The curious case of blocking access to court for victims of vaccine injuries - in order to ensure mass vaccination in the United States

At this time, flu epidemic is starting, and I see a lot of publications accusing people who refuse to get themselves and their children vaccinated as stupid, crazy "antivaxxers" who jeopardize public health.

I think, in this connection, it is important to dot the "I"s and cross the "t"s. 

Therefore, in this blog I publish the entire text (without dissent) of the opinion of the U.S. Supreme Court from 2011 showing how all victims of vaccines - who were injured or died after application of various vaccines in the United States - were barred from access to court to ensure mass vaccination in the United States.

Here is the link to the case.

What victims and families were allowed to do is to file a claim not in state court, but in a special federal "court" funded by vaccine manufacturers, and not in front of a jury, and not even in front of a judge, but in front of a "special master" paid by those same vaccine manufacturers.

Access to court is a fundamental right.

Yet, to ensure mass vaccination in the U.S. with supposedly safe vaccines, people who allege injuries from negligent design or manufacturing of these vaccines, injuries that result in either permanent disabilities or deaths, such people are barred by FEDERAL government from access to STATE courts - in violation of 1st, 10th and 14th Amendment.

So, you can sue if you are injured after ingesting aspirin, but not after vaccine is administered.

And, if you do not vaccinate your child - while knowing that if your child is injured, recovery from the manufacturer is forbidden by "law" - you may be forced to do so by CPS and courts.  Big choices you have, right?

Here is the full decision.

I will provide a full analysis of constitutionality of the decision, and of the federal statute it reviewed, in a separate blog article.

Meanwhile, you can read the official government information about the flu vaccine on the government portal The Daily Med.

NOTE:

"

(1) FLUCELVAX is approved for use in persons 4 years of age and older. (1)

For children and adolescents 4 through 17 years of age, approval is based on the immune response elicited by FLUCELVAX QUADRIVALENT. Data demonstrating a decrease in influenza disease after vaccination of children and adolescents 4 through 17 years of age with FLUCELVAX QUADRIVALENT are not available. (14)"

In plain English, the vaccine is not approved for use for children under the age of 4.

And, for children 4 to 17, there is no proof that the vaccine actually helps prevent the disease.

"5 WARNINGS AND PRECAUTIONS

5.1 Guillain-Barré Syndrome

The 1976 swine influenza vaccine was associated with an elevated risk of Guillain-Barré syndrome (GBS). Evidence for a causal relation of GBS with other influenza vaccines is inconclusive; if an excess risk exists, it is probably slightly more than 1 additional case per 1 million persons vaccinated.1 If GBS has occurred after receipt of a prior influenza vaccine, the decision to give FLUCELVAX QUADRIVALENT should be based on careful consideration of the potential benefits and risks.

5.2 Preventing and Managing Allergic Reactions

Appropriate medical treatment and supervision must be available to manage possible anaphylactic reactions following administration of the vaccine.

5.3 Syncope

Syncope (fainting) can occur in association with administration of injectable vaccines, including Flucelvax. Syncope can be accompanied by transient neurological signs such as visual disturbance, paresthesia, and tonic-clonic limb movements. Procedures should be in place to avoid falling injury and to restore cerebral perfusion following syncope by maintaining a supine or Trendelenburg position.

5.4 Altered Immunocompetence

After vaccination with FLUCELVAX QUADRIVALENT, immunocompromised individuals, including those receiving immunosuppressive therapy, may have a reduced immune response.

5.5 Limitations of Vaccine Effectiveness

Vaccination with FLUCELVAX QUADRIVALENT may not protect all vaccine recipients against influenza disease. "

Guillain-Barre syndrome is paralysis.  It is claimed to be rare, yet, elevated risk was "associated with" with application of "swine influenza vaccine" in 1976, 10 years before introduction of the 1986 statute that the U.S. Supreme Court upheld in 2011 in the case below.

So, to ensure mass vaccination, victims of vaccines were denied relief, on a federal statutory and SCOTUS precedent level, and those who oppose vaccination, especially under such circumstances, are called, see above, stupid and crazy "anti-vaxxers".

"In adults 18 years of age and older, serious adverse events (SAEs) were collected throughout the study duration (until 6 months after vaccination) and were reported by 3.9%, of the subjects who received FLUCELVAX QUADRIVALENT. None of the SAEs were assessed as being related to study vaccine." 

Consider: nearly 4 in every 100 adults who are vaccinated with flu vaccine suffer SERIOUS ADVERSE EVENTS after application of the vaccine, and still FDA does not issue "black box warnings", does not take the vaccine off the market, and those 4% of population suffering SERIOUS adverse side effects from the vaccine (imagine percentage that suffered adverse side effects that were not conceded as serious by public officials and vaccine manufacturers) are denied relief based on mental gymnastics that I provide in full below:

-----

562 U. S. ____ (2011)
562 U. S. ____ (2011)
562 U. S. ____ (2011)

SUPREME COURT OF THE UNITED STATES
NO. 09-152

RUSSELL BRUESEWITZ, et al., PETITIONERS v. WYETH LLC, fka WYETH, INC., fka WYETH LABORATORIES, et al.

on writ of certiorari to the united states court of appeals for the third circuit

[February 22, 2011]

   Justice Scalia delivered the opinion of the Court.

   We consider whether a preemption provision enacted in the National Childhood Vaccine Injury Act of 1986 (NCVIA)[Footnote 1] bars state-law design-defect claims against vaccine manufacturers.

I

A

   For the last 66 years, vaccines have been subject to the same federal premarket approval process as prescription drugs, and compensation for vaccine-related injuries has been left largely to the States.[Footnote 2] Under that regime, the elimination of communicable diseases through vaccination became “one of the greatest achievements” of public health in the 20th century.[Footnote 3] But in the 1970’s and 1980’s vaccines became, one might say, victims of their own success. They had been so effective in preventing infectious diseases that the public became much less alarmed at the threat of those diseases,[Footnote 4] and much more concerned with the risk of injury from the vaccines themselves.[Footnote 5]

   Much of the concern centered around vaccines against diphtheria, tetanus, and pertussis (DTP), which were blamed for children’s disabilities and developmental delays. This led to a massive increase in vaccine-related tort litigation. Whereas between 1978 and 1981 only nine product-liability suits were filed against DTP manufacturers, by the mid-1980’s the suits numbered more than 200 each year.[Footnote 6] This destabilized the DTP vaccine market, causing two of the three domestic manufacturers to withdraw; and the remaining manufacturer, Lederle Laboratories, estimated that its potential tort liability exceeded its annual sales by a factor of 200.[Footnote 7] Vaccine shortages arose when Lederle had production problems in 1984.[Footnote 8]

   Despite the large number of suits, there were many complaints that obtaining compensation for legitimate vaccine-inflicted injuries was too costly and difficult.[Footnote 9] A significant number of parents were already declining vaccination for their children,[Footnote 10] and concerns about compensation threatened to depress vaccination rates even further.[Footnote 11] This was a source of concern to public health officials, since vaccines are effective in preventing outbreaks of disease only if a large percentage of the population is vaccinated.[Footnote 12]

   To stabilize the vaccine market and facilitate compensation, Congress enacted the NCVIA in 1986. The Act establishes a no-fault compensation program “designed to work faster and with greater ease than the civil tort system.” Shalala v. Whitecotton, 514 U. S. 268, 269 (1995). A person injured by a vaccine, or his legal guardian, may file a petition for compensation in the United States Court of Federal Claims, naming the Secretary of Health and Human Services as the respondent.[Footnote 13] A special master then makes an informal adjudication of the petition within (except for two limited exceptions) 240 days.[Footnote 14] The Court of Federal Claims must review objections to the special master’s decision and enter final judgment under a similarly tight statutory deadline.[Footnote 15] At that point, a claimant has two options: to accept the court’s judgment and forgo a traditional tort suit for damages, or to reject the judgment and seek tort relief from the vaccine manufacturer.[Footnote 16]    Fast, informal adjudication is made possible by the Act’s Vaccine Injury Table, which lists the vaccines covered under the Act; describes each vaccine’s compensable, adverse side effects; and indicates how soon after vaccination those side effects should first manifest themselves.[Footnote 17] Claimants who show that a listed injury first manifested itself at the appropriate time are prima facie entitled to compensation.[Footnote 18] No showing of causation is necessary; the Secretary bears the burden of disproving causation.[Footnote 19] A claimant may also recover for unlisted side effects, and for listed side effects that occur at times other than those specified in the Table, but for those the claimant must prove causation.[Footnote 20] Unlike in tort suits, claimants under the Act are not required to show that the administered vaccine was defectively manufactured, labeled, or designed.
   Successful claimants receive compensation for medical, rehabilitation, counseling, special education, and vocational training expenses; diminished earning capacity; pain and suffering; and $250,000 for vaccine-related deaths.[Footnote 21] Attorney’s fees are provided, not only for successful cases, but even for unsuccessful claims that are not frivolous.[Footnote 22] These awards are paid out of a fund created by an excise tax on each vaccine dose.[Footnote 23]
   The quid pro quo for this, designed to stabilize the vaccine market, was the provision of significant tort-liability protections for vaccine manufacturers. The Act requires claimants to seek relief through the compensation program before filing suit for more than $1,000.[Footnote 24] Manufacturers are generally immunized from liability for failure to warn if they have complied with all regulatory requirements (including but not limited to warning requirements) and have given the warning either to the claimant or the claimant’s physician.[Footnote 25] They are immunized from liability for punitive damages absent failure to comply with regulatory requirements, “fraud,” “intentional and wrongful withholding of information,” or other “criminal or illegal activity.”[Footnote 26] And most relevant to the present case, the Act expressly eliminates liability for a vaccine’s unavoidable, adverse side effects:

“No vaccine manufacturer shall be liable in a civil action for damages arising from a vaccine-related injury or death associated with the administration of a vaccine after October 1, 1988, if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings.”[Footnote 27]

B

   The vaccine at issue here is a DTP vaccine manufactured by Lederle Laboratories. It first received federal approval in 1948 and received supplemental approvals in 1953 and 1970. Respondent Wyeth purchased Lederle in 1994 and stopped manufacturing the vaccine in 1998.

