The speech of US AG Bill Barr on the disruptive role of the judiciary in the American democracy

I am publishing the portion of Bill Barr's speech about the role of the judiciary in the legislative process and the executive decision-making without comment for now.

I do not endorse every single argument in this speech, but I do consider the speech an important food for thought for every American citizen and voter.

Time permitting, I will try to provide comments on sections of the speech regarding the role of the judiciary issue by issue.

Here is the link to the full text of the speech.


"Let me turn now to what I believe has been the prime source of the erosion of separation-of-power principles generally, and Executive Branch authority specifically. I am speaking of the Judicial Branch. 

In recent years the Judiciary has been steadily encroaching on Executive responsibilities in a way that has substantially undercut the functioning of the Presidency. 

 The Courts have done this in essentially two ways: 

 First, the Judiciary has appointed itself the ultimate arbiter of separation of powers disputes between Congress and Executive, thus preempting the political process, which the Framers conceived as the primary check on interbranch rivalry. 

Second, the Judiciary has usurped Presidential authority for itself, either 

(a) by, under the rubric of “review,” substituting its judgment for the Executive’s in areas committed to the President’s discretion, or 

(b) by assuming direct control over realms of decision-making that heretofore have been considered at the core of Presidential power. 

The Framers did not envision that the Courts would play the role of arbiter of turf disputes between the political branches. 

 As Madison explained in Federalist 51, “the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.” 

By giving each the Congress and the Presidency the tools to fend off the encroachments of the others, the Framers believed this would force compromise and political accommodation. 

The “constitutional means” to “resist encroachment” that Madison described take various forms. 

As Justice Scalia observed, the Constitution gives Congress and the President many “clubs with which to beat” each other. 

Conspicuously absent from the list is running to the courts to resolve their disputes.

That omission makes sense. 

When the Judiciary purports to pronounce a conclusive resolution to constitutional disputes between the other two branches, it does not act as a co-equal. 

And, if the political branches believe the courts will resolve their constitutional disputes, they have no incentive to debate their differences through the democratic process — with input from and accountability to the people. 

And they will not even try to make the hard choices needed to forge compromise. 

The long experience of our country is that the political branches can work out their constitutional differences without resort to the courts. 

In any event, the prospect that courts can meaningfully resolve interbranch disputes about the meaning of the Constitution is mostly a false promise. 

How is a court supposed to decide, for example, whether Congress’s power to collect information in pursuit of its legislative function overrides the President’s power to receive confidential advice in pursuit of his executive function? 

Nothing in the Constitution provides a manageable standard for resolving such a question. 

It is thus no surprise that the courts have produced amorphous, unpredictable balancing tests like the Court’s holding in Morrison v. Olson that Congress did not “disrupt the proper balance between the coordinate branches by preventing the Executive Branch from accomplishing its constitutionally assigned functions.” 

Apart from their overzealous role in interbranch disputes, the courts have increasingly engaged directly in usurping Presidential decision-making authority for themselves. 

One way courts have effectively done this is by expanding both the scope and the intensity of judicial review. 

In recent years, we have lost sight of the fact that many critical decisions in life are not amenable to the model of judicial decision-making. 

They cannot be reduced to tidy evidentiary standards and specific quantums of proof in an adversarial process.  

They require what we used to call prudential judgment. 

They are decisions that frequently have to be made promptly, on incomplete and uncertain information and necessarily involve weighing a wide range of competing risks and making predictions about the future. 

Such decisions frequently call into play the “precautionary principle.” 

This is the principle that when a decision maker is accountable for discharging a certain obligation – such as protecting the public’s safety – it is better, when assessing imperfect information, to be wrong and safe, than wrong and sorry. 

It was once well recognized that such matters were largely unreviewable and that the courts should not be substituting their judgments for the prudential judgments reached by the accountable Executive officials. 

This outlook now seems to have gone by the boards. 

Courts are now willing, under the banner of judicial review, to substitute their judgment for the President’s on matters that only a few decades ago would have been unimaginable – such as matters involving national security or foreign affairs. 

The Travel Ban case is a good example. 

There the President made a decision under an explicit legislative grant of authority, as well has his Constitutional national security role, to temporarily suspend entry to aliens coming from a half dozen countries pending adoption of more effective vetting processes. 

The common denominator of the initial countries selected was that they were unquestionable hubs of terrorism activity, which lacked functional central government’s and responsible law enforcement and intelligence services that could assist us in identifying security risks among their nationals seeking entry. 

Despite the fact there were clearly justifiable security grounds for the measure, the district court in Hawaii and the Ninth Circuit blocked this public-safety measure for a year and half on the theory that the President’s motive for the order was religious bias against Muslims. 

This was just the first of many immigration measures based on good and sufficient security grounds that the courts have second guessed since the beginning of the Trump Administration. 

The Travel Ban case highlights an especially troubling aspect of the recent tendency to expand judicial review. 

The Supreme Court has traditionally refused, across a wide variety of contexts, to inquire into the subjective motivation behind governmental action. 

