Judge Damon Keith on racism of federal court judges in Ohio: " Democracies die behind closed doors. ... I am deeply saddened and distraught by the court's deliberate decision to reverse the progress of history"

Donald Trump called out a Latino judge Gonzalo Curiel for not recusing from the case of Trump University because of the judge's background.

The judge refused to recuse, even though there was plenty in his background warranting recusal, see here and here.

We have federal judges openly claiming that their personal heritage should be used in their judicial decisions.

One judge who so claimed is a federal appellate judge Ilana Rovner, the other is one of the present-time U.S. Supreme Court Justices Sonya Sotomayor.

Here are both of judges holding beliefs that their personal heritage must be part of their judicial decision-making (the two judges on the right):

Moreover, the U.S. Supreme Court exceeded its authority to the point of allowing federal judges to act as unsworn witnesses and adjudicators and use their own personal "experiences" (which are not made part of the record and are not known to litigants), in order to decide sufficiency of pleadings in civil rights cases - cases which, under the 7th Amendment of the U.S. Constitution, demand that all issues of fact are decided by jury.

At the same time, the U.S. Supreme Court, in Batson v Kentucky, has made clear, at least in one context, that (whatever those judicial experiences are), discrimination based on race at least in criminal proceedings is constitutionally intolerable - and criminal verdicts made by juries picked with the exclusion of a certain race are unconstitutional.

Yet, in the same blessed state of Kentucky, an African American judge Olu Stevens

was suspended for trying to do his job and eradicate racism in criminal proceedings, just as the U.S. Supreme Court directed to be done in Batson v Kentucky.

Now, in the State of Ohio, another judge, a federal 94-year-old African American judge Damon Keith

not only issued a fiery dissent against his colleagues, judges whom Judge Damon Keith pretty much accused of racism in their court decision.  Judge Damon Keith also gave an interview to the press about his beliefs that led to his dissent, a very unusual situation.

Judges usually do not - and are not supposed to - make public comments about their judicial decisions.  Judge Olu Stevens of Kentucky was suspended for not only fighting racism in the courtroom, but also for making public comments about racism (even though the racism was apparent) of a white prosecutor.

Here is Judge Keith's 38-page dissenting opinion (you can use the keyword "dissenting" to find it within the pdf document starting with the majority opinion).

The majority judges whose opinion Judge Keith criticized as racist was authored by white male judges:

Danny J. Boggs

and John M. Rogers:

Here is how Judge Keith's dissenting opinion starts:

And here is how it progressed (I encourage my readers to read the dissenting opinion of Judge Damon Keith in its entirety, here I will only provide some excerpts):

Judge Damon Keith then provides life stories of 35 people, both black and white, with pictures, who were killed by white supremacists, many of them for their stance on the right of the persons of color to vote.

This is the voting law in the State of Ohio that Judge Keith describes as challenged in the lawsuit:

While describing the history of how the new law came about - and I encourage my readers to read the entirety of that account - Judge Keith, importantly, points out that, while the new law presupposes some literacy in providing the necessary information, help to illiterate voters by poll workers is prohibited by that same law:

Judge Keith points out that the standard of review on appeal in federal court is a "de novo" review of issues of law and mixed issues of law and fact:

but also deference to the factual findings of the trial court:

Judge Keith then points out that not only the district court made reasoned determinations warranting deference, but that those determinations were made after a 12-day bench trial, as a culmination of several years of litigation, and based on a lot of evidence presented to the court:

Despite the applicable standard of review of "clear error" as to factual findings of the trial court, the majority, according to Judge Keith, overruled the factual findings simply because the court could decide differently

Obviously, the only reason for the majority to depart from the clear standards of review was their desire to do so.   

Judge Keith then points out that the majority disregards the requirement of using the "totality of circumstances" approach in analyzing the disparate impact of the law on the right of the persons of color to vote, instead using what Judge Keith called a "piecemeal freeze frame approach", analyzing whether each one of the factors, taken separately, demonstrate a disparate impact - which is too much of a burden to meet, and is not required by law.

Judge Keith points out that the majority misinterpreted or misrepresented certain evidence in the case, applied a wrong legal standard to analyze the equal protection claim, fundamentally misrepresented and misapplied the disparate impact legal standard, disregarded the lower court's findings of the history of racial discrimination in voting in Ohio.

Here is Judge Keith's full conclusion about the majority's opinion:

Did Judge Keith use "the richness of his experiences" as a black person living in Ohio?

Judge Keith is, reportedly, a grandson of former slaves, and surely his family's "rich experiences" with slavery and then with racial discrimination, formed his world outlook.

