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Texas Performance Review
Disturbing the Peace Chapter 7
Employee Issues
EI 10: Improve Collection of State Employee Debt
Improve the collection of debt owed the state by its employees.
Background
One subset of debt due the state is the amount owed by state employees. The Comptroller's warrant hold program reports that 10,343 state employees owed the state $44.3 million as of June 1996.[1] (Exhibit 1.) Currently, $28.3 million, or 63.9 percent, is owed through student loan programs. The Texas Guaranteed Student Loan Corporation (TGSLC), which administers the federal guaranteed student loan program in Texas, is owed the largest proportion ($25.5 million, or 57.6 percent, of the total amount).[2] The debt held by TGSLC may be reinsured by the federal government. The Texas Higher Education Coordinating Board's (THECB) Hinson-Hazelwood student loan program is owed $2.7 million, or 6.1 percent of the total amount.[3] Another $13.6 million (30.7 percent) is owed to the Attorney General for child support payments, while the remaining $2.4 million (5.5 percent) is due to the Comptroller's office for delinquent taxes and the Texas Workforce Commission for unemployment tax liability.[4]
Exhibit 1
State Debt Owed by State Employees, June 1996
Source: Texas Comptroller of Public Accounts.
Warrant holds
The Comptroller's warrant hold program offers all state agencies a tool to collect outstanding debts. Fifty-two agencies currently participate. The warrant hold program applies only to non-salary payments and is fairly simple. An agency sends the Comptroller's office a request to participate in the program. The Comptroller's Claims Division asks the agency to identify the source of debt owed the state. The agency submits identification numbers for the debtors (either individuals or organizations) to the Claims Division. From then on, as the Comptroller's office prepares warrants, the debtors' identification numbers are electronically checked against the prepared warrants.
If a state employee to whom a warrant is made payable owes money to an agency participating in the program, the warrant is held by the Comptroller's office, and the agency on whose behalf the warrant was printed is notified that the individual will not receive the warrant. The employee is notified of the withheld warrant, the outstanding debt amount, and the amount of the warrant withheld. If the warrant is to be released, the employee must contact the agency owed and agree upon a payment plan. The agency holding the debt then must contact the Comptroller's office to release the warrant. The agency may choose to collect on a certain portion of the debt before the warrant is released, or to release the warrant as soon as a payment agreement is reached.
If a state employee owes delinquent taxes to the Comptroller's office, the Government Code SS403.055(g) gives the Comptroller the authority to apply the warrant to the total amount that individual owes the state. Taxes can be offset--applying the warrant to the delinquent debt--by warrants other than salary. Taxes and other debts to the state may also be offset by lottery winnings, as authorized by the Government Code SS466.407.
Wage garnishment
In addition to warrant hold, the state also may collect debts through garnishment, a process by which part of an involuntary deduction is made from an individual's wages to repay a debt. Wage garnishment is a severe measure and one that is used only rarely. Under present law, Texas may garnish current wages for only two forms of debt: child support payments and student loans. The Texas Constitution specifically prohibits garnishment except in court-ordered child support cases, but federal law has superseded the constitution in the case of student loan repayment.
The Texas Supreme Court ruled in Orange County, Texas v. Ware, a 1991 decision, that the Texas constitutional prohibition against garnishment of current wages does not apply to an employer's withholding of an employee's compensation until the employee's debt to the employer is paid. The Court ruled that a garnishment occurs only when three parties are involved: the employer, the employee, and the third party creditor. Thus, holding a state employee's paycheck because the employee is indebted to the state would not appear to be an unconstitutional garnishment. It might be possible for the state to hold a salary payment if the applicable laws were changed.
Child support enforcement
Enactment of the federal Child Support Enforcement Act (P.L. 93-647) in 1975 strengthened the public's commitment to address the problem of nonsupport of children, with program administration left to the states. This commitment was further enhanced by the Family Support Act of 1988 (P.L. 100-485) which required states to impose wage withholding on the noncustodial parent in all new or modified child support enforcement program cases. As of January 1, 1994, states were required to provide for immediate wage withholding for all support orders issued, regardless of whether a parent has applied for child support enforcement services.
Child support payments are generated through court orders. Custodial parents failing to receive child support payments may apply for collection services through the Office of the Attorney General (OAG). OAG also may begin collection services if a custodial parent applies for Aid to Families with Dependent Children (AFDC) benefits and is not receiving child support payments. OAG attempts to persuade the non-custodial parent to pay current and past-due child support. If this effort is unsuccessful, OAG then may begin the garnishment process by serving the non-custodial parent's employer with a court order or writ of withholding to turn over a portion of the parent's compensation. OAG may garnish up to 50 percent of the parent's disposable earnings to satisfy the debt. The specific amount is set by the court order or writ.
According to the warrant hold information, $13.6 million is owed the OAG for child support payments--$832,000 of which is owed by employees whose child or children receive AFDC and $12.8 million owed in non-AFDC cases. The federal government reimburses the state 66 percent of the costs related to child support enforcement.[5] In 1995, the state paid about 37 percent of the cost of AFDC and is entitled to the same proportion of the additional AFDC-related child support collections.[6]
Collection of outstanding student loans
In 1991, the federal Emergency Unemployment Compensation Act (P.L. 102-164; 20 U.S.C. SS1095a et seq.) gave TGSLC the ability to garnish up to 10 percent of a debtor's disposable pay. TGSLC may continue to garnish wages until the defaulted loan has been paid in full. TGSLC has established criteria for wage withholding. Wages may be withheld if an employee has at least $400 outstanding, a $12,000 salary, and a collection account that is being worked by a TGSLC collector.[7] TGSLC reports that most state workers with unresolved collection accounts (those in which no payment has been made in at least 60 days) who are candidates for wage withholding do not have large salaries. As of August 1996, 55 percent earned less than $20,000 a year, and 96 percent earned less than $30,000 annually.[8]
June 1996 data from the Comptroller's warrant hold program indicate that almost 5,600 state employees, or about 2.1 percent of total full-time equivalent employees, are in default on student loans. The total amount in default is $28.3 million.[9]
State employees owe TGSLC, THECB, and 20 institutions of higher education student loan debt. Information from the Comptroller's warrant hold program indicates that 4,600 employees owe TGSLC about $25.5 million, an amount representing about 90 percent of the total student loan debt of state employees.