   Hannah Bruesewitz was born on October 20, 1991. Her pediatrician administered doses of the DTP vaccine according to the Center for Disease Control’s recommended childhood immunization schedule. Within 24 hours of her April 1992 vaccination, Hannah started to experience seizures.[Footnote 28] She suffered over 100 seizures during the next month, and her doctors eventually diagnosed her with “residual seizure disorder” and “developmental delay.”[Footnote 29] Hannah, now a teenager, is still diagnosed with both conditions.

   In April 1995, Hannah’s parents, Russell and Robalee Bruesewitz, filed a vaccine injury petition in the United States Court of Federal Claims, alleging that Hannah suffered from on-Table residual seizure disorder and encephalopathy injuries.[Footnote 30] A Special Master denied their claims on various grounds, though they were awarded $126,800 in attorney’s fees and costs. The Bruesewitzes elected to reject the unfavorable judgment, and in October 2005 filed this lawsuit in Pennsylvania state court. Their complaint alleged (as relevant here) that defective design of Lederle’s DTP vaccine caused Hannah’s disabilities, and that Lederle was subject to strict liability, and liability for negligent design, under Pennsylvania common law.[Footnote 31]
   Wyeth removed the suit to the United States District Court for the Eastern District of Pennsylvania, which granted Wyeth summary judgment on the strict-liability and negligence design-defect claims, holding that the Pennsylvania law providing those causes of action was preempted by 42 U. S. C. §300aa–22(b)(1).[Footnote 32] The United States Court of Appeals for the Third Circuit affirmed.[Footnote 33] We granted certiorari. 559 U. S. ___ (2010).

II

A

   We set forth again the statutory text at issue:

“No vaccine manufacturer shall be liable in a civil action for damages arising from a vaccine-related injury or death associated with the administration of a vaccine after October 1, 1988, if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings.”[Footnote 34]

The “even though” clause clarifies the word that precedes it. It delineates the preventative measures that a vaccine manufacturer must have taken for a side-effect to be considered “unavoidable” under the statute. Provided that there was proper manufacture and warning, any remaining side effects, including those resulting from design defects, are deemed to have been unavoidable. State-law design-defect claims are therefore preempted.

   If a manufacturer could be held liable for failure to use a different design, the word “unavoidable” would do no work. A side effect of a vaccine could always have been avoidable by use of a differently designed vaccine not containing the harmful element. The language of the provision thus suggests that the design of the vaccine is a given, not subject to question in the tort action. What the statute establishes as a complete defense must be unavoidability (given safe manufacture and warning) with respect to the particular design. Which plainly implies that the design itself is not open to question.[Footnote 35]

   A further textual indication leads to the same conclusion. Products-liability law establishes a classic and well known triumvirate of grounds for liability: defective manufacture, inadequate directions or warnings, and defective design.[Footnote 36] If all three were intended to be preserved, it would be strange to mention specifically only two, and leave the third to implication. It would have been much easier (and much more natural) to provide that manufacturers would be liable for “defective manufacture, defective directions or warning, and defective design.” It seems that the statute fails to mention design-defect liability “by deliberate choice, not inadvertence.” Barnhart v. Peabody Coal Co., 537 U. S. 149, 168 (2003). Expressio unius, exclusio alterius.

B

   The dissent’s principal textual argument is mistaken. We agree with its premise that “ ‘side effects that were unavoidable’ must refer to side effects caused by a vaccine’s design.”[Footnote 37] We do not comprehend, however, the second step of its reasoning, which is that the use of the conditional term “if ” in the introductory phrase “if the injury or death resulted from side effects that were unavoidable” “plainly implies that some side effects stemming from a vaccine’s design are ‘unavoidable,’ while others are avoidable.”[Footnote 38] That is not so. The “if ” clause makes total sense whether the design to which “unavoidable” refers is (as the dissent believes) any feasible design (making the side effects of the design used for the vaccine at issue avoidable), or (as we believe) the particular design used for the vaccine at issue (making its side effects unavoidable). Under the latter view, the condition established by the “if” clause is that the vaccine have been properly labeled and manufactured; and under the former, that it have been properly designed, labeled, and manufactured. Neither view renders the “if ” clause a nullity. Which of the two variants must be preferred is addressed by our textual analysis, and is in no way determined by the “if ” clause.

   Petitioners’ and the dissent’s textual argument also rests upon the proposition that the word “unavoidable” in §300aa–22(b)(1) is a term of art that incorporates comment k to Restatement (Second) of Torts §402A (1963–1964).[Footnote 39] The Restatement generally holds a manufacturer strictly liable for harm to person or property caused by “any product in a defective condition unreasonably dangerous to the user.”[Footnote 40] Comment k exempts from this strict-liability rule “unavoidably unsafe products.” An unavoidably unsafe product is defined by a hodge-podge of criteria and a few examples, such as the Pasteur rabies vaccine and experimental pharmaceuticals. Despite this lack of clarity, petitioners seize upon one phrase in the comment k analysis, and assert that by 1986 a majority of courts had made this a sine qua non requirement for an “unavoidably unsafe product”: a case-specific showing that the product was “quite incapable of being made safer for [its] intended … use.”[Footnote 41]

   We have no need to consider the finer points of comment k. Whatever consistent judicial gloss that comment may have been given in 1986, there is no reason to believe that §300aa–22(b)(1) was invoking it. The comment creates a special category of “unavoidably unsafe products,” while the statute refers to “side effects that were unavoidable.” That the latter uses the adjective “unavoidable” and the former the adverb “unavoidably” does not establish that Congress had comment k in mind. “Unavoidable” is hardly a rarely used word. Even the cases petitioners cite as putting a definitive gloss on comment k use the precise phrase “unavoidably unsafe product”;[Footnote 42] none attaches special significance to the term “unavoidable” standing alone.
   The textual problems with petitioners’ interpretation do not end there. The phrase “even though” in the clause “even though the vaccine was properly prepared and [labeled]” is meant to signal the unexpected: unavoidable side effects persist despite best manufacturing and labeling practices.[Footnote 43] But petitioners’ reading eliminates any opposition between the “even though” clause—called a concessive subordinate clause by grammarians—and the word “unavoidable.”[Footnote 44] Their reading makes preemption turn equally on unavoidability, proper preparation, and proper labeling. Thus, the dissent twice refers to the requirements of proper preparation and proper labeling as “two additional prerequisites” for preemption independent of unavoidability.[Footnote 45] The primary textual justification for the dissent’s position depends on that independence.[Footnote 46] But linking independent ideas is the job of a coordinating junction like “and,” not a subordinating junction like “even though.”[Footnote 47]
   Petitioners and the dissent contend that the interpretation we propose would render part of §300aa–22(b)(1) superfluous: Congress could have more tersely and more clearly preempted design-defect claims by barring liability “if . . . the vaccine was properly prepared and was accompanied by proper directions and warnings.” The intervening passage (“the injury or death resulted from side effects that were unavoidable even though”) is unnecessary. True enough. But the rule against giving a portion of text an interpretation which renders it superfluous does not prescribe that a passage which could have been more terse does not mean what it says. The rule applies only if verbosity and prolixity can be eliminated by giving the offending passage, or the remainder of the text, a competing interpretation. That is not the case here.[Footnote 48] To be sure, petitioners’ and the dissent’s interpretation gives independent meaning to the intervening passage (the supposed meaning of comment k); but it does so only at the expense of rendering the remainder of the provision superfluous. Since a vaccine is not “quite incapable of being made safer for [its] intended use” if manufacturing defects could have been eliminated or better warnings provided, the entire “even though” clause is a useless appendage.[Footnote 49] It would suffice to say “if the injury or death resulted from side effects that were unavoidable”—full stop.