Yet, the dissenting opinion of Judge Keith shows that the judge DID NOT use "the richness of his experiences" - or his family's - in that opinion.

Instead, he analyzed the majority's opinion under the law, and under the required standard of deference to the trial court's decision.

Here, the parties voluntarily chose an African American district court judge, Algernon L. Marbley,

to hold a bench trial, not a jury trial, in their case.

Then, a super-majority of white judges was appointed to decide the appeal from that case, and suddenly, all legal standards required to apply deference to the decisions of  black judge were scrapped, and two white judges, acting, without authority, as trial judges instead of appellate judges, overruled the factual findings of a black judge.

All that Judge Keith's dissenting opinion was pointing out - as "impassioned" as the press called that opinion - was that the majority did not apply the required legal standard and did not afford due deference to the lower court's factual determinations, as they were required by law.

And that was a continuation of "white supremacy", now on the bench.

The "white supremacy" in the courtroom continues not only through Judge Olu Stevens' removal in Kentucky, and overruling of Judge Algernon Marbley's case by the super-majority of white judges in Ohio federal court who disregarded applicable legal standards and acted as trial judges instead of appellate judges.

In California, white female #judgeAnne-ChristineMasullo

is currently the target of a public defender's motion to recuse based on allegations of racial bias.

Judge Masullo is listed on the website of her court as a "Family Law" supervising judge:

Here is a review I found about Judge Massullo's practices in Family Court:

Yet, Judge Massullo, a career prosecutor before coming to the bench, was assigned to the criminal case against an indigent African American man for resisting arrest.

Judge Massullo, in a pre-trial ruling, prohibited the public defender to ask prospective jurors their opinions about the Black Lives Matter movements and the police brutality - which, obviously, would allow the prosecution to keep on the jury jurors with prejudice against African Americans and their resistance to police brutality.

While the case claims to be one of robbery or attempted robbery, there exists - thank God for cell phones - evidence showing a police officer punching the defendant while he was already in handcuffs and on the floor face-down.

Nevertheless, it was the defendant who was charged with battery on police officers and not the other way around.

The alleged robbery - conspicuously - was not charged, even though it was the trigger for the whole situation, and there are claims that the allegations of robbery were made by a passenger who insulted the defendant's pregnant girlfriend - and that defendant was unarmed and did not commit robbery.

By the way, in the state of Texas last year, the jurors were given questionnaires to answer in writing as to their opinions on the Black Lives Matter movement and police brutality - while Judge Massullo prohibited a public defender in California to question prospective jurors about their opinions on the same subject even orally, during the jury selection (voir dire) stage of the criminal trial.

Knowing Judge Massullo's background as a career criminal prosecutor, as well as her reported stance on pushing people to settlements, is it her way to push the criminal defendant to reach an agreement with the prosecution, in view of the prospect of not being able to pick an impartial jury?

So, the "richness of experiences" of the nation's judges informing their decisions continues to boggle observers' minds.

What plausible reason could Judge Massullo possibly have, other than her personal bias and apparent desire, as a former career prosecutor, to help the prosecution, to block questions of a public defender to prospective jurors, in a criminal case against an African American involving police brutality, about their opinions on the movement of African Americans resisting police brutality?

I will continue to cover the subject how the "richness of experiences" based on judges' personal backgrounds "guide" their decision-making.

And how this nation's courtrooms are ruled by personal whim of judges, causing our democracy, as Judge Keith cogently stated, to "die behind closed doors".

Stay tuned.

Alabama's strange stance on same sex marriage

It is interesting to be a witness to history.

In 1999, when I came to the United States, homosexuality was a crime.

In 2003, after the U.S. Supreme Court decision in Lawrence v Texas, it was not a crime any more, see the decision here.

Fast-forward 11 years more - and the U.S. Supreme Court found that same sex marriage is a constitutional right.

After the decision, some state officials, as well as private individuals refused to accept legality of the U.S. Supreme Court decision.

A Kentucky clerk Kim Davis

went to jail - with a lot of vocal support from various groups from around the country - defending her individual right not to issue same sex marriage licenses.

Now Kim Davis is reportedly on the receiving end of a motion for $233,058 in legal fees against her for refusing to issue same sex marriage licenses.

In three states,  Alabama, Oregon and Wyoming, judges who refused to officiate at same sex marriages, or gave instructions to others not to issue same sex marriage licenses, became the targets of judicial disciplinary proceedings.

In Alabama, the target of such a disciplinary proceeding was the state's Chief Judge Roy Moore,

who defended himself on the basis that the U.S. Supreme Court's decisions are not the Supreme Law of the Land - and they are actually not, despite the fact that they are presented that way in courts, law schools and in the press.

