On constitutionality of government regulation of opponents’ representatives in court in the United States

 

On constitutionality of government regulation of opponents’ representatives in court

in the United States

 

Tatiana Neroni, Juris Doctor

October 2, 2021 ©

Court cases

Bates v. State Bar of Arizona, 433 U.S. 350 (1977)............................................ 2

Brazee v. Michigan, 241 U.S. 340 (1916).......................................................... 2, 3

Butz v. Economou, 438 U.S. 478 (1978) 1

Gideon v. Wainwright, 372 U.S. 335 (1963)................................................... 2

Matter of Giuliani, 2021 NY Slip Op 04086, 197 AD3d 1 (1^st Dept., June 24, 2021)................................................ 2, 3

New York Times Co. v. Sullivan, 376 U.S. 254 (1964)................................... 3

Statutes

42 U.S.C. 1988(b), Proceedings in vindication of civil rights, attorney’s fees....................................................... 2

Other Authorities

James E. Moliterno, Politically Motivated Bar Discipline, 83 WASH. U. L. Q. 725 (2005)............................................ 3

Jones, Ira.  Critical Race Theory Remakes Connecticut School District | National Review, Indiana Conservatives for reason, July 19, 2021..................................................... 3

Storace, Robert.  Attorney Miller Believes Deck Is Stacked Against Her for Reinstatement to State Bar.  Civil rights attorney Josephine Smalls Miller will make her case for reinstatement to the state bar on Sept. 1, Connecticut Law Tribune, August 21, 2021........... 3

Constitutional Provisions

U.S. Constitution, Amendment 6, Right to Counsel............................................ 2

 

 

The U.S. Supreme Court has included into its requirement of fair court proceedings adversarial nature of such proceedings[1].

There may be no true adversarial court proceeding where one opponent (especially – the more powerful one) controls the other, or its representative, by means outside of the particular court proceeding, where

1.     A party in litigation must choose its trusted representative in court from the list approved by its opponent in litigation, which undermines any possibility of trust to such a representative; and

2.     A powerful party in litigation (the government) may remove representatives of its opponents in litigation at a whim, without knowledge or consent from the party who has chosen that particular representative.

Yet, this is exactly what is happening in the American courts – and the recent case of New York’s suspension of Rudy Giuliani’s law license[2] is just one of such examples.

Back at the beginning of the 20^th century the U.S. Supreme Court has ruled that the only business that may be constitutionally regulated by the government[3] is a business of such a nature that without a legislative regulation a lot of people will suffer serious harm[4].

At the same time, the U.S. Constitution recognizes the important role of an attorney in cases where an individual opposes the government in court, by

·       its direct text[5],

·       federal statutes providing financial incentives for attorneys to sue the government on behalf of indigent individuals for human rights abuses[6] and

·       by US Supreme Court precedent[7].

States also provide free counsel to indigent defendants in “quasi-criminal” settings where proceedings threaten loss of constitutional rights, such as child neglect/abuse proceedings by social services against parents and “civil” contempt proceedings.

In view of importance of the right to counsel in cases where the government is the opponent in litigation, whether the government is the plaintiff (criminal, CPS cases) or a defendant (federal civil rights lawsuits), it is important for litigants to have a choice of representatives in court whose livelihood is not controlled by opponent in litigation, the government.

Yet, not only livelihoods of such attorneys are, in fact, controlled by their opponent in litigation, the government, but such representatives of opponents of the government in litigation are actually targeted by the government in license revocation proceedings, to remove the counsel of choice from the opponent, without opponent consent, and to gain this way an advantage in litigation.

The license revocation of the civil rights lawyer Rudy Giuliani who dared to bring a civil rights lawsuit against the government claiming improper actions of government officials in several states presidential elections in 2020[8] is one of the most recent and the most illustrative examples of this targeting[9].  The license revocation was targeting not only Giuliani himself, but, very obviously, his client Donald Trump who was deprived of his chosen counsel in and out of court by his opponents in litigation.

Another recent example is revocation of the license of a black civil rights attorney from Connecticut, for suing a judge and “slandering the judicial system” of the state, specifically, for accusing the state court system of racism[10].  Similarly, it was attorney Miller’s clients – opponents of the government in civil rights lawsuits – who were stripped of her services without their consent, by their opponents in litigation, when license was revoked by the government from civil rights attorney Miller, on contrived grounds:

·       slandering a system, and especially a government system, is not possible to do legally in the USA, since in American jurisprudence, one cannot “slander a system”, only a person,

·       the judge attorney Miller sued in federal court never counter-sued her for defamation,

·       had the judge done so, he would have lost because of high pleading standards and high burden of proof put on government officials in defamation lawsuits in the U.S. Supreme Court 1^st Amendment jurisprudence[11],

·       the reason for this political targeting and punishment of the civil rights attorney in Connecticut for asserting that state courts are racist becomes tragi-comical in view of the same state’s decision to teach in its schools the “Critical race theory”, asserting that systemic racism permeates all governments (including, obviously, the state courts), and the entire society in the United States[12].

Not in Connecticut, not in New York, not anywhere else in the United States, did legislatures determine, in order for the government to regulate representatives of its own opponents in litigation, civil rights/criminal defense/defense-against-CPS attorneys, that business of these lawyers is of such nature that without legislative control over such services a lot of people will come to a lot of serious harm[13].

On the opposite, a lot of people are obviously coming into a lot of serious harm when they are given no choice by the government, but to choose representatives in court, when sued by the government, representatives whom they must trust with secret details of their lives and entrust the future of their own life, liberty, property – only from the lists approved by their powerful opponent in litigation.

In fact, while such control exists, services of counsel in defense of civil rights situations that are so highly valued – in words, at least - by the U.S. Constitution, federal statutes and the U.S. Supreme Court precedent are stripped of their value through control over them by the powerful opponent in litigation, the government.

Moreover, while such control exists, none of court decisions in cases where government is a party in litigation may be considered legitimate, since the process used in arriving at those decisions lacked the true independence of the representatives of the government’s opponents in litigation, and thus lacked the true adversarial nature required by the U.S. Supreme Court for court proceedings.

It is obvious that regulation by the government of criminal defense, defense-against-CPS and civil rights lawyers is unconstitutional as regulation of representatives of government’s opponents in litigation since it

·       emasculates people’s right to counsel given by the U.S. Constitution or federal statute,

·       allows the most powerful party, with the burden of proof in criminal and child abuse/neglect cases, to always have an unfair advantage in such litigation,

·       destroys legitimacy of court decisions in cases where the government is a party in litigation by removing the required element of court proceedings – a true adversarial nature of such proceedings.

Regulation by the government in the US of representatives of its own opponents in court must stop.

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[1] Butz v. Economou, 438 U.S. 478 (1978) (“the safeguards built into the judicial process tend to reduce the need for private damages actions as a means of controlling unconstitutional conduct. The insulation of the judge from political influence, the importance of precedent in resolving controversies, the adversary nature of the process, and the correctability of error on appeal are just a few of the many checks on malicious action by judges”, emphasis added).

[2] Matter of Giuliani, 2021 NY Slip Op 04086, 197 AD3d 1 (1^st Dept., June 24, 2021)..

[3] The U.S. Supreme Court has ruled that the “practice of law” is a business in Bates v. State Bar of Arizona, 433 U.S. 350 (1977) (regulation of lawyers may not forbid business advertisements of their services by lawyers).

[4] Brazee v. Michigan, 241 U.S. 340 (1916) (“Considering our former opinions it seems clear that, without violating the federal Constitution, a state, exercising its police power, may require licenses for employment agencies and prescribe reasonable regulations in respect of them, to be enforced according to the legal discretion of a Commissioner. The general nature of the business is such that, unless regulated, many persons may be exposed to misfortunes against which the legislature can properly protect them”, emphasis added).

[5] U.S. Constitution, Amendment 6, Right to Counsel.

[6] 42 U.S.C. 1988(b), Proceedings in vindication of civil rights, attorney’s fees.

[7] Gideon v. Wainwright, 372 U.S. 335 (1963).

[8] Matter of Giuliani, 2021 NY Slip Op 04086, 197 AD3d 1 (1^st Dept., June 24, 2021)..

[9] See e.g. Moliterno, James E.  Politically Motivated Bar Discipline, 83 WASH. U. L. Q. 725 (2005).

[10] See Storace, Robert.  Attorney Miller Believes Deck Is Stacked Against Her for Reinstatement to State Bar.  Civil rights attorney Josephine Smalls Miller will make her case for reinstatement to the state bar on Sept. 1, Connecticut Law Tribune, August 21, 2021.

[11] New York Times Co. v. Sullivan, 376 U.S. 254 (1964)..

[12] See e.g. Jones, Ira.  Critical Race Theory Remakes Connecticut School District | National Review, Indiana Conservatives for reason, July 19, 2021.

[13] Brazee v. Michigan, 241 U.S. 340 (1916).