THE EVOLUTION OF JUDICIAL TYRANNY IN THE UNITED STATES:
"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.
“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).
“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.
It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.
" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.
"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.
“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. This is about judges who were sentencing kids to juvenile detention for kickbacks.
Friday, March 31, 2017
Williams v Pennsylvania, "officer of the court" status and invalidation of ALL criminal convictions in the United States
So, judge and prosecutor cannot be ONE.
In other words, judge cannot be prosecutor, and prosecutor cannot be judge (part of adjudicating court).
But, every prosecutor is a sworn "officer of the court".
And, attorney disciplinary prosecutors are also deemed an "arm of the court" - see the saga of how I sought a FOIL request from such a disciplinary prosecutor who kept claiming she was part of the court, here and here.
So, if a judge is the court, and the prosecutor is the court (officer of the court), the judge = prosecutor, and prosecutor = judge in EVERY criminal case.
Now, every criminal case in the United States, due to this "officer of the court" requirement for all prosecutors, has been invalidated by Williams v Pennsylvania, including the death penalty cases which are scheduled for execution? Including those where people were already executed?
The concept of officers of the court and the right to practice law
Yet, all State Constitutions prohibit judges - "officers of the court" - to practice law.
So, the practice of law is conditioned in the U.S. upon joining a class of people who, by State Constitutions, are prohibited to practice law.
And, the rule for lawyers to be "officers of the court" (who are not allowed to practice law) in order to be able to practice law was concocted by lawyers themselves, who are the best experts in the practice of law.
Mamma mia.
Pennsylvania leads in deregulation of the legal profession - again
Then, Philadelphia District Attorney Self Williams agreed to temporary suspension of his law license, but will continue to head his prosecutorial office.
Somehow, in real life, in real time, one case after the next, law licenses become disjointed from law practice - or whatever it is lawyers are doing in their jobs.
The road to the demise of attorney regulation continues...
Impugning integrity or competence of a judge is bad or constitutionally protected? And, if attorneys waived that constitutional protection, does it mean that the declared purpose of attorney regulation (protection of consumers) is fake?
"Under the First Amendment, there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas."
3 years after that, 40 years ago, New York recognized that criticizing the judge's competence or integrity, is still a matter of opinion, not sanctionable against non-attorney critics, "no matter how unreasonable, extreme or erroneous these opinions might be", Rinaldi v Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 366 N.E.2d 1299, 397 N.Y.S.2d 943 (1977).
- Speiser v Randall, 357 U.S. 513 (1958) - "To deny an exemption to claimants who engage in certain forms of speech is in effect to penalize them for such speech";
- Perry v Sindermann, 408 U.S. 593, 597 (1972) - "For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to 'produce a resuslt which it could not command directly'";
- Regan v Taxation with Representation of Washington, 461 U.S. 540, 545 (1983) - government may not condition a benefit to a person on forfeiture of a constitutional right.
- ACLU and other non-profit corporations have THEIR OWN interest in litigation and THEIR OWN POLITICAL ideas and purposes (while IRS prohibits to non-profits such as ACLU, because of their tax-exempt status, to participate in political activities at all) protected by the First Amendment, in addition to their clients' goals and ideas in litigation (a statement contradicting the standing requirement under Article III of the U.S. Constitution - standing being the case or controversy of the client, not of his lawyer), BUT
- a "private attorney" (without making an exception when the "private attorney" works as a pro bono, government-assigned, civil rights attorney, or when that "private attorney" is raising constitutional rights on behalf of his client) works in litigation only for money (that's the "private gain only" argument what Judge Cardozo in New York and Judge Richards in California says the legal profession is NOT about)
- an equivalent of a privileged membership in an "ancient fellowship" (=guild) (Cardozo, New York);
- not meant only for financial gain (Cardozo, New York, and Judge Richards in California in 1922, but see the 2nd Circuit saying, as of March 22, 2017, 8 days ago, that it really depends, a private attorney, even a private civil rights attorney is only there for the money); and
Federal judge Edwin Kosik found alive - but questions arise now about his performance
The yesterday's press reports indicated that the 91-year-old Judge Edwin Kosik stopped hearing cases because he was recovering from rib fractures he suffered at home. Putting those things together, I asked whether investigators are taking these issues seriously and considering foul play, both in Judge Kosik's alleged fall at home with rib fractures, and his disappearance.
Today, the media reported that Judge Kosik was located in the woods outside Scranton, PA, within 100 yards of his car, that he was taken to a hospital and that it is hoped that he will make a full recovery.
While I am happy that a 91-year-old man did not freeze or starve to death in the woods, what was reported next was disturbing.
There is a significant gap in this reporting.
The judge stopped hearing cases only last month, but he is taking medication for memory loss for how long? And why is his taking of memory loss medication not reported to the public, parties and attorneys, so that they at least have a chance to make a motion to disqualify?