In Oregon, the target of the disciplinary proceedings was judge Vance Day.

In Wyoming, the target of the disciplinary proceedings is judge Ruth Neely.

While Alabama, Oregon and Wyoming prosecuted its judges for disobeying the U.S. Supreme Court precedent regarding constitutionality of same sex marriages, Texas State Bar refused to prosecute its Attorney General Ken Paxton

for the same behavior, instructing county clerks not to issue same sex marriage licenses.

And, in North Carolina, a federal civil rights lawsuit against the state's magistrates refusing to issue same sex marriage licenses, was recently dismissed. 

Federal judge Max Cogburn

who dismissed the case, claimed that plaintiffs failed to show that they have standing and that they were directly harmed by law.

I have put pictures of people at the center of controversies here to show the uniting factor - race.  All of them are white.  Whether it is a mere coincidence or not, and whether the coincidence means anything, is for my readers to judge. 

Among these six states:

1. Alabama,
2. Kentucky,
3. North Carolina,
4. Oregon,
5. Texas, and
6. Wyoming

that have come on the map with controversies where state officials defied the U.S. Supreme Court decision on same sex marriage, the strangest stance is in Alabama.

While Alabama suspended its Chief Judge Roy Moore, first, during the pendency of the disciplinary proceedings against him, and then, after the trial, for the rest of his term, the same blessed State of Alabama, through its Attorney General, refused to prosecute a florist for refusing to make a flower arrangement for a same sex marriage couple.

Moreover, Alabama State Attorney General reportedly joined "a dozen other states" in refusal to prosecute businesses for discrimination against same sex couples.

Here is the timeline of Alabama State AG's reaction to the same-sex marriage decisions by federal courts and their enforceability.

In February of 2015, before the U.S. Supreme Court decided the case Obergefell v Hodges, finding a constitutional right to marry for same sex couples, Alabama State AG issued the following press-release:

On September 30, 2016, on the same day as permanent suspension of Alabama Chief Judge Roy Moore was announced for defying the U.S. Supreme Court's same sex marriage decision, the Alabama State Attorney General issued this press-release:

So, apparently, we have 13 states asserting, in an amicus brief filed in a court case in a Washington state court, that business owners have a right to discriminate against customers based on their religious beliefs.

The states that filed the amicus briefs supporting such discrimination are:

1. Alabama,
2. Arkansas,
3. Kansas,
4. Kentucky,
5. Louisiana,
6. Nebraska,
7. Nevada,
8. Oklahoma,
9. South Carolina,
10. Texas,
11. Utah, and
12. West Virginia.

The lawsuit in State of Washington court is posed as an issue of state constitutional law - whether people must shelve their religious beliefs when they open a business.

Yet, the U.S. Supreme Court has already ruled that business owners may not discriminate on the basis of race.

Since the U.S. Supreme Court upheld constitutionality of same sex marriage, it is not a big stretch of imagination to predict that discrimination on the basis of sex orientation by private business owners will be prohibited, too.

Yet, the Alabama Attorney General sends to the public interesting vibes by making the press release about his support of business owners in the State of Washington, and based on state Constitution, on the same day as the State Chief Judge Roy Moore was suspended for defying the U.S. Supreme Court decision on same sex marriage.

When one public official is de facto removed from office for nearly the same conduct as the other public official in the same state is continuing to display, that is a strange state of events, indeed.

And especially when, notably, Alabama State Attorney General joined Texas State Attorney General in the amicus brief regarding state constitutional right of private businesses to discriminate against same sex couples - that is the same Texas State Attorney General who also instructed county clerks in his state not to issue same-sex marriage licenses, and the Texas Bar would not prosecute him for misconduct.

What an interesting time we live in...

The U.S. Supreme Court accepts a case on propriety of sanctions against a party and attorneys

In a historic move, the U.S. Supreme Court accepted, first time in decades, a case raising the issue of propriety of sanctions against an attorney and a party, using the so-called "inherent powers of the court".

Here is the certiorari petition that was accepted.

The issue presented for review of the U.S. Supreme Court is, reportedly, whether sanction of attorney fees imposed upon a party (and attorneys) under inherent powers of the court, without criminal procedural protections, must be tailored to the harm directly caused by misconduct, and whether attorney fees can be awarded for actions of attorneys not directly attributable to subjective bad faith of clients.

Of course, the petition was filed by a party, not by its attorneys, and thus the focus of the petition is on the rights of the parties in view of alleged misconduct of their counsel.

Yet, since attorneys were also sanctioned in this case, and since rules distinguishing whether certain awards are compensatory or punitive/criminal, will equally apply to attorneys and parties, the case is important for both litigants and the legal community.