III

   The structure of the NCVIA and of vaccine regulation in general reinforces what the text of §300aa–22(b)(1) suggests. A vaccine’s license spells out the manufacturing method that must be followed and the directions and warnings that must accompany the product.[Footnote 50] Manufacturers ordinarily must obtain the Food and Drug Administration’s (FDA) approval before modifying either.[Footnote 51] Deviations from the license thus provide objective evidence of manufacturing defects or inadequate warnings. Further objective evidence comes from the FDA’s regulations—more than 90 of them[Footnote 52]—that pervasively regulate the manufacturing process, down to the requirements for plumbing and ventilation systems at each manufacturing facility.[Footnote 53] Material noncompliance with any one of them, or with any other FDA regulation, could cost the manufacturer its regulatory-compliance defense.[Footnote 54]

   Design defects, in contrast, do not merit a single mention in the NCVIA or the FDA’s regulations. Indeed, the FDA has never even spelled out in regulations the criteria it uses to decide whether a vaccine is safe and effective for its intended use.[Footnote 55] And the decision is surely not an easy one. Drug manufacturers often could trade a little less efficacy for a little more safety, but the safest design is not always the best one. Striking the right balance between safety and efficacy is especially difficult with respect to vaccines, which affect public as well as individual health. Yet the Act, which in every other respect micromanages manufacturers, is silent on how to evaluate competing designs. Are manufacturers liable only for failing to employ an alternative design that the FDA has approved for distribution (an approval it takes years to obtain[Footnote 56])? Or does it suffice that a vaccine design has been approved in other countries? Or could there be liability for failure to use a design that exists only in a lab? Neither the Act nor the FDA regulations provide an answer, leaving the universe of alternative designs to be limited only by an expert’s imagination.

   Jurors, of course, often decide similar questions with little guidance, and we do not suggest that the absence of guidance alone suggests preemption. But the lack of guidance for design defects combined with the exten- sive guidance for the two grounds of liability specifically mentioned in the Act strongly suggests that design defects were not mentioned because they are not a basis for liability.
   The mandates contained in the Act lead to the same conclusion. Design-defect torts, broadly speaking, have two beneficial effects: (1) prompting the development of improved designs, and (2) providing compensation for inflicted injuries. The NCVIA provides other means for achieving both effects. We have already discussed the Act’s generous compensation scheme. And the Act provides many means of improving vaccine design. It directs the Secretary of Health and Human Services to promote “the development of childhood vaccines that result in fewer and less serious adverse reactions.”[Footnote 57] It establishes a National Vaccine Program, whose Director is “to achieve optimal prevention of human infectious diseases … and to achieve optimal prevention against adverse reactions.”[Footnote 58] The Program is to set priorities for federal vaccine research, and to coordinate federal vaccine safety and efficacy testing.[Footnote 59] The Act requires vaccine manufacturers and health-care providers to report adverse side effects,[Footnote 60] and provides for monitoring of vaccine safety through a collaboration with eight managed-care organizations.[Footnote 61] And of course whenever the FDA concludes that a vaccine is unsafe, it may revoke the license.[Footnote 62]
   These provisions for federal agency improvement of vaccine design, and for federally prescribed compensation, once again suggest that §300aa–22(b)(1)’s silence regarding design-defect liability was not inadvertent. It instead reflects a sensible choice to leave complex epidemiological judgments about vaccine design to the FDA and the National Vaccine Program rather than juries.[Footnote 63]
   And finally, the Act’s structural quid pro quo leads to the same conclusion: The vaccine manufacturers fund from their sales an informal, efficient compensation program for vaccine injuries;[Footnote 64] in exchange they avoid costly tort litigation and the occasional disproportionate jury verdict.[Footnote 65] But design-defect allegations are the most speculative and difficult type of products liability claim to litigate. Taxing vaccine manufacturers’ product to fund the compensation program, while leaving their liability for design defect virtually unaltered, would hardly coax manufacturers back into the market.
   The dissent believes the Act’s mandates are irrelevant because they do not spur innovation in precisely the same way as state-law tort systems.[Footnote 66] That is a novel suggestion. Although we previously have expressed doubt that Congress would quietly preempt product-liability claims without providing a federal substitute, see Medtronic, Inc. v. Lohr, 518 U. S. 470, 486–488 (1996) (plurality opinion), we have never suggested we would be skeptical of preemption unless the congressional substitute operated like the tort system. We decline to adopt that stance today. The dissent’s belief that the FDA and the National Vaccine Program cannot alone spur adequate vaccine innovation is probably questionable, but surely beside the point.

IV

   Since our interpretation of §300aa–22(b)(1) is the only interpretation supported by the text and structure of the NCVIA, even those of us who believe legislative history is a legitimate tool of statutory interpretation have no need to resort to it. In any case, the dissent’s contention that it would contradict our conclusion is mistaken.

   The dissent’s legislative history relies on the following syllogism: A 1986 House Committee Report states that §300aa–22(b)(1) “sets forth the principle contained in Comment k of Section 402A of the Restatement of Torts (Second);”[Footnote 67] in 1986 comment k was “commonly understood” to require a case-specific showing that “no feasible alternative design” existed; Congress therefore must have intended §300aa–22(b)(1) to require that showing.[Footnote 68] The syllogism ignores unhelpful statements in the Report and relies upon a term of art that did not exist in 1986.

   Immediately after the language quoted by the dissent, the 1986 Report notes the difficulty a jury would have in faithfully assessing whether a feasible alternative design exists when an innocent “young child, often badly injured or killed” is the plaintiff.[Footnote 69] Eliminating that concern is why the Report’s authors “strongly believ[e] that Comment k is appropriate and necessary as the policy for civil actions seeking damages in tort.”[Footnote 70] The dissent’s interpretation of §300aa–22(b)(1) and its version of “the principle in Comment K” adopted by the 1986 Report leave that concern unaddressed.
   The dissent buries another unfavorable piece of legislative history. Because the Report believes that §300aa–22(b)(1) should incorporate “the principle in Comment K” and because the Act provides a generous no-fault compensation scheme, the Report counsels injured parties who cannot prove a manufacturing or labeling defect to “pursue recompense in the compensation system, not the tort system.”[Footnote 71] That counsel echoes our interpretation of §300aa–22(b)(1).
   Not to worry, the dissent retorts, a Committee Report by a later Congress “authoritative[ly]” vindicates its interpretation.[Footnote 72] Post-enactment legislative history (a contradiction in terms) is not a legitimate tool of statutory interpretation. See Jones v. United States, 526 U. S. 227, 238 (1999); United States v. Mine Workers, 330 U. S. 258, 281–282 (1947). Real (pre-enactment) legislative history is persuasive to some because it is thought to shed light on what legislators understood an ambiguous statutory text to mean when they voted to enact it into law. See Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U. S. 546, 568 (2005). But post-enactment legislative history by definition “could have had no effect on the congressional vote,” District of Columbia v. Heller, 554 U. S. 570, 605 (2008).
   It does not matter that §300aa–22(b)(1) did not take effect until the later Congress passed the excise tax that funds the compensation scheme,[Footnote 73] and that the supposedly dispositive Committee Report is attached to that funding legislation.[Footnote 74] Those who voted on the relevant statutory language were not necessarily the same persons who crafted the statements in the later Committee Report; or if they were did not necessarily have the same views at that earlier time; and no one voting at that earlier time could possibly have been informed by those later statements. Permitting the legislative history of subsequent funding legislation to alter the meaning of a statute would set a dangerous precedent. Many provisions of federal law depend on appropriations or include sunset provisions;[Footnote 75] they cannot be made the device for unenacted statutory revision.
   That brings us to the second flaw in the dissent’s syllogism: Comment k did not have a “commonly understood meaning”[Footnote 76] in the mid-1980’s. Some courts thought it required a case-specific showing that a product was “unavoidably unsafe”; many others thought it categorically exempted certain types of products from strict liability.[Footnote 77] When “all (or nearly all) of the” relevant judicial decisions have given a term or concept a consistent judicial gloss, we presume Congress intended the term or concept to have that meaning when it incorporated it into a later-enacted statute. Merck & Co. v. Reynolds, 559 U. S. ___, ___ (2010) (Scalia, J., concurring in part and concurring in judgment) (slip op., at 5). The consistent gloss represents the public understanding of the term. We cannot make the same assumption when widespread disagreement exists among the lower courts. We must make do with giving the term its most plausible meaning using the traditional tools of statutory interpretation. That is what we have done today.

*  *  *

   For the foregoing reasons, we hold that the National Childhood Vaccine Injury Act preempts all design-defect claims against vaccine manufacturers brought by plaintiffs who seek compensation for injury or death caused by vaccine side effects. The judgment of the Court of Appeals is affirmed.

It is so ordered.

   Justice Kagan took no part in the consideration or decision of this case.

Footnote 1

 42 U. S. C. §300aa–22(b)(1).

Footnote 2

 See P. Hutt, R. Merrill, & L. Grossman, Food and Drug Law 912–913, 1458 (3d ed. 2007).

Footnote 3

 Centers for Disease Control, Achievements in Public Health, 1900–1999: Impact of Vaccines Universally Recommended for Children, 48 Morbidity and Mortality Weekly Report 243, 247 (Apr. 2, 1999).

Footnote 4

 See Mortimer, Immunization Against Infectious Disease, 200 Science 902, 906 (1978).

Footnote 5

 See National Vaccine Advisory Committee, A Comprehensive Review of Federal Vaccine Safety Programs and Public Health Activities 2–3 (Dec. 2008) (hereinafter NVAC), http://www.hhs.gov/nvpo/nvac/ documents/vaccine-safety-review.pdf (as visited Feb. 18, 2011, and available in Clerk of Court’s case file).

