The #JudgeBrendaWeaver saga, Part IX - how to tamper with court audio recordings, get away with it and quash members of the public who want to expose that criminal behavior. A comparative table with a doppleganger case from Louisiana.

This is my 9th blog in the new series of blogs about misconduct of State of Georgia Judge Brenda Weaver who sought to retaliate against and quash people who wanted to expose her tampering with court records by any means, pulling all of her powerful connections, through egregious abuse of power and paying off co-conspirators with money or lucrative promotions.

You can see blogs, Part I through VIII, on the right of this blog in the list of articles.

I also wrote on this blog before the Georgia case even happened, about a similar case in Louisiana, when an attorney was suspended for a year for providing hard proof (testimony of a technician who verified that tampering of a court audio file did occur) that a court audio was tampered with - and the way it was tampered with and who was trying to block the attorney's access to that audio and was paid off for doing that, and who benefited from such tampering, clearly pointed at the judge whose misconduct was the basis of the attorney's actions - discovery as part of due diligence in preparation to a motion to recuse the judge.

When comparing these two cases, one cannot help thinking that Judge Brenda Weaver from Georgia received training from Judge Phyllis Keaty from Louisiana as to how to tamper with court audio files and quash those who want to access that tampered record and prove that it is tampered.

So far, I created a comparative table of these two cases, and am going to publish documents from both cases showing how exactly the tampering - and cover up - occurred.

