Arizona State bar is criticized for wearing too many hats, and wearing them poorly

Here is a legal blog post where a member of the legal profession is sarcastic about Arizona Bar doing the following at the same time:

• pretends to protect the public from its members;
• pretends to represent interests of its members;
• does business with its members by offering "member benefits", for a fee, and
• does that business poorly

It is apparent that under such a conflicted scheme of things, none of the bar assotiation's duties will be discharged fully, completely, and with full integrity - it is impossible; and that everybody whose interests are involved will feel cheated.

And they are.

The only way to resolve the situation is to deregulate the legal profession.

Then, the bar association can remain as a non-profit trade association, which is what it is now, continue to offer its members benefits that members have a right to accept or decline, without fear of being prosecuted by the same bar for criticism of conflicts of interest and offering bad business deals to its members.

And, the public can then be free to choose counsel of their choice not bound by the disciplinary rules to play nice to the old boys' club.

The public will definitely win.

But what impressed me the most is this paragraph:

"Indeed, when mentoring law students and especially new lawyers, my oft-used lawyer happiness advice remains, “Remember, the State Bar is not your friend.” How else to interpret the Bar’s chest-pounding proclamations that its primary mission is to protect the public from its members?"

What impressed me is the author's sarcasm as to these "chest-pounding proclamations" which, in reality are the ONLY legitimate reason why attorneys are licensed and given their privileged position in society at all.

If lawyers are openly sarcastic about the goal of attorney licensing as to protection of the public, the public must understand that no protection will follow where lawyers "regulate themselves", for themselves.

Titus Lucretius Carrus and the fraud of judicial immunity

The whole idea of judicial immunity is rooted in footnote 7 in Bradley v Fisher where the U.S. Supreme Court relied upon a 1810 case for the contention that the concept of judicial immunity was "deeply rooted in common law" and said:

"though the defendant acted erroneously, he acted judicially, and if what he did was corrupt, complaint might be made to the king, and if erroneous, it might be reversed."

Well, first of all, judges claimed back in 1810 that there were 2 ways to avoid suing them:

• a complaint to the sovereign;
• an appeal

With the change of sovereign from the King to the People, the outline of who the sovereign is and who is allowed to act on behalf of the sovereign in order to punish errant judges, became blurred, and, as I wrote in one of my previous blogs here, now judicial discipline disappeared completely, only judicial immunity remained, and, since judicial immunity was self-gifted by judges on the promise of availability of judicial discipline "complaints to the King", where such promise was not fulfilled, judicial immunity should not be applied, and that is not even going into the issues of statutory construction of the Civil Rights Act and of constitutional construction.

For some reason, the court in 1810, at the time when majority of American population was illiterate, felt compelled to quote to Latin verse to support its claim of judicial immunity:

"A short view of the cases will teach us to admire the wisdom of our forefathers, and to revere a principle on which rests the independence of the administration of justice. Juvat accedere fontes atque haurire."

That is a truncated quote from Lucretius, On the Nature of Things, here is the full passage in English translation:

I wander afield, thriving in sturdy thought,
Through unpathed haunts of the Pierides,
Trodden by step of none before. I joy
To come on undefiled fountains there,
To drain them deep; I joy to pluck new flowers,
To seek for this my head a signal crown
From regions where the Muses never yet
Have garlanded the temples of a man:
First, since I teach concerning mighty things,
And go right on to loose from round the mind
The tightened coils of dread religion;
Next, since, concerning themes so dark, I frame
Song so pellucid, touching all throughout
Even with the Muses' charm- which, as 'twould seem,
Is not without a reasonable ground:
For as physicians, when they seek to give
Young boys the nauseous wormwood, first do touch
The brim around the cup with the sweet juice
And yellow of the honey, in order that
The thoughtless age of boyhood be cajoled
As far as the lips, and meanwhile swallow down
The wormwood's bitter draught, and, though befooled,
Be yet not merely duped, but rather thus
Grow strong again with recreated health:
So now I too (since this my doctrine seems
In general somewhat woeful unto those
Who've had it not in hand, and since the crowd
Starts back from it in horror) have desired
To expound our doctrine unto thee in song
Soft-speaking and Pierian, and, as 'twere,
To touch it with sweet honey of the Muse-
If by such method haply I might hold
The mind of thee upon these lines of ours,
Till thou dost learn the nature of all things
And understandest their utility.