Footnote 6

 See Sing & Willian, Supplying Vaccines: An Overview of the Market and Regulatory Context, in Supplying Vaccines: An Economic Analysis of Critical Issues 45, 51–52 (M. Pauly, C. Robinson, S. Sepe, M. Sing, & M. William eds. 1996).

Footnote 7

 See id., at 52.

Footnote 8

 See Centers for Disease Control, Diptheria-Tetanus-Pertussis Vaccine Shortage, 33 Morbidity and Mortality Weekly Report 695–696 (Dec. 14, 1984).

Footnote 9

 See Apolinsky & Van Detta, Rethinking Liability for Vaccine Injury, 19 Cornell J. L. & Pub. Pol’y 537, 550–551 (2010); T. Burke, Lawyers, Lawsuits, and Legal Rights: The Battle over Litigation in American Society 146 (2002).

Footnote 10

 Mortimer, supra, at 906.

Footnote 11

 See Hagan, 45 Food Drug Cosm. L. J. 477, 479 (1990).

Footnote 12

 See R. Merrill, Introduction to Epidemiology 65–68 (2010).

Footnote 13

 See 42 U. S. C. §300aa–11(a)(1).

Footnote 14

 See §300aa–12(d)(3).

Footnote 15

 See §300aa–12(e), (g).

Footnote 16

 See §300aa–21(a).

Footnote 17

 See §300aa–14(a); 42 CFR §100.3 (2009) (current Vaccine Injury Table).

Footnote 18

 See 42 U. S. C. §§300aa–11(c)(1), 300aa–13(a)(1)(A).

Footnote 19

 See §300aa–13(a)(1)(B).

Footnote 20

 See §300aa–11(c)(1)(C)(ii).

Footnote 21

 See §300aa–15(a).

Footnote 22

 See §300aa–15(e).

Footnote 23

 See §300aa–15(i)(2); 26 U. S. C. §§4131, 9510.

Footnote 24

 See 42 U. S. C. §300aa–11(a)(2).

Footnote 25

 See §300aa–22(b)(2), (c). The immunity does not apply if the plaintiff establishes by clear and convincing evidence that the manufacturer was negligent, or was guilty of fraud, intentional and wrongful withholding of information, or other unlawful activity. See §§300aa–22(b)(2), 300aa–23(d)(2).

Footnote 26

 §300aa–23(d)(2).

Footnote 27

 §300aa–22(b)(1).

Footnote 28

 See Bruesewitz v. Secretary of Health and Human Servs., No. 95–0266V, 2002 WL 31965744, *3 (Ct. Cl., Dec. 20, 2002).

Footnote 29

 561 F. 3d 233, 236 (CA3 2009).

Footnote 30

 See id., at *1.

Footnote 31

 See 561 F. 3d at 237. The complaint also made claims based upon failure to warn and defective manufacture. These are no longer at issue.

Footnote 32

 See id., at 237–238.

Footnote 33

 Id., at 235.

Footnote 34

 42 U. S. C. §300aa–22(b)(1).

Footnote 35

 The dissent advocates for another possibility: “[A] side effect is ‘unavoidable’ … where there is no feasible alternative design that would eliminate the side effect of the vaccine without compromising its cost and utility.” Post, at 15 (opinion of Sotomayor, J.). The dissent makes no effort to ground that position in the text of §300aa–22(b)(1). We doubt that Congress would introduce such an amorphous test by implication when it otherwise micromanages vaccine manufacturers. See infra, at 13–14. We have no idea how much more expensive an alternative design can be before it “compromis[es]” a vaccine’s cost or how much efficacy an alternative design can sacrifice to improve safety. Neither does the dissent. And neither will the judges who must rule on motions to dismiss, motions for summary judgment, and motions for judgment as a matter of law. Which means that the test would probably have no real-world effect.

Footnote 36

 W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 695 (5th ed. 1984); Restatement (Third) of Torts §2 (1999).

Footnote 37

 Post, at 3.

Footnote 38

 Ibid.

Footnote 39

 See Brief for Petitioners 29.

Footnote 40

 Restatement §402A, p. 347.

Footnote 41

 Id., Comment k, p. 353; Petitioners cite, inter alia, Kearl v. Lederle Labs., 172 Cal. App. 3d 812, 828–830, 218 Cal. Rptr. 453, 463–464 (1985); Belle Bonfils Memorial Blood Bank v. Hansen, 665 P. 2d 118, 122 (Colo. 1983).

   Though it is not pertinent to our analysis, we point out that a large number of courts disagreed with that reading of comment k, and took it to say that manufacturers did not face strict liability for side effects of properly manufactured prescription drugs that were accompanied by adequate warnings. See, e.g., Brown v. Superior Court, 227 Cal. Rptr. 768, 772–775 (Cal. App. 1986), (officially depublished), aff’d 44 Cal. 3d 1049, 751 P. 2d 470 (1988); McKee v. Moore, 648 P. 2d 21, 23 (Okla. 1982); Stone v. Smith, Kline & French Labs., 447 So. 2d 1301, 1303–1304 (Ala. 1984); Lindsay v. Ortho Pharm. Corp., 637 F. 2d 87, 90–91 (CA2 1980) (applying N. Y. law); Wolfgruber v. Upjohn Co., 72 App. Div. 2d 59, 61, 423 N. Y. S. 2d 95, 96 (1979); Chambers v. G. D. Searle & Co., 441 F. Supp. 377, 380–381 (D Md. 1975); Basko v. Sterling Drug, Inc., 416 F. 2d 417, 425 (CA2 1969) (applying Conn. law).
Footnote 42

 See, e.g., Johnson v. American Cyanamid Co., 239 Kan. 279, 285, 718 P. 2d 1318, 1323 (1986); Feldman v. Lederle Labs., 97 N. J. 429, 440, 446–447, 479 A. 2d 374, 380, 383–384 (1984); Belle Bonfils Memorial Blood Bank supra, at 121–123; Cassisi v. Maytag Co., 396 So. 2d 1140, 1144, n. 4, 1146 (Fla. App. 1981); Racer v. Utterman, 629 S. W. 2d 387, 393 (Mo. App. 1981).

Footnote 43

 The dissent’s assertion that we treat “even though” as a synonym for “because” misses the subtle distinction between “because” and “despite.” See post, at 17, n. 14. “Even though” is a close cousin of the latter. See Webster’s New International Dictionary 709, 2631 (2d ed. 1957). The statement “the car accident was unavoidable despite his quick reflexes” indicates that quick reflexes could not avoid the accident, and leaves open two unstated possibilities: (1) that other, unstated means of avoiding the accident besides quick reflexes existed, but came up short as well; or (2) that quick reflexes were the only possible way to avoid the accident. Our interpretation of §300aa–22(b)(1) explains why we think Congress meant the latter in this context. (Incidentally, the statement “the car accident was unavoidable because of his quick reflexes” makes no sense.)

Footnote 44

 See W. Follett, Modern American Usage: A Guide 61 (1966).

Footnote 45

 Post, at 9, 17.

Footnote 46

 Post, at 3–5.

Footnote 47

 The dissent responds that these “additional prerequisites” act “in a concessive, subordinating fashion,” post, at 17, n. 14 (internal quotation marks and brackets omitted). But that is no more true of the dissent’s conjunctive interpretation of the present text than it is of all provisions that set forth additional requirements—meaning that we could eliminate “even though” from our English lexicon, its function being entirely performed by “and.” No, we think “even though” has a distinctive concessive, subordinating role to play.

Footnote 48

 Because the dissent has a superfluity problem of its own, its reliance on Bates v. Dow Agrosciences LLC, 544 U. S. 431 (2005), is misplaced. See id., at 449 (adopting an interpretation that was “the only one that makes sense of each phrase” in the relevant statute).

Footnote 49

 That is true regardless of whether §300aa–22(b)(1) incorporates comment k. See Restatement §402A, Comment k, pp. 353, 354 (noting that “unavoidably unsafe products” are exempt from strict liability “with the qualification that they are properly prepared and marketed, and proper warning is given”).

Footnote 50

 See 42 U. S. C. §262(a), ( j); 21 CFR §§601.2(a), 314.105(b) (2010).

Footnote 51

 See §601.12.

Footnote 52

 See §§211.1 et seq., 600.10–600.15, 600.21–600.22, 820.1 et seq.

Footnote 53

 See §§211.46, 211.48.

Footnote 54

 See 42 U. S. C. §300aa–22(b)(2).

Footnote 55

 Hutt, Merrill, & Grossman, Food and Drug Law, at 685, 891.

Footnote 56

 See Sing & William, Supplying Vaccines, at 66–67.

Footnote 57

 42 U. S. C. §300aa–27(a)(1).

Footnote 58

 §300aa–1.

Footnote 59

 See §§300aa–2(a)(1)–(3), 300aa–3.

Footnote 60

 See §300aa–25(b).

Footnote 61

 See NVAC 18–19.

Footnote 62

 See 21 CFR §601.5(b)(1)(vi) (2010).