Privacy of a judge?
We all have a right to know whether our President has health issues while holding his finger on the big red nuclear button.
Yet, we do not get to know about health issues of a judge who holds his finger on the big red button of our lives?
Come on.
The man appeared to be functional enough to drive a car without crashing it, but demented enough not to know where he is - so, he only "stopped hearing cases" last month? How many cases did he botch over time?
I bet he botched a lot, otherwise why would the court system lie in initially telling reporters that Judge Kosik stopped hearing cases last month not because of dementia, but because he made a conscious decision to stop hearing cases because he was recovering from a physical injury (rib fracture) from a fall at home?
That lie had to be authorized by the Chief Judge of that federal district court Christopher C. Conner, and that lie had to be issued in order to try to do damage control because Chief Judge Conner had to know that Judge Kosik was, probably, TOLD to stop hearing cases because of his dementia issues.
Yet, even when it was outed that the judge was "out there", and not only in the woods near Scranton, the court system was still trying to do some damage control and pretend that the judge had all his wits around when found.
First, it was not the local police, but the federal court marshall who has found the judge - even though it was the job of the local police to do it.
Apparently, the court system was very concerned as to who will find the judge first and what the judge would tell to that person, and how it will be reported.
So, it was one of the court's own employees to see the judge first when he was found - I wonder how it happened that a U.S. Marshall from the judge's own courthouse was on the scene quicker than the police.
And look what that U.S. Marshall reported about the judge's reaction to seeing him.
Here is a man off medication for a long time, out in the woods in freezing weather, not contacting his family, and having his family launch a police search for him.
Yet, being found "conscious", the first thing he says to his rescuer is that the rescuer has cut his hair? While that indicates some memory retention about basic things - how people looked, that kind of memory level does not mean that the judge was lucid, or at least, lucid enough to be on the bench until last month.
Once again, our Legislative representative in the U.S. Congress MUST finally pass the much-needed and much-overdue law REQUIRING federal judge to report their disabilities and medications and REQUIRING them to step down if asked on motions to disqualify based on such medical reports.
Otherwise, right now people whose cases Judge Kosik decided - for how long? - are left in limbo as to whether he was entirely lucid when he was making his determinations.
And we, the taxpayers, may have to pay for retrials, or, if such retrials are denied, will be left with a bitter taste that the federal court has cheated us - and litigants involved - out of justice and out of their proper performance.
And, the question remains. How many MORE demented and mentally unstable judges remain on the bench while courts are bent on concealing this information until situation gets so bad that the judge has to be let go - and even then the courts would like, as they did in Judge Kosik's case, about reasons why he was let go, in order to not allow the judge's decisions to be vacated because of his mental disability?
Quite like it happened with Chief Judge Solomon Watchler in New York (a convicted felon who was disbarred, but is now restored as a lawyer and is a "distinguished" law professor in the Touro Law Center in New York) where judge Wachtler is commended by the New York Court system for defrauding federal courts and playing yo-yo with his mental health issue with the federal prosecutors and the federal sentencing judge when he was charged, and later convicted, for extortion and intimidation of a woman - claiming he was mentally ill before and after the plea bargain, but claiming he is absolutely healthy for the purposes of the plea bargain, and doing it specifically because he did not want lawyers and parties to be massively filing motions to vacate decisions made by a mentally unstable judge.
No honor in such behavior.
An awful waste of money.
And, such secretive and dishonest behavior, both of former Chief Judge Wachtler of New York State court system, and of Chief Judge Christopher C. Conner of the U.S. District Court for the Middle District of Pennsylvania, or of Judge Edwin Kosik and his family, does not inspire much respect to the justice system, including federal courts.
So now, with any decision coming from federal courts, especially from an elderly judge, we need to think - how demented this judge is? Did he or she take his medication on time? Does medication work?
This is a lot of speculation we do not need as a nation.
We need transparency.
We need the truth.
We need our public servant to properly do their work, and to properly disclose to us when they cannot do that work because of their disability.
It is not too much to ask.
Thursday, March 30, 2017
PA Supreme Court agreed to hear, in April of 2017, whether suspended or disbarred attorneys should be singled out into a special class for whom it will be UPL to do what people can do without any law license
On March 22, 2017, Supreme Court of the State of Pennsylvania denied reinstatement to civil rights attorney Andrew Ostrowski based on, among other things, his criticism of judges, the fact that he organized a "civil rights network", engaged in advocacy (not practice of law) for certain causes, the main cause being court reform and the fight against judicial corruption, because, having been deprived of opportunity to earn a living, attorney Ostrowski has debts that he cannot start to pay as he has no income, and based on claims that he practiced law during suspension period - even though his supposed "practice of law" was representing clients in front of the Pennsylvania State Unemployment Compensation Board, where representation, by state Statute, is not deemed the practice of law.
The legal community found nothing better than to laugh about it.
The self-righteous Unemployment Compensation Board, irate by being overruled by the Court of the Commonwealth because the court indicated that the UCB improperly deprived Andy Ostrowski's client of a "representative" (not attorney) of his choice despite clear law stating that representation before that board does not constitute the rule of law, the UCB now wants the Pennsylvania Supreme Court to single out suspended and disbarred attorneys into a "special class", and to prohibit to this class more than is prohibited to people who were never licensed to practice law.
Of course, where the statute is clear that representation in front of Unemployment Compensation Board is not practice of law, there is nothing to "mull over".
Rules of statutory construction are clear - a court does not have authority to "interpret", or, rather, change through interpretation, clear statutory text, it is the prerogative only of legislature.
What constitutes contempt of court, and unauthorized practice of law, are both criminal statutes and must also be clearly defined by the Legislature, not by courts on an "ad hoc" basis, specifically because two suspended civil rights attorneys dared not to just go broke, but to try to earn a living helping people by doing what was not the practice of law, by statute.
So, the corrupt Supreme Court of the State of Pennsylvania that refuses to discipline corrupt judges (including the Kids-for-Cash judge Marc Ciavarella, until the feds indicted him and had him convicted and sentenced to 28 years in prison), that allows judges who were former prosecutors on the same case to decide appeals, who allows judges who are subject of investigation to suspend attorney licenses of their own investigators, like it was with Judge Eakin to PA former AG Kathleen Kane - now refused reinstatement of yet another civil rights attorney, and is claiming that it is because he stood his ground in criticism of three judges, and because he provided legal services (which are not legal services in Pennsylvania by statutory law and the court's own precedent).
And, that court magnanimously "agreed to review" the question whether it will violate the statutory law of the State of Pennsylvania, after all (while the court had no right to do that, as it would constitute legislative amendment, for which the court has no authority), and single out suspended or disbarred attorneys into a class from which the public must be specifically protected - so, even certain ways to earn a living is allowed to everybody else (including to convicted felons, including to felons convicted for fraud or theft or any other crimes of "moral turpitude"), it would not be allowed to suspended or disbarred attorneys.
I raised this specific issue, of unequal treatment of suspended attorneys and never-licensed individuals in prohibitions for earning a living, in 2013 in the U.S. .District Court for the Northern District of New York, on behalf of my husband - the case name is Neroni v Zayas. The court rejected the equal protection challenge as baseless, claiming such discrimination does not exist.
In 2015, though, New York decided the case regarding attorney Joel Brandes, and recently the New York State Court of Appeals affirmed denial of reinstatement of a disbarred attorney because he allegedly engaged in the practice of law (paralegal services) while to anybody else in New York engaging in paralegal services is not the practice of law.
In January of 2017, the Appellate Division 3rd Judicial Department in New York eagerly jumped on the bandwagon, declaring, in response to a motion of suspended attorney Gaspar Castillo, that 21 activities (not all of them listed in the decision, but I have just sent in money for the records to obtain the full list) as practice of law if done by a suspended attorney, even though the same activities are not practice of law for unlicensed individuals.
South Carolina and many other states prohibit attorneys to work as paralegals or even legal secretaries or investigators, activities which are allowed to individuals who have no law licenses: "A lawyer who resigns for reasons of ethical misconduct or who is disbarred or suspended may not be employed by any member of the Bar as a "paralegal, investigator, or in any other capacity connected with the practice of law." Rule 34."
So, Pennsylvania is not unique in discriminating against suspended or disbarred attorneys and making sure they go broke and cannot maintain a living (by the way, being broke was also one of the reasons why attorney Ostrowski was denied reinstatement - because, being deprived of a right to earn a living, he, naturally, could not pay his debts).
Yet, one thing is very clear - the court system, the supposedly "honorable" court system where each and every judge took an oath of office to be faithful to the U.S. Constitution would rather break that oath, legislate from the bench as to the meaning of Unauthorized Practice of Law statute to be completely different depending on who the defendant is (which is a violation of due process, separation of powers principle, ex post facto laws and bill of attainder clause, to name a few), than allow a civil rights attorney who criticized judges back to practice law.
The system is not protecting the public from civil rights attorneys.
The system is protecting itself from criticism.
The federal judge who rejected a plea of Kids-for-Cash judge and sent him to prison for 28 years is missing
First, he sustained rib fractures, allegedly in a fall at his home, and stopped hearing cases.
Then, he is now missing.
I wonder whether the authorities are taking Judge Kosik's disappearance seriously enough and whether the possibility of foul play is considered.
After all, not many judges, as it was admitted in a recent article, go to jail even if they are convicted of crimes, and there was plenty of reasons for revenge against Judge Kosik in establishing a precedent that a judge not only was convicted for felonies, not only his plea was rejected as insincere, but that he was sent to a general prison for 28 years.