	Louisiana	Georgia
Why court audio was tampered with	A judge (Phyllis Keaty) failed to disclose a disqualifying financial conflict of interest in a divorce proceeding, namely, that the judge held a financial interest in the real estate company the judge appointed to sell the property of spouses as part of equitable distribution	A judge (Richard Bradley), a sheriff and a sheriff’s investigator repeatedly used a racial slur about an African American witness, laughing and joking about it, during an open court criminal proceeding
The essence of tampering with court audio	The judge’s disclosure was separately recorded and added to the court audio, and the transcript was changed to match the changed by the court stenographer to match court audio	The use by the judge and the police officers of the racial slur was erased from the court audio, and the transcript was changed by the court stenographer to match the changed court audio
Name of the judge or judges involved	Phyllis Keaty, Susan Theall	Roger Bradley, Brenda Weaver, Mary Beth Priest, John Worcester, Alan Wigington
Connections between judges involved and roles of judges in the access to records case	Susan Theall reportedly represented attorney Christine Mire in her own divorce proceedings, as well as was Christine Mire’s former employer and close friend, and thus knew a lot of privileged information about Christine Mire. Susan Theall replaced Judge Keaty on the bench when Keaty was promoted to appellate court, after Susan Theall: ·         Represented the opponent of Christine Mire’s client in front of Judge Keaty, while ·         Employing Judge Keaty’s law clerk as a secretary; ·         Refused to disqualify herself from the case (same as the judge) claiming the judge’s law clerk will be barred from access to the divorce file as a secretary for Susan Theall; ·         Disqualified herself from the divorce case of Christine Mire’s cleint only after Judge Keaty’s law clerk/secretary actually authored a letter to Christine Mire as secretary of Susan Theall, confirming that the law clerk of judge Keaty was not barred from handling the case as a secretary to a party’s attorney, on top of handling the same as a law clerk for the presiding judge; ·         Then, Theall represented the court stenographer opposing Christine Mire’s and her client’s access to the audio of proceedings when the transcript did not match their recollection of what occurred in court; ·         Actively supported Keaty in her election campaign to become an appellate judge, being publicly part of Keaty’s “online community” in her election campaign; ·         One year after her support of Keaty in Keaty’s election campaign, Theall took Keaty’s seat on the bench; ·         Despite the fact that Theall, as Christine Mire’s own attorney in her own divorce action, was barred by attorney-client privilege from disclosing any information regarding Christine Mire’s supposed psychological conditions, Theall testified against Mire in her disciplinary proceeding brought based on Keaty’s complaint and claimed that Mire has psychological problems and draws out litigation for frivolous reasons.	Judge Roger Bradley was the main culprit, uttering racial slurs against the African American witness Allen DeRae Green Judge Brenda Weaver ordered stenographer Rhonda Stubblefield (according to the stenographer’s statement to journalist Mark Thomason) to erase the racial slurs from the transcript and the audio. Judge Brenda Weaver used Judge Bradley’s “slush account” funded by the three local counties to pay off Rhonda Stubblefield’s attorney Mary Beth Priest, $17,000, for defense against the open records petition by Mark Thomason and for counterclaim against Mark Thomason; and nominated Mary Priest during those proceedings to become a judge in the place of Roger Bradley. Judge Priest currently employs Roger Bradley’s secretary Wilma Housley who is reportedly and likely privy to how the money was paid by Judge Weaver out of Housley’s former employer’s slush account to Housley’s new employer Mary Priest. Judge John Worcester was at the same time the judge who signed Mark Thomason and his attorney Russell Stookey’s arrest warrant and was listed as a witness for the prosecution in the criminal proceeding commenced by Judge Weaver’s former law clerk and employee of Judge Weaver’s husband Alison Sosebee. Judge/magistrate Alan Wigington, who urgently came to jail to force pre-trial conditions on Mark Thomason and his attorney (who was on the brink of a diabetic coma), in order to take care of the fallout in the media when arrest of Mark Thomason and Russell Stookey became known to the press, was an employee of Brenda Weaver in one of her “accountability courts”, and who she supported for a magistrate position with a statement that he supposedly be the only person who would do things the way she would want them done
Who raised the issue and how	A client in a divorce proceeding and his attorney (Mire), through discovery efforts in preparation of a motion to recuse a judge, through a lawsuit seeking access to records, and in a disciplinary proceeding against the attorney, brought by the judge	A journalist (Thomason) and his attorney (Stookey), through Open Records Requests, an access-to-records petition to the court, and a subpoena upon a bank to access a public record, a court operating account (after that account was used by the interfering judge to pay off the attorney for the stenographer)
Names of stenographers who prepared the transcripts and the audio	Kathy Mathews	Rhonda Stubblefield
Actions of stenographers when requests were made for audio to verify court transcripts	Became defensive in an e-mail to the attorney requesting access to the audio, claimed that such a request is a challenge to her professional integrity, then hired an attorney close to the judge involved, then hired an attorney who also represented the judge’s law clerk, moved for a protective order and sanctions against the party and attorney requesting access to the audio	Counter-sued for defamation
Consequences for people who made the request to access the records	Christine Mire lost her law license for a year	Mark Thomason and his attorney Russel Stookey were arrested, thrown in jail, starved, humiliated, mistreated, deprived of medical treatment and reasonable accommodations for disabilities (Stookey). Now that the disciplinary action against Judge Weaver is dismissed by a “friendly” Judicial Qualifications Commission where members of the Commission were either representing Weaver in a related proceeding, employed her daughter, were appointed by her former boyfriend, or whose livelihoods were “regulated”/controlled by Judge Weaver through their law licenses – it is likely that the State Bar of the State of Georgia, using the language of the dismissal bashing the journalist and his attorney for supposedly making false allegations against a good and honest judge for personal reasons, will proceed against attorney Russell Stookey. Mark Thomason lost his publishing business since, reportedly, Judge Weaver’s and the Fannin County Sheriff’s friends visited advertisers with his publishing business and threatened consequences if they continue to buy advertisement with Mark Thomason.
Was tampering with court audio proven and how?	Yes, through testimony of a technician who confirmed that the audio was “spliced” and the disclosure of Judge Keaty’s disqualifying conflict of interest added to it.	No, Judge Christian handling the Open Records Petition of Mark Thomason, dismissed the petition after claiming that, since the transcript matches the audio, the petition became pointless. The audio which contained, according to Mark Thomason who heard it, conspicuous pauses where the racial slurs, according to witnesses in open court proceedings before Judge Bradley, were supposed to appear, was not released to Mark Thomason or the public. Judge Christian ·         never ordered sequestration of Rhonda Stubblefield’s equipment during the proceedings, ·         improperly allowed Rhonda Stubblefield to be the person showing the audio during the court proceedings and operating the equipment,   ·         scolded and stifled Mark Thomason’s remarks that the pauses on the audio demonstrate that the audio was tampered with and ·         never ordered technical expertise of authenticity of the audio, therefore acting as an ACCESSORY AFTER THE FACT in tampering with the court audio.
Was the tampered audio made public?	No	No
Were people responsible for tampering with court records punished or disciplined in any way?	No	No
Did people who brought tampering with the court audio to public attention suffer any retaliation?	Yes, loss of livelihood	Yes, arrest, criminal charges and loss of livelihood.
Were people who helped judges keep tampering of the court audio under wrap receive any kind of benefit from the judiciary system?	Yes Attorney #SusanTheall got help to become a judge in Judge Keaty’s place, for her “loyalty”; Stenographer #KathyMathews retained her business with the courts for her “loyalty”	Yes Judge Weaver’s former law clerk Alison Sosebee was re-elected as the DA, and sworn in for her 2nd term in December, 2016.  There are rumors that Judge Weaver prepares her as her own successor in the judicial position.  Attorney Mary Beth Priest who represented the stenographer against an access to audio request and was paid off by Judge Weaver ($17,000 from Judge Roger Bradley’s slush fund account financed by three counties, Fannin, Pickens and Gilmer) – same as attorney Susan Theall in Lousiana – was nominated by Weaver and appointed a judge, for the vacancy after Judge Roger Bradley’s resignation. John Worcester was nominated and appointed to the judicial position at the same time as Mary Priest, and paid off the debt of loyalty by signing the arrest warrant against Mark Thomason and Russell Stookey, while appearing as a witness in the same criminal proceeding. Alan Wigington remains a magistrate, after paying off his debt of loyalty to Brenda Weaver, imposing humiliating pre-trial conditions on Mark Thomason (a healthy man in his prime) and his attorney Russell Stookey (a disabled diabetic veteran in his 70s), while Russell Stookey was not given food for a long time and was likely incompetent to sign such documents.  Both documents were signed without an attorney present.  Russell Stookey whose state of mind because of low blood sugar from starvation, was not qualified to act as Mark Thomason’s attorney, and, to my knowledge, was not hired as such and certainly could not be appointed as such since he was also arrested and in jail. Stenographer #RhondaStubblefield retained her business with the court, in return for her “loyalty” to judge Weaver