Footnote 63

 The dissent quotes just part of this sentence, to make it appear that we believe complex epidemiological judgments ought to be assigned in that fashion. See post, at 26. We do not state our preference, but merely note that it is Congress’s expressed preference—and in order to preclude the argument that it is absurd to think Congress enacted such a thing, we assert that the choice is reasonable and express some of the reasons why. Leaving it to the jury may (or may not) be reasonable as well; we express no view.

Footnote 64

 See 42 U. S. C. §300aa–15(i)(2); Pub. L. 99–660, §323(a), 100 Stat. 3784. The dissent’s unsupported speculation that demand in the vaccine market is inelastic, see post, at 24, n. 22, sheds no light on whether Congress regarded the tax as a quid pro quo, most Members of Congress being neither professional economists nor law-and-economics scholars.

Footnote 65

 See 42 U. S. C. §§300aa–11(a)(2), 300aa–22.

Footnote 66

 See post, at 21–24.

Footnote 67

 H. R. Rep. No. 99–908, pt. 1, p. 25 (1986) (hereinafter 1986 Report).

Footnote 68

 Post, at 7–8.

Footnote 69

 1986 Report, at 26; see ibid. (“[E]ven if the defendant manufacturer may have made as safe a vaccine as anyone reasonably could expect, a court or jury undoubtedly will find it difficult to rule in favor of the ‘innocent’ manufacturer if the equally ‘innocent’ child has to bear the risk of loss with no other possibility of recompense”).

Footnote 70

 Ibid.

Footnote 71

 Ibid.

Footnote 72

 Post, at 12. This is a courageous adverb since we have previously held that the only authoritative source of statutory meaning is the text that has passed through the Article I process. See Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U. S. 546, 568 (2005).

Footnote 73

 Pub. L. 99–960, §323(a), 100 Stat. 3784.

Footnote 74

 H. R. Rep. No. 100–391, pt. 1, p. 701 (1987).

Footnote 75

 See, e.g., Pub. L. 104–208, §§401, 403(a), 110 Stat. 3009–655 to 3009–656, 3009–659 to 3009–662, as amended, note following 8 U. S. C. §1324a (2006 ed., Supp. III) (E-Verify program expires Sept. 30, 2012).

Footnote 76

 Post, at 8.

Footnote 77

 See n. 39, supra; post, at 7–8, n. 5.

Attorney speech criticizing the judiciary between 1880 and 2018. What has changed?

On November 6, 2018 people across the United States will be electing judges, and it is important to understand what exactly are the powers that voters are vesting those judges with and why it is important for the voters to DISREGARD what attorneys or attorney organizations, or attorneys - members of non-attorney organizations, "screening" or "qualifications" committees, say about judicial candidates.

Because licenses and livelihoods of attorneys are controlled by the American judiciary, and the judiciary demand from attorneys, as a condition of being able to earn a living in their profession, to either praise judges and judicial candidate and misrepresent them to voters as "qualified" for the judicial office, or shut up.  The third option, criticizing judges and judicial candidates and telling voters the truth about fitness of judges is, as the judiciary repeatedly proves in disciplinary cases, amounts for attorneys to a professional suicide.

Lying to the voters about fitness of judges when attorneys publicly endorse a judicial candidate either by words or by money, paying into election campaigns of judges and judicial candidates to help them getting elected is, on the opposite, a behavior accepted by judges from lawyers, and even the highest court in the country strikes only the most outrageous cases of judges ruling in favor of the biggest contributors to their election campaigns.  But, there is no statistics as to whether judges favor smaller contributors - and the lack of such statistics is in itself a problem.  A problem of fear of researchers to even conduct such a nation-wide research.

In 1880, the Pennsylvania top state court made a decision identifying attorneys as the best witnesses of judicial misconduct and unfitness to inform the public, members of the popular sovereign, taxpayers and voters as to fitness or unfitness of judges.

“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).

In 2018, 138 years later, a panel of 5 judges declared that those same best witnesses of judicial fitness are forbidden to tell the public about their thoughts (conveniently and self-servingly called by judges "speculations") about cases attorneys witness when judges make decisions based on what attorneys perceive, as legal experts, as political corruption.

"As to charges 4-6, respondent accused the court of blatant political bias and corruption and disparaged his adversaries. As the Referee found, "[n]either the Code nor the Rules obligates,' much less permits, a lawyer to chastise a judge for what the lawyer speculates is corrupt political behavior on that judge's part in presiding over a matter or to effectively threaten the judge that he would be investigated by the Office of Judicial Conduct and the Department of Justice unless he reversed his opinion. Yet Respondent did so repeatedly. . . .".

There was no defamation lawsuit against the attorney by his "adversaries" or by the judge, no discovery, no jury trial as to the accusations, and thus no right for the disciplinary "court" to claim that such accusations were without merit.

Moreover, the statute of limitations for a defamation lawsuit is 1 year, which, since 2008, is long gone, the judge and the unnamed "adversaries" of attorney Gino Giorgini were time-barred to file any defamation charges against him, and he has an absolute defense to a defamation lawsuit - the 1st Amendment right of his client to criticize the government and litigation immunity as to anything said during litigation.

And, litigation immunity is, according to the U.S. Supreme Court, and important common law policy promoting the truth-finding function of the court.

"  It is precisely the function of a judicial proceeding to determine where the truth lies. The ability of courts, under carefully developed procedures, to separate truth from falsity, and the importance of accurately resolving factual disputes in criminal (and civil) cases are such that those involved in judicial proceedings should be "given every encouragement to make a full disclosure of all pertinent information within their knowledge."

Moreover, the U.S. Supreme Court recognized that regulation of attorney speech based on its content is subject to the so-called "strict scrutiny" under the 1st Amendment, which the court in Gino Giorgini's case did not even attempt to do.

And, the same U.S. Supreme Court

But, the U.S. Supreme Court did not take, for decades, a case of an attorney disciplined for exercising his client's 1st Amendment right to criticize the judiciary and his 14th Amendment right to impartial judicial review - which emboldens state courts into becoming petty tyrants considering their power divine, criticism of their corruption  as treason, and behaving as petty tyrants towards witnesses of their misconduct whose destiny judges control - attorneys.

There are no exceptions in the 1st Amendment protecting the judicial branch of the government from criticism of any member of the public, including an attorney or his client in litigation on whose behalf the attorney speaks to the court.


So - what has changed since 1880?

Why courts valued attorney speech criticizing themselves for the benefit of informing the public in 1880 and forbid and punish that same behavior with starvation/forbidding to work in the chosen profession in 2018?

Well, here is what has changed.

Rich attorneys teamed up with the judiciary to institute the so-called "attorney monopoly" for "the practice of law", without defining what the "practice of law" is - which is unconstitutional, but has been regulated, through civil and criminal proceedings, for 100 years nevertheless.

The noble principles of solo and small-firm attorneys who do not brown-nose the judiciary were used by the rich attorneys as a banner to

• create attorney guilds (bar associations), 
• incorporate them into the judiciary, attorneys' "own" branch of the government, 
• invent "rules of attorney ethics", the main rule being "praise your benefactor, the judiciary, and never criticize it, or else you will be forbidden to practice the profession and your family will starve", 
• dictate to the public that they choose their judges only from attorneys;
• dictate to the public that they only choose their legal advisers, drafters of contracts and title documents and representatives in court only from the guild, approved by the guild's "own branch" of the government.

The only weak spot in perpetuating this grab of power by attorneys and judges are judicial elections, the only time when voters can choose to say "no" to this or that judicial candidate.

And, for that, the "guild" prepared by forbidding criticism by members of the guild of other members of the guild who are running for judicial elections, who are trying to get "elected" to rule the guild through regulation of "the practice of law" (remember, and undefined concept).

In other words, the attorney guild and its member and ruler, the judiciary, deliberately and systematically conspire to block voters from the most pertinent information about unfitness of judges and judicial candidates running for election/re-election or being considered for appointment - by intimidating attorneys, the best expert witnesses on the subject.

I will show in the next blog that how that prohibition on criticism violates federal criminal laws.

But, voters still have their own options.

First, to seek your own information about judicial candidates and never to trust licensed attorneys praising a judge - since such praise may be forced, coerced or aimed at getting a favor from that judge and promoting the attorney's business.

Second, to seek out the legislative representative and to demand to end the rule of the guild by

• removing the requirement that judges be licensed attorneys;
• removing the requirement that judges regulate attorneys;
• removing the requirement that attorneys be licensed or regulated by the government - while opposing the government in court (in criminal, administrative and some "civil" proceedings, like proceedings in Family Courts against parents brought by CPS, and in civil rights lawsuits brought by private parties against the government);
• removing the requirement of ever regulating attorneys before the subject of regulation, "the practice of law" is clearly defined by statute -

and thus unclogging the block that the judiciary put, through punishments like the one imposed upon attorney Gino Giorgini,  during a judicial election campaign, upon criticism of the judiciary - and on using such "disciplinary" cases to intimidate the profession into brown-nosing its self-imposed "regulator" regulating what it cannot even define, but "regulating" nevertheless.

You will see how many things in this country will change to the better once these simple changes are introduced.

And yes, you, the voters, can do it.

If your legislative representatives refuse to comply with such demands, such changes can be introduced through state Constitutions, based on statewide referendums.

Voters can prove to judges and the attorney guilds that voters are not cattle whose voice is duped and manipulated in order to perpetuate the guild's power over the people.

Can't they?

 

Why voters should not believe judicial candidates "pre-screened" and approved by attorney associations. The case of #GinoGiorgini, Part II. The composition of the "firing squad".

Voting, including voting for judicial candidates, is just about 2 weeks away, and voters need to make up their minds who to vote for.

In New York, voting for a candidate for the seat of a Supreme Court Justice is giving somebody the power to take away your property, split your family, take away your kids and/or put you or your loved one in jail for a very long time - and that power you give to that person for 14 years, if it is a County/Surrogate's/Family Court seat, then you give that same power for 10 years.

People who vote for just about anybody on the ballot thinking that nothing will happen to them because they are never going to be facing a court proceedings, should think again.  That can happen out of the blue, and then, again, your liberty, family integrity, children, good name, job, right to get a treatment or not to be forced into mental health evaluations or treatments - will be in the hands of the person you are voting for.

Usually, judicial candidates are "pre-screened" by "Independent committees" - consisting of mostly of attorneys and being part of appellate courts, or by "bar associations", organizations of attorneys.

Such "pre-screening" must create in the public eye the perception that the particular candidate approved by attorneys is qualified, competent and honest.

That, in reality, may be, and most likely, is, diametrically opposite from the truth.

Attorneys in this country, and in the State of New York, are regulated by judges, in a very direct way.  Judge give or revoke attorneys' licenses to work as attorneys ("practice law"), and the biggest misstep that an attorney may commit in this country - which usually leads to losing his license and livelihood - is to criticize a judge or judicial candidate, no matter whether it is fair or not.

That means that attorneys approving a judicial candidate as eligible most likely LIE to the voters in order to 1. preserve their own licenses and livelihoods, and 2.

Those few attorneys who do not succumb to the rule of fear by judges and continue to do their jobs and criticize judges, are severely and inevitably punished by monetary sanctions and/or by their law licenses being taken away.

On this blog, I collect the names of such courageous attorneys.

In 2018, the election year, New York has increased its onslaught on attorney speech and sanctioned several attorneys for criticism of the judiciary.

The most egregious case, right in the middle of the judicial election campaign, is the case of attorney Gino Giorgini, whose license was suspended, without a right to reinstatement (which means, the 3-months suspension may result in a permanent disbarment if attorney Giorgini continues to criticize judges for misconduct and does not bow his head and does not acknowledge that criticizing judges for misconduct was wrong) on September 25, 2018, effective October 25, 2018, 4 days away from now.

I have given an overview of that case in my previous blog article about this year's judicial election campaign.

In this blog, I will provide a the background of judges who decided the fate of attorney Giorgini and sent the intimidating message to other New York attorneys, in the middle of a judicial election campaign, not to criticize judges, and thus, to misinform the voters through their silence or praise of judges who do not deserve that praise.

In the article I plan to publish after this one, there will be a more thorough and in-depth analysis of constitutional violations (federal crimes under 18 U.S.C. 242) that the judges who decided Gino Giorgini's case committed (judges of New York's intermediate appellate court that handle attorney licensing call themselves "Justices", presuming about themselves that whatever comes from under their pens is "just", which is, as this case will show, far from being so).

Here are the "heroes" that suspended the law license of the attorney who practiced for 27 years, Gino Giorgini, for criticism of 3 judges:

1. David Friedman, Justice Presiding, who has not worked a single day in private practice as an attorney, but has always been a student law clerk to a judge, a law clerk to a judge, and then a judge;

2. Rosalyn H. Richter, a former prosecutor,

3. Richard T. Andrias, a 75-year old "Justice" who is 5 years past the New York mandatory retirement age for judges and who must be "serving" on a certification about his good mental health - which I will try to obtain from the New York State Governor's office on a Freedom of Information request.  "Justice" Andrias reportedly 
admitted to the bar in 1971, see the scan from NYS attorney registration site from today, but reportedly practiced for a year before the admission for a private firm,Gilbert, Segall & Young,  committing a crime of unauthorized practice of law (by the way, Justice Andrias is a licensed attorney and there is no statute of limitations for attorney misconduct in NY, but who is going to discipline Justice Andrias for UPL - Justice Andrias himself? or a criminal prosecutor whose license he controls?);

"Justice" Andrias has ruled in February of this year regarding one other New York State-licensed attorney, John O'Kelly, confirming the trial judge's right to sanction John O'Kelly for the same as he suspended attorney Giorgini, criticism of a judge, see the decision here and the analysis of the decision here.

4.  Barbara R. Kapnick - yet another member of the panel that supported punishment of attorney John O'Kelly for criticism of a judge;

Barbara Kapnick is a second "justice" on this panel who has not worked a single day as an attorney in private practice.  

Here is the today's scan of her attorney licensing history:

So, she was issued her law license in August of 1981.

And here is her official biography from the Appellate Division:

"Between 1980 and 1991, Justice Kapnick worked as a Law Clerk to both the Hon. Ethel B. Danzig and the Hon. Michael J. Dontzin in the Civil and Supreme Courts of New York County.

Justice Kapnick was elected to the Civil Court in 1991, appointed an Acting Supreme Court Justice in April 1994, and was elected to the Supreme Court, New York County in 2001. She was assigned to the Commercial Division in 2008, where she handled many high profile cases, and was appointed to the Appellate Division, First Department by Governor Andrew M. Cuomo in January 2014. She was a member of the Advisory Committee on Judicial Ethics from June 2008 - June 2018, and now serves on its Ethics Faculty."

So, judge Kapnick started to work as a law clerk for two judges before she was admitted to the bar, and worked as a law clerk for these two judges until she was herself elected a judge.

Her biography indicates that she has never worked in private practice, not a single day, and yet she "regulates" attorneys in private practice and tells them what is proper and what is not proper for them to do.  Having worked for judges her entire life, since 1980, for 38 years, "Justice" Kapnick, naturally, has a bias against attorneys daring to criticize their holinesses, judges.

Note also that being able to be assigned to a Commercial Division, and in Kings County no less, signals BIG connections this judge has, such appointments are not done without a lot of graft passing through a lot of hands.  Yet, this judge now "advises" on judicial ethics and is teaches about judicial ethics - which is important in review of her own decision in both John O'Kelly's case, and in Gino Giorgini's case.  The constitutional violations and violations of judicial ethics that this judge committed in both cases were done deliberately, as the judge is a teaching expert in the area of both attorney regulation and judicial ethics, and is sworn to uphold the U.S. Constitution - the text of which the judge presumably must know in order to be able to uphold it.


5.  Troy K. Webber, a new appointment to this court (2016) and a former career prosecutor

committed in suspending attorney Giorgini's law license in the middle of judicial election campaign in order to send an intimidating message to other New York State attorneys and force them to give to voters only their praises of judges and judicial candidates, in other words, forcing attorneys to misinform voters in order to prolong the reign of crooked judges and judicial candidates.

So, the panel that suspended the license of attorney Gino Giorgini consisted of 5 judges, out of them:

• 2 judges who never practiced a day as private attorneys and have always been either assistants to judges or judges for scores of years (Friedman, Kapnick);
• 2 former career prosecutors (Richter, Webber); and
• 1 past-retirement age judge who practiced law without a license for a year before being admitted to the bar and never punished for that.

Moreover, 2 out of 5 judges (Kapnick and Friedman) were members of the "firing squad" for another attorney, also for criticism of a judge, and also this year - that attorney was not subjected to attorney discipline, but the decision against him set a precedent to do that to him and to any other attorney who would dare to criticize a judge within the jurisdiction of the 1st Department, including attorney Giorgini.

So, at the very outset, the judicial panel formed to review and decide the fate of attorney Giorgini did not promise anything good to that attorney, as it was biased on the issue of attorney criticism of the judiciary at the very outset.

Let's see how the panel arrived at its decision to suspend attorney Giorgini for 3 months, but "until further order of the court" (which means "indefinitely", like in a "disbarment") - and during a judicial election campaign.

I will also dedicate a separate article to whether these Justices were properly authorized to "serve" on this court - which may affect validity of their decisions.

Stay tuned.

Voters, do not allow yourself to be duped in judicial elections. The cases of #BrettKavanuagh and #GinoGiorgini. The rules of the honorable American judiciary for the honorable American legal profession: lie about judges you are allowed to lie about, but don't you dare inform voters about true judicial misconduct of politically connected judges

Since February of 2016 and until this day a show has been going on in the U.S. where the leaders of the American legal profession and both parties, Democratic and Republican, have been showing its true colors, showing the public what REALLY is the so-called "rule of law" in America.

The true role of the U.S. Supreme Court in the U.S. "democracy"

Why since February of 2016?

The U.S. Supreme Court Justice Antonin Scalia died on or around Valentine's Day (the true date of death could not be determined because of the circumstances of his death).

Since that day, the American people had an opportunity to observe games played by both parties, Democratic and Republican, in the war as to who will replace the seat of the departed judge.

That happened with the death of Antonin Scalia.

That happened again with the retirement of the U.S. Supreme Court Justice Anthony Kennedy in July of 2018.

After the death of Antonin Scalia, the Republican majority of the Senate precluded the Democratic President Barack Obama from having the candidate he lawfully nominated during his presidency confirmed for the court.

