overwhelmingly consist of "officers of the court".

We have these people, who block all information about their misconduct (complaints about judges are secret), block their accountability by giving their potential prosecutors immunity (in 1976, also by Justice Burger as part of his establishment of "civility" in attorney regulation), but yank their licenses if they criticize or investigate them them (PA AG, Kathleen Kane).

We have people who, at the same time, give themselves absolute immunity for corruption, and demand from the profession they control,
  • belong to, 
  • incorporate into themselves (as "organized bars" - I wonder, why the history of such incorporation is not taught in law schools, eh?), 
  • get money from for their elections and otherwise (see Inns of Court, Judicial Councils and other "exercises in civility") and control speech of - about themselves, the 1st Amendment be damned,
  • demand that all candidates into that branch of the government must necessarily have several years of good grace from the current corrupt members of that branch - being "attorneys in good standing";
to presume their integrity and brainwash the public about that presumed integrity, so that the public would vote for the same corrupt people again and again.

Do you want still to once again assert that we have an "independent court system" and "the best access to justice system in the world".

Happy Martin Luther King, Jr. day, fellow Americans.

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