You can see from the table that, in both cases:

• court stenographers were obviously complicit with judges in tampering with the audio court recordings and transcripts - all the way while claiming in writing how proud they are of their professional integrity and how eager they are to maintain it, see, for example, how Kathy Mathews expressed it in her first defensive e-mail to attorney Christine Mire:

Without complicity of court stenographers, there is no way that the audio that is in exclusive control of court stenographers, on their own equipment, would become altered.

• Judges in both states universally jumped to protect one another and "save face" instead of making judicial misconduct known, despite a disciplinary rule requiring attorneys and judges to report judicial misconduct;
• Attorneys in both states were rewarded - by money and/or judicial positions - for helping judges and stenographers to cover up criminal misconduct;
• The culprits who tampered with court records or ordered such tampering were not punished, but
• Those members of the public who tried to do the right thing, get access to the altered audio and prove that it was altered through a technical expertise, were severely punished by loss of their livelihood (Mire, Thomason).

What is a remedy for that?

Remedies are easily ascertainable and are easy to accomplish.

• Cameras in the courtroom - if the public was allowed to independently videotape what was happening in Judge Bradley's courtroom and in Judge Christian's courtroom, there would be no question as to what occurred when and no possibility to cook the transcript and the audio file;
• An effective, citizen-operated system of discipline of judges - the "new and improved" Judicial Qualifications Commission in the State of Georgia where investigators and prosecutors represent judges, employ judge's relatives, are appointed by judge's former boyfriends, and have their own licenses and livelihoods regulated by the very judges they supposedly investigate and prosecute, is obviously a sham.  Public citizen panels, picked the same way as a jury is picked, must preside, publicly, over complaints against judges. 
• Complaints against judges must be handled by grand juries, and citizens must have direct access to grand juries, without the barrier of prosecutors, "legal advisers" of the grand juries.  Not only it is inappropriate to allow a PARTY in the proceeding to be the legal advisor of a supposedly neutral court-like entity, but, prosecutors have their own licenses regulated by judges and would not allow judges to be prosecuted for that reason alone, without even speaking about egregious personal conflicts of interest like the ones existing in the Weaver-Sosebee's relationship;
• Removal of attorney regulation from the hands of the judiciary that controls attorney independence (and ability to properly represent their clients) in situations of judicial misconduct, and abolition of attorney regulation by the government, since attorneys (especially civil rights attorneys) must SUE the government on behalf of their clients, and thus their livelihoods and independence of judgment and work cannot be CONTROLLED by the same government that they are suing on behalf of their clients.  Then, the government will not be able to use attorney regulation like it was used against attorney Mire, like it can now be used against attorney Stookey - as a sword of the corrupt judiciary instead of a shield for consumers of legal services.

I will continue to report on the Brenda Weaver and the Phyllis Keaty's cases of court audio tampering (in Georgia and Louisiana, respectively), with publication of documents.

Stay tuned.

Public comment on New York's proposed standing order of discovery in criminal cases - Part VI. The rule seeking to reduce wrongful convictions is seeking to protect prosecutors from discipline

I continue public comment on the New York "Wrongful Convictions" Task Force's proposed rule or mandatory discovery orders in criminal cases and policy of reporting of attorney discipline against prosecutors and criminal defense attorneys, as well as information exchange about such referrals.