Lucretius. De Rerum Natura. William Ellery Leonard. E. P. Dutton. 1916.

Let's not forget that the call to admire the "wisdom of our forefathers" is on the issue in which the deciding judge has a personal interest - his own liability for erroneous or corrupt and maliciously wrong decisions.

Now, if an errant child gives his parent "puppy eyes" and gives the parent some top-lofty quotes to escape punishment, that's understandable.

When a person wielding a nearly or virtually absolute power over lives, liberty and property of people, quotes the same top-lofty verse to explain why it is in the best interests of the sovereign governed by that judge only on consent of that sovereign, to give the judge absolute immunity for harming the sovereign, that makes no sense at all.

Imagine that a judge would harm the King and try to persuade the King that it was in the King's best interests to be harmed.  That judge would not see the next sunrise.

The next thing is parading the judge's self-importance by quoting ancient Latin verse to support his feeling of entitlement to be above the law, Constitution or no Constitution.  If anybody talks to you in Latin verse about the wisdom of absolving himself from wrongdoing, I would think that you will position that person as a self-important jerk and refuse to drink from the offered "fountain of wisdom".  That would be rational behavior.

Moreover, the "wisdom of our forefathers" to which the 1810 judge is calling as a basis for his  belief that everybody should "revere a principle on which rests the independence of the administration of justice" becomes even more crookish when considered against statements of historians from the "mother country", England, claiming that there was no such thing as judicial independence at the time before the U.S. Constitution was enacted (a full review of the book will follow), and where there is no actual independence of the judiciary, no principles of immunity should be "revered" to maintain what does not exist.

Let us also recall what We the People said in OUR Declaration of Independence:

He [the King - TN] has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.

So, what has been expounded as a "revered principle" "rooted in common law" and in the "wisdom of our forefathers" is, and has always been, a garden variety fraud sought by those in power against those who they harm by their misconduct, based on misrepresenting history to serve their needs.

Happened before, and continues to happen now.  Unless We the People put an end to judicial immunity by a specific state and federal Constitutional Amendment.

The government as a crook and a lobbyist for powerful private interests: how rules of licensing were changed in order to defeat civil rights challenges of targeted civil rights attorneys in court

Found an interesting federal civil rights case, filed by a disbarred attorney out of the State of Washington in 2012, dismissed in 2014, and the appeal of the dismissal is still pending in the U.S. Court of Appeals for the 9th Circuit.

The name of the disbarred attorney is John Scannell, and he is a kind of a celebrity in his state.

He actually ran for a Supreme Court judgeship aiming to unseat the judge who disbarred him.

Of course, his status as a disbarred attorney was at the fore of his opponents' criticism.

Mr. Scannell was branded as a loser, hints were dropped that he was not all together upstairs etc. etc. etc.

When political opponents of a person, especially of a disbarred civil rights attorney try to claim he is nuts and point at his disbarred status as somehow undermining credibility of his arguments or his worthiness for public office, I get interested in the person's federal claims, usually they are so good that it is necessary to tar-and-feather the person in order to distract people from the issues he or she is raising by character assassination.

I found on Pacer.gov federal lawsuit of John R. Scannell challenging his disbarment and procedures that led to it - and, lo and behold, Mr. Scannell's civil rights action could read as a parallel of Neroni v Zayas challenge regarding same or similar procedures and misconduct in attorney disciplinary proceedings in New York, and as a prediction of the U.S. Supreme Court precedent made 3 years down the road.

First, Mr. Scannell was a visionary for bringing, in 2012, a claim under federal antitrust Sherman Act claiming that "self-regulation" of the legal profession by private actors is a violation of federal antitrust law.  That claim was dismissed in 2014, but is, in my opinion, revived as of February 25, 2015 in the U.S. Supreme Court case "North Carolina Board of Dental Examiners v FTC" that repeat exactly what Mr. Scannell said in his lawsuit, and what federal district court dismissed in 2014.

Next, Mr. Scannell describes conflicts of interest in the disciplinary process - a hearing officer who applied for employment with the prosecutor, a party in litigation in front of her, a judge who allegedly  entered into a kick-back agreement of a portion of the hearing officer salary, a disciplinary prosecutor who was a direct subordinate of a powerful public official that Mr. Scannell complained about - and who was, naturally, not investigated or prosecuted, instead Mr. Scannell, a complainant against her, was disbarred by her subordinate acting as a prosecutor.