The other state program with a substantial student loan debt is the Texas Higher Education Coordinating Board's Hinson-Hazelwood Program. The agency is due $2.7 million (9.5 percent of the total student loan debt) from state employees, according to data from the warrant hold program. The remaining 20 agencies (which comprise only about 0.5 percent of state employee student loan debt) are institutions of higher education, including the Texas State Technical College System, medical schools, and community colleges.[10]
Limitations to state collection programs
Several limits to the effectiveness of wage garnishment and warrant holds exist. The biggest limit to wage garnishment is that it can be used for only two state-administered programs. A constitutional amendment or a new federal law would be required to expand the program.
The largest limitation in the warrant hold program is that there is not a mandatory usage of the Comptroller's system. Moreover, the warrant hold program is effective only if an employee receives payments other than salary compensation. Debt for a state employee who never or rarely travels, for instance, could remain uncollected.
Another factor is the amount of time needed to collect a debt through warrant hold. A warrant is valid for two years, and the Comptroller's Claims Division reports that a fair number of withheld warrants simply expire. This occurs for any number of reasons; in some cases, the debtor never contacts the agency owed to work out a plan, or the agency owed chooses not to release the warrant. In at least some cases, at any rate, a withheld warrant is not a sufficient motive to prompt debtors to begin paying their debts. Some debtors may consider multiple withheld warrants sufficient cause to begin paying a debt, but generating that number of warrants may take months or even years.
A final limitation on the warrant hold program is that little aggregate information is available regarding collections and debts owed the state. The Comptroller's Claims Division receives information from agencies about outstanding debt to generate warrant holds, but agencies are not obligated to update this information after the initial data have been submitted.
Recommendations
A. State law should be amended to broaden the Comptroller's warrant hold program and require mandatory participation by all state agencies and institutions of higher education.
The Comptroller's warrant hold program applies only to warrants issued by the Comptroller's office. The program could be expanded so that any payments by the state would be withheld until debts owed by people receiving state payments are cleared.
Ultimately, the program could be expanded so that debtors to the state would be precluded from receiving licenses and permits.
B. State law should be amended to allow the Comptroller's office to promulgate and enforce rules regarding the submission of updated warrant hold information from state agencies and institutions of higher education to ensure accuracy.
C. State law should be amended to allow for the automatic offset of liabilities against warrants issued by the state.
This provision would allow a warrant that is issued and held to be applied against a debt owed the state, treating all debts like taxes are currently treated. This recommendation should not be applicable to salary payments.
D. State law should be amended to require automatic payroll deductions for state employees with delinquent debt payments.
If a state employee becomes delinquent in his or her repayment of debts to the state, the owed agency should be able to set up a payroll deduction automatically to repay the debt. For those deductions not established by federal or state law, the Comptroller's office should use its current statutory authority to establish the priority of deductions.
E. State law should be amended to allow the Comptroller's office to adopt a warrant hold policy relating to state salaries.
Using the Comptroller's warrant hold program to hold a state employee's paycheck because the employee is indebted to the state would not appear to be an unconstitutional garnishment.
Many state employees may not know that they owe a debt to the state until a warrant is issued and held. Notices of delinquency should be sent to all employees owing a debt by the agency owed, along with information regarding repayment procedures. Upon receipt of the notice, the delinquent employee would be responsible for contacting the owed agency to voluntarily set up a payment plan.
If no contact was made by the employee, the owed agency would be obligated to notify the Comptroller's office, the employee, and the employing agency that the employee's paycheck will be held. Arrangements for payment toward the debt would have to be made before the owed agency releases the warrant. As mentioned earlier, the Comptroller's office has the authority to establish the priority of payments for debts that neither federal nor state law address.
Provisions for enforcement would have to be made by the agency owed for those employees who are paid with local funds. The owed agency would have to determine which state employees are paid with local funds, and would then be obligated to establish a payment plan for the delinquent employee. The owed agency would have to notify the employee of the impending deduction and submit the payment plan to the employing agency for enforcement of the deduction.
Fiscal Impact
A stricter approach to collecting debt owed the state by state employees would presumably increase the amount of debt collected by the state. Implementation of these recommendations would require programming changes to the Texas Payee Information System and the Uniform Statewide Personnel/Payroll, incurring some costs which would be absorbed by the Comptroller's office. The cost of this recommendation is negligible.
Footnotes
[1] Texas Comptroller of Public Accounts, Count of State Employees on Hold, June 24, 1996, pp. 1-17. (Statistical report.)
[2] Texas Comptroller of Public Accounts, Count of State Employees on Hold, pp. 9-12.
[3] Texas Comptroller of Public Accounts, Count of State Employees on Hold, pp. 6-8.
[4] Texas Comptroller of Public Accounts, Count of State Employees on Hold, pp. 1-17.
[5] "The 1994 Green Book Overview of Entitlement Programs, Section 11. Child Support Enforcement Program" (http://aspe.os.dhhs.gov/GB/sec11.txt). (Internet document.)
[6] "The 1994 Green Book Overview of Entitlement Programs, Section 10. Aid to Families with Dependent Children and Related Programs (Title IV-A)" (http://aspe.os.dhhs.gov/GB/sec10.txt). (Internet document.)
[7] Texas Guaranteed Student Loan Corporation, "Unresolved Collection Accounts as of August 12, 1996, by whether or not Defaulter meets TGSLC Wage Withholding Criteria; Workers Employed by a State of Texas Agency as of July 31, 1996, Sorted by Agency Name," August 20, 1996, p. 1. (Statistical report.)
[8] Texas Guaranteed Student Loan Corporation, "Unresolved Collection Accounts as of August 12, 1996 by whether or not Defaulter meets TGSLC Wage Withholding Criteria; Workers Employed by a State of Texas Agency as of July 31, 1996, by Annual Salary Range," August 12, 1996, p. 1. (Statistical report.)
[9] Texas Comptroller of Public Accounts, Count of State Employees on Hold, pp. 1-17.
[10] Texas Comptroller of Public Accounts, Count of State Employees on Hold, pp. 1-17.
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Tuesday, October 13, 2009
Thursday, October 1, 2009
In life we are put in predicaments where incidents meets the innocent |
Download RingtoneSend “If I...” Ringtone to Your CellDownload Ringtone
[Intro]
[Verse]
I live my life like a 38
Pointed straight but shooting blanks
Killing Angels but they don�t don�t die
I�m heading on a course of change,
Lost my brother on the run
Lost my dignity to one
I blame them others and take none
Am I a man.