Previously, I addressed aspects of the proposed rule in my public comment,

• Part I - lack of transparency in the composition or operation of the "Task Force";
• Part II - that the proposal is trying to usurp the authority of the New York State Legislature;
• Part III - that the Task Force includes those who cause wrongful convictions or are interested in them, and does not include representatives of the victims of wrongful convictions;
• Part IV - that disciplinary prosecution of disciplinary prosecutors is a joke, and
• Part V - an update on the transparency blog, showing that New York Unified Court System and the Task Force are NOT advertising its proposed rule - or that the deadline for public comment on the rule is TOMORROW.

This Part VI is showing that disciplinary prosecution of misconduct of criminal prosecutors is also a joke - and that the rule on "standing orders" of discovery in criminal cases will make disciplinary prosecutors even less amenable to discipline than they are now, and will increase wrongful convictions.

Prosecutorial misconduct is prominent in the "discovery order" proposal of the Task Force, as it is No. 1 reason why the proposal is even introduced - to instill into the public that, unless a court says a prosecutor committed misconduct, the public should not deem any conduct by prosecutors a misconduct.

Apparently, members of the public and the media cannot have their own mind as to what they observe and what they read about in court documents.

Yet, while the Task Force wants, very obviously, to suppress "wrongful perception" by the public and the media of what is or is not prosecutorial misconduct, it is interesting that in 2015 there was actual testimony in front of New York Commission for Attorney Discipline - where a person represented the wrongfully convicted (those who are not represented in the Task Force created supposedly to fight wrongful convictions), testified that

• defense attorneys are afraid to report prosecutorial misconduct, equating it with "burning bridges" for themselves,
• that disciplinary authorities do not prosecute prosecutors who are sued for civil rights violations, but given prosecutorial immunity (which is given ONLY because discipline is supposedly available - which it is not); and
• that prosecutors' organizations to prevent creation of the Commission for Prosecutorial Misconduct, and the failure of that organization to produce one case when prosecutors were actually disciplined, see testimony of the victim of a wrongful conviction Bill Bastuk, the co-founder of the organization "It Can Happen to You".

Well, there are actually two of such cases, where prosecutors were actually disciplined - but in both of them prosecutors were disciplined not for causing wrongful convictions, but for criticism of judges.
 

1) the Albany County District Attorney Paul David Soares

for criticism of a judge in a press-conference; and

2) Elizabeth Holtzman, a New York City prosecutor, for outing judge Irving W. Levine for demeaning the alleged rape victim in a criminal rape trial by reportedly ordering her, in chambers, to go on her all fours on the floor in front of him to re-enact the rape.

The judge in question was "cleared of allegations" in December of 1987, despite of an additional complaint by a female juror in a criminal trial indicating that Judge Irving W. Levine engaged in

• racist behavior towards black witnesses;
• sexually inappropriate remarks towards female witnesses

and

• was soundly asleep for 10 minutes during the trial.

That it was claimed later not "supported by the record" is not reassuring, since court transcripts in such cases are often altered by stenographers who want to keep their jobs, and attorneys who raise those issues are disciplined:

as it happened to me and as it happened recently to attorney Christine Mire in Louisiana.

Elizabeth Holtzman accused Judge Irving W. Levine in 1987, and he was "exonerated" by the investigation - or, much rather, the investigation did not consider the judge's behavior too bad for the judge to be removed.

Instead, prosecutor Holtzman was thrown under the bus.

Interestingly, even though her discipline was affirmed on appeal in 1991, her attorney registration does not show any discipline.

The bizarre part of it all is that Judge Irwing W. Levine WAS eventually removed from the bench - for favoring a friend in litigation, and he was ousted by the time discipline against prosecutor Holtzman for truthfully criticizing judge for misconduct, was affirmed on appeal.

But, back to our topic - the ONLY time when criminal prosecutors in New York are subjected to attorney discipline is when they criticize judges for misconduct.

Yet, the "standing discovery order" proposal has a purpose of instilling into the public mind that, unless a judge (himself, most likely, a former prosecutor, and likely the former boss of the prosecutor before him) rules that there is prosecutorial misconduct, there is no prosecutorial misconduct.

And, even though the proposal discusses "policies" of how a prosecutor may be referred for discipline by defense attorneys, and how prosecutors and defense attorneys can live in the "happily ever after" "sharing" "insights" about each other's misconduct

 such "policies" are clearly defied by the testimony of an actual wrongfully convicted person Bill Bastuk (who, despite his activism, same as another New York exoneree Jeffrey Deskovic, did not make it to the Task Force against Wrongful Convictions):

Moreover, the proposal contains a direct threat against ASSIGNED (institutional) defense attorneys who will, according to the proposed rule, will have to report complaints against them at the stage of investigation (when they are covered by statutory right to privacy, Judiciary Law 90(10)), to their employers.