The mere fact that the U.S. Supreme Court took such a case, coming from the 9th Circuit (of course, sanctions were very high - $2.7 million) indicates that the Court, finally took an interest in the issue of the court sanctions.

It should be noted, too, that, before imposing sanctions, the court did hold an evidentiary hearing - which is rare.  Usually courts impose sanctions under their "inherent power" without any hearings.

And, even though in this case not criticism of a judge (which is a constitutionally protected conduct of an attorney and party), but a non-disclosure in discovery (which is attorney misconduct, if attorney knew of the discovery item subject to disclosure and did not disclose it), the issues are:

1. the propriety of use of "inherent power of the court" to sanction,
2. whether there must be a connection between harm caused and the amount in sanctions, and
3. whether procedural protections similar to those in criminal proceedings must be provided -

and these issues apply to all sanctions imposed by courts against parties or attorneys.

I will need some time to read through the 9th Circuit's opinion and dissent and through the certiorari petition, and will provide more comment on them in the future.

Stay tuned.

Federal appellate #judgeIlanaRovner is "subconsciously" "guided" by her "Jewishness" in her decision-making

Meet the 79-year-old judge Ilana Rovner, of the U.S. Court of Appeals for the 7th Circuit:

In reaction to president Obama's nomination of a Muslim to a federal bench (possibly, a first in the United States), this Jewish judge stated that "she believes judges are guided in their decision-making by every facet of their lives, 'maybe even subconsciously.'”

I wonder what is that supposed to mean.

A Jewish judge is "guided" by her Jewishness, a Muslim judge will be guided by his Muslim culture, as the U.S. Supreme Court justice Sonya Sotomayor will be a "wise Latina woman", guided by the "richness of her experiences"? And, a white judge will be guided by his or her white culture, and a black judge will rule based on his black culture, etc. etc. etc.

What about principles of neutrality, equality under the law and objectivity?

This is what Judge Rovner thinks when she decides a case:

Now, did Judge Rovner's "Wait a minute, I'm Jewish" thinking caused her to claim at the end of July, 2016, that gay people are not protected against discrimination in the work place under the civil rights law?

Did Judge Rovner tell the U.S. Congress at her second confirmation hearing in 1992, for the position of a federal appellate court judge, that she was GOING to be "guided" by her ethnicity or religion in her judicial decision-making?

Or in 1984, at the confirmation hearing for the position of a federal district court judge?

Apparently, not.  Otherwise, she wouldn't have been confirmed - because "Jewishness", or any other cultural, ethnic, or religious "background" may not influence judicial decision-making.

Actually, Judge Rovner's confirmation was, according to her own admission, "a breeze", with no "litmus tests" -

so nobody actually asked (or dared to ask?) Judge Rovner a question whether she will be guided by her being Jewish, and if she was so asked, there would have been a storm in the media about anti-Semitism against a Jewish judicial candidate.

While all along the question was very reasonable and real - because, according to her own admission now, Judge Rovner IS "guided" in her judicial decision-making by her Jewishness.

Or, did Judge Rovner tell the U.S. Congress that she is going to practice medicine on the bench without a license?  That she and her colleagues will "diagnose" a lawyer as "lying" because he did not come to a hearing because he was vomiting from a stomach bug - the only confirmation of that "lying" being that the lawyer, who was sick and vomiting, did not go to a doctor to confirm that he was vomiting?  And was suspended because he was vomiting and sick, because the court deemed it as lying and failure to properly represent his client.

What bothers me is also the timing of Judge Rovner's revelation that she uses her Jewishness in her decision-making - at the time when President Obama nominated a Muslim to the federal bench.

The following questions spring up because of this revelation, and the timing of the revelation by Judge Rovner:

1) Does Judge Rovner consider being guided by her Jewishness as proper for purposes of judicial decision-making?

2) Does she assert, by the timing of her revelation, that:

    a) all judges are guided by their ethnic and/or religious backgrounds in the judicial decision-making?

    b) the Muslim judge, if nominated, will be so guided by his Muslim background and cultural and religious heritage in his decision-making?

Because if she does, that looks as a not-so-subtle inciting against such a nomination, at the time when the country is swept by divisive comments of irresponsible politicians, and when Muslims Americans already do not feel welcome in their own country.

I see a lot of anti-Muslim sentiments on Facebook, for example.

Some people, and intelligent people, too, are openly making anti-Muslim statements.  One person demanded to unfriend that person if that person's anti-Muslim sentiment's are not shared.  (I did.  I do not accept bigotry of any kind.)