I wake up every day in rage
Sore from bumping round my cage
I see my father broken down
He seem so strong up until now
And all the inner conflicts groan
Cause now I question all I know
And I just need something I could feel
[Chorus]
So If I�
Crash into you
And If I�
Dare Not Run away
It�s Cause I�
Need someone to touch
Whether it�s�
Heavenly or pain
And if by�
Chance we don�t collide
Then I�ll�
Take much better aim
It�s cause we�
Need someone to touch
Whether it�s heavenly or pain
[Guitar Solo]
[Verse 2] (Rap)
I will understand you | Judge You |Protect you | Berate you
Help you | Punish you | Guide you | Forsake you
We speed through life like we speed through life |
In the blink of an eye it could mean your life |
Frighten by stereotypes our senses become heighten |
When fear meets the truth it�s like the clash of the titans |
We cross the same intersection | Where perception becomes deception |
Mirrored reflections of an ugly complexion |
It�s a mess that people think we are who we are
Based on what they hear or read or by the color we are |
In life we are put in predicaments where incidents meets the innocent |
That �Crash� our conscious with contents of nonsense |
When I breakdown and �Crash�
[Chorus]
So If I�
Crash into you
And If I�
Dare Not Run away
It�s Cause I�
Need someone to touch
Whether it�s�
Heavenly or pain
And if by�
Chance we don�t collide
Then I�ll�
Take much better aim
It�s cause we�
Need someone to touch
Whether it�s heavenly or pain
[Intro]
[Verse]
I live my life like a 38
Pointed straight but shooting blanks
Killing Angels but they don�t don�t die
I�m heading on a course of change,
Lost my brother on the run
Lost my dignity to one
I blame them others and take none
Am I a man.
I wake up every day in rage
Sore from bumping round my cage
I see my father broken down
He seem so strong up until now
And all the inner conflicts groan
Cause now I question all I know
And I just need something I could feel
[Chorus]
So If I�
Crash into you
And If I�
Dare Not Run away
It�s Cause I�
Need someone to touch
Whether it�s�
Heavenly or pain
And if by�
Chance we don�t collide
Then I�ll�
Take much better aim
It�s cause we�
Need someone to touch
Whether it�s heavenly or pain
[Guitar Solo]
[Verse 2] (Rap)
I will understand you | Judge You |Protect you | Berate you
Help you | Punish you | Guide you | Forsake you
We speed through life like we speed through life |
In the blink of an eye it could mean your life |
Frighten by stereotypes our senses become heighten |
When fear meets the truth it�s like the clash of the titans |
We cross the same intersection | Where perception becomes deception |
Mirrored reflections of an ugly complexion |
It�s a mess that people think we are who we are
Based on what they hear or read or by the color we are |
In life we are put in predicaments where incidents meets the innocent |
That �Crash� our conscious with contents of nonsense |
When I breakdown and �Crash�
[Chorus]
So If I�
Crash into you
And If I�
Dare Not Run away
It�s Cause I�
Need someone to touch
Whether it�s�
Heavenly or pain
And if by�
Chance we don�t collide
Then I�ll�
Take much better aim
It�s cause we�
Need someone to touch
Whether it�s heavenly or pain
Saturday, September 19, 2009
Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied............
3789
Practicing law without a license is a right under the 1st amendment - a right that cannot be abridged. “ . . .shall make no law . . . . abridging the freedom of speech, or of the press; or the right to petition the government for a redress of grievances.” - 1st amendment Speech, petition, counseling, and association are all 1st amendment rights. They are “privileges” ( “ No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States - 14th amendment)
of citizenship under the 14th amendment “privileges and immunities” clause and you have an immunity from prosecution for exercising these rights!
This is www.lawyerdude.8k.com/3789.html
Revised Sunday, March 2, 2003. Minor upgrade Tuesday, April 8, 2003.Sunday, June 22, 2003, Dec 15, 2003. Fixed link April 26, 2004.
Related pages:
The prettier version of this page is at www.lawyerdude.8m.com/3789.pdf
The table of authorities for this page is here: http://www.lawyerdude.8m.com/3789authorities.html
Table of Contents, Tables of Authorities and other incidentals and front matter are at this link: www.lawyerdude.8m.com/3789frontmatter.html
Table of Contents: http://www.lawyerdude.8m.com/3789contents.html
Table of Authorities cited in this brief: http://www.lawyerdude.8m.com/3789authorities.html
The story of my arrest for writing brief #2871: http://www.lawyerdude.8m.com/3789myarrest.html
The smoking gun. They arrested me for writing this Brief #2871: http://www.circuitlawyer.8m.com/2871.html
A brief history of harassment by the Ventura prosecutor: http://www.lawyerdude.8m.com/3789history.html
Some comments on my trial: http://www.lawyerdude.8m.com/3789mytrial.html
Tribute to Professor David Harrell: http://www.lawyerdude.8m.com/3789harrell.html
This page is mentioned on page: http://www.lawyerdude.8m.com/mystory.html
The index to this brief 3789 is: www.lawyerdude.8m.com/3789index.html
This page is listed on page: http://www.lawyerdude.8m.com/5094.html
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Analysis #3789 (formerly 3601):
The 1st Amendment Rights of Lawyers
Everybody’s 1st Amendment Right to Association
The state bars lose here. Read these cases.
Preliminary Version #3.01 - 90% Complete. This document was lost from my computer in my hard drive crash of 2002 but it was up on the net at the time so I did not lose it.
Brief 3789 is big. Here are some of the auxiliary parts:
1. Table of Contents, Tables of Authorities and other incidentals and front matter are at this link: www.lawyerdude.8m.com/3789frontmatter.html
2. Table of Contents: http://www.lawyerdude.8m.com/3789contents.html
3. Index to brief #3789: http://www.lawyerdude.8m.com/3789index.html
4. Table of Authorities cited in this brief: http://www.lawyerdude.8m.com/3789authorities.html
5. The story of my arrest for writing brief #2871: http://www.lawyerdude.8m.com/3789myarrest.html
6. Brief #2871: http://www.circuitlawyer.8m.com/2871.html
7. My trial. www.lawyerdude.8m.com/3789mytrial.html
8. A brief history of harassment by the Ventura prosecutor: http://www.lawyerdude.8m.com/3789history.html
9. Tribute to Professor David Harrell: http://www.lawyerdude.8m.com/3789harrell.html
Brief #3789
Lawyers are a class of People Recognized in the Constitution.
The 6th amendment to the constitution says that you have a right to effective assistance of counsel. “ . . .the accused shall enjoy . . .the assistance of counsel for his defense”
(6th amendment in total says : In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense)
That is what I am: I am counsel. See Ex Part Garland for this discussion and a superb discussion of the constitutional right to be a lawyer.