Thus, prosecutors can get the upper hand over "too stubborn" public defender or assigned counsel - simply by reporting them to the grievance committee, which will start investigation of anything a prosecutor referred, but nothing of what a defense attorney referred  - and the defense attorney will immediately have to report the investigation to his employer and be fired, making it easier for prosecutors to continue to commit misconduct and ACHIEVE wrongful convictions.

So, the proposal will, thus, have the opposite effect to that (allegedly) sought - it will INCREASE wrongful convictions, and intimidate defense attorneys against fighting for their clients.

Kansas Supreme Court is pitching a brand new spanking "rule" to the U.S. Court of Appeals for the 10th Circuit: blame the victim (litigant) who obtained recusal of judges for errors in formation and errors in rulings of replacement courts

An interesting case has been reported out of Kansas.

A litigant (an attorney in a disciplinary proceedings) asked 5 out of 7 judges of the presiding panel to recuse.

Now, usually judges do not recuse no matter what.

The stakes and the fervor of the fight against judicial recusals (and thus against litigants' constitutional rights for impartial judicial review and access to court) has reached epic heights in the State of Wisconsin, for example, where:

• the commission that disciplines judges is sought to be subordinated to the same judges it disciplines (why not, the same setup has been in existence in federal courts for decades),
• attorneys are allowed to practice even when rejected by the State's Character and Fitness Committee, under the state's "state diploma privilege";
• a bunch of retired judge are even asking the State Supreme Court to act as a Legislature and set a rule allowing a certain sliding scale of judicial election campaign contributions (bribes) to the judge, while not mandating judges who received such bribes to recuse from cases of contributors, and where
• the state bar governors, over protest of attorney members, filed a collective statement disparaging the U.S. President for criticizing judges and attempting to instill into the public the notion that criticizing judges is wrong, and is equivalent with attacks on the U.S. Constitution and democracy in the United States, see the statement of the Wisconsin State Bar Governors here.

Of course, "independent judiciary" may not be independent from their own oath of office, which is what happens when the judiciary operates without any real "checks and balances" and while giving themselves a gift of absolute judicial immunity for malicious and corrupt acts on the bench (and, thus, for breaking the oath of office the moment it is taken).

Yet, judicial tyranny and freedom from all laws, all accountability and all criticism, as well as suppressing criticism is being promoted by lawyers who get their bread (via licenses to practice) from the very hands of the judiciary, is being thrust upon the public under the guise of advertisement of the idea of judicial "independence".

In New York, two attorneys that I know (John Aretakis in 2008 and myself in 2015) were suspended from practice for making motions to recuse, the same happened to attorney Christine Mire in Louisiana in 2016, the statistics of attorneys disciplined (including suspended and disbarred) for criticism of judges are ever growing across the country, the latest victim being, as far as I know, James G Miller, a 70+-year-old attorney who was suspended last week in Illinois for criticizing judges, who was considered so dangerous for the public that he was first suspended in April of 2016 while disciplinary proceedings were still pending and was then suspended again as a result of those proceedings, while the court rejected both the defense of truth and the defense of 1st Amendment protection.

But, even after a litigant has gotten himself through all the risks of sanctions for himself and his attorney, applied for recusal of judges and obtained recusal of judges, that does not mean that his right to impartial judicial review will now be maintained.

At least, not in the blessed state of Kansas where the Supreme Court of the State of Kansas has just come up with a most brilliant (read: obtuse) decision on judicial recusal I have ever seen in years, and I've seen a lot, specializing on active research of this particular topic for more than a decade.

The Kansas Supreme Court has stated to a litigant that, since he "has got what he wanted" (recusal of judges deciding his case), and "invited the error".

Just read the sleight of hands of how judges came to that conclusion:

• you have a constitutional right to access to court (1st Amendment) and due process right to impartial judicial review (14th Amendment);
• in order to obtain true access to court and that impartial judicial review, you make a motion to recuse;
• once you obtained that recusal and once another judge is assigned to the case, it is the understanding of the top court of the State of Kansas that your constitutional rights of access to court and to impartial judicial review (the rights that you were trying to secure by making the motion to recuse in the first place) suddenly disappears, and whatever the replacement-after-recusal judge does, including bias, is now your own "invited error", blamed against you.

The brand spanking new "rule of invited error" was submitted on behalf of Kansas Supreme Court in appellee's brief to the U.S. Court of Appeals for the 10th Circuit (the current U.S. Supreme Court nominee Judge Gorsuch's court).

The rule that is asserted in this case, unfortunately, is not restricted to the unique way attorney discipline is imposed in the State of Kansas (and elsewhere in the U.S.), which is in stark contrast, and in violation of equal protection of attorneys, as compared to all other regulated profession - here, based on the uniqueness of attorney regulation, Kansas Supreme Court yet forged a general rule that will be applicable to all litigants in the state and, if affirmed on appeal by the 10th Circuit, to all states that are part of the 10th Circuit -  the new rule of judicial recusals announced by Kansas State Supreme Court in its Appellee's brief.