So, now Judge Rovner, after having been confirmed "as a breeze", without any questions asked whether she was going to use her Jewishness in her judicial decision-making (as she admittedly does now), is actively hinting to the public and authorities in charge of nomination and confirmation of the first Muslim judge that judges do use their background in their judicial decision-making.

To me, it is an active hint at a "legitimate" double-standard that exists in American courts - certain type of biases, but not others, are legitimate.

A judge is ok to consider her "Jewishness" in her judicial decision-making - or else the press will scream Anti-Semitism.

A judge is ok to consider his Latino roots and experiences of himself and his family members as possibly illegal immigrants, in his judicial decision-making against a person who criticized illegal immigration from Mexico, the judge's parents' native country (whether the criticism was fair or unfair, and especially when it was unfair) - or else the press will scream impropriety, racism and bigotry.

But, it is dangerous to appoint a Muslim judge who may - theoretically, hypothetically - consider his Muslim heritage in his judicial decision-making?

That's what Judge Rovner is hinting at in her ripe old age?

Apparently, Judge Rovner needs to retire.  Yesterday.

It is my firm belief that NONE of ethnical, cultural, or religious background MAY be considered in judicial decision-making.

It is the law, and the facts - and that's it.

It is not about the judge's OWN background, the judge is not a party, or a witness in the case, and the judge's background should have NOTHING to do with the case or the judge's decision in that case.

Whether the judge is Latino, Muslim, African-American, Caucasian, Native American, Chinese or of any other ethnicity.
That said, nominating a law partner from the giant firm Latham & Watkins,

a law firm that is practicing all over the country in federal courts, whether he is Muslim or not, is a very questionable move for the President.

Because, naturally, Latham & Watkins will not stop practicing in their own law partner's court - and there will be a big problem with appearance of impropriety.

Well, at least judges - when they become old and senile, at least - start coming out of the closet and give people a retrospective views of what they are guided by in their decision-making.

How many parties and attorneys will come forward now to make motions to vacate Judge Rovern's decisions and to recuse Judge Rovner because they were guided by her "Jewishness"?

I won't hold my breath.

"When a federal judge gets angry, he must be placated"?

I wrote this week about misconduct of federal judge Garaufis who had the audacity of claiming that when a law firm sent a 3rd year associate to a conference with him instead of a law partner, that was disrespectful and even insulting to the judge.

It was, once again, judicial misconduct pure and simple - as a judge does not get to say which one of the attorneys from a law firm hired to represent a client gets to appear in court, it is for the client and for the law firm to decide.

Moreover, the judge who was unhappy that an associate appeared in front of him, is not unhappy when the government sends recent law school graduates in criminal or civil rights cases, and, where the same court has licensed the associate in question as qualified to practice law in that court, no judge could find it "insulting", as a matter of law, when the attorney licensed by that court actually came to practice in that court.

After a storm of unfavorable comments in the media about Judge Garaufis, the following, reportedly, transpired:

1) Facebook (the client) and the law firm APOLOGIZED to the judge who committed misconduct;

2) the, judge, reportedly, partially apologized - sort of, only that he did not mean to criticize the associate:

and yes,

3) "everybody are friends again".

Yet, what Judge Garaufis said as part of his "apology" is a prime example of the judge's (intellectual) dishonesty, a big issue of public concern:

An "inference" "achieved through the media" that the judge was ever "upset at" the associate was "totally unfounded"?

Please...

One needs a lobotomy to take this kind of bogus at face value.

What kind of "inference" anyone, including "the media", needs to interpret these words:



And, it is definitely not only the matter of being "upset at" the associate, it is the matter that the judge behaves as a cantankerous and spoiled brat in need of appeasing by treating the "court" as another type of "court" - as in "King's court", and requiring lawyers to be "courtiers" required to appease the judge.

That is all that is wrong with the U.S. judicial system - the "culture of quiescence", the "scraping and bowing" of attorneys in front of judges, "or else".

The "friendship" cost Facebook to the tune of $3,000 per hour per each of 3 (by other accounts, 5) partners who appeared at the "apologetic" conference.

So, Judge Garaufis' self-respect apparently has a price-tag on it - $15,000.00 per hour for conferences (for 5 lawyers), plus travel expenses for lawyers to come to a conference in front of Judge Caraufis from as far as California.

Or, does Judge Garaufis have behind-the-scene agreements with law firms to throw tantrums when associates, with cheaper hourly rates, and not the more expensive partners, appear in front of him?

Maybe, Facebook can afford such a costly - and unnecessary - apology, but a usual American litigant who cannot afford an attorney in the first place, surely cannot.