Licensing of the right to speak is proscribed by the 1st amendment
Stanford Professor Lawrence Friedman says in his classic History of American Law (which book is cited as authority by the U.S. Supreme Court in their opinions) says that the only legitimate purpose of a bar association is to test for competence. My research keeps leading me back to Professor Friedman's truth. Ironically a firm policy of the California Bar is that they do not disbar or discipline for incompetence. Presumably a lawyer who has once passed the bar exam is presumed competent.
I contend that disbarment must be prohibited or curtailed because it is used as a tool to chill the speech of dissidents like me.
California Constitution, article 6, section 9: "The state bar of California is a public corporation. Every person admitted and licensed to practice law in this state is and shall be a member of the State Bar except while holding office as a judge of a court of record."
This statute (wrongfully escalated to constitutional status by the power grabbing California bar) defines the membership of the bar. My research shows that the legislative intent behind this ambiguous statute is not that lawyers may not be disbarred - although that is what it seems to say. I nonetheless contend that once admitted you should not be disbarred. The Supreme Court in (Theard?) says that disbarment is serious and should not be done for trivial reasons - something that our California Bar should take to heart.
Remember that bar organizations were originally conceived to combat a corrupt judiciary in the days of Tamany Hall. (Source: History of American Law by Professor Lawrence Friedman) And today, we lawyers, a few of us, continue to fight corruption such as the over-reaching of the California Supreme Court which took action against me after I pointed out their wrongdoings on behalf of a client in federal court. The California Supreme Court should have recused it self in my
case - and should have invited me to participate in the proceedings.
Here are the cases that have vindicated our 1st Amendment Right to Association:
United Transportation Workers (Teamsters) v Michigan Bar (1971) http://www.lawyerdude.netfirms.com/teamster.html 28 L Ed 2d 339, 401 US 576, 91S Ct 1076, and that line of reasoning holds that the bar may not interfere with people who are trying to vindicate the civil rights of their associates.
NAACP v Alabama (1958) http://www.lawyerdude.netfirms.com/naacp2.html 2 L Ed 1488, 357 US 449, 78 S Ct 1163. The attorney general of Alabama sought to enjoin the NAACP from riling up those pesky Negroes. The Negroes won. Notice that in this old case they even wanted the membership lists - like in the communist cases.
NAACP v Button (1963) http://www.lawyerdude.netfirms.com/naacp3.html 9 L Ed 2d, 371 US 415, 83 S Ct 328. The NAACP Legal Defense Fund brought suit in federal court in the eastern district of Virginia in 1957. These suits sought an injunction against enforcement of 5 statutes. Lawyers at the meetings risked disbarment and laymen risked criminal prosecution under the challenged statute for merely advising Negroes that they could file a lawsuit. NAACP won. This is a boring but fairly thorough opinion. Justice Douglas, the court's strongest liberal called a spade a spade. He said that this statute was designed to combat the trend of the Negroes to integrate schools and vindicate their rights that the Supreme Court enunciated in 1954 in Brown v Board of Education. NAACP v Button is right before Wong Sun in Lawyer's Edition. Both are from a fruitful era of the court when our rights were being vindicated. Wong Sun is the case that I cited in my LSD brief - but my appointed lawyers dropped the ball. It is about testimony of a co-conspirator, absence of consent, coercion, and defending against police abuse in drug cases.
Primus, In Re (1978) http://www.lawyerdude.netfirms.com/primus.html 56 L Ed 2d 417, 436 US 412, 98 S Ct 1893. Subject of annotation at Lawyer's Edition 2nd 56:841 entitled Licensing and Regulation of Attorney as restricted by rights of free speech, expression, and association which is the closest treatise on point regarding free speech rights of lawyers. Her Supreme Court brief is at 56 L Ed 2d 838. Edna Primus was a lawyer in private practice who volunteered her time to the ACLU. South Carolina stupidly argued that solicitation, like advertising, invades the privacy of other's - as though Primus's client was not desperately in need of a free lawyer. In the summer of 1973, welfare mothers were sterilized or threatened with sterilization as a condition of continued Medicaid relief. Mary Williams had been sterilized by the authorities via Dr. Clovis Pierce. Primus informed Mary Williams by letter that the ACLU would take her case and sue Dr. Pierce. This letter was the smoking gun - sorta like Palaschak's brief telling Melvin Looser that the court could not send him to jail for being poor. In October 1974 the secretary of the Board of Commissioners on Grievances and Discipline of the Supreme Court of South Carolina filed a formal complaint that Edna Primus had engaged in solicitation in violation of the Canons of Ethics. (Back in 1973 Black's Law Dictionary published the ABA Canons of Ethics and many of us thought that the ABA ethics were the last word. Since then each state has carved out its own niche of oppression. Edna Primus replied that the 1st amendment and 14th amendment gave her immunity for her letter. After a hearing on 9 Jan 1976 the full board approved a private reprimand. On March 17, 1977 the Supreme Court of South Carolina put its rubber stamp on the deal - likely without any input from Primus. On July 9, 1977 Primus brought action in the U.S. Supreme court. Her action is based primarily on a 1963 case NAACP v Button - and in view of the clarity of the right to association spelled out by the court in 1963 I wonder why South Carolina would bring this disciplinary action but for their bureaucratic macromegalomaniac personality. (See Palaschak's theory on macropsychology - which says that bureaucracies have their own personalties which are bad from the perpetual life of the bureau and the exaggerated sense of useful purpose and wisdom. Their mistake is the bureaucracies have no wisdom or insight.) Observe that all the lawyers being disciplined in these cases were representing people who were typical of groups of people gaining their rights. Examples Primus represented a welfare mom; in NAACP v Button it was Negroes who were gaining their rights; in the union cases it was unions against the monopolies; in Palaschak's case it is poor victims of traffic court and the very lawyers like Primus who, in California, are subjected now to a barrage of trivial, merit less attacks by the bar (representing the moneyed interests) sometimes for acts having no nexus to the practice of law. Example: Palaschak's traffic tickets and having eaten LSD. Rehnquist dissented in this opinion. The companion case is Ohralik v Ohio state bar 56 L Rf 2d 444, 436 US 447, 98 S Ct 1912. Ohralik was an ambulance chaser entitled to the same first amendment rights but he lost on appeal while Primus won because she took no money. Does your right to speech end if you are paid for it? No.
Related inadequate treatise: L Ed 2d 100:1049 State Regulation of judicial proceedings as violating commerce clause (Art 1, section 8, clause 3) of Federal Constitution - Supreme Court Cases.