Here is where this claim is not only erroneous, but is frivolous and highlights one of the major inconsistencies of attorney regulation in all states - the use of the highest state court as the trial court in attorney disciplinary proceedings.

I have explored procedural differences between how attorneys and other professions are regulated in a lawsuit I filed on behalf of my husband in 2013 in the U.S. District Court for the Northern District of New York, and am exploring more fully in my upcoming book, in Russian and in English, about conceptual inconsistencies in attorney regulation in the United States.

The use of the highest state court not only as the legislator, prosecutor and adjudicator (conflation of three branches, violation of the principle of separation of power) in one proceeding, but also the use of the highest state court as the initial license revocation administrative agency and the first and last adjudicating court at the same time created exactly the problem that attorney Kline challenged in his lawsuit, if not in those same words.

Here is the structure of judicial system in the State of Kansas:

Note that, while Kansas Supreme Court has only 7 justices, the lowest trial courts of general jurisdiction, District Courts, have 31 judicial districts, each with more than 1 judge, and often, with 6 or more judges.

Now, let's compare procedural steps in contesting suspension or revocation of a professional license in Kansas by an attorney and non-attorney.

Had attorney Kline been not a licensed attorney, but, let's say, a licensed real estate broker, the procedure would have been as follows:

Stages of license revocation and attendant issues	Real estate broker	Attorney Kline
Administrative agency	Revokes professional license
District Court - the lowest court of general jurisdiction - review by one judge	Judicial review of license revocation, role reversal, license-revoking agency becomes a respondent (defendant) sued by the professional whose license is revoked
Appellate process - Kansas Court of Appeals, review by a panel of judges	Intermediate appellate court
Appellate process – highest appellate court, the Supreme Court of the State of Kansas, review by a panel of judges	Final appeal in the matter	License revocation, Judicial review by legislator-prosecutor-adjudicator court and licensing agency; License revocation is combined with judicial review of the same; No role reversal in judicial review; No right for professional whose license is revoked to sue the agency that revoked the license
Appellate process out of state	The U.S. Supreme Court – discretionary appeal	The U.S. Supreme Court – discretionary appeal
Alternative judicial review	A civil rights case, no Rooker-Feldman bar, since professional license was not revoked by a court (jury trial, full discovery rights)	Right to file a civil rights action is blocked by the Rooker-Feldman doctrine since license was revoked by a court and revocation order is deemed as “final court decision” – jurisdictional bar
Alternative appellate process	10th Circuit (appeal of all issues as of right)	Appeal of revocation decision is doomed, the only issues allowed to be raised outside the Rooker-Feldman bar are direct challenges to constitutionality of rules and statutes, but not practices of the state court in a specific proceeding
Alternative appellate process	The U.S. Supreme Court – appeal is discretionary and likely doomed because of the court’s unwritten policy not to review appeals from cases of attorney discipline, no matter what	The U.S. Supreme Court – appeal is discretionary and likely doomed because of the court’s unwritten policy not to review appeals from cases of attorney discipline, no matter what; plus a Rooker-Feldman-barred case, most likely, will be considered by the U.S. Supreme Court as an additional bar for court review

Observe that for attorneys, THREE procedural steps of litigation in license revocation process are skipped, as compared to non-attorneys, and the first and last stage of review in the State of Kansas in attorney license revocation is:

• by a licensing agency - unlike for real estate broker;
• by a licensing agency acting as the first (and last) trial court - unlike for real estate broker;
• without the right for judicial review where the licensing agency is subject to role reversal and a lawsuit by the professional who lost his license - unlike for real estate broker;
• without the right for 2-tiered appeal - unlike the real estate broker; without the alternative for review of license revocation, together with federal constitutional issues, in federal court - because, unlike in the case of the real estate broker, revocation of attorney license is subject to the Rooker-Feldman bar, even though the nature of proceedings (revocation of a professional license) is the same, and thus procedural protections, and levels of procedural protections, should also be the same.

Most importantly for purposes of attorney Kline's federal lawsuit though, the judicial system of the State of Kansas does not provide for ensuring attorney's rights to impartial judicial review: there are only

• 7 elected justices in the Supreme Court of the State of Kansas;
• Kansas Supreme Court is not equipped, due to jurisdictional restrictions, to act as the lowest trial court;
• Judges of Kansas Supreme Court must sit in panels with certain quorums, unlike judges in District Courts who sit just a single judge at a time;
• When a District Court judge recuses, there are over 150 other District Judges to choose from, while if Kansas Supreme Court judges recuse (especially, all of them, or 5 out of 7, as happened in this case), appointment/certification of questionable constitutionality is then triggered to provide an alternative panel.