But, what I find the most alarming of it all is the conclusion that a supposedly reputable legal blog "Above the Law" draws from all of it - maybe, with a "tongue in cheek", maybe not so much: "when a federal judge gets angry, he must be placated".

Really?

A federal judge should be treated as a capricious prima donna when he throws a tantrum?

Not impeached and taken off the bench for misconduct - if that anger is as displaced as Judge Garaufis' was?

One interesting thing is - that the judge who is supposed to be independent from the outside influence, even mentioned the "inferences by the media", and apologized nearly immediately after a storm of criticism in the media and social media.

But, the criticism continues.

Here are some more comments about the situation:

and, in a more "courtly" language:

When a client sends a lawyer to court, it is the client's not the judge's choice who the client sends.

No apologies for the choice of lawyer needed.

What is needed is discipline - or, better, removal of Judge Garaufis.

He forgot one portion of his oath of office - that there are no titles of nobility in the United States.

Not even for cantankerous federal judges.

Oregon follows Alabama in trying to remove a judge from the bench for not following a U.S. Supreme Court precedent

I wrote yesterday about a trial in Alabama against Alabama Chief Judge Roy Moore who refused to obey the U.S. SUpreme Court precedent regarding same-sex marriage.

The State of Oregon prepares the same fate for state judge Vance Day who refused to perform same sex marriages based on his religious beliefs.

Regardless of whether Judges Roy Moore and Vance Day are right or wrong in their positions, disciplinary proceedings against them for disobeying a U.S. Supreme Court precedent set a precedent that for a judge to disobey a U.S. Supreme Court precedent - any precedent - is a violation of his or her oath of office warranting removal.

And such a precedent is extremely important for civil rights litigation across the country where judges, both state and federal, pick and choose which of the U.S. Supreme Court precedents to obey and which to ignore and punish for even mentioning.

I will continue to cover the Vance Day and the Roy Moore stories.

Stay tuned.

While the "justice gap" in Kentucky widens, Kentucky unlawfully prosecutes #AlmaRosaBonillaOlmega for unauthorized practice of law - for legal lay representation in federal administrative proceedings

I wrote on this blog that the U.S. Supreme Court allowed an unlicensed individual to provide legal services without a license where the state fails to provide the needed legal services for the poor and the illiterate.

And, I also wrote on this blog about decisions in three states ruling, in criminal cases no less, that representation by an unlicensed individual has nothing to do with ineffective assistance of counsel.

And, I wrote a lot on this blog about the fact that all 168 jurisdictions regulating law licenses in the United States:

1) The U.S. Supreme Court acting as a regulatory agency for lawyers appearing in that court;
2) 13 federal appellate court separately regulating attorneys appearing in front of them;
3) 94 U.S. district courts, separately regulating attorneys appearing in front of them, and
4) 50 states separately regulating attorneys appearing in front of them

ALL 168 of courts acting as regulatory agencies and populated by people highly educated in the law, so far have not defined what exactly constitutes the practice of law - and since the practice of law is not clearly defined, criminal prosecution for unauthorized practice of "nobody-knows-what-it-is" is not legal.

Nevertheless, the blessed state of Kentucky now found resources to obtain a grand jury indictment against a woman (with a law degree) for unauthorized practice of law - while it cannot find resources to provide more legal services for the poor.

The individual in Kentucky, #AlmaRosaBonilla, also known as #AlmaRosaOlmedo, was charged with unauthorized practice of law, theft-by-deception and other crimes after she accepted $1,000 from an undercover officer for representation on immigration issues.

Representation in immigration proceedings, which are administrative proceedings, is first, not practicing law in state courts, and, second, does no require a law license.

All that an individual has to have to represent individuals on immigration issues is a Federal Board accreditation, and that can be given to unlicensed "reputable individuals".

So, the charges are illegal to begin with - because representation on immigration issues is not a state practice of law, but a federal issue - where a state law license is not required.

But, there are more issues in the Kentucky criminal charges.

Here is the Kentucky unauthorized practice of law (UPL) statute:

What is problematic with this statute?

Problem # 1.  Judge-legislator problem, denial of impartial judicial review

There is a reason for separation of powers, why a legislator may not adjudicate or enforce the laws - because that creates an issue with impartiality.

If the court created a rule that it is then enforcing, the court may not be receptive to claims that the court-created rule is unconstitutional, and the court may not be impartial in enforcing its own rule.

Here we are dealing with the main material element of a criminal statute, what constitutes the practice of law.

First of all, the Kentucky UPL statute does not actually define what constitutes prohibited conduct, the practice of law, but instead, the legislature delegates that definition to a "rule of the Supreme Court" - making courts both legislators and adjudicators on the issue of UPL, which is an impermissible violation of separation of powers doctrine destroying criminal defendants' fundamental constitutional right to impartial judicial review.