Primus's 1978 brief cites 8 cases, namely:
NAACP v Button (1963) http://www.lawyerdude.netfirms.com/naacp3.html - which is discussed above;
Brotherhood of Railroad Trainmen v Virginia,
United Mine Workers V Illinois State Bar,
United Transportation Union v State Bar of Michigan, http://www.lawyerdude.netfirms.com/teamster.html
NAACP v Alabama http://www.lawyerdude.netfirms.com/naacp2.html ,
Buckley v Valeo,
US v Cook (1872) 21 L Ed 538,
Hamling v US 41 L Ed 2d 590,
Thompson v Louisville 4 L Ed 2d 654.
Notice that in most of the cases the bar organization is on the losing side, on the side of oppression. The bar is controlled by the money interests. Money is against labor. That is why we see the Teamsters, Mine Workers, and other unions against the bar. The Unions represent the workers.
Ohralik v Ohio state bar http://www.lawyerdude.netfirms.com/ohralik.html 56 L Ed 2d 444, 436 US 447, 98 S Ct 1912. Ohralik in his brief at 56 L Ed 876 cited the following cases:
Louisville Var v Hubbard 282 Ky 734, 739, 139 Sw2d 773, 775,
Bates v State Bar of Arizona 53 L Ed 2d 810,
Virginia State Board of Pharmacy v Virginia Citizens Consumer council 48 L Ed 2d 346,
NAACP v Button 9 L Ed2d 405,
State v Rubon (1930) 201 Wes 30,32, 229 NW 36, 37,
Cole v Arkansas 92 L Ed 644,
US v O'Brien 20 L Ed 2d 672.
Brotherhood of Railroad Trainmen v Virginia ex.rel. Virginia State Bar (1964) 12 L Ed 2d 89, 377 US 1, 84 S Ct 1113. Court struck down an injunction barring union from directing its members to certain favored lawyers.
United Transportation Union v State Bar of Michigan (1971) 28 L Ed 2d 339, 401 US 576, 91S Ct 1076 These were the teamsters. The court vindicated the rights of the Teamsters to associate and refer members to its own chosen lawyers.
Alien and Sedition cases and communist sympathizer cases - Reagan was a snitch.
About 1450 Gutenberg invented the printing press and within 100 years Star chamber circa 1556
passed statutes requiring a license to print. History is a study of the rich trying to oppress the poor.
Our 1st amendment is written against a background of licensing of the right to print and licensingof lawyers is nothing more than licensing the right to print where it is most important - and licensing the right to speak - and the first amendment says that these right and the right to petition for redress of grievances shall not be abridged. The state bar act abridges them and is unconstitutional.
I must put these authorities on the computer. I printed them longhand.
The Supreme Court of California talks about its inherent power to discipline lawyers. There is no such inherent power!! However, we do have an inalienable rights - - and the California Supreme Court oversteps its bounds when it attempts to curtail my right to speak.
This oppression in the name of the bar's inherent power is a product of the age of robber barons.
A study of the use of the words "inherent power to discipline lawyers" shows that they began to be used during the age of the robber barons during an age when drugs and alcohol became illegal and when the IRS began to tax us - in short, in the age of oppression.
Scope of this Treatise: 1999 Trial; Upcoming 2001/2 Trial.
This treatise lists the authorities that I found in my research in jail in Ventura from July through September 1999 while awaiting trial for "advertising or holding oneself out to be entitled to practice law" while one's license from the California bar is suspended or revoked. My purpose is to put the articles in a retrievable form. My purpose then was also to assist court reporters as they reported my oral arguments citing these cases; the list save them from asking me to spell each case name for them. My treatise and discussion of these articles although sometimes typewritten was not on my computer, of course, because although I demanded a computer - and the press releases for the Ventura jail brag about their state-of-the-art law library - in fact I was denied access to a computer or word processor. I cited many of these cases in my written requests for Jury Instructions.
In 1999 I put all the authorities into one list for use by the court reporter regarding spelling and citation of cases that I planned to mention in my argument.
In the year 2000 I demanded (using this brief) to speak in court without retaliation - and who would think that in our supposed free country a lawyer would need to defend his right to speak? Like a frog in a cooking water we have grown accustomed to something harmful. An implicit tactic of corporate ficta is the utilization of their perpetual life by patient and stealthy encroachment because they know that one generation will forget the lessons of the previous human generation. Case in point: This generation has forgotten our right to speak was unlawfully abridged by the state bar act of previous generations.
Everybody (hyperbolically speaking) living now mistakenly believes that the bar may abridge
speech despite the clear wording of the California and U.S. constitutions - but if we had lived as long as corporate ficta we would never have let this happen; things like this happen by generation - after the last remaining mortal human objector has died.
I recognize that I may lose credibility if I say that all lawyering is protected activity - but, on the other hand, everybody know that the 1st amendment protects speech and writing. Generally speaking, all that a lawyer does is write, speak, read, and listen.
If you think a little harder you will realize that a lawyer does 2 other things:
#1 he is a proxy for the litigant. For example, he may plead "not guilty" for the defendant or speak on behalf of a litigant who is geographically distant from the court;
#2 he is a fiduciary; for example: he receives the check from the insurance company and pay the client.
Both of these non-speech activities have their own life outside the bar because both of these functions are routinely done by non-lawyer (and have been for centuries) - and both have their own remedies for wrongs.
Ancient and continuing Proxy function outside the bar.
As to the function of proxy, that position is called "attorney" and historically was the person who spoke for the principle when he could not be there in person - in the days when geographical distance was more of an obstacle than it is today. Even today we have "attorney-of-fact" registration in the hall of records to record who is the actual person entitled to be proxy for another - and these people don't run into objection from the bar. They can manage property and other affairs including writing of checks. The organized bar has attempted to limit the participation by proxy of person who have not joined their compulsory club, but if the person is weak and harmless, often the court will let him speak, especially if there is a language difference - - or if there is any other reason for which a proxy would benefit the court.
If we were to be in the business of policing proxies then we would first abolish the position of public defender because most of the malpractice action lies there.
The fiduciary function outside the bar
Bankers, stock brokers, attorneys-in-fact, co-signers on joint checking accounts, spouses, and the 16 year old who runs the cash register at McDonalds - these people all perform fiduciary functions - and none need be bar members.
Bar laws are exemplary of much of what is wrong with bad legislation
The codes do not match the common law
When the state bar codifies the common law regarding disbarment it writes lazily and draws the distinctions with a camera instead of a sharp pencil
The codes attempt to modify the common law in a way that everybody partially ignores
Remedy of disbarment is used too rashly today - if it should be used ever.
I challenge you to show me a case where a person should be disbarred. I can show you at least two where the person should not have been disbarred - and there seems to be a pattern of not inviting disbarment candidates to the disbarment hearing.