All of that is very recognizable to me as compared to Mr. Neroni's disbarment proceedings and my own still pending disciplinary proceedings.

Names are different, situations are similar.

Mr. Scannell indicates that he was disciplined for his refusal to disclose information covered by attorney-client privilege when he was secretly subpoenaed to a deposition where disclosure of such information was required, without giving notice to the client who was the holder of the privilege.

In other words, where discipline in licensing was supposed to protect consumers from BAD lawyers, it was used against Mr. Scannell for protecting his client.

I had a similar situation where the 3rd Department disciplinary committee insisted that I must disclose information from a dismissed and sealed criminal case, and attempted to discipline me for referring them to my client and to the sealing court to (1) unseal the information they were seeking from me;  (2) seek waiver of privilege from my client.

Of course, the disciplinary committee did neither.

In Mr. Scannell's case, the disbarring "court" did not even try to conceal the fact that Mr. Scannell's law license was revoked for "noncooperation with investigation" - which was specifically for protecting privileged information of his client, and for making difficult "self-regulation" of the legal profession, which "self-regulation" as to any professions regulated by their own market players, was considered a federal violation by the U.S. Supreme Court 5 years after Mr. Scannell's disbarment.

Yet, one prominent issue that Mr. Scannell raised by his pleadings which was identical with the issue in Neroni v Zayas in New York is the "plenary" (total) power of the disbarring "court", including legislative, police/investigative, prosecutorial and judicial power over the proceedings.

Even though Mr. Scannell did not say in so many words in his complaint that such a complete conflation of power is a characteristic of an administrative, not a judicial proceeding, that is exactly what Washington attorney license revocation proceedings are, administrative and not judicial.

First, professional licenses of any other licensed professionals are revoked by administrative boards, subject to two levels of review in state courts, see announcement on the website of Washington State Attorney General.

Placing revocation of law licenses apart from other professional licenses and putting it into a "court", while that "court" does the same things as an administrative agency does - creates rules by which it operates in the disciplinary proceedings, acts as a legislator, adjudicator, police investigator and prosecutor - negates any claims that such proceedings are "judicial" in nature.

Obviously, determination of the nature of a proceeding does not come from the name of the agency that is holding the proceeding.

If a court holds a luncheon, that does not mean luncheon is a judicial proceeding.

If a court holds a license revocation proceeding, which is an executive function for any other professional license in that same state, that does not mean that placing license revocation proceedings into that court somehow changed the nature of the administrative license revocation proceedings into a judicial proceeding.

It is interesting that Mr. Scannell's federal complaint filed in 2012 repeated nearly verbatim claims of various witnesses before the New York State Commission for Attorney Discipline in 2015 - that the problems in attorney disciplinary system are:

• that civil rights attorneys, solo attorneys, minority attorneys and critics of misconduct in the government are disproportionately targeted by attorney disciplinary proceedings, while complaints against criminal prosecutors and attorneys from powerful large firms are ignored.

In view of such selective enforcement of attorney discipline, placing of attorney disciplinary proceedings directly with the court by the legislature (and legislatures in all states are dominated by licensed attorneys from large firms, an interest group) can be deemed part of the antitrust scheme and the scheme of quashing political dissent against the judiciary and powerful attorney groups.

Once again, since civil rights attorneys (that is a federal practice) are targeted by state disciplinary action which is often politically motivated and is always dominated by private interests, people who devised disciplinary rules against attorneys realized that such attorneys are not easy targets, because they are knowledgeable in civil rights litigation.

As to John Scannell, Pacer.gov returned a 2-page list of cases, a long list, litigated by John Scannell in federal courts over the years, and only 2 or 3 cases out of, probably, 50, was where John Scannell appeared as a party, in other cases he appeared as an attorney.

So, in order to make it easy for the usually incompetent and lazy government attorneys to win civil rights challenges of wrongfully disbarred civil rights attorneys, the lawyer-dominated legislatures invented a brilliant move - and promulgated it in all states of the Untied States - to claim that "historically" it is the courts that regulated attorneys, and that's why, the courts must handle attorney licensing and license revocation/discipline.