If the Supreme Court of Kentucky both issues the law upon which criminal charges are brought, courts cannot then adjudicate such charges.

Well, in Kentucky, they do adjudicate such charges - and thus UPL defendants in the State of Kentucky, as in all other states where the definition of the "practice of law" is delegated to courts, are deprived of their right to impartial judicial review.

Problem # 2.  No rigorous legislative procedure

Since the statute is based on a "rule" of the state Supreme Court, and rule-making is not subject to as rigorous a procedure as legislative acts, in Kentucky, as in all other states, definition of the practice of law is done at a whim.

Problem # 3.  Delegating legislative authority to a special interest group

I doubt that the Kentucky State Legislature has authority to delegate its legislative authority to special interest groups.

That the Supreme Court of the State of Kentucky is a special interest group in regards of what does or does not constitute unauthorized practice of law, is unquestionable, because it is also a licensing agency regulating state law licensing, and consists in its entirety of licensed attorneys.

Thus, the State Legislature of the State of Kentucky entrusted foxes to guard the chicken coop, and to legislate in a way to punish their own competitors.

Legislating on subjects of personal interest is misconduct for any public official - as is delegating such legislating to a special interest group.

So, UPL statutes - across the nation - in states that allow the definition of what constitutes the "practice of law" to be governed by a court rule and not a legislative provision, may be invalid as based on the definition of the practice of law invented by a special interest group in its own favor, to punish competitors.

Problem # 4.  Definition of the practice of law is vague and overbroad

Here is the actual rule of the Kentucky Supreme Court defining "the practice of law":

So, the Kentucky Supreme Court defines the practice of law as:

• any service rendered
• that involves legal knowledge or legal advice,
• whether of representation, counsel or advocacy in or out of court,
• rendered in respect to
• rights,
• duties,
• obligations,
• liabilities, or
• business relations of one requiring the services

Why this definition is unconstitutionally overbroad?

It covers anything from being an accountant or business partner to a parent.

First, there is this "any service" clause.

"Any service" involving legal knowledge can be ANY service at all.

A law professor, teacher or tutor (including a public school teacher or a homeschooling parent) may be teaching students about the law, and teaching law involves legal knowledge - so teaching law is practicing law without a license under Kentucky Supreme Court rule.

The restriction of "any service" to "whether by representation, counsel or advocacy in or out of court" does not cure the problem since what constitutes "counsel" is in itself an unknown.

"Counsel" can be provided by a neighbor, a teacher, a doctor, a therapist, a parent, a friend - who now all need law licenses if their "counsel" involves "legal knowledge".

So, when a parent talks to a child and counsels him or her against certain behavior that involves "legal knowledge", such as "do not do drugs/ do not speed/  do not have non-consensual sex with girls - that is a crime", a parent provides to the child "a service" for which the parent must either be licensed as a lawyer - or go to jail on UPL charges.

Next, many administrative boards, including federal boards, as we have in this particular case - the woman was charged with accepting money for representation on federal immigration issues - allow lay representation that does not require a law license.

Such representation unquestionably requires legal knowledge, though, and, thus, the service that Alma Rosa Bonilla was charged with providing "unlawfully", does fall within the definition of the UPL law, as per Kentucky Supreme Court Rule - even though such service is completely legal under the federal law.

So, here we may have a federal pre-emption issue, and an issue of being criminally charged for legal conduct.

Next, UPL in Kentucky makes it a crime to provide any out of court advocacy involving legal knowledge.

Representation by Alma Rosa Bonilla in front of a federal immigration Board is an out-of-court representation and advocacy, involving legal knowledge - but allowed by federal law.

Lay advocates are allowed in a variety of settings - including special education, health, representation in tribal courts, disabilities, advocacy for victims of crimes. 

Such advocacy necessarily involves legal knowledge, and, often, advice about rights, making any lay advocacy in Kentucky  a criminal offense.

So, Kentucky legislature, in its infinite wisdom, delegated legislating as to what constitutes the practice of law to a special interest group, the Supreme Court of the State of Kentucky where all legislators of the rule had a material interest in fending off competition since judges of Kentucky Supreme Court are licensed attorneys not elected for life.

And, that special interest group legislated in such a way that, theoretically, it is possible to charge anybody in Kentucky for unauthorized practice of law, from a parent to a teacher to an accountant to a customer service representative to a business partner.

Moreover, Kentucky made lay representation and advocacy criminal, even as to representation and advocacy in federal administrative proceedings, which is expressly permitted by federal law.