Bar's only legitimate function is testing and admission - and maybe disbarment for something
grievous.
The definition of moral turpitude should remain what it has always been - not devalued as bar prosecutors would like it to be.
Lawyers may not lawfully be compelled to be super-citizens - because citizens merely definethemselves by how well they serve corporate ficta! Furthermore, it is a denial of equal protection.
1.Any attempt by the state bar or the court to restrain Palaschak's speech constitutes unlawful prior restraint in violation of Near v Minnesota (1931) 75 L. Ed. 1357; 283 U.S. 697; 51 S. Ct. 625. Konigsberg made a Near argument in his successful argument before the U.S. Supreme Court in the blacklisting days. SeeKonigsberg v State Bar of California, et. al. (1957)1 L. Ed. 2d 810 , 353 U.S. 252, 77 S. Ct. 722. The Near argument is applicable and determinative today also.
2.
3.Any person (a prospective client for example) has standing to challenge the infringement of Palaschak's rights just as Dr. Griswold challenged the infringement of his patient's rights in Griswold v Connecticut. Conversely Palaschak has a right under Griswold to vicariously assert the speech rights of other humans.
4.
5.Corporate ficta has learned more by virtue of perpetual life than we humans can learn during our short non-perpetual life. Bills of Pains and Penalties is the issue of this decade. Just as some folks took several decades to learn that McCarthy's blacklisting and Viet Nam were instruments of oppression foisted by corporate ficta on those whose idea of freedom differed from their, so now today Bills of Pains and Penalties (and other hidden complicated dirty tricks and rigged games) are used to further their agenda. If is to be expected that the bar will use an ever evolving arsenal of instrument of oppression.
1.Any subsequent criminal prosecution violates the 1st amendment.
1.The state bar act is unconstitutional as an abridgement of freedom of speech and press.
1.The state bar act as applied to Palaschak violates a multitude of constitutional precepts.
.
Fundamental constitutional Law: A void act is void ab initio. Marbury v Madison.
Marbury v Madison (1803) 2 L Ed 60, 5 U.S. 137 is cited by Palaschak in brief #3596 at page 3.
Brief Remembrance of Outspoken People's Lawyers Previously attacked by the bar
Attorney William Kunstler was sentenced to 4 years in prison by angry Judge Julius Hoffman for his successful defense of the Chicago 7 in 1968. He won on appeal. See In Re Kunstler __ (CA7 Chicago circa 1969). See also Dellinger et al. Dellinger was the lead named defendant in the Chicago 7? See My Life as a Radical Lawyer, the autobiography of Attorney William Kunstler.
Attorney Steven Yagman was purportedly suspended by the secretive standing committee on discipline of the U.S. district court for his out of court writings regarding Judge Keller's alcoholism on the bench. Yagman prevailed - but then the California state bar whacked Yagman for a year.
Attorney Melvin Belli was prosecuted for appearing on a television commercial promoting his favorite brandy.
Attorney Marvin Mitchelson was prosecuted after his rise to fame in the palimony case involving Lee Marvin.
List of Players in the Battle to Free the Human Lawyers
On the Side of Freedom
Former U.S. Attorney General Ramsey Clark, counsel for Steven Yagman, wanted to prosecute the police for busting heads at the Democratic Convention in 1968.
Attorney Steve Yagman of Santa Monica, California
Attorney Gentile of Nevada
Attorney Douglas Palaschak of California
Attorney William Kunstler, now deceased. His biography is My Life as a Radical Lawyer
Attorney Harold Perry made emancipation of human lawyers his life's work, but failed to buy a computer and lost touch with the world.
Our Opposition: The Oppressors, the shills of corporate ficta and instruments of oppression
Diane Yu. Never had a human client in her life. Political appointee from a political family. She is the modern yellow peril - epitome of a race without respect of individualism and human rights. In 1983 she was in charge of grading the bar exam and it was graded wrong for the first time in history. In 1986 she began a crusade to castrate male lawyers resulting in the state bar pseudo court where the prosecution hired the pseudo judges. Palaschak challenged the constitutionality of this court in a lawsuit against the California supreme Court. The court retaliated and purported to disbar Palaschak but such a disbarment is void ab initio.
List of the Top Ten most pertinent cases:
#1 Condon, Estate of (1998) 65 Cal Ap 4th 1198, 76 Cal Rptr 922. Not supervening.
#2 Yagman v Standing Committee of Bar Examiners. Yagman criticized the judges in newspaper.
#3 NAACP v Button. Non bar members gave legal advice.
#4 Newman v Piggie Park (1968) Use of term "Private Attorney General"
#5 United Transportation Workers Union (Later named Teamsters) V State Bar of Michigan. Union gave legal advice.
#6 Schware v Board of Bar Examiners.
#7 Bates v Arizona Legal Clinic Advertised
#8 Craig V Boren (1976). Overbreadth. One defendant asserted rights to the other.
#9 Gentile v State Bar of Nevada. Lawyer gave press conference about clients case.
Notes about my coded shorthand used herein.
Sometimes I used a shorthand to indicate where I refer to a case in one of my numbered briefs or motions. Example: 3596.8 means that I refer to the cited case in motion #3596 at page 8.
The Methodology of Oppression of Human Lawyers by Corporate Ficta
Depublish Cases where individualists win. Publish cases which further corporate agenda.
Example: In Palaschak's case, his victory at the court of appeal was ordered depublished. Then the California Supreme Court appointed its own lying shill lawyer for Palaschak, heard the case without the entire transcript, reversed the court of appeal, and published the decision.
Depublication is ultra vires legislation by a court and violates stare decisis.
Depublication is euphemism created by the oppressive Lucas court to disguise and ancient instrument of oppression - censorship. Logically, after centuries of law we would rarely run into a word that has not been used before. The word "depublication" isn't even in the dictionary. After centuries of law Lucas needed a euphemism - a new word to disguise censorship - because everybody know about censorship - so Lucas calls it "depublication". The court has no business fostering its own agenda by abuse of the depublication rules. The court has no business entering the world of publication decisions. The court achieved that purpose by holding that unpublished decisions may not be cited as binding precedent. This is an abuse of power for at least 2 reasons: #1 Rules of decisions is a legislative subject - and courts may not legislate; #2 We all know about stare decisis; stare decisis is natural and logical - and the court may no more regulate stare decisis than it could regulate gravity.
The efforts of Hyperlaw to eliminate monopolistic activities of West Publishing.
Hyperlaw's website is chock full of authoritative information reporting the extensive litigation between Hyperlaw and demon West Publishing. There is a lot to talk about in this subject area. I refer you to the Hyperlaw web site.