The Democrats responded "in kind", trying to block two candidates for the U.S. Supreme Court nominated by the supposedly Republican President Donald Trump - Neil Gorsuch, in the place of the same deceased Antonin Scalia and instead of President Obama's nominee Merrick Garland, and Brett Kavanaugh.

While the attempt at mud-slinging at Judge Gorsuch were undertaken by Democrats, they were mild as compared to the smear campaign aimed at Brett Kavanaugh, an already-confirmed federal appellate judge with pristine reputation before he had the misfortune to be nominated by the "wrong" President.

What did the circus around nomination to the U.S. Supreme Court showed to the American people.

The importance of the identity of U.S. Supreme Court justices and who appoints them.

And why are those things so important?

Judges are supposed to be neutral and impartial, no matter to which party the President who nominated the particular judge belonged.

And judges are supposed to rule based on the written law - and not make law, this is (based on Article I of the U.S. Constitution) the exclusive right of the U.S. Congress - and not on their personal or political views or affiliations.

Well, that concept goes out the door given the open partisan fight over which party appoints a judge to the highest court in the country and when supporters and opponents of each party and each party's judicial nominee openly claim that one (1) person nominated by the "wrong" party and sitting for life will change the law of a supposedly democratic country with a 348 000 000 population for decades, for as long as that nominee sits on the country's highest court.

The reason is that, while U.S. legal scholars, professors, who are afraid for their law licenses and ability to teach at prestigious law schools controlled through accreditation by the American Bar Association, an Illinois non-profit corporation with secret, including foreign, membership, are afraid to call things like they are,

 foreign legal scholars - I read law reviews article by English, Nigerian and Russian legal scholars - openly state that in the U.S. the highest court in the country MAKES LAW, and CHANGES THE CONSTITUITON through their interpretation, even though there is no such power in the U.S. Constitution given to the U.S. Supreme Court, moreover, even though the lawmaking power is given exclusively to the U.S. Congress (Article 1 of the U.S. Constitution) and even though the Law of the Land, contrary to the routinely expressed "beliefs" of American law professors, lawyers, judges and many non-lawyer members of the American public, does not include decisions of the U.S. Supreme Court interpreting federal and state laws and the U.S. Constitution.  The Law of the Land includes exclusively 3 things, none of which are decisions of the U.S. Supreme Court:

1. The text of the U.S. Constitution;
2. The text of federal statutory laws made (by the U.S. Congress) in accordance with the U.S. Constitution; and
3. International treaties ratified by the United States.

That's all.

In other words, legal scholars who are not afraid that their law licenses will be revoked and that they will be booted into the street from the ABA-controlled American law schools, plainly state that the U.S. Supreme Court usurped legislative powers from the U.S. Congress and acts as a super-legislative body, making its decisions "binding" on the country INSTEAD of the constitutional Law of the Land - and making itself a sort of a collective 9-people monarchy.

The circus around who is going to take the seat of a deceased or a retired U.S. Supreme Court justice only confirms that proposition.

The U.S. Constitution as a sacred text, the U.S. Supreme Court as the only oracle that can read and discern the meaning of that sacred text, the divine power of the U.S. Supreme Court judges (and other judges), the taboo to criticize that divine power and exceptions from that taboo

The circus about who will take the seat of a deceased or a retired U.S. Supreme Court judge was not the only show displaying for the American public the true colors of the American legal profession - which the American judiciary is regulating and is, at the same time, a part of (every American judge, including federal judges, is an attorney licensed by a state intermediate appellate (State of New York) or by the state highest (all other states) court).

Imagine a setup where you are appointed by the people to regulate a certain profession.  Let's say, you are appointed to regulate plumbers.

How will you handle the regulation?  Wouldn't you say that one of the main requirements to such regulation is that the regulator must be impartial, fair, regulate only for the purposes benefiting the people and not himself?

Now let's look at how the judiciary (part of the legal profession) regulates the legal profession.

Here are the rules that the judiciary, the U.S. Supreme Court, to be more precise, followed by other courts, created for all American judges:

1.  judges can violate their own Constitutional oath of office and people's constitutional (human) rights with impunity - the victims may not sue them and may not obtain any legal remedy, inside or outside the country, for the wrongs inflicted upon them by judicial corruption or misconduct.  That "rule" was set by two "policies" of the U.S. Supreme Court, policies not only making law (which the judicial branch of the federal government does not have authority to do under Article III of the U.S. Constitution), but also changing the U.S. Constitution and rendering the judges' own oath to support, defend and maintain the U.S. Constitution into a cruel joke:

• absolute judicial immunity for malicious and corrupt acts - "on the bench" (in office), but stretched by courts far outside acts by judges in their judicial capacity, see e.g. cases from New York federal courts 
• Shtrauch v. Dowd, the U.S. District Court for the Northern District of New York, dismissed without review on the merits in 2015 on judicial immunity grounds,  see also a New York Law journal article - without criticism of the judge - about that case, dismissal on judicial immunity grounds affirmed by the U.S. Court of Appeals for the 2nd Circuit in 2016 (the judge ordered physical removal of a Jewish pro se litigant by a Nazi sympathizer armed court guard AFTER the judge recused and had no authority over the case, the removal was in retaliation for the motion to recuse); 
• Pacherille v. Burns, filed in 2013, dismissed by the U.S. District Court for the Northern District of New York (Judge Brian Burns "wisely" changed his attorney mid-litigation and hired a law firm where the presiding magistrate judge was a law partner and continued to maintain ties with the law firm), judicial immunity was granted for actions of Judge Burns in filing a fabricated criminal complaint AS A COMPLAINANT against the father of a teenager who Burns sent to jail in retaliation for the father's plea of mercy to Burns, in a letter, mentioning Burns himself being a father.
• judges refuse to recognize part of the "law of the land", international treaties ratified by the U.S. as "self-executing", directly applicable and binding upon American national courts - I have recently presented a law review article at a conference "Seeking Justice Beyond Our Shores: Americans and International Human Rights"  on that subject, with a large bibliography listing cases decided by the U.S. Supreme court honoring international treaties where property rights were concerned and refusing to do that when individual liberties were concerned, and showing how the U.S. Congress took the hint from the U.S. Supreme Court and now ratifies all international treaties protecting human rights as "non-self-executing" for Americans, denying Americans out-of-the-country judicial review that citizens, residents and visitors of over 100 countries, including countries that the U.S. considers non-democratic, have.

2. judges may accept gifts - in money and in kind - from parties in litigation and attorneys appearing in front of them.  Recall Justice Scalia hunting trips, where he was found dead, recall that the U.S. Supreme Court allows money gifts for judges, and that SCOTUS judges accept all-expenses-paid trips and speaking and lecture fees from law schools, bar associations and foreign governments.

3. despite giving themselves absolute immunity for corruption and engaging in corruption, accepting gifts, judges also declare that their honesty and integrity is presumed.

4.  Moreover, as the chief ethicist (at this time) of the American Bar Association Margaret Tarkington announced recently in her book "The Voice of Justice", the judiciary, the regulator of the legal profession, use arguments of medieval English kings that king's (and the King's Court's) power is divine and that criticizing it in any way is treason - and created the ultimate taboo for the profession the judiciary regulate, attorneys, against speaking in the criticism of the judiciary.

So, we have:

1. the 1st Amendment prohibiting restriction of speech;

2. multiple precedents of the U.S. Supreme Court based on the 1st Amendment that the U.S. Supreme Court claims to be binding on all courts in the country - that prohibits regulation of speech based on its content, and especially when it is criticism of the government; but

3. that does not apply to attorney speech in criticism of their own regulator, the judiciary.

For attorneys criticizing judges is an ultimate taboo, and criticism of judges even with the most iron-clad proof inevitably leads to retaliatory suspension of the attorney's law license and to destruction of the attorney's livelihood.

Moreover, judges have invented theories of quid pro quo, that attorneys supposedly lay down their 1st Amendment rights in exchange of permission from the judiciary to earn a living by "practicing law".

And, the judiciary includes into rules of attorneys they regulate the requirement that the attorneys praise judges and judicial candidates to voters, "maintaining public trust" in the integrity of the judiciary, and not "spread false information" about judges AND judicial candidates during elections, while what is false is defined not in defamation lawsuits of judges and judicial candidates against lawyers, but in secret disciplinary proceedings without strict evidentiary rules and standards.

And, the judiciary, on top of everything else, never clearly defined what the "practice of law" is making the whole regulation illegal under the U.S. Supreme Court own precedents, but made it a crime to practice law without the judiciary's permission, and define what WAS the practice of law backwards, on a case by case basis, violating constitutional prohibitions on bills of attainder and ex post facto laws.

And, the judiciary defines as "practice of law" much more actions for people who have lost their law license than for the people who have never had it.  As an example, anybody, with any level of education, can work as a secretary or assistant in a law office, but it is the crime of the "unauthorized practice of law" for a suspended or disbarred attorney.

Let's go back to our hypothetical appointment of a regulator of plumbers.

Imagine that you, as a regulator, issue rules that:

1. you define what plumbing is, and define it in arrears, backwards;

2. you say that unauthorized practice of plumbing is a crime;

3. you say that, if a person lost your permit for plumbing, and then helps a plumber, he is guilty of a crime - while a person who had never had your permit for plumbing, can do the same, and it will not be a crime for him;

4. you give yourself immunity in your actions in regulating plumbers, for corruption and misconduct;

5. you allow yourself to accept gifts from plumbers for whom you issue permits to work and can revoke them at your whim;

6. you impose a code of silence, a taboo, as to criticism of yourself by people whose livelihood you control, the plumbers;

7. morever, you demand plumbers who are forced into silence about your shortcomings and misconduct to praise to the public your honesty and integrity, allowing to perpetuate your power as a regulator and be re-appointed (re-elected).

That is what the judiciary is doing.

And the taboo to criticize it for attorneys is so strong that criticizing a judge, for any reason, is normally considered - as Professor Tarkington acknowledged - a professional suicide for an attorney.

The American legal profession tried to spread that taboo, now "applicable" only to attorneys, to Donald Trump when he was still running for President and when nobody really believed that he will become President.  When he criticized a judge for bias and appearance of impropriety, there was a lot of mud-slinging aimed against Trump claiming that it was improper for him to exercise his 1st Amendment rights in criticizing a judge.

Yet, when Trump became President and nominated first one, then another judge to the U.S. Supreme Court, the rules of engagement for the legal profession have changed.

Suddenly, the taboo on criticism by attorneys, law students and law professors of the judiciary have lifted and the legal profession engaged in a collective, organized, mud-slinging against Judge Brett Kavanaugh.

Yet, if you think for one second that, because of Judge Kavanaugh's case, the taboo for attorneys to criticize judges, was lifted forever, think again.

THE TABOO ON CRITICISM OF JUDGES BY ATTORNEYS REMAIN IN PLACE AND WAS REINFORCED TO HELP JUDICIAL CANDIDATES DUPE THEIR VOTERS

On September 25, 2018 the New York State Supreme Court Appellate Division 1st Judicial Department, in the middle of judicial election campaign in New York, suspended for 3 months without an automatic right of reinstatement, "until further order of the court" (which amounts to an indefinite disbarment) attorney Gino Giorgini, an attorney with 27 years of experience.

You know for what?

For the attorney's written pleadings in 2005 (!), 13 years ago, and in 2008, 10 years ago, criticizing two judges for their apparent incompetence and dishonesty in deciding cases.

One of the two judges, Thomas Whelan, has a wife who is also a judge, Teresa Whelan, and who, "coincidentally", is running a re-election campaign at this very time.

Note that the article names Teresa Whelan's mother as a prominent figure in the local government, specifically she played a big role in choosing who is and who is not going to be elected in Suffolk County:

"Whelan is the scion of a prominent Democratic family — her mother, Joan Bryant, is a former deputy Suffolk elections commissioner and was a major party fundraiser for the late party chair Dominic Baranello."

And, both the daughter, and the son-in-law, of the "former deputy Suffolk elections commissioner" and of the "major party fundraiser for the late party chair Dominic Baranello" "coincidentally" became judges in that same county.

Nothing too crooked.

And,  the daughter of that "major fundraiser" "coincidentally" became also a president of the Suffolk County Women's Bar Association.

And, "coincidentally", an attorney was suspended for criticism of one of the Whelan judges - for criticism that occurred 13 years ago - during the re-election campaign of the other Whelan judge, as a point of intimidation to that attorney and to all other attorneys.

And suspended for three months - until December 25, 2018, and "until further order of the court", as a warning - peep a word of criticism during the re-election campaign, and your law license will not be reinstated.

Not too crooked either.

And you know what pro-democratic legal blogs are doing?  Are they adamant that the attorney's suspension for criticism of judges, and for well-deserved criticism, too, was unconstitutional?

Far from it.

"Above the law" gleefully relishes in the "discipline".

Same as the mud-slinging of Judge Kavanaugh, for which the ABA has lifted the strict taboo of criticism on the judiciary, kicking attorneys who have violated that taboo by criticizing judges supported by "party fundraiser" connections is also allowed by the regulators.

So, to hell with the Gino Giorgini's 1st Amendment right to say what he said in his 13-year-old and 10-year-old criticisms of judges.

To hell as to the fact that "Above the Law" does not even know which cases attorney Giorgini was punished for - because the disciplinary court, and the court system of the State of New York and of the Suffolk county HID those cases, misidentifying them, and hiding their index numbers from the disciplinary case, and from the e-docket of the New York State Supreme Court.

To hell that the whole disciplinary proceeding was jurisdictionally defective, because it was started in the 2nd Department, while one of the judges of the court that filed the charges was the object of attorney Giorgini's criticism.

And to hell with the fact that criticism by attorney Giorgini of Judge Whelan - at least, judging by other publications in the mainstream press - was RICHLY deserved, and was baby talk as compared to what kind of criticism Judge Thomas Whelan should have been subjected to.

See what Judge Whelan did reported and acknowledged here, by the top judge of the State of New York, and here, and here, where the top state court reversed Judge Whelan's decision appointing his friends and political allies to control (and drain) lucrative foreclosed properties.

Judging by the listing of what Judge Whelan did - the listing by courts and by the press - Judge Whelan should have been taken off the bench, disbarred and criminally prosecuted.

Instead, his critic is wrongfully suspended - and the legal profession is vulgarly and with vile, celebrates it, by kicking their colleague who was WRONGFULLY suspended  - which only adds to the "honorable" portray of the American legal profession that obediently kicks or supports who it is told by the government to kick or support, while the government holds the legal profession hostage through controlling attorneys' law licenses.

Remember, attorneys is YOUR tool of access to justice, and if that tool is in the iron grasp of the government and prohibited to give you TRUE information about who you are voting for, your hopes of access to true and fair remedies are … well, they are pooped.

And, judges are also your tools of obtaining effective remedies for your legal wrong, members of the public, and when judges get elected and re-elected through fraud, through intimidation of attorneys, the best and most expert witnesses as to judicial misconduct and unfitness, you are even more pooped.

It is interesting to mention that the New York State Commission for Judicial Conduct, where Judge Thomas Whelan was turned in for cronyism, refused to prosecute him claiming, despite obvious evidence of his misconduct, acknowledged by higher courts - you know what?

That the rules of appointing fiduciaries were not set at the time Judge Thomas Whelan was wheeling and dealing appointing his friends and political contributors.

Which was a screamingly false ground for dismissal, since there were rules in place for centuries that a judge should avoid impropriety and even an appearance of impropriety which is embedded in the New York Judicial Code of Conduct for a very long time.

As well as the rule that a judge must recuse from the case when a reasonable person would believe that the judge cannot be impartial in the case - and appointing personal friends and political contributors to lucrative fiduciary positions does just that.

So, most likely, the impolite language of the attorney's pleadings was just the top of the iceberg when the attorney simply lost it and could not be civil any longer when dealing with rampant judicial corruption affecting his clients.

The only thing he was "guilty" of was incivility, but not the essence of his accusations against Judge Whelan.

As to accusations against other judges, the disciplinary decision makes it impossible to verify whether attorney Giorgini's accusations were true or not, since the decision purged the index No. of the case and the name of the Appellate judge involved in the second group of charges, hiding from the public the true reason for the punishment and making it impossible to verify whether the discipline imposed was fair or not.

But why, at the same time, such a delay and such a hurry in punishing an attorney?

Why punish an attorney for something he wrote 13 and 10 years ago, respectively, drag the case for years and finalize it at the height of a judicial election campaign?

The answer is very clear - the disciplinary decision is to be used to intimidate other attorneys and deter them from criticizing judges, any judges, especially "the other Whelan judge", Teresa Whelan, and to block the flow of truthful information to the voters about dishonesty and unfitness of judicial candidates.

While professional regulation of attorneys was introduced not to maintain the "divine power" of judges, and not to prevent attorneys from ever gaining for their clients the clients' constitutional right to impartial judicial review.

On the very opposite.

The regulation of attorneys was introduced under a pretext of protecting the public from dishonest and incompetent lawyers.

There is not a word in the decision suspending the law license of attorney Gino Giorgini about his dishonesty or incompetence.

There is not a word in that decision that the two judges he criticized filed and won a defamation lawsuit against him, proving to a jury in their respective defamation cases that attorney Giorgini falsely criticized and defamed them.

No, the disciplinary proceedings were a backroom deal continuing the unconstitutional taboo that exists only to continue to dupe the voters by gagging attorneys and preventing them, by the rule of fear, the fear to lose their livelihood and to starve, from giving the voters truthful information about who they vote for in judicial elections.

Consider that when going to the polls come November.

Consider that the supposedly "honorable" legal profession that "screens" candidates for judicial office "for you" is a paid PR-firm of the judicial candidates.

Consider that licensed attorneys are paid by the judiciary through "permission" to earn a living with a law license and held hostage by the same judiciary if they give voters true information about unfitness or dishonesty of their regulator, the judiciary, including candidates for judicial office.

Read financial disclosure reports about your judicial candidates on the site of the New York State Board of Elections.

Run the background of donors, including on the New York State Attorney directory, see if any donors are attorneys or large corporations.

Inform yourself as to how justice is bought in the State of New York and in the U.S. in general.

Do not allow yourself to be duped.