That move has made the following differences in outcomes in federal civil rights challenges possible:

Issue	How decided by federal courts if prior state proceeding was judicial	How decided by federal courts if prior state proceeding was administrative
Taking without due process of law	Rooker-Feldman bar to jurisdiction, civil rights case dismissed	Rooker-Feldman bar inapplicable, civil rights case proceeds
Collateral estoppel to state proceedings	Fully applies, civil rights case dismissed	Does not apply to federal constitutional issues since federal constitutional issues are not allowed to be resolved in administrative proceedings, civil rights case proceeds
Nature of proceedings in revocation of a professional license	Civil rights case challenging revocation dismissed	Civil rights case challenging revocation proceeds
Exhaustion of state remedies before starting a federal civil rights action	Is not required by federal civil rights statute, but federal courts apply a Rooker-Feldman bar, implying that federal constitutional issues should have been raised in state court proceedings and are precluded from being raised in federal court after such state court proceedings, civil rights case dismissed	Is not required, Patsy v Fla. Bd. of Regents, 457 U.S. 496 (1982), and Rooker-Feldman bar does not apply, civil rights case proceeds

I would like to stress once again the distinction as to the case interlinked in the table above:

• suspension of a doctor's license CAN be challenged in federal court, as the 3rd Circuit Court of Appeals has ruled back in 1998 in 

JOHN K. WHITEFORD, M.D.
Appellant

v.

JOHN REED, Director of the Professional Liability
Catastrophic Loss Fund; DANIEL KIMBALL, JR., M.D.,
Chairman of the Pennsylvania State Board of Medicine;
GERALD SMITH, ESQ., Counsel for the State Board of
Medicine, Commonwealth of Pennsylvania

because suspension of a MEDICAL license is designated as administrative proceeding, to which the Rooker-Feldman doctrine does not apply;

suspension or revocation of an attorney's license CANNOT be challenged in federal court because of the identity of the governmental AGENCY handling the license revocation - the court, even though the nature of the proceeding, license revocation, did not change, and is still administrative

So, by delegating the handling of an executive function to a court, the administrative nature of the proceedings was obscured, and instead the only thing that federal courts look at in defining the nature of attorney license revocation proceedings, is the name of the agency that revoked the license.

If the name of administrative licensing agency is a court - a federal civil rights lawsuit by a wrongfully disbarred civil rights attorney, a professional in such cases, will be barred, so it can be won by the lazy and incompetent government hands down.

If the name of administrative licensing agency is a "board", and the petitioner is not an attorney, and, as a medical professional, does not challenge governmental misconduct on a regular basis, as a civil rights attorney does - he is given a green light to litigate his federal constitutional claims.

As with any crooks in power, they are lazy, incompetent, and know it, that's why they know that they can win against a wrongfully disbarred professional civil rights attorney other than by changing the rules on him in such a way that makes litigation in federal court impossible.

So, if an architect or a doctor had his license revoked and goes to federal court - the case will be accepted and prosecuted in federal court.

If professional license is of an attorney - the case will be dismissed.

That distinction without a difference makes no sense and is definitely in violation of the Equal Protection Clause of the 14th Amendment, not that any of the judges who regularly dismiss such complaints would recognize that.  

After all, federal judges also sit only during the period of "good behavior", and have to be licensed attorneys.  

There is nothing easier than to accuse them of practicing law while on the bench, discipline them, revoke their licenses - and here goes the judgeship, so federal, as well as state judges must be careful to tiptoe the line and to do the bidding of private interest groups in keeping wrongfully disbarred civil rights attorneys - wrongfully disbarred.

In view of the recent decision by the U.S. Supreme Court declaring self-regulation of professions without state oversight a federal antitrust violation, such tricks making it harder for a chosen class of licensed professionals to find it impossible to challenge their license revocation in court, are part of the anticompetitive scheme, harm consumers of legal services and deplete the already thin supply of civil rights lawyers who are nearly sanctioned into extinction by state discipline and federal fines for "frivolous" constitutional arguments on behalf of their clients.

Legal consumers lose.

And, until legal consumers realize that attorney discipline, the way it exists in all states and on a federal level, was designed by market players to favor the most powerful market players and to weed out those attorneys who actually protect their clients' interests, nothing will change in the shortage of proper and independent court representatives for the public.

So, where at this time it remains a lonely fight of wrongfully disbarred civil rights attorneys, there should be a grass roots movement by the public to end attorney regulation, the way it exists now, as a criminal cartel of powerful private interests.

As to how John Scannell looks (which was one of the main objects of criticism during his campaign for a judgeship), I would prefer an unpolished look of a brilliant mind of a person with integrity, like John Scannell appears to be, to a polished and refined crook.