The Age of Communication is freeing us from biased reporting of decisions.
In bygone days, the cost of reporting a decision via paper to a lawyer was more than the cost today. Today most decisions are reported via internet at a cost of virtually zero. In bygone days, the court achieved its societal goal of wide dissemination of its opinions by making a deal with a publisher. In exchange for monopolistic rights to the decision, the publisher assured publication nationwide. There is no longer a need for this deal with the devil.
Effect Depublication by shuffling the forum
For many years complaints about lawyers were heard by a panel of 3 lawyer peers. The decision could be appealed as any ruling by an administrative agency. The result was that decisions about lawyers appeared in the published cases - and rightly they should - so that everybody could see what was happening. Then in 1989 the state bar and the supreme court violated the California constitution and created a state bar pseudo court with its own appellate panel. The result was that the standards of behavior established through decades of decisions were now secretly ignored. The state bar pseudo court hired by state court prosecutors served its employer by changing the standard. The decisions remain hidden from the public because they decisions are not where they were before. The bar and the supreme court effected depublication by causing the decisions to be made my non-judicial bodies and therefore not reported in the case reporters.
Oppressive Admission to the federal court is controlled by federal local rules - an example of
power grabbing and oppression at the highest level. Congress shall make no law abridging speech - and the judges shall make no laws period. Also, the federal constitution does not give anybody the right to prohibit speech or regulate the practice of law in the federal courts - and to the extent that California constitution requires membership in the state bar such violates the nobility clause - and others - and maybe was only added in the constitution of 1949.
The result is that lawyers have rights in federal court that vary from state to state and are controlled by the judges in those local courts. Judges have no legislative authority and their attempt to grab it is unconstitutional.
Debunking Legal Fictions: You have a right to eat and distribute illegal pills and to do other
private things - including writing things for people - and you have a right to speak in public - even in court. Penumbra doctrine - also known as double delta theory in integral calculus.
Griswold v Connecticut (1965) 14 L Ed 2d 510, 381 U.S. 479, 85 S. Ct. 1678. Penumbra. Relaxed standing. Vicarious standing. Cited in Palaschak briefs #3567 at page 1 and #3596 @ 2. Dr. Griswold gave illegal drugs (birth control pills) to his patients. He used relaxed standing to defend his pill distribution by saying that the privacy rights of his patients in their procreative (or not) liberty permitted him to give them the pills. Justice Douglas's legacy to the free world!
Debunking legal fictions: Ignorance of the Law is a Defense. Related Defense is "I contest the
Law"
In People v Goodin (1902) 136 Cal. 455; 69 P. 85. The government ran a road for years through Goodin's ranch. When the government straightened the road, Goodin reclaimed the land on which the old crooked road had run. Then he was accused of destroying state property - the old pavement. Goodin won.
State Bar Taint is an Unconstitutional Bill of Pains and Penalties - Like a Bill of Attainder
Ex Parte Garland (1866?) 18 L Ed 366, 4 Wall 333@ 377 is one of only 20 cases where the supreme court mentions "Bill of Pains and Penalties." A lawyer who had served in the confederacy and subsequently pardoned was challenged by __ when he wanted to practice law again. The supreme court ruled that __ which purported to bar his practice was a bill of pains and penalties - and therefore unconstitutional.
Just as in Criminal cases, each litigant is entitled to show the court what is behind the judicial
decisions that would be an element in curtailing his rights at the instant hearing. All presumptions of regularity are legal fictions.
1.Palaschak contends that his 1992 misdemeanor conviction and subsequent disbarment were unlawful and void ab initio being fruits of the forbidden tree. The presumption of regularity has been destroyed by subsequent actions of Matz - and for other reasons - and the issues is always there because ___ says that the evidence shall not be used for any reason. Palaschak would have challenged the use at his bar hearing of any testimony stemming from Officer David Matz's raid at Palaschak's office in 1991 but it was never offered when Palaschak was there. The Supreme Court never had a complete transcript not a brief of the suppression issues. Now today, after David Matz proved his dishonesty to the world by shoplifting from Petco in 1999 the door is opened to ask the questions that we could not in 1992.
The Lawyer's Right to effective assistance of counsel at Bar Hearings
Palaschak's purported suspension and/or disbarment are void ab initio because the equal protection clause and Argersinger imply that B&P 6085 be interpreted to require appointment of counsel for those who cannot afford it. Palaschak demanded appointment of counsel at his bar hearing and pseudo hearing officer David Wesley erred in ruling that indigents are not entitled to appointed counsel in bar cases. Palaschak's appellate rights at the hearing were denied by the subsequent seizure of his car and temporary banishment from the hearings - not to mention bias due to Palaschak's having sued the bar and the supreme court for another lawyer.
Palaschak demanded counsel at his bar hearing and was denied counsel, the judge incorrectly ruling that the statute did not provide for appointed counsel but his logic is patently defective as follows: The U.S. Supreme Court in Gideon, Argersinger and their progeny has ruled that the equal protection clause is what mandates appointment of counsel for indigents. Obviously the constitution, like B&P 6085, does not in its wording prescribe appointment of counsel, but since the wording is the same and the equal protection clause applies to both, the result is that appointed counsel is required by Cal Bus & Prof Code § 6085.
"§ 6085. Rights of defense to charges Any person complained against shall be given fair, adequate, and reasonable notice and have a fair, adequate, and reasonable opportunity and right . . .(c) To be represented by counsel. . . ."(3)
1.Even the test books are confused (or perhaps obsequious to the bar) and list in the annotations to 6085 cases that were overruled by the U.S. Supreme court specifically an by implication. A 1902 case, Vaughn comes to mind.
A state bar hearing punishes a lawyer for his acts and is therefore quasi criminal and the entire panoply of criminal protections accrue. Spevack v Klein (1967) 17 L Ed 2d 574, 385 U.S. 511; 87 S. Ct. 625.
"The self-incrimination clause of U.S. Const. amend. V, has been absorbed in U.S. Const. amend. XIV, and it extends its protection to lawyers as well as to other individuals, and it should not be watered down by imposing the dishonor of disbarment and the deprivation of a livelihood as a price for asserting it." - Spevack v Klein
1.The bar denied Palaschak his right to confront and cross examine witnesses by banishing him from the hearing for 1.5 days during which time it took testimony from witnesses.
1.Over Palaschak's objection the bar hearing officer, an employee of the prosecutor used evidence stolen from Palaschak's office, a completely innocent information form from a client or job application taken to the police by the bar's witness, an emotionally troubled hysterical woman, the theft having been kept secret from Palaschak until the bar produced its administrative record.