Moreover, in the case of the former Attorney General of the State of Kansas (as Kline was), ALL state judges were attorney Kline's clients, attorney Kline was privy to ALL dirty little secrets of ALL state judges (including Kansas Supreme Court judges), including constitutional violations, and thus ALL state judges had a conflict of interest in presiding over license revocation against attorney Kline.

Additionally, in his complaint, attorney Kline mentioned bias of the new (appointed after recusal) panel because of political affiliations and campaign contributions to Kline's political opponents:

Whether attorney Kline was right or wrong in investigating abortion centers as the State Attorney General, appointing to his disciplinary panel attorneys who contributed to election campaign of his political opponents was clearly wrong and deprived attorney Kline of due process of law.

Attorney Kline mentions the following problems with the politicized disciplinary panel:

Attorney Kline then asserts that Kansas Supreme Court picked up where the disciplinary panel recommending discipline left of, by not providing to Attorney Kline even an opportunity to properly relate his claims to the court for purposes of judicial review (while the court was also the licensing agency, legislating the rules of conduct, and appointing prosecutors and investigators - a constitutionally impermissible conflict of interest under Williams v Pennsylvania, decided by the U.S. Supreme Court in 2016).

Attorney Kline's disciplinary case was tried in 2 TRIALS:

After those two trials, the panel issued a

• 185-page report finding
• 21 violations of disciplinary rules under
• 10 various factual scenarios.

It is obvious that more space on paper is needed to address 21 than 1 violation, and more space is needed to address legal issues that can be found in a 185-page report after 2 trials over 12 days, generating a considerable volume of transcripts.

Attorney Kline filed a 175-page report of exceptions (errors) in the 185-page panel report (not to mention that there were also transcripts to back up those errors):

Now, let's address this peculiar moment:  while there is no time restrictions in trials before a trial court, since the FIRST and LAST stage of court review was handled by the top state APPELLATE court, rules of page limit on APPELLATE BRIEFS was applied to REVOCATION proceedings (first stage trial level of judicial review).

Therefore, attorney Kline asked to give him adequate time to address all errors in the administrative panel's recommendations.

That right was denied, and attorney Kline was given permission only for 80 pages - so, he had to cut off MORE THAN ONE HALF of his exceptions, making further dismissal of his federal claim on Rooker-Feldman grounds, as if he already had opportunity for JUDICIAL REVIEW, a travesty of justice.

Attorney Kline also correctly points out that, while 21 rule violations were found against him, he was given only 30 pages more pages to argue legal errors as compared to attorneys charged with a single violation.  

In fact, attorney Kline was given just 8% percent (over 13 times less) of space to argue per violation, as compared to an attorney charged with a single violation.

Issue	1 violation	21 violations
Permitted page limit	50 pages	80 pages
Pages permitted to argue per violation	50 pages	3.81 pages

My husband and I raised the same issues of unconstitutionality (denial of due process and access to court) by one-size-fits-all appellate briefs irrespective of number of claims, number of parties, number of court decisions involved and the volume of generated proceedings and transcripts (and legal errors) to be addressed in such briefs - which were all rejected by courts who deem their own convenience, and restricting their own work to short briefs, even if such short briefs cut off necessary issues, and cut off in effect the right of judicial review - as it was done in attorney Kline's case.

Attorney Kline moved to recuse several judges of the court - in fact, all of them had to recuse due to the fact that attorney Kline was their own attorney, but that did not deter Pennsylvania judges in suspending State AG Kathleen Kane in the same and worse situation (during an ongoing investigation by AG Kane of one of the judges, Michael Eakin, while Judge Eakin found it acceptable for himself to be part of the suspension panel of attorney Kane).

In Kansas, 5 judges recused, other judges were appointed, but results were nevertheless, as attorney Kline claims, not different from the biased report of the politicized disciplinary panel:

All of the above are reversible errors, and, bias of the panel can be inferred from the mass of errors and their character.

Attorney Kline claims that there exists no authority under Kansas State Law to appoint replacement judges to Kansas Supreme Court when the majority of the court recuses, as happened in his case:

It is that error that Kansas Supreme Court, implicitly acknowledging the error, claims to the U.S. Court of Appeals for the 10th Circuit to have been "invited" by attorney Kline.





Yet, a litigant, such as attorney Kline was in the recusal situation, has a FEDERAL constitutional right to impartial judicial review, and, when making a motion to recuse, does not have to:

• consider whether the STATE court handling his proceedings, under STATE law, has an ABILITY, a LAWFUL PROCEDURE to provide replacement judges instead of the recused judges.