To take the classic example, if a police officer has probable cause to initiate a traffic stop, his subjective motivations are irrelevant. 

And just last term, the Supreme Court appropriately shut the door to claims that otherwise-lawful redistricting can violate the Constitution if the legislators who drew the lines were actually motivated by political partisanship. 

What is true of police officers and gerrymanderers is equally true of the President and senior Executive officials. 

With very few exceptions, neither the Constitution, nor the Administrative Procedure Act or any other relevant statute, calls for judicial review of executive motive. 

They apply only to executive action. 

Attempts by courts to act like amateur psychiatrists attempting to discern an Executive official’s “real motive” — often after ordering invasive discovery into the Executive Branch’s privileged decision-making process — have no more foundation in the law than a subpoena to a court to try to determine a judge’s real motive for issuing its decision. 

And courts’ indulgence of such claims, even if they are ultimately rejected, represents a serious intrusion on the President’s constitutional prerogatives. 

The impact of these judicial intrusions on Executive responsibility have been hugely magnified by another judicial innovation – the nationwide injunction. 

First used in 1963, and sparely since then until recently, these court orders enjoin enforcement of a policy not just against the parties to a case, but against everyone. Since President Trump took office, district courts have issued over 40 nationwide injunctions against the government. 

By comparison, during President Obama’s first two years, district courts issued a total of two nationwide injunctions against the government. Both were vacated by the Ninth Circuit. 

It is no exaggeration to say that virtually every major policy of the Trump Administration has been subjected to immediate freezing by the lower courts. 

No other President has been subjected to such sustained efforts to debilitate his policy agenda. 

The legal flaws underlying nationwide injunctions are myriad. 

Just to summarize briefly, nationwide injunctions have no foundation in courts’ Article III jurisdiction or traditional equitable powers; they 

• radically inflate the role of district judges, allowing any one of more than 600 individuals to singlehandedly freeze a policy nationwide, a power that no single appellate judge or Justice can accomplish; 
• they foreclose percolation and reasoned debate among lower courts, often requiring the Supreme Court to decide complex legal issues in an emergency posture with limited briefing; 
• they enable transparent forum shopping, which saps public confidence in the integrity of the judiciary; and 
• they displace the settled mechanisms for aggregate litigation of genuinely nationwide claims, such as Rule 23 class actions. 

Of particular relevance to my topic tonight, nationwide injunctions also disrupt the political process. 

There is no better example than the courts’ handling of the rescission of DACA. 

As you recall, DACA was a discretionary policy of enforcement forbearance adopted by President Obama’s administration. 

The Fifth Circuit concluded that the closely related DAPA policy (along with an expansion of DACA) was unlawful, and the Supreme Court affirmed that decision by an equally divided vote. 

Given that DACA was discretionary — and that four Justices apparently thought a legally indistinguishable policy was unlawful —President Trump’s administration understandably decided to rescind DACA. 

Importantly, however, the President coupled that rescission with negotiations over legislation that would create a lawful and better alternative as part of a broader immigration compromise. 

In the middle of those negotiations — indeed, on the same day the President invited cameras into the Cabinet Room to broadcast his negotiations with bipartisan leaders from both Houses of Congress — a district judge in the Northern District of California enjoined the rescission of DACA nationwide. 

Unsurprisingly, the negotiations over immigration legislation collapsed after one side achieved its preferred outcome through judicial means. 

A humanitarian crisis at the southern border ensued. 

And just this week, the Supreme Court finally heard argument on the legality of the DACA rescission. 

The Court will not likely decide the case until next summer, meaning that President Trump will have spent almost his entire first term enforcing President Obama’s signature immigration policy, even though that policy is discretionary and half the Supreme Court concluded that a legally indistinguishable policy was unlawful. 

That is not how our democratic system is supposed to work. 

To my mind, the most blatant and consequential usurpation of Executive power in our history was played out during the Administration of President George W. Bush, when the Supreme Court, in a series of cases, set itself up as the ultimate arbiter and superintendent of military decisions inherent in prosecuting a military conflict – decisions that lie at the very core of the President’s discretion as Commander in Chief.  
This usurpation climaxed with the Court’s 2008 decision in Boumediene. 

There, the Supreme Court overturned hundreds of years of American, and earlier British, law and practice, which had always considered decisions as to whether to detain foreign combatants to be purely military judgments which civilian judges had no power to review. 

For the first time, the Court ruled that foreign persons who had no connection with the United States other than being confronted by our military on the battlefield had “due process” rights and thus have the right to habeas corpus to obtain judicial review of whether the military has a sufficient evidentiary basis to hold them. 

In essence, the Court has taken the rules that govern our domestic criminal justice process and carried them over and superimposed them on the Nation’s activities when it is engaged in armed conflict with foreign enemies. 

This rides roughshod over a fundamental distinction that is integral to the Constitution and integral to the role played by the President in our system. 

As the Preamble suggests, governments are established for two different security reasons – to secure domestic tranquility and to provide for defense against external dangers. 

These are two very different realms of government action. 