1.The bar failed to comply with discovery. Palaschak submitted detailed and significant special interrogatories that were arrogantly ignored.
Counsel of choice
Twenty opinions of the U.S. Supreme court support the litigants 6th amendment right to counsel of choice. Only one opinion, Leis v Larry Flynt, discusses the rights of out of state attorneys to handle an Ohio case but the lawyers and the court failed miserably by failing to see the obvious 1st amendment right of a person (any person) to speak in this country anywhere. The bar act is an abridgment of speech - just another one of the many abridgments of speech that the bar acts have foisted upon lawyers in the age of the robber barons. The U.S. Supreme court failed us in this case. Although it failed to grant certiorari and hear oral arguments, in nonetheless ruled against Larry Flynt. I cannot understand this anymore than I can understand the California Supreme Court calling me the "appellant" in People v Palaschak where the state appealed to the California Supreme Court which acted rashly without a complete transcript or a valid brief.
A defendant's interest in adequate representation is "perhaps his most important privilege" protected by the Constitution. Powell v. Alabama, 287 U.S. 45, 70. - Dissent in Leis v Larry Flynt et.al. (1979) 58 L Ed 2d 717, 439 U.S. 438, 99 S Ct 698
Palaschak is uniquely qualified to handle the issue of unlawful disenfranchisement by virtue of
his having sued the California Supreme court in federal court on precisely this issue for another client - which is precisely why Palaschak is disenfranchised today - retaliation by the Supreme Court who should have recused itself due to conflict of interest, personal interest, and the implied bias, and the appearance of impropriety and actual impropriety.
Although Palaschak is not an out of state lawyer, he is a wrongfully disenfranchised lawyer who has brooded and pondered the unlawful disenfranchisement issue since 1992 - 8 years. During that time he litigated in behalf of wrongfully disenfranchised lawyers and disenfranchised non-lawyers. Indeeddisenfranchisement is Palaschak's expertise. Unlawful disenfranchisement is precisely the issue facing Dr. Bevan. Palaschak's right to speak and Dr. Bevan's right to have Palaschak speak are both protected political speech the highest classification of protected speech. The constitution says that this right shall not be "abridg[ed]". And of course, the court grants relaxed standing to those advocating the rights of others - and even grants them the status of private attorney general, one who. . .
"obtains. . .not for himself alone but also as a "private attorney general" vindicating a policy that congress considered of the highest priority." - Newman v Piggie Park(1968) 19 L Ed 2d 1263.
Although the Supreme court strangely did not talk about the 1st amendment, it did offer some logic equally applicable to this situation of Dr. Bevan and his wrongfully disenfranchised expert:
"We are persuaded, however, that where a right has been conferred on citizens by federal law, the constitutional guarantee against its abridgment must be read to include what is necessary and appropriate for its assertion. In an age of increased specialization and high mobility of the bar, this must comprehend the right to bring to the assistance of an attorney admitted in the resident state a lawyer licensed by 'public act' of any other state who is thought best fitted for the task, and to allow him to serve in whatever manner is most effective, subject only to valid rules of courts as to practice before them. Cf. Lefton v. City of Hattiesburg, 333 F.2d 280, 285 (5 Cir. 1964). Indeed, in instances where the federal claim or defense is unpopular, advice and assistance by an out-of-state lawyer may be the only means available for vindication." - Spanos v. Skouras Theaters Corp., 364 F.2d 161, 170 (en banc) (CA2 1966).
1.Palaschak's disenfranchisement is a badge of honor because it was imposed unlawfully by the California Supreme Court after he sued them. At every step of the way he has vindicated just licensing issues in the face of oppression by corporate ficta. It is his unlawful disenfranchisement that gave him the motivation to research the issue for 8 years. His disenfranchisement is precisely what makes him the lawyer best equipped for this task!
Palaschak's Right to Effective Assistance of Counsel
Argersinger v Hamlin (1974) 32 L Ed 2d 530 Follow up to Gideon. Amplifies Gideon. Cited in Weinreb.
Cronic, U.S. v Harrison (1984) 466 U.S. 648, 665. Cited by Alderman and Kennedy book In Our Defensepage 402, 259. Companion case defining the standard for competence is Strickland v Washington 466 U.S. 688. Kennedy and Alderman discuss Harrison Cronic in detail in the book In Our Defense on pages 259 et seq.
Lilburne's case. (1648): The right to counsel in this country was afforded to at least one defendant nearly 2 centuries prior to the 6th amendment as explained by Ira Glasser of the ACLU in his book Visions of Liberty:
In 1637, a Puritan activist named John Lilburne imported and distributed various political tracts and was brought before the Star Chamber. Lilburne refused to be examined under oath, claiming that it violated "the law of the land" and invoking the Magna Carta. Condemning the oath as a procedure that was fundamentally unfair, Lilburne said that he would not take it even "though I be pulled to pieces by wild horses." Lilburne was held in contempt of court, publicly whipped, fined, and jailed in solitary confinement. He wasn't released until 1641. But his crusade for fair procedures and his willingness to absorb severe punishment rather than forsake principle inflamed the public - on both sides of the Atlantic - and Lilburne became a great symbol. He suffered, but not without effect: In 1645 Parliament set aside the judgment again Lilburne, finding that it had indeed violated "the law of the land and Magna Carta." In 1648 he was granted damages for his unjust imprisonment.. .
Lilburne led the Levelers. He was arrested again and again and died in prison at age 43. . .
. . . At his very last trial he won the then unprecedented right to receive a copy of the charges again him and to be represented by a lawyer [a right demanded by defendant Palaschak herein]. - quotation fromVisions of Liberty(4) by Ira Glasser.
Criminal rights of Defendants Generally
Weinreb, Leading cases in Constitution rights of defendants - or something like that. 1982 edition. Stolen by jail guards in Illinois after Ventura extradition agent Al Wiegand refused to permit Palaschak to bring his law books with him.
Gideon v Wainwright (1963) 372 U.S. 335. Henry Fonda portrayed Gideon in the movie Gideon's Trumpet.Defendants are entitled to appointed counsel even in non-capital cases. The court extended this right even further in Argersinger.
Griffin v Illinois (1956) 100 L Ed 891, 351 US 12, 79 S Ct 585, 55 ALR2d 1055 - Indigent's right to appointed counsel on first appeal of right. You have a right to a free transcript on your 1st appeal. Traffic court thwart this right in California by making you jump through a hoop and attempting to make you agree to a settled statement on appeal - which precludes you from later thinking up issues that are apparent to the skilled lawