#JudgeOluStevensNeedsPublicSupportInHisFightAgainstRacismInCourt. Does a judge have a 1st Amendment right to call a prosecutor a racist (in social media) - updated?

I updated and corrected this blog since yesterday, after reading in-depth Judge Stevens' federal lawsuit, and included some information about potential conflict of interest of the members of Kentucky Commission for Judicial Conduct to judge Judge Stevens.

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A Kentucky judge, his name is #JudgeOluStevens, has reportedly filed a federal civil rights lawsuit trying to block the local Judicial Conduct Commission from prosecuting him for public comments on issues of public concern.

Judge Stevens (who is himself black)

was reportedly removed from a criminal trial this past January because he previously dismissed two juries as having too few black people on them, and who made comments on Facebook reportedly indicating that a certain prosecutor wanted all-white juries.

The accusations against Judge Stevens are that 

• Judge Stevenst took an issue that the prosecutor in question appealed his decisions and, in those appeals, allegedly "impugned" the judge's integrity, and was reportedly not shy expressing those feelings about it at public meetings at a bar association, and that
• Judge Stevens went to Facebook to discuss the case that was being appealed and called people to action, to "stand up" and prevent impaneling all-white juries.

The accusations, while factually correct, are incorrect as a matter of judicial ethics.

According to Judge Stevens' federal lawsuit, the so-called "appeal" that Judge Stevens discussed, was not an appeal, but a "motion for certification of the law" by the Commonwealth Attorney Thomas Wine - made after an ACQUITTAL of a black defendant, James Doss, by a racially diverse jury (8 white jurors, 4 black jurors).

In criminal law of this country, acquittal by a jury ends a criminal case - as Judge Stevens correctly pointed out in his federal lawsuit.

Here is what Judge Stevens said in his federal lawsuit on the subject:

The Commonwealth Attorney apparently took an issue, after the acquittal, that Judge Stevens replaced a jury panel with no African-Americans (the defendant James Doss was black), and Judge Stevens agreed.  The Commonwealth Attorney - a white guy Thomas Wine - who represents ALL people of the Commonwealth of Kentucky, not just its white residents, had the audacity to make a motion to the Kentucky Supreme Court, practically in lieu of an appeal, for "certification of the law", whether Judge Stevens' dismissal of the all-white panel was valid.

Such a motion was, most likely, jurisdictionally invalid, because, once again, the defendant was acquitted - and that ends jurisdiction of all courts on the subject.

That's why Judge Stevens stated in his federal lawsuit that Commonwealth Attorney's motion "for clarification" should have been named not Commonwealth v James Doss (a case that was already over and finished), but "Commonwealth v. All Black Defendants".

The ONLY discernible motivation for such a motion "for clarification" is racial.

It is quite apparent that filing of such a motion indicates Thomas Wine's desire to be able to do what he did (but what Judge Stevens stopped him from doing) - selecting all-white juries for black criminal defendants - in the future, with the support of the State Supreme Court of the Commonwealth of Kentucky.

While making his motion, Thomas Wine must have known - as a seasoned attorney - that:

1) the criminal case ended with an acquittal, and there is no criminal case "Commonwealth v James Doss" to appeal or make motions in; and that
2) even if theoretically, hypothetically, there would be jurisdiction in the Supreme Court of the Commonwealth of Kentucky, the question that Thomas Wine was asking was already answered - against him - by the U.S. Supreme Court in the case named Batson v (gasp!) Kentucky, 476 U.S. 79 (1986), 30 YEARS AGO!

The Kentucky Commonwealth Attorney Thomas Wine clearly knew that the state Supreme Court of the Commonwealth of Kentucky cannot overrule the U.S. Supreme Court on the issue that has been conclusively decided 30 years ago, so his unlawful and out-of-wack motion "to clarify" or "to certify" the law was - what?  why? for what reason?

Even asking this question 30 years after Batson v Kentucky was proof of Wine's racism, incompetence and bias against black defendants.

And - after the case was finally decided, with no possibility for appeals for the prosecution, and with the motion that was made, being completely ultra vires (made without authority) by Thomas Wine, NOTHING precluded Judge Stevens from making comments wherever he wanted, from rooftops, if needed, raising the issue of grave public concern - ADAMANT and OUTRAGEOUS RACISM of the Commonwealth Attorney whose current "accomplishment" is that the current Kentucky inmates are 55% black while only 21% of Louisville, Kentucky residents are black (see excerpts from Judge Stevens' federal lawsuit).

In other words, 30 years after Batson v Kentucky, a black person in Louisville, Kentucky has a 2.6 TIMES more chance - that's 260%, ladies and gentlemen - than a white person, to be put in jail, even if, as Judge Stevens' lawsuit says, black defendants are not the majority.

That means that the rates of convictions by jury - and the rate of leniency of prosecutor Thomas Wine in plea bargains, by the way, is different in Kentucky between white and black criminal defendants.

THAT must be the issue of grave concern for the Commonwealth of Kentucky.

Yet, it appears, instead, that the grave concern for the Commonwealth of Kentucky was that Judge Steven said that Thomas Wine is a racist (and his actions as a prosecutor show that he sure is), and that what he is doing in criminal proceedings is illegal.

Did Judge Stevens have a right to dismiss juries because they did not represent a racial cross-section of the community, and when they were all-white when the community was not all-white?

I think he did, based on the "Batson" challenge to the racial composition of the jury.

Did the judge have a right to discuss the prosecutor the way he did - that the prosecutor is "impugning" the judge's character in Thomas Wine's "appellate" motion?  

Absolutely he did - because, after the acquittal, the prosecution very obviously had no right for any "appeal" or motions to "clarify" what was clarified by the U.S. Supreme Court 30 years prior - against the prosecution.

That judge Stevens is serious about race, is a grave understatement.

It was reported in January of this year that Judge Stevens sentenced a man to 60 more days in jail for contempt of court, when the man whose bond Judge Stevens just revoked used a racial slur after he left Judge Stevens' courtroom.

Was Judge Stevens justified in doing that?

I actually think he was.  To cast a racial slur at a judge during, or right after, a court proceeding, while still in the courthouse, is unacceptable.

There are issues in such situations though, of impartiality - where the judge acts as prosecutor, judge and jury, and where the judge is also the victim.

I would say that Judge Stevens was unwise doing the contempt proceeding and the sentencing himself, but that racism is alive and kicking in Kentucky, and Judge Stevens wouldn't have it in his courtroom, and especially directed at him himself - is only commendable.

The controversy with the jury composition resulted in an escalating open war between the judge and the local prosecutor Thomas Wine.

In December of 2015 the Kentucky Chief Judge reportedly refused the request of prosecutor Thomas Wine to remove Judge Stevens from all criminal trials.

Then, in January of 2016, Judge Stevens was removed from two criminal cases, on a motion from Thomas Wine, because Judge Stevens discussed Thomas Wine's behavior in the CLOSED case of James Doss on Facebook.


Yet, earlier than he was removed from two cases, an investigation by the Kentucky Judicial Conduct Commission of Judge Stevens started - with  catch: that the Commission is itself all-white.

Here are the list of members of the Commission whom Judge Stevens sued - with their respective pictures showing their race:

1) meet the Chairman of the Kentucky Commission for Judicial Conduct, Stephen D. Wolnitzek, sued by Judge Stevens in his federal 1st Amendment lawsuit.

Stephen D. Wolnitzek, a white attorney and director of an insurance company - he must know a lot about criminal law, and especially about Batson v Kentucky.

Steven D. Wolnitzek's race is abundantly clear - white.

2)  Janet Stumbo, the next member of the Commission sued by Judge Stevens, a white Kentucky Court of Appeals judge

Let's note that, according to Judge Stumbo's official biography, her husband Ned Pillersdorf is an attorney (why judges and their attorneys spouses so often have different last names - so the connection would not immediately pop up in cases of potential conflict of interest?) - so, Judge Stumbo must rule "in line" with the establishment not only for her own sake, but for her husband's business's sake, too.

By the way, Judge Stumbo's white husband Ned Pillersdorf actively advertises that his wife is a judge on his law firm's website - which is an obvious appearance of impropriety:  see, my wife is a judge, courts will rule in my favor because of it.

So, Judge Stumbo who obviously allows her husband to run her name around in support of his advertisements and promotion of his law firm's business, must know a lot about ethics in general and judicial ethics in particular.

Shouldn't Judge Stumbo's Commission investigate her own behavior for allowing her husband to use her name and judicial office in private advertisements and drumming up business for his private law firm?

By the way, Judge Stumbo's husband is a criminal defense attorney fighting "for the rights of the underdog".

It will help his business in front of white judges tremendously if his wife would help to put down a black judge a little bit - don't you think?

3)  The next sued member of the Commission, Eddy Coleman - a circuit judge in Pike Judicial Center, Kentucky, see also here.

Judge Coleman is very obviously white.


Judge Coleman's LinkedIn profile showing 500 connections (I wonder whether those "connections" appear in Judge Coleman's court and, if they do, how Judge Coleman rules in their regard), also shows that Judge Coleman has been a judge in Kentucky for 21 years.

Judge Stevens' lawsuit indicates that until 2009 there were no black trial judges in the Commonwealth of Kentucky, Judge Stevens was the first one.

So, Judge Coleman - who is about to judge and, possibly, discipline or oust Judge Stevens, one out of three black trial judges at this time in the Commonwealth of Kentucky, has been part of the state's racist judiciary that disproportionately puts in jail black people, and approves all-white jury panels for black defendants.

Judge Eddy Coleman (I love those diminutive names - "Eddy" for a judge, like "little boy Eddy", a cute little angel) must be a true expert to decide the issues of Judge Steven's alleged ethical violations.

Judge Eddy Coleman's LinkedIn profile also shows endorsements of the Judge's "Skills" - it is interesting, does Judge Coleman reward the endorsers for their praise in his court cases?  

Shouldn't his Commission for Judicial Conduct investigate that?

 4) The next sued member of the Commission, Karen Thomas "is a district court judge for the 17th District Court, which presides over Campbell County in Kentucky."

Judge Thomas is very obviously white.

Judge Thomas was elected in 2009 as the president of Kentucky District Judges Association.

Judge Thomas is a member of the "Salmon P. Chase Inns of Court", 

see link to that organization here, which is part of American Inns of Court, a secret membership organization where attorneys wine-and-dine judges behind closed doors on a monthly basis, have an unlimited potential for ex parte communications (you can word-search this blog, there is a lot of information as to how American Inns of Court operate and how they influence judges, from trial level to the U.S. Supreme Court) .

I wonder whether attorney Thomas Wine (no pun intended) wined-and-dined Karen Thomas in the Inn of Courts meeting to influence her decision regarding Judge Stevens.

Judge Thomas' membership in the Inns of Court, as well as her activities their, her contacts there, general membership there and Judge Thomas' case outcomes for members of that Inn and of other Inns should be investigated by her own Commission, and that includes an investigation whether attorney Thomas Wine is a member of that organization, and used it to influence Judge Thomas in her disciplinary decision about Judge Stevens.

Since the meeting schedule and membership of the Salmon P. Chase Inns of Court are secret, the possibility of Thomas Wine wining-and-dining Judge Thomas through Inns of Court cannot be excluded, and raises grave issues of public concern.

5) Diane E. Logsdon is another member of the Judicial Conduct Commission about to "investigate" and judge Judge Stevens' statements against racism of Kentucky Commonwealth prosecutor Thomas Wine.

Diane E. Logsdon is white.

As a business person, Ms. Langdon has an interest to rule in a way that will not cause retaliation of the predominantly white, and racist, Kentucky judiciary against her company.

6)  The next (sued) Commission member, Joyce King Jennings is from Louisville, Kentucky, the town where Judge Stevens presides.

Joyce King Jennings is white, here are two pictures of her from her Facebook page, the picture with the chicken leg is Joyce Jenning's own most recent choice of her profile picture.

Joyce King Jennings is a Louisville, KY business owner, 

with a distinct interest to stay on the good side of the judicial establishment - which is the white judicial establishment.

Joyce King Jennings is reportedly the founder of an annual charitable gala for the American Lung Association - a worthy cause.

Yet, pictures advertising this "worthy cause" have very few faces of black people - they are overwhelmingly of white people.  The message sent by Jennings is what - that black people are not really interested in engaging in charitable pursuit?

Jennings very obviously would like to keep on the good side of racists in the Kentucky business establishment - otherwise how will she be able to get money for the "gala" and advertisement for herself and her business?

And, judging by the pictures, Jennings is doing her job just fine - there are hardly any black individuals featured in her advertisements - only enough to duck accusations of open racism.

So, this white businesswoman from Louisville, Kentucky, is, of course, perfectly suited to judge whether Thomas Wine is a racist, whether the black Judge Stevens said the truth about the white prosecutor Thomas Wine that he is a racist, and whether to discipline the black judge Stevens for speaking out against racism in criminal proceedings in Kentucky.

7)  The next sued member of the Kentucky Commission of Judicial Conduct is Jeffrey Walson.

Jeffrey Walson is, reportedly,  " a family court judge for the Clark and Madison Counties Family Court of the 25th Judicial Circuit, which presides over Clark and Madison counties in Kentucky". 

Jeffrey Walson recently sued Kentucky Ethics Commission for a determination whether a Kentucky judge can sit on a board of directors of a financial institution, including the one in which the judge has a personal stake - the answer of the court was "no". 

Walson is a former prosecutor.

I did not find Walson's picture on the Internet, but Judge Stevens' lawsuit indicates that the Commission for Judicial Conduct is "all-white" and I did find comments on Judge Walson's campaign to be elected from the Family Court to the Circuit Court, in order to hear criminal case - he is called "Whitie Watson" and is being accused of "gang politics".

Judge Walson was also accused of lack if integrity in playing politics and smearing his opponent in a judicial election race - by a person who received an election flyer from Judge Walson's campaign.

Judge Walton is, apparently, a very fair choice to judge Judge Steven's anti-racist stand against Commonwealth Attorney Thomas Wine.

8)  The next Commission member Judge Stevens sued is Kent Westberry.

R. Kent Westberry is white, 

and a private attorney, a senior partner at Landrum & Shouse LLP, according to his LinkedIn profile.

Attorney Westberry's area of practice is, according to his law firm's website:

While practicing in federal courts:

attorney Westberry advertises that in 2011 he was the Chairman of the U.S. District Court Magistrate Judge Merit Selection Panel for the Western District of Kentucky.

Here are attorney Westberry's professional associations and affiliations:

To be successful in the white judges' criminal court - one has to trump on the "black sheep" of the family who stepped out of line and spoke about racism in the criminal proceedings, especially if he is also a black judge - doesn't one?

After all, attorney Westberry is part of the white old boys' club for a very long time and must know the rule of the game well.

 9) The next Commission member sued by Judge Stevens is David Bowles.

David Bowles is white, and is "a district court judge for the 30th District Court, which presides over Jefferson County in Kentucky" - this is his younger picture, when he was running in judicial elections.

Judge Bowles is also a retired police officer who, according to his own information in his election campaign, "retired at the rank of Lieutenant from the Jefferson County Police Department".

A white veteran police officer who participated in putting a disproportionate number of black defendants behind bars is a perfect choice to decide issues before the Commission in Judge Stevens case.

10)  Jeff Taylor concludes the list of members of the Kentucky Commission for Judicial Conduct sued by Judge Stevens in federal court.



Jeff Taylor is a judge of Kentucky Court of Appeals, and he is white.

These white people are who Judge Steven is up against.

I am not sure whether Judge Stevens removed his disciplinary proceedings to federal court, but I know that the law allows him to do that.

There is a federal statute, 28 U.S.C. 1443, that allows a state litigant to remove a proceeding to a federal court because he does not expect fairness in state court.

I used that statute to remove my attorney disciplinary proceeding to a federal court.

It was remanded back because, as the federal court reasoned, the statute could only deal with racial unfairness.

While that was not true, in Judge Stevens' case that is exactly the point:

• a black judge who tries to follow the U.S. Constitution, and
• who tries to ascertain the proper racial composition of criminal juries, is opposed
• by a white prosecutor 

• who has a tendency to pick all-white juries (Judge Stevens dismissed two) in a non-all-white community, and
• who has filed a frivolous motion, post-acquittal of a black defendant by a racially diverse jury for a "clarification" whether he can still select all-white juries to preside over criminal trials of black defendants - even though this question was decided in the negative 30 years ago by the U.S. Supreme Court in Batson v Kentucky (the prosecutor's own state); and
• the judge is about to be investigated and prosecuted by an all-white Commission for Judicial Conduct, where members have a wide array of conflicts of interest and in-built biases.

Looks like the stage is set up for a racial slamming of Judge Stevens and, 

unless the federal court intervenes - as it obviously should under the circumstances, and, 

unless Judge Stevens is given public support for his brave stance against racism in court proceedings, the gang of all-white old boys - and girls - may succeed.

I encourage my readers to write petitions to the Kentucky Commission for Judicial Conduct in support of Judge Stevens.

Judge Stevens did not commit any misconduct.

He is fighting to right the wrongs in the judicial system - and did it the legitimate way.

Judge Stevens deserves and should be given full public support in his stance against racism in courts.

Dancing with the spirit of #AntoninScalia - will it help George Mason Law School from closing its doors to rename itself after the devil?

It has been reported, nearly at the same time that:

• law schools, even top law schools, are facing harsh reality, and may have to close their doors because of under-enrollment and poor legal jobs market, see also here;

• George Mason Law School renaming itself as #AntoninScalia Law School

George Mason has been a relatively cheap school so far - in money, I mean - until today, when it decided to change its name, as "Above the Law" commentators rightly point out, from the name of one of this country's founding fathers to the name of this country's worst crooks.

Shows the lengths to which law schools would go to save themselves from demise...

The honorable profession?

This recent name-changing trick will teach George Mason law students more about "legal ethics" than their entire ethics class...

What Constitution?

As you know, any law is as good as the weakest link in its enforcement.

There is - I've heard - a law called the U.S. Constitution.

There is - I've heard - a clause within that law called the Supremacy Clause, trumping any inconsistent law and making it void, or a nullity (like in "zero").

Now, what happened if your constitutional rights are violated, let's say, in the blessed state of New York, this state, 

• where authorities ask people, through billboards by the road, to report corruption;

• where its Chief Judge asks you, with a smile, to notify you what is wrong with the state court system 

Once again, in a larger font:

• You would report to her that New York State courts (starting with herself) are corrupt - so that she would do what? - see comments in the blog linked in the previuos "bullet", about "report corruption".

So, what will happen to you if your constitutional rights are violated in the blessed state of New York, this state, from where people are running, fast.

The New York, where these two are at the top, DiFiore covering Cuomo's misconduct, Cuomo elevating DiFiore, DiFiore - well, you know what happens next...:

If your constitutional rights are violated in THIS New York:

Ok.

Here is what will happen.

1) You raise your constitutional issue in the lowest state court.

The reactions will be from - huh? to a sanction for frivolous conduct.  

Judges Carl F. Becker (now retired) (Delaware County), Robert Mulvey (Chief Administrative Judge, 6th Judicial District), Michael Coccoma (Otsego County Supreme Court, Chief Administrative Judge, upstate New York), Brian Burns and John Lambert (Otsego County Supreme, County and Family Court), Kevin Dowd (Chenango County Supreme Court), James Tormey (Chief Administrative Judge of the 5th Judicial District) - that's the Family-County-Supreme Court, "higher" "echelon" of judges universally believe constitutional arguments are frivolous, or constitute "lying" to the court - that's Frank B. Revoir, of the Chenango County Family Court.

Justice-level judges are simply illiterate and do not have any opinion on constitutional issues, nor on any other legal issues, they are waiting what the prosecution will tell them to do.

See, for example, the letter of resignation of Judge Delmar House, of  a justice court, who "served" as a judge for 8 1/2 years:

He is resigning "do /sic/ to both personal and health reasons".  

He also plans to "assist residents in any manor /sic/" he can.

If he cannot spell "due" and "manner" and use those words appropriately, do you think he knows how to pick up a constitutional problem and how to apply existing law?  

I highly doubt it.

You might just as well not say the word "Constitution" in trial-level courts, the word causes judges to be very upset and angry, unless it is on their swearing-in day, then they are happy, because that one word paves a path for them to their salary and power.

2) After you are screwed in trial court, you pay your filing fees, put your record together, pay your attorney and go to the appellate court - again with your pesky constitutional issues.

Appellate court is the court where judges go to "serve" before their retirement.  

They are very busy - and very tired - people.  

Here is what Judge Pigott, of the NYS Court of Appeals, said about "PJs" - that's not "pajamas", that's "Presiding Justices of Appellate Divisions":

Ok, so the appellate judges are very, very, very tired.  

You, the taxpayers, are paying them close to $200,000 a year to do their jobs, with benefits, while you, average New Yorkers earn - what?  Well, you know how much - and they are "tired" to review your constitutional issues.

You know what they do with your constitutional issues?

No, I will not use four-letter-language on this blog, not even Russian "mat".

I will use the legal terminology appellate judges use: they use the so-called "constitutional avoidance".

You may read the interlinked law review article, or you might not waste your time.

"Constitutional avoidance" means - "TL'DR" - too long, do not read.

So, the very busy and very tired appellate court screwed you, as the trial court did, with all your money paid for filing, records and attorney fees, and refused to hear your constitutional issues.

What's next?

You can still try to crawl up and up, you have two more levels to reach in the appellate pipeline from a state court decision - NYS Court of Appeals and U.S. Supreme Court.

NYS Court of Appeals says this (we get to pick our cases):

Even though CPLR 5601(b)(1) trails the above text of Article 6, § 3 (b) (1)  of the New York Constitution disagree and give NYS Court of Appeals no discretion to reject your constitutional appeal "as of right", this is what Judge Pigott (a real cute, witty guy, isn't he?) says on the subject:

He says: "we are not last because we are right, we are right because we are last".

And they are.

They will simply toss your constitutional question, because it is "insubstantial" - and what will you do when you are screwed?

Where will you go?

To the U.S. Supreme Court?

The U.S. Supreme Court, with its 8 elderly judges (or 9, doesn't matter), has too little time on its busy collective hands to handle all the hunting trips, all the book signings and to "serve" on all the boards and to give all the speeches - to address your petty constitutional issues.

The U.S. Supreme Court, really has a "discretion" to take or not to take a case.

And, that discretion is usually used - well, you know how.  

Have you been on a hunting trip with a U.S. Supreme Court justice?  No.  Well, you are screwed, again.

And, even if you are intending to beat through a brick wall with your head, there is this little thing called "expenses".  The U.S. Supreme Court does not allow e-filing and does not allow filing of computer-generated briefs.

Instead, it requires filing "typographically typeset" by certain companies (I wonder what kind of hunting trips they go to with the heads of those companies).

42 copies of your paid-for "typeset" petitions must be submitted to the U.S. Supreme Court, together with a filing fee, so that they throw it away, at their pleasure.

BUT BUT BUT BUT - you can say

We have federal courts!!!!!

We have the Civil Rights Act, we can file that famous 42 U.S.C. 1983 action!

Well.

There are two answers to this question/exclamation - long and short.

Let's start with the short one.

Yes, you can.

Do you want the long one?

First, you will not find an attorney who would be willing to sue on your behalf - too many of them were sanctioned, suspended and disbarred as of late, for "frivolous constitutional arguments".

Second, even if you file pro se - your case can be dismissed even before service, by the court itself, because, once again, the court is busy and you are a pest.

There is a zillion "deferences" ,"immunities" and other hoops that you might not be able to overcome with your petty constitutional questions.

If you sue in federal court BEFORE your state court case ends - they will dismiss your case on Younger abstention grounds.

If you sue in federal court AFTER your state court case ends - they will dismiss your case on Rooker-Feldman, sovereign immunity, prosecutorial immunity and judicial immunity grounds.

But they will dismiss it.

And will sanction you.

And will make you pay your abuser's attorney fees.  Possibly, tens of thousands of dollars.

Oh, and there is an appeal "as of right" to the federal courts of appeals? Right?

Well.

Again, two answers - short and long.

Short:  yes, you do have such a right.

Long:  your case will be put on a "fast-and-sloppy track" for three octogenarian judges who rubber stamp "those civil rights cases" in non-precedential dismissals by the dozen.

Your filing fee is gone.

Where else can you go?

The U.S. Supreme Court.

AGAIN?!!!!!

Yes.

So - if you have a constitutional question, you know you are screwed.

And, if a constitutional violation cannot be enforced by a "person from the street", the U.S. Constitution is unenforceable, and - for all reasons that matter to you - does not exist.

The new U.S. Supreme Court decision - a loss to the 1st Amendment

Due to an even number of U.S. Supreme Court judges, yesterday, a 1st Amendment case resulted in affirming the lower court's decision - because of an "even divide" of the court.

The case was Friedrichs v California Teachers' Union and indicated a victory to teacher's labor unions over individual teachers who did not want to finance political/lobbying activities of the labor union that they did not support.

Of course, the losing party may apply for a rehearing, but the chances of it are small.

It is sad when somebody's constitutional rights depend on how many judges are available on a court...

A clamp down on immunities in disciplinary cases in occupational licensing - are we seeing a new policy emerging, to save the U.S. economy from further stagnation?

As many economists so far have been warning, in scholarly articles and books, occupational licensing in the United States, which now restricts entry and participation in over 30% of jobs (and, probably, close to 80% or more of well-paying jobs) in the U.S., is not helping consumers, is not evidence-based, is the result of lobbying efforts of interest groups that want to restrict competition, and is stifling the U.S. economy.

While federal courts are not allowed to engage in policy-making, that's a legislative function exclusively given by the U.S. Constitution, Article I, to the U.S. Congress - they do engage in that policy-making, and heavily so.

That is done by trends in court decisions.

The two decisions in occupational licensing on issues of immunities of the disciplinary board from civil rights lawsuits in 2015 may herald a turn of higher-level federal courts against their prior universal position to grant immunities to disciplinary authorities in occupational licensing no matter what.

In February of 2015, in the case North Carolina Board of Dental Examiners v Federal Trade Commission, the U.S. Supreme Court denied immunity to disciplinary boards in professions regulated by its own professionals ("market players").

In June of 2015, the U.S. Court of Appeals for the 6th Circuit denied even qualified immunity as a matter of law to a disciplinary board sued after it suspended occupational licensees' licenses for refusal to give self-incriminating testimony in disciplinary proceedings, and remanded the case to a trial in the district court.

In July of 2015, the White House has issued a "policy" report on occupational licensing starting with this "executive summary":

In October of 2015, the Federal Trade Commission has issued a harsh rule to its staff for prosecution of antitrust violations by the occupational licensing disciplinary boards, based on North Carolina Dental, outlawing "active market supervision" by market players in the disciplinary proceedings (like it happens in "market supervision" of the legal profession, for example).

Usually, in disciplinary proceedings, federal courts give to prosecutors ABSOLUTE prosecutorial/quasi-judicial immunity left and right, and claim that such immunity is jurisdictional, and even sanction victims of such prosecutors for daring to sue them in civil rights cases.

In this case, the 6th Circuit denied to prosecutors even QUALIFIED immunity - as a matter of law, whether such immunity can be granted as a matter of a mixed issue of fact and law, is remanded back to the district court.

The beauty of the issue is that remanded for trial the issue whether qualified immunity applies, exposes prosecutors to a trial on damages - as the 6th Circuit expressly said in its decision - and that is exactly what prosecutors are usually spared, on the basis of ABSOLUTE quasi-judicial/prosecutorial immunity.

It appears that we are seeing a trend, starting from the highest level (which did not reach the mentalities of district courts and state governments yet) to clamp on occupational regulation:

1) by denial of antitrust "state interest" immunity (the U.S. Supreme Court in North Carolina Board of Dental Examiners v FTC, February 2015), and

2) by denial of absolute - or even qualified - prosecutorial and quasi-judicial immunity (the 6th Circuit in Moody v Michigan Gaming Board, June, 2015).

The trend appears to be caused not by the need to apply the rule of law and uphold people's constitutional right to earn a living, but because of money matters - because the U.S. economy will not be able to get out of its apparent current stagnation unless it unplugs its occupational licensing cancer.

I will continue to follow this trend.

Stay tuned.



 

A certiorari petition to the U.S. Supreme Court challenges the 6th Circuit's decision to uphold occupational licensees' 5th Amendment rights in disciplinary proceedings

An interesting petition for a writ of certiorari has been filed and is pending before the U.S. Supreme Court about occupational licensing.

The appeal is by the Michigan Gaming Commission and it is challenging the last year's decision of the U.S. Court of Appeals reversing the district court's grant of summary judgment to the Gaming Commission, the text of the case is available here.

The two questions before the court are:

2) are occupational licensees entitled to 5th Amendment protection in disciplinary proceedings?  The U.S. Court of Appeals for the 6th Circuit said they are:

The case is out of the state of Michigan.

What is not presented in the "questions presented" (no pun intended) of the petition for a writ of certiorari is that the 6th Circuit denied even qualified immunity (as a matter of law) to the Licensing (Gaming) Board, and remanded the case back for trial on the issue of immunity.

A strong brief in opposition of the petition has been filed by the occupational licensees - race drivers who lost their licenses (and jobs) because of their refusal to make self-incriminating statements in licensing disciplinary proceedings, which the 6th Circuit considered an unconstitutional action by the licensing board.



An amicus curiae brief from California Sheriffs' Association asks the U.S. Supreme Court to reverse the 6th Circuit's decision:

 So, what are the "disastrous consequences" to the interests of police as to 5th Amendment protection against compelled self-incrimination "during investigations"?

The position of the Sheriffs' Associations is that:

 
Or, in other words, the Sheriffs' Association want to be able to continue to compel self-incrimination in interrogations under SOME grounds - as long as they do not CRIMINALLY prosecute the individual from whom the self-incrimination was exacted by compulsion.

Yet, the Sheriffs' Association's "interest" in compelling testimony of PUBLIC EMPLOYEES (not of private occupational licensees) in administrative proceedings has nothing to do with occupational licensing, and, if the U.S. Supreme Court rejects the writ of certiorari or affirms the decision of the 6th Circuit, that will not create the problems the Sheriffs' Association are claiming will be created for them 

As much as I would like public employees to be disciplined for misconduct (that was, as I understand, the Sheriffs' Association's point), I would prefer it to be done following the U.S. Constitution, and without the use of compelled self-incrimination.

Because - if one of us can be compelled to incriminate oneself, and thus lose his or her job, it is applicable to anyone.

And that's just wrong - as the 6th Circuit, fortunately, has recognized in reversing the grant of summary judgment to the Michigan Gaming Board on 5th Amendment grounds.

It is an interesting case, I will cover how it will develop - and will run a separate blog on a separate issue regarding occupational licensing that the case raises.

Stay tuned.