Why is it so?

Did Kentucky satisfy all legal needs of the indigents that it can clamp down so upon lay advocates, and immigration representatives?

No, quite the opposite.  

Six years ago Kentucky, with much fanfare, joined "two dozen other states" by forming the so-called "Access to Justice Commission" citing the increasing inability of Kentuckians to pay for necessary legal services.

The Legal Aide in Kentucky turns away thousands of callers per year, unable to meet the demand for services for lack of funding.

And, while Alma Rosa Bonilla was charged for accepting money for her services in immigration proceedings (which is legal under federal law without a law license), the Kentucky UPL statute prohibits lay advocacy regardless of whether it is paid or pro bono.

Under such circumstances, criminalizing lay advocacy runs contrary to the declared purpose of attorney licensing - protection of the consumer - and runs contrary to the U.S. Supreme Court case, Johnson v Avery, a 1969 case, which held that:

"In the absence of some provision by the State of Tennessee for a reasonable alternative to assist illiterate or poorly educated inmates in preparing petitions for post-conviction relief, the State may not validly enforce a regulation which absolutely bars inmates from furnishing such assistance to other prisoners".

So, for 48 years, according to the U.S. Supreme Court decision, the State of Kentucky MUST allow unlicensed individuals to provide legal services in the areas where it cannot ensure provision of affordable licensed legal services.

There is no such provision in the Kentucky "practice of law" rule created for lawyers by lawyers, or in Kentucky UPL (unauthorized practice of law) criminal statute criminalizing everything that moves.

In the case of Alma Rosa Bonilla, the State of Kentucky has no AUTHORITY to handle immigration proceedings - that is a federal issue, and thus, by definition, cannot interfere into how advocacy is handled in federal administrative proceedings.

Moreover, as to criminalizing ANY services requiring legal knowledge, representation, counsel or advocacy, Kentucky very clearly does not make an alternative (same as the State of Tennessee back in 1969) "to assist illiterate or poorly educated" - or poor - Kentuckians in their needs for in and out of court services involving legal knowledge or advice, and involving representation, counsel or advocacy.

If Kentucky openly admits, by forming the "Access to Justice" Commission, to a wide "justice gap", then, under Johnson v Avery, Kentucky "may not validly enforce a regulation which absolutely bars" Kentuckians, for lack of money, knowledge and/or education or literacy, from obtaining the legal remedies they need and are entitled to.

Of course, membership in that Access to Justice Commission is another issue.

There are 30 members in the Kentucky Access to Justice Commission.

Note that NOT ONE member of the "Access to Justice Commission" is a representative of the class to be served - the indigent, the illiterate, the poorly educated Kentuckians.  Not one.

Instead, out of 25 voting members of the Commission, 21, an absolute super-majority, are lawyers, judges or court employees, 3 are top government officials and one is a law librarian.

And, out of 5 non-voting "ex officio" members:

• one member collectively represents three law schools in Kentucky,
• one member represents the Kentucky Sheriff's Association - which has absolutely no relevance or connection to access to justice for the poor and illiterate;
• one member represents the Administrative Office of court,
• one member represents the Kentucky Justice Association, and
• one member represents the Kentucky Defense Counsel.

The most telling "membership" is the one of the Kentucky Sheriff's Association, the organization that is interested in the poor and illiterate criminal defendants to NOT have good representation, advocacy, information and legal advice - in or out of court, because otherwise, how will Kentucky fill its quotas in private prisons and feed its corrections officers and police officers, members of that association?

So, while the members of class to be protected are NOT included into the "Access to Justice Commission", all members, voting and non-voting, are members of special interest groups. 

Once again, even amongst the non-voting "ex officio" members there are NONE who would be allowed to discuss the issues of access to justice who are actually members of the class allegedly sought to be protected - by the very interest groups that prevent such access to justice, partially by making legal education an expensive privilege, and criminalizing cheaper lay advocates and representatives.

And imagine - the representative of the Sheriff's association meets behind closed doors, as part of the "Access to Justice Commission" for the poor and illiterate, no less, and discusses court cases with judges - members of the same association. 

Potential for corruption is poetic.

So, Kentuckians can be assured that under the existing scheme of things, the justice gap will not be getting any narrower.

As to the criminal case against Alma Rosa Bonilla, I hope she can get it thrown out as completely unconstitutional - but then, to whom will she or her counsel be arguing the constitutionality of the UPL statute based on the "practice of law" rule created by the court?

To the same court, the same special interest group that created the rule, and enforces it in order to keep privileges for members of its class intact.

I will follow this case with great interest and report it on this blog.

Stay tuned.