If such procedure is ABSENT in state law, that is not the litigant's problem.

In such a case, it is a legislative problem, or a state constitutional problem, and the reviewing court must then:

• stop review, and
• apply to the Legislature to create legal procedure that would provide for replacement of the majority of recused judges of the court in order to allow litigants to secure their federal constitutional right for impartial judicial review.

But, that is not what Kansas Supreme Court did.

What it did is it utilized some self-made (and thus unconstitutional, under the State Constitution) procedure and appointed judges which generated a decision which was void under Kansas State Constitution because appointment of judges of lower courts on a temporary basis as Kansas Supreme Court judges was not approved by Kansas State Constitution - and that was definitely not the problem of the litigant asking for recusal, in order to secure for himself his federal constitutional right to impartial judicial review.

And, Kansas Supreme Court now is arguing to the 10th Circuit court of Appeals (judge Gorsuch's court) to spread this rule of judicial recusal - that the litigant asking for recusal is somehow to blame for the errors in formation or ruling of the replacement court because "he's got what he asked for" and should be estopped (blocked) from any review of a void-ab-initio order.

The claims is egregiously frivolous, and the only reason why Kansas Supreme Court judges and their attorneys were not sanctioned for this claim is because of their status.

If the court panel was not properly formed, as required by the State Constitution, attorney Kline is correct in claiming that decisions of such a court are void ab initio.

Void meaning "done without jurisdiction", null, as if it never existed.

Collateral estoppel argued by Kansas Supreme Court (by ALL of the court, including the RECUSED judges) presupposes jurisdiction.

Collateral estoppel argument to "estop" an argument that a decision was VOID, or without jurisdiction, is thus conceptually inconsistent and frivolous.

But, the worst in this argument is that Kansas Supreme Court is trying to spread the "blame the victim" argument and is trying to make the already nearly impossible plight of litigants trying to recuse biased judges into an even more impossible task - if the 10th Circuit buys this argument that the litigant is to blame for any errors of the replacement court after recusal, it will now be applied upon the entire jurisdiction of the 10th Circuit, and that is:

1. Oklahoma;
2. Kansas;
3. New Mexico;
4. Colorado;
5. Wyoming;
6. Utah;
7. Portions of the Yellowstone National Park;
8. portions of Montana;
9. portions of Idaho:

So, now, because some pissed-off political opponents of former Kansas AG Phil Kline wanted a piece of him, all litigants in

1. Oklahoma;
2. Kansas;
3. New Mexico;
4. Colorado;
5. Wyoming;
6. Utah;
7. Portions of the Yellowstone National Park;
8. portions of Montana;
9. portions of Idaho:

will be to blame for errors of incompetent, biased or illegally formed courts as "invited error", even if they accomplish the nearly impossible task of obtaining recusal of biased judges - and if such biased, incompetent or illegally appointed judges are replaced by no-less biased, incompetent and/or illegally appointed replacement judges?

I believe, whatever the controversy in question was, a court of law may not break the law in order to discipline an attorney, and especially if such discipline (in the name of "protection of the public") puts the public in jeopardy by taking away from the public in 9 JURISDICTIONS the right of impartial judicial review.

It is very clear what Attorney Kline wanted when he made a motion to recuse - an impartial judicial review by a lawfully composed panel.

If the State of Kansas does not have in its State Constitution and the laws:

1. the mechanism of replacement of recused judges of the State Supreme Court if the majority (or all judges) of the court recuse, such lack of mechanism does not deprive state court litigant from:
1. seeking recusal of Kansas Supreme Court judges, and from
2. seeking that the replacement be in accordance with existing law.

If the State of Kansas does not have in its State Constitution and the laws:

1. The mechanism of providing an impartial judicial review to the former State Attorney General who represented, by law, ALL state judges, and thus is blocked from disclosing their dirty little secrets as his CLIENTS in motions to recuse, the attorney is not to blame for the lack of mechanism creating this mess and this conflict of interest - he is STILL entitled to assert his right to impartial judicial review, and it is for the State Legislature to change laws of the state, and for the people of the State of Kansas to change the State Constitution accordingly in order to provide to the former AG his federally required right to impartial judicial review - by creating state laws, and by amending State Constitution, by referendum if that's the required process, for importing neutral judges from out of state if necessary.

Litigants do not have to bear the brunt of lapses of State Legislatures or for lapses in the State Constitution.

Litigants do not lose their federal constitutional rights because of lapses in State laws.

Instead, lapses in state laws that prevent litigants from securing their federal constitutional rights are separate constitutional violations.

Let's see what the 10th Circuit will say to that.

I will continue to monitor this case, and report my findings.

Stay tuned.