In a nutshell, under the Constitution, when the government is using its law enforcement powers domestically to discipline an errant member of the community for a violation of law, then protecting the liberty of the American people requires that we sharply curtail the government’s power so it does not itself threaten the liberties of the people. 

Thus, the Constitution in this arena 

• deliberately sacrifices efficiency; 
• invests the accused with rights that that essentially create a level playing field between the collective interests of community and those of the individual; and 
• dilutes the government’s power by dividing it and turning it on itself as a check, 
• at each stage the Judiciary is expressly empowered to serve as a check and neutral arbiter. 

None of these considerations are applicable when the government is defending the country against armed attacks from foreign enemies. 

In this realm, the Constitution is concerned with one thing – preserving the freedom of our political community by destroying the external threat. 

Here, the Constitution is not concerned with handicapping the government to preserve other values. 

The Constitution does not confer “rights” on foreign enemies. 

Rather the Constitution is designed to maximize the government’s efficiency to achieve victory – even at the cost of “collateral damage” that would be unacceptable in the domestic realm. 

The idea that the judiciary acts as a neutral check on the political branches to protect foreign enemies from our government is insane. 

The impact of Boumediene has been extremely consequential. 

For the first time in American history our armed forces is incapable of taking prisoners. 

We are now in a crazy position that, if we identify a terrorist enemy on the battlefield, such as ISIS, we can kill them with drone or any other weapon. 

But if we capture them and want to hold them at Guantanamo or in the United States, the military is tied down in developing evidence for an adversarial process and must spend resources in interminable litigation. 

The fact that our courts are now willing to invade and muck about in these core areas of Presidential responsibility illustrates how far the doctrine of Separation of Powers has been eroded."  

#TheCrimeToBeNamedMelania, Part 9. The bought Judge John F. Lambert issues his bought "kind-of" civil contempt and "kind-of" legitimate decision in the Oneonta Hotel case

I have published so far 8 articles about the saga regarding the Oneonta City Hotel where, likely, developers who have backed up Rep. (D) Antonio Delgado in his election are pushing for the payoff.

And, that payoff is that Rep. Delgado's private attorney, by "coincidence", City Attorney for the City of Oneonta, NY, where Rep. Delgado's new posh district office is located, through fabricated court proceedings, and with the help of a corrupt judge and his corrupt law clerk, have pushed the family of Romanian Americans, lawful immigrant owners of the Oneonta Hotel that housed the poor to stop housing the poor next to the posh new luxury office of Rep. Delgado and be forced by court-imposed fees to sell the hotel to (likely) Delgado-backing developers.

Not to mention that both respondents, Nicolae and Melania Pervu, are open and active supporters of Donald Trump, political opponent of Rep Delgado.

To see all articles of this cycle, please, type "Melania" in the search window on the right.

I hoped against hope that Judge Lambert would have the decency to recuse from this case where he has acted - and it is confirmed in the press - as legal advisor of one of the parties.

Unfortunately,  that did not happen.

This article, the next article in the cycle #TheCrimeOfBeingNamedMelania, is about the super-incompetent and super-corrupt decision Judge John F. Lambert has made in this case.

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Everything in this judicial proceeding is wrong.

JURISDICTIONAL DEFECTS.  GENERAL

First, the petition did not contain the names of the tenants - and, thus, should have been dismissed, as it does not satisfy due process requirements in foreclosure proceedings.

Second, the judge was disqualified from presiding over the case by Judiciary Law 14 (a jurisdictional statute), since his law clerk Mark Oursler (who, no doubt, then researched an penned Judge Lambert's final decision in the case) 

• acted as a legal representative of the petitioner and 
• gave legal advice to the petitioner to file a motion for contempt on a Show Cause (court's) order, as well as 
• gave legal advice to the City as to 
• what kind of evidence and 
• what kind of recommendations for PUNISHMENT to include into their motion/application for Judge Lambert's order to show cause
  

The judge then signed the order - and now have found for his own client, the petitioner, whom the judge de facto represented in this proceeding through his law clerk, as reported by Oneonta City Attorney Merzig himself, in his interview to Allotsego.com.

This is a very clear case of judicial misconduct for which the judge should be taken off the bench and disbarred, together with his law clerk Mark Oursler.

New York State Judiciary Law 14, 16 and 17 prohibits a judge to also be an attorney in his own court and in the case he is presiding in and where he gives legal advice to a party.

Third, the attorney for the Petitioner, David Merzig, while pretending that he represents the City of Oneonta in this proceeding, pursues the interests and wishes of his private client Rep. Antonio Delgado, whom Merzig has been representing - and sharing his office with - since his election campaign.

So, 

• the petition was jurisdictionally defective - thus, any and all orders based on it other than an order of dismissal, are also jurisdictionally defective and void,
• the judge was disqualified since his law clerk acted as a legal representative of the petitioner, giving the City of Oneonta legal advice as to how to proceed in the case, and
• the City of Oneonta's attorney was disqualified, since, in these proceedings, he pursued, without disclosure to the court or opponents, interests of his private client, Rep. Antonio Delgado.

And, jurisdictional defects make a decision in such a case not just void-able, but VOID, as in - never existed, as in - ZERO, a nullity, and any and all enforcement of such a decision - a violation of the respondents' civil rights.

Yet, we have a decision in the case - by Judge Lambert who, despite his established and publicized role as a legal advisor (through his law clerk Mark Oursler) of petitioner the City of Oneonta, which disqualified the judge, sticks like glue to this case.

Here is this masterpiece in full.

The decision really makes one wonder how much Judge Lambert has gotten from real parties in interest - developers that want the Pervus to be forced to sell the Oneonta Hotel for a pittance.

Here we go.  After Judge Lambert quotes a page-full of precedents setting (incompletely and incorrectly) the law applicable to the proceedings in front of 

 here is the decision Judge Lambert has made:  

And here are just some problems with this decision.  

JURISDICTIONAL DEFECT.  CRIMINAL PROCEEDINGS FASHIONED AS CIVIL CONTEMPT OF COURT WITHOUT AN INDICTMENT OF THE GRAND JURY, NOT BROUGHT BY THE COUNTY DISTRICT ATTORNEY AND NOT PROVIDING CRIMINAL PROCEDURAL PROTECTIONS

There is one big problem with the decision though - on top of jurisdictional defects enumerated above.

Neither Judge Lambert, nor his (imbibing) law clerk Mark Oursler know the difference between a civil and a criminal contempt - even if one or the other would be screaming into their faces.

While the distinction is very simple and clear, and procedural protections in criminal contempt proceedings, as opposed to civil contempt proceedings, are much, much bigger.

The difference between civil and criminal contempt is this:  in a civil contempt setting, the contemnor (the person who has supposedly committed civil contempt of court) "holds the keys of the jail cell in his hands).

In other words, the purpose of a civil contempt proceeding is not to secure PUNISHMENT, but to secure ENFORCEMENT of a court order, to make the contemnor COMPLY with the court order that he/she claimed to have violated.

With that in mind, let's look at the end of Judge Lambert's court order.

The court order signed by Judge Lambert contains no indication whatsoever that the respondents, Nicholas and Malenia Pervu, may purge their contempt by complying with the court order that the City of Oneonta claims they have violated.

It is a pure punishment order.

And it was meant from the very beginning as a punishment order - since Mark Oursler, when giving legal advice to the City of Oneonta's (and Rep. Delgado's) attorney David Merzig, specifically told them to include their "recommendations for PUNISHMENT".



Which means - it was never meant to be aa CIVIL contempt proceeding, it was meant from the very beginning to be a CRIMINAL contempt proceeding, without jurisdiction.

And, Mark Oursler and Judge Lambert who have authored the decision, quoting, for show, to CIVIL contempt case law, know full well that what they are doing is just putting a SMOKE SCREEN, so that the decision would LOOK legitimate - even when they know for sure that it is not.  But, they also know that it is very expensive and very difficult to appeal the crap they have created, under the color of state law.

But, it also means, that - the court had NO JURISDICITON over a CRIMINAL CONTEMPT proceedings.

The proceedings were, in their nature, criminal contempt proceedings, and must have been named:

People of the State of New York v. Nicolae Pervu, Melania Pervu, Defendants.

And, such proceedings could only be brought in New York Supreme Court through a grand jury proceeding - see New York Criminal Procedure Law 10.20 (2).

Judge Lambert, who has worked as a criminal prosecutor for many years, and then as a judge presiding over criminal proceedings, also for many years,

 must know that.

If he does not know elementary law regarding his own authority or lack thereof, he should be taken off the bench.

Because, by New York State Law, Supreme Court (where the proceedings were held) may receive jurisdiction over a CRIMINAL case only through an indictment of the grand jury - which never happened in the Pervu case.

Nor did the City of Oneonta attorney David Merzig have a right to prosecute a criminal case - instead of the Otsego County District Attorney, as is his exclusive right, to prosecute criminal cases, under New York County Law 700.

And, by the way, the amount of $25,000 that Judge Lambert required respondents to immediately post as a de facto FINE far exceeds the maximum amount  of fines allowed for a FELONY.  While Criminal contempt is only a misdemeanor, for which the allowable fine is to be not exceeding $1,000 (New York State Penal Law 80.05).

Not to mention that in criminal contempt proceedings award of attorney fees and court costs is not allowed.

But what IS allowed is:

• defendants' right to remain silent;
•  discovery;
•  a burden of proof beyond the reasonable doubt.

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Even if all of the above arguments were not true - which it is - the decision still sucks.

NO FINDING THAT THE PETITION WAS LAWFUL

There is no finding in the decision that the City of Oneonta's petition was lawful.  And it was not - it did not name tenants, and, as I wrote before, an action in a de facto foreclosure cannot stand without naming every single tenant who lived in the Oneonta Hotel at the start of proceedings and including them as parties in the court proceedings.

NO FINDING THAT THE (SUPPOSEDLY) VIOLATED ORDER WAS LAWFUL

 Judge Lambert cited a lot of caselaw that a finding in civil contempt can be only for violation of a LAWFUL court order, so whether the court order that respondents Oneonta Hotel owners supposedly violated was part of the City of Oneonta's burden of proof.

Yet, there is no indication in the decision that the petitioner has offered proof or has proven that the order that the respondents supposedly violated was lawful.

And we know that it was not.

Because, 

1. it was made upon a jurisdictionally defective petition, and 
2. it was made on a legal advice from the judge's own law clerk (which was documented in a mass media publication, with confirmation of that by City attorney David Merzig), instantly disqualifying the judge, and because
3. the City attorney was pursuing in the case interests of his private client, Rep. Antonio Delgado, to get rid of the poor living next to his posh new district office, and, very likely, to get the prime real estate, the Oneonta Hotel, at a low cost, for developers backing him up, not to mention that
4. proceedings were in the nature of criminal proceedings - seeking punishment only - and, thus, could be brought only by the County District Attorney and only through the action of the grand jury, which was not done.

NO FINDING WHAT EXACTLY THE BURDEN OF PROOF WAS

In criminal proceedings - which is what it was, considering what was ordered by Judge Lambert, without any possibility for contemnors to purge the supposedly "civil" contempt - the burden of proof is "beyond the reasonable doubt".

There is no indication of that burden in the decision of Judge Lambert.

In civil contempt proceedings, considering the chance that people can end up in jail if found in civil contempt, the burden of proof is also very high, by clear and convincing evidence.

Judge Lambert has only mentioned that the burden of proof is on the petitioner, citing to case law for that.

But, Judge Lambert never mentioned, to WHAT KIND of burden of proof he is holding petitioner, by law.

So, Judge Lambert was holding petitioner to WHATEVER kind of burden of proof that the judge took from the ceiling - because, when you give an advice to a party to make a certain motion on an order to show cause, then sign that order to show cause, you pretty much pre-judged the case from the very beginning, and it does not matter what kind of burden of proof the law requires and what kind of evidence was there in front of the court.

NO FINDING WHETHER THAT PARTICULAR BURDEN OF PROOF WAS SATISFIED

You will find no phrase in Judge Lambert's decision:

"And the petitioner satisfied his burden of proof by clear and convincing evidence."

Which is an essential flaw in this case - hopefully, the no-less-corrupt Appellate Division 3rd Department will take its corrupt head from its corrupt ass and rule on the likely appeal from this case on the law and not on whatever it usually rules.

And, as the ultimate corrupt cherry on top of the corrupt cake:

A BOND WITHOUT A JUDGEMENT - WTF IS THAT?

Judge Lambert ordered de facto criminal defendants to put a $25,000 bond into the court from where Judge Lambert's de facto client City of Oneonta, a party petitioner in the proceedings to whom Judge Lambert's law clerk Mark Oursler gave legal advice to file the motion for a finding of contempt.

Into that bond the city will supposedly be freely dipping to "cover the costs".

The kicker is though that 

1.  Judge Lambert quoted case law that a civil contempt order may not be made by the court without a finding that some rights of the complaining party were violated, 

2. and, therefore, if Judge Lambert is talking about covering COSTS TO RESTORE something and ATTORNEY FEES, those COSTS and ATTORNEY FEES must be ASCERTAINED by the court and a JUDGMENT for a specific amount must be made.

Here we have a bond without a judgment.

Sweet.

The Pervus are ordered, at the threat of jail for non-compliance with this (kangoroo) court order, $25,000 into the court account as a BOND, the court already ordered them to pay ALL COSTS and ALL ATTORNEY FEES of the city, but the court ACKNOWLEDGED that neither costs nor attorney fees are ascertained - and that IF parties "DISAGREE" about the amount (which Judge Lambert was supposed to determine and reduce to a judgment in his order), then Judge Lambert will hold yet another hearing.

I have an impression that Judge Lambert has sat on that bench for much too long, and the longer he sits there the more abysmal will become his knowledge of the law and his integrity.

The decision he produced is not just an F decision, but an FFF decision which a 1st year law student will be expelled from law school if he writes something like that - due to how adamantly incompetent it is.

But, knowing Judge Lambert's usual attitude when unlawfulness of his decisions is challenged - "move up or move on", which is translated into plain English as "appeal or shut up", that's the choice the Pervu's will have to make - 

• to file or not to file a notice of appeal with the Otsego County Clerk within 30 days of the decision, 
• to serve or not to serve it upon the opponents, and 
• to file or not to file the appellate record an brief with the Appellate Division 3rd Department within 9 months from the decision, 

or - to keep their heads low, obey and pay up.

What the robbed respondents in this case will or will not do is their own choice.

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But, what this case, ladies and gentlemen, does clearly demonstrate to the public is the quality of New York State judiciary - its competence and its integrity.

You have just saddled yourself with this judge for the 2nd term last year - for another 9 years from now.

He is a supervising judge of "problem solving courts", where corruption is the ripest - all those hungry "providers of services" waiting to get mandatory clients who must pay up for the court-ordered "services" in order not to go to jail.

He is also a supervising judge of DWI courts.

And he is also absolutely incompetent and absolutely corrupt.

By the way - did you know that the U.S. Supreme Court has granted itself and all other judges in the country an immunity for violation of the law and for corruption, barring victims of such corruption from any remedy in a federal civil rights lawsuit?

Of course, there remain the (fake and non-existing) judicial discipline and the (non-existent) possibility that the former colleague of Judge Lambert, DA John Muehl who gets "victories" from John Lambert in criminal court will start criminal proceedings for corruption against Judge John Lambert, his law clerk Mark Oursler and their de factor client, Rep Delgado's (and City of Oneonta's) attorney David Merzig.

When hell freezes over, of course.

Doing good, people of Otsego County, aren't your? 

Do not ask, for whom the bell tolls when you search for a good, honest, courageous, independent lawyer - if you do nothing to defend lawyers wrongfully suspended for criticizing corrupt courts. It tolls for you.

American lawyers' complete lack of due process in disciplinary proceedings is a big part if the absolute attorney monopoly and why Americans cannot find an independent attorney to take on judicial and prosecutorial corruption - lawyers are afraid to be stripped if their considerable investments into becoming a lawyer, without having any effective legal remedy in the stripping process. 

This disaster for access to justice (since intimidation of a court representative strips all Americans of independent and effective legal representation, especially in cases where the government is their opponent in litigation) is dealt a complete blanket of silence in the press, with the exception of blunt enumeration of the laundry-list - as it has been done in this article - of what were the grounds for dismissal of a lawyer's constitutional challenge to his disciplinary proceedings, without any attempt at honest critical analysis of what is going on.

This is a tabooed topic in the American "noble" legal academia, too.  In my personal experience and in the experience of many attorneys disciplined for criticism of the judiciary who dared to talk to me on the subject, American "constitutional law" professors, including very prominent ones, duck and refuse to support disciplined attorneys in such constitutional challenges - for fear of being booted out of their lucrative, well-paid, ABA-regulated, law school professorships.

But, this topic is a matter of grave public concern and MUST be addressed - since:

•  disciplinary proceedings against lawyers in this country have long turned into witch-hunts against effective independent solo and small firm attorneys, especially, civil rights, criminal defense, family court and consumer debt attorneys (I was all of the above), 
• lawyers are denied basic fairness in such license revocation proceedings - fairness afforded in similar license revocation proceedings of all other 1,100 regulated professions in the United States, fairness afforded to other "civil" litigants;
• with the majority of the nation's more than 1 mln lawyers working for corporation and just a mere speck working for the "ordinary" "unrich" Americans, the chasm, the "justice gap", the inequality of being unable to find legal help and representatives who would be able and not afraid to effectively represent people in court drives people to absolute despair - just read what is going on in judicial forums about court corruption, CPS abductions of children from parents on fabricated charges, wrongful convictions, police and guard brutality.

So, let's address the issue - why do you, my fellow Americans, cannot find an:

• affordable;
• competent;
• effecient;
• independent;
• courageous

legal advisor and/or legal representative in court to help you when you are in a dire need of such help?

Here is why.

Here is what is happening to a lawyer in the so-called disciplinary proceedings. 

1. While, say, a doctor's license (and all other types of professional licenses) is, first, revoked by an executive body and the doctor may then sue that executive body (the Lisensor) in court, challenging the legality of such a revocation (also not an ideal situation, but still), it is different with an attorney. 

A doctor has on option to sue: 

A. Either in the lower state court, and then he/she is afforded normal court procedures and, if his claim is denied, goes up the court system with his appeals, 

B. Or in the lower federal court, and then he is afforded full discovery and a jury trial. 

Not so with a lawyer. 

With a lawyer, the licensor (executive body) is actually the top state court that acts in the same disciplinary proceeding as a party (the body issuing and revoking licenses), a legislator that writes procedural and substantive laws for such procedures, an investigator, prosecutor and judge. 

And, while for everybody else, but lawyers, the top state court is the last appellate court, for lawyers it us the first (trial) court, so there are no appeals as of right, nowhere to appeal, while the US Supreme Court takes only those appeals that it wants to take and never took a lawyer disciplinary case in 50 years. 

And, a lawyer has no option to go to a federal court, like a doctor has, to challenge revocation of his law license - ever. 

Here is how it works. 

Since a doctor's professional license is revoked by an executive body, his federal lawsuit is not barred under the so-called Rooker-Feldman doctrine (illegal, court-invented, a restriction to jurisdiction of federal courts invented by courts in violation of Articles 1 and 3 of the US Constitution). 

Since a lawyer's license is revoked (the nature of the action is the same) by a court (even though acting in the same capacity as the doctor's Licensor, an executive body), the federal court

 A. Claims that the Licensor - as a court - is immune from lawsuit, and that 

B. Since the license was revoked (by the Licensor) calling itself a court, a federal lawsuit is barred under the court-created Rooker-Feldman doctrine forbidding to "re-litigate" state court decisions in federal courts. 

Knowing this, the lawyer in this Pennsylvania attorney disciplinary case has filed a challenge in federal court immediately when a disciplinary action was filed against him in - and by - the top state appellate court. 

Saying - under the federal Civil Rights Act, 42 U.S.C. 1983 - "I have a right to have my federal constitutional challenges heard by a federal court, by a jury". 

Here is what the lawyer 

has got for his efforts - a dismissal of his civil rights lawsuit without a review on the merits by the federal court, by a judge with a law license from the defendant-licensor-top state appellate court, by a judge whose continued employment, and livelihood, depend on keeping this license, and, thus, keeping himself in the good graces of the defendant-court-licensor).

I will have to explain in a separate article how the state disciplinary proceedings were going on and why a lawyer of 29 years' experience has finally lost it and went to federal court to address the mess going on in the Pennsylvania top state court.

Suffice it to say that - predictably - the whole mess was based on 3 premises:

1) allegations that the lawyer criticized 2 judges of the Pennsylvania State Judicial Compensation Board for engaging in ex parte communications with opposing counsel;

So, the judges' names were Judge Patricia Bachman and Judge Joseph Hagan.

2) that opponents of the lawyer used the disciplinary proceedings to harass their opponent and thus gain advantage in litigation;

3) that opponents of the lawyer were trying to use to their advantage the recent illegal decision of the Pennsylvania Supreme Court regarding the ability of suspended attorney Andy Ostrowski to represent clients before that same board - which the statute said he (and anybody without any law license or formal education) can do, and the Pennsylvania Supreme Court said that he cannot do - because they said so.

The federal judge has given the following reasons for the dismissal of the lawyer's federal civil rights lawsuit:

1) "failure to state a claim" of violation of his constitutional rights - for federal courts who are themselves licensing lawyers, and, thus, have an irreconcilable conflict of interest in such cases, nothing at all can possibly "state a claim" (a subjective, vague and undefined notion) where a court may violate a lawyer's constitutional rights; 

2) under a yet another court-invented (unconstitutional legislating from the bench) bar to a federal civil rights action - the so-called "Younger abstention", telling him - you have an ample opportunity to raise the claims of violations of your federal constitutional rights before people who are violating your federal constitutional rights, the defendant-court-licensor, holder of the presiding federal court judge's law license. No bias, conflict of interest or violation of due process at all;

3) the lawyer is told that the Licensor, as a state court, is immune from lawsuit under the 11th amendment supposedly "barring lawsuits against state agencies. Of course, the 11th Amendment says nothing of the kind. 

In fact, by it's clear text it bars only lawsuits by a resident of one state against another state, not against your own state. 

But, courts decided that "it is well settled" that the clear text of the 11th Amendment must be changed to mean something different from what its plain text actually means. 

Because - otherwise how will a federal judge, holder of a law license from the defendant-state court-licensor of the plaintiff lawyer in a federal civil action gets to protect the federal judge's own licensor? 

I was actually sanctioned by a federal judge, the then-Chief judge of the U.S. District Court for the Northern District of New York Gary L Sharpe (in a lawsuit where his son's employer represented defendant licensor of the judge's own, and of his 2 sons' law licenses), sanctioned $6,995, for daring to quote to the judge the actual text of the 11th Amendment and pointing out its plain meaning. 

Note that English is not my native language, but it is native for Judge Sharpe.  Yet, I had to explain to a judge and a native speaker of English the plain meaning of the 11th Amendmeng that he has sworn to protect and uphold, as well as the entirety of the US Constitution and its amendments, as a condition of serving as a judge. 

Since I kept bringing civil rights lawsuits in federal courts against county and state officials for my clients (that is why the Civil Rights Act was enacted by the US Congress), it was my specialization (one if them, in addition to criminal and family law), I was suspended 4 years ago for 2 years, but without a right for automatic reinstatement on expiration of the 2 years. 

Knowing the "procedure for lawyers", or, rather, lack thereof, and knowing that I will have to beg and grovel in front of corrupt people who have broken every law in the book to make sure I do not successfully represent my clients again, I am not trying to restore my law license. 

This lawyer's disciplinary journey, judging by the dismissal based on the Younger abstention, has just begun. 

When his license is, practically inevitably under the current conditions of the "law", taken by the state court, predictably, without regard of his federal constitutional rights, 

1) the US Supreme Court will deny his appeal by 2 words in a letter - " certiorari denied", no explanation, and 

2) his new federal lawsuit will be dismissed on the grounds of: 

* the Rooker-Feldman doctrine, 

* judicial immunity - judges' gift to themselves, absolving themselves from their sworn duty to abide by the law, instead judges unlawfully legislated from the bench and gave themselves immunity for malicious and corrupt acts in office, 

* "sovereign immunity" - even though the People, not the government, us the sovereign, but saying that to a court will, most likely inflict upon you sanctions, even though this basis of our democracy is stated - in the Preamble to the U.S. Constitution and in all state Constitutions; 

* 11th Amendment - wrongfully interpreted in a "well-settled" way, * failure to state a claim if constitutional violations. 

All of these grounds will be invoked before and without judicial review on the merits, and the lawyer will be denied by the federal judge, licensed by the defendant-state court-licensor in the lawsuit, his federal statutory right to a jury trial for the complete loss if his profession and livelihood. Lawyers know this - and keep mum, no matter what judges do. 

In the same Pennsylvsnia where this case was from, lawyers kept mum - for years - when a judge (Marc Ciavarella) presided over cases of minors who appeared in front of him, in violation of state law, without lawyers, even though the local public defense's office was well aware of what was going on, and the judge sent thus unrepresented minors, whether they were guilty or not, to a juvenile jail. In order to fill it to capacity for a private jail manager, for multimillion dollar bribes from that manager. 

Lawyers were mum. 

Judges were mum. 

The court personnel was mum. 

Everybody wanted to keep their well-paid jobs and businesses going.

Only after kids started to commit suicides in that kiddie jail, and parents started to push for an investigation, when the scandal could no longer be concealed, was the judge investigated, prosecuted, convicted and went to prison - but only by the feds, the state authorities, lawyers, still were afraid to touch him.

And, even when Judge Ciavarella went to federal prison, his victims were denied relief by a civil court - on the following grounds:

 “Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. 

Remember, this supposed "law" is about a judge who, for years, was systematically and intentionally, was unlawfully sentencing kids to juvenile detention for kickbacks, to fill the juvenile jail, so that its private manager would turn a profit.

The court-licensor in this case, the Pennsylvania State Supreme Court, is also "famous" in 3 more cases: 

1/ its judge presided over, denied 4 appeals and said nasty things about persistency of attorneys of a prisoner who the judge has obtained a fabricated wrongful conviction against as a prosecutor which the judge has used to get elected as a judge in the first place, William's v Pennsylvsnia, 2015. 

2/ the court has suspended the elected state attorney general Kathleen Kane when she started to investigate misconduct of judges of the court, and 

3/ the court has declared that suspended civil rights attorney Andrew Ostrowski who has run for the US Congress (and got 62,228, 1/3 of votes, reportedly, without any meaningful financial support) in 2014 on an anti-judicial-corruption platform may not "practice law" representing clients in front of an administrative unemployment benefits state board, even though the applicable statute allow non-lawyer representatives in front of that same board, and the statute specifically declares that such a representation is not "the practice of law", which is not clearly defined by statute in the state anyway. 

The court has then dangled in front of attorney Ostrowski, stripped of all - even lawful - means to earn a living an offer the attorney could not refuse under the circumstances: 

• stop your successful anti-judicial-corruption radio show "Justice Served with Andy Ostrowski", 
• delete the library of recorded interviews from attorneys from across the US who have been suspended or disbarred for criticizing judicial corruption, 
• keep mum for a while as to any civil rights violations within the court system, the disciplinary system and the so-called legal profession - and we will return to you your law license and livelihood. 

When Ostrowsky caved in and did what was required of him by the "noble" court, the court (predictably) refused to restore his law license, which has sent Ostrowski into a mental breakdown, eviction and a criminal conviction. 

The lawyer in this case knows all of that and knows, what kind of "justice" he is facing with this particular licensor-court, the Pennsylvania State Supreme Court. 

As does the federal judge who has, nevertheless, sent the lawyer back to that court with a callous statement that the lawyer will have "ample opportunities" to go knock himself out beating his head against a brick wall trying to persuade a corrupt body that is deeming itself completely above the law (and it is) that it is violating his federal constitutional rights, which they know they are doing, and doing intentionally. 

Now - ARE you surprised that you, dear Americans, cannot find an independent civil rights, family, criminal defense attorney to represent you in court? 

Why they are afraid to state what they know is going on in front of them? 

Why there is no independence of the "noble" legal profession in the United States?

We have a presidential and state elections campaigns raging across the U.S. at this time.

All candidates are making promises, and all candidates are clamoring for your votes and your money.

Just ASK them instead, some questions pertinent to your own access to justice.

Just DEMAND that they make it their CAMPAIGN PLATFORM:

1.  to eradicate judicial corruption;
2.  allow people to choose their own representatives in court, consultants and title document drafters without government approval;
3. allow people's direct access to grand juries;
4. make grand jury records public;
5. remove prosecutors from their conflicted position of legal advisors of the grand juries;
6. legislatively abolish all kinds of judicially created immunities and restrictions on jurisdiction of federal courts in civil rights actions;
7. legislatively prohibit court sanctions for invoking violations of constituitonal rights.

Once this is done - you will see the government will become a lot tamer and a lot more - not honest, careful not to violate your constitutional rights.

If you continue to watch soap operas of a rich guy for Democrats vs a rich guy for Republicans, trying to take sides and sympathize for people who have no sympathy for you and do exactly what they want you to do - forget that YOU ARE THE MASTERS in this country, that they are YOUR SERVANTS, PUBLIC SERVANT, and that they MUST DO YOUR BIDDING, not invent ways for you to do theirs - you will continue to have what you have now.

The justice gap.