And the answer to "why the ***" a disbarred attorney was running for a judge is - because a disbarment obtained in violation of the U.S. Constitution, whether the federal court did or did not want to hear that, is void, according to the U.S. Supreme Court's own decision in Marbury v Madison (unconstitutional decisions are void), and because using occupational licensing run by private groups in order to remove and/or discredit eligible candidates for public office is fraud upon the public.

And - the dismissal of John Scannell's claims, at least the claims under the Sherman Act, must now be returned to review because of the new U.S. Supreme Court precedent.  I highly doubt that federal courts will accept the "revolutionary" argument that what walks like a duck and quacks like a duck (an administrative proceeding for license revocation), is actually a duck, and a lame one, even if it is labeled "court" proceedings.

Yet, the challenge to the nature of attorney disciplinary proceedings have been filed in Neroni v Zayas, it will be filed in my case, if my license is affected because of my professional activity as a civil rights attorney, I am spreading the word as to this particular issue to all wrongfully disbarred attorneys I know, so the fight will definitely continue.

Judicial Misconduct and Disability Act, 28 USC 352, undermines the claims by federal judges of absolute judicial immunity for misconduct on the bench

Federal Judicial Misconduct and Disability Act, 28 USC 352(b)(I)(A)(ii) provides for a dismissal of any complaint against a judge which is "directly related to the merits of a decision or procedural ruling".

In other words, federal courts which "self-regulate" and review complaints against their colleagues, cannot be disciplined for anything they did during a judicial proceedings, even if their decision in a case was corrupt or if the judge in question had a personal interest in deciding the case, had to recuse, but didn't, causing severe detriment to the complainant.

At the very same time, federal judges continue to claim for themselves their self-gift of absolute judicial immunity for malicious and corrupt on the bench, which they claim is justified because - guess what - allegedly judicial discipline for acts on the bench is available.

28 USC 352(b)(I)(A)(ii) clearly indicates that it is not so.

Yet, any cloud has a silver lining.

The silver lining that appears here is - Judicial Misconduct and Disability Act is clear evidence that the judge-created doctrine of absolute judicial immunity for malicious and corrupt acts on the bench is illegal and unconstitutional legislating from the bench.

 If the U.S. Congress prohibited discipline of judges for acts on the bench, absolute judicial immunity cannot be "read into" or "imputed" into the Bivens actions, federal counterparts of a civil rights action against a state official.

The U.S. Congress, which is supposedly not an insane group of people, cannot be "deemed" to have "implied" something in 42 U.S.C. 1983 that it absolutely ruled out by enacting Judicial Misconduct and Disability Act, 28 USC 352(b)(I)(A)(ii), and that argument is valid to invalidate the concept of absolute judicial immunity for both federal and state judges, because the rationale is the same.

The U.S. Congress could not possibly "mean"

1. when enacting 42 U.S.C. 1983 that "any person" against whom a civil rights action can be brought is "any person", but judges because judges are entitled to absolute immunity for actions on the bench in view of availability of discipline for misconduct;
2. while at the same time enacting 28 USC 352(b)(I)(A)(ii) where it clearly prohibited discipline against judges for their acts on the bench.

Currently, "almost all" complaints about federal judges under 28 U.S.C. 352 are dismissed - according to the frank admission of the U.S. Court of Appeals for the 9th Circuit:

Situation with dismissals of practically all judicial complaints by the "brethren" of the subjects of those complaints is reportedly the same in other federal circuits, and that is according to the federal courts' own official statistics.

At the same time, all lawsuits against federal judges are dismissed on grounds of absolute judicial immunity, without reaching the merits and often with sanctions against civil rights plaintiffs and their attorneys.
 
Yet, in view of the above discrepancy between what courts read into 42 U.S.C. 1983 as Congressional intent to provide an exception of absolute judicial immunity because judicial discipline is available, and Congressional enactment of Judicial Misconduct and Disability act that does not allow such discipline for acts on the bench, a challenge can be properly made that the claim of absolute judicial immunity is unlawful because of this discrepancy.

State and federal courts routinely punish for frivolous conduct parties and attorneys for maintaining inconsistent or diametrically opposite positions in litigation.

Yet, position of judges as to their own self-interest, the issue of absolute judicial immunity, appears to be nothing but frivolous, because it necessarily requires to accuse generations of U.S. Congressmen of insanity in enacting two diametrically opposite statutes, one that "impliedly" provides for judicial discipline for acts on the bench, and the other, which prohibits it.

Yet, of course, "freedom is not free", and the entrenched judiciary will not let go of its baby, the absolute judicial immunity, without a bitter fight against challengers.

We will see how the illegal "legal doctrine" of absolute judicial immunity for malicious and corrupt acts on the bench will develop in our Internet age.

Stay tuned for further coverage of the issue.

 

States do not have a legitimate interest to protect reputation of a private group and of a branch of the government through occupational licensing

As a law student and then a lawyer, I kept hearing about the legal profession to be "self-regulated", and about the goal of attorney licensing as "protection public confidence in reputation of the bar and the judiciary".

As of February 25, 2015, self-regulation of professionals by themselves without state oversight was declared by the U.S. Supreme Court to be a violation of federal antitrust laws.

Occupational licensing is done under the so-called police power, which is exercised (allegedly) in order to protect:

• health;
• safety;
• well-being
• of persons and property

That's all.

Health, safety and well-being of persons and property.

Not reputation of the regulated professionals.

Yet, the regulation of lawyers apparently has two additional goals, which override the goal of consumer protection:

• preserving public confidence in reputation of the bar;
• preserving public confidence in reputation of the judiciary

Now, the overwhelming majority of judges in all states are licensed attorneys, so regulation of attorneys and of judges is practically the same, no judge can remain on the bench if his license is pulled.

Occupational regulation of lawyers is, therefore, declared to have conflicting goals:

• protecting legal consumers;
• protecting lawyers and judges FROM legal consumers, because protection of reputation of the bar is carried out by rules that impose gags on attorney speech as insiders criticizing judicial misconduct

Now, maintaining public confidence through public ignorance, by quashing legitimate criticism of the judiciary through the means of attorney discipline has nothing to do with the MAIN declared goal of occupational licensing, consumer protection.

And, especially after the U.S. Supreme Court's ruling in North Carolina Board of Dental Examiners v. FTC that occupational regulation by supermajorities of members of the regulated profession may constitute a violation of federal antitrust laws, the crookishness of quashing attorney speech under the guise of attorney regulation became even more visible.

The crookishness of quashing of attorney speech on matters of public concern grows to epic proportions when, obviously to address personal concerns of disciplinary boards for antitrust violations, commissions are established that put smoke screens before the public that something is done by such committees to make attorney discipline "uniform, fair and efficient", while deliberately ignoring the core of the problem:

the use of attorney regulation against civil rights attorneys BECAUSE of their activity as civil rights attorneys and BECAUSE they try to do their duty and present to the public, taxpayers and voters, information about judicial misconduct, an issue of grave public concern.

What is especially bad that members of the Commission "advocate" for change for purposes of protection of consumers, while adamantly fighting against the same causes they advocate in federal civil rights lawsuits.

The Final Report of the New York State Commission for Attorney Discipline does not say a word about restructuring attorney discipline to stop it from being an ongoing federal antitrust crime (North Carolina State Board of Dental Examiners), but instead says a lot of preservation of reputation of the bar and the "legal system":

Which brings me back to my original question - does a state have a legitimate interest, when exercising its POLICE POWER that is given to the states ONLY AND EXCLUSIVELY to protect health, safety and well-being of people and property, to engage in efforts of protecting reputation of:

• a class of private professionals; 
• the "legal system"

In other words, New York State Judiciary (because the Commission was formed by Chief Judge Lippman and consists of a lot of judges as its members) claimed in the Report that one of the legitimate goals of occupational licensing - BY the judiciary - is to protect reputation of the branch of the government that regulates attorneys' livelihood.

The government does not have a legitimate interest in protecting ITS OWN REPUTATION by regulating any given profession, such regulation has obvious due process and free speech implications.

Yet, the government in New York does just that, by repeatedly disciplining attorneys for criticizing judges:

• through attorney discipline;
• through court-created "rules of frivolous conduct", arbitrarily applied only to civil rights attorneys;
• through arbitrary application of fraud upon the court statutes exclusively against civil rights attorneys and attorneys who criticize judicial misconduct.

At that background, the case out of a Kentucky federal court decided 6 days after the New York State Commission's report came out, which refused to infringe upon free speech under the guise of occupational regulation,  is so refreshing.

Yet, here am I, an attorney and part of a long-existing and ever growing class of attorneys who are sanctioned for criticizing judicial misconduct.

I am waiting when the fresh winds from Kentucky and U.S. Supreme Court will get through the heads of New York state judges.

And I hope against hope that I will see invalidation of sanctions upon attorneys for criticizing judges during my lifetime.

After all, the "legal system" is already effectively protecting its reputation, by giving to itself a gift of absolute judicial immunity for malicious and corrupt acts and judicial disciplinary commissions consisting of judges and lawyers regulated by judges who will never pursue a judge for fear of their own livelihood, which is applied in the following way:

“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.

And, after all, it's time to remove attorneys from the grip of free speech-quashing regulation that was condemned by a Pennsylvania judge 135 years ago, before it was even born:  

“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).

Occupational licensing cannot be used as a tool to trump free speech - says a federal court in Kentucky

According to recent studies, over 1/3 of jobs in the U.S. are regulated by certification or licensing.

Apparently, bars to entry into nearly every plausible profession and occupation are staring to cost the U.S. economy so much that even conservative court system that is extremely biased towards the government, started to take notice and to react.

In 2013, monks in Louisiana won their right to sell coffins against the direct challenge of the State Board of  Funeral directors that attempted to challenge monks' business as a regulated mortuary services.

The pressure of the funeral directors was clearly not for protection of consumers, but to quash cheaper alternatives for caskets in a state that undergone the disaster of hurricane Katrina, and where the customer base of those who could afford expensive funerals has shrunk.

On February 25, 2015, the U.S. Supreme Court struck the attempt of North Carolina State Board of Dental Examiners to regulate teeth whitening as practice of dentistry, with a presidential decision affecting all professions regulated by their own market players.  Since February 25, 2015, any member of the "State" licensing board that is run by a super-majority of market players without proper state oversight is subject to treble damages in civil lawsuits for antitrust violations.

In June of 2015, Texas State Supreme Court has struck down attempts of the State Board of Cosmetologists to regulate the business of "eyebrow threaders".

The next blow came from the U.S. District Court in the Easter District of Kentucky in the case Rosemond v Markham, Case No. 13-42-GFVT, where, on September 30, 2015, the court has struck attempts of Kentucky Board of psychologists to compel a columnist to remove from his online column the statement that he is a psychologist and claims that the columnist was engaged in unauthorized practice of psychology.

Claims of Kentucky State Board of psychologists was rejected on 1st Amendment grounds, a big victory of free speech against attempts of state governments to quash it under the guise of occupational regulation.

Even before the decision in this case came out, some legal scholars - surprisingly - advocated for application of strict scrutiny to the so-called "professional speech", especially in professions where the regulated activity CONSISTS OF SPEECH, and often of speech on matters of serious public concern.

I wonder when consumer unions will take the matter in their own hands, as consumer unions started to do regarding legal services, in California and in other states, and demand restructuring of occupational regulation in compliance with existing federal antitrust law.

Because, apparently, from Louisiana to North Carolina to Texas to Kentucky to other states, the declaration and promise of occupational licensing as consumer protection has failed and is hurting the economy, by denying people the right to enter occupations of their choice and be able to earn a proper family-sustaining livelihood, reducing consumer choices and reducing influx of taxes that could otherwise help sustain this country's needs, including social programs.

Porter Kirkwood still did not file the 10-day post-primary financial disclosure reports

I checked the site of the New York State Board of Elections for the 10-day post-primary finance disclosure report.

Nothing was filed there by Delaware County judicial candidate Porter Kirkwood.

The law allows local candidates to file such disclosures with the local Boards of Elections, so Kirkwood could have filed there.

Yet, he did file his disclosure reports with the New York State Board of Elections - before I started analyzing those reports in my blogs.

And, Delaware County is stalling my FOIL request of finance disclosure reports of the other judicial candidate, Delaware County District Attorney Richard Northrup.

I understand, Delaware County wants to preclude disclosure of such reports for as long as possible, hopefully until after the elections - while trying to elevate its two corrupt public officials to a position of influence where they will be hearing County cases coming in front of them.

Yet, there is still a possibility to get Kirkwood and Northrup off the bench even if they are elected, if they are indicted for corruption - and for that reason, Delaware County is stalling disclosure of public contracts that bypassed public bidding with support of Porter Kirkwood.

I will keep pressing to see who Porter Kirkwood helped out with such contracts, and then to compare who of those "beneficiaries" helped Porter Kirkwood back in his elections.

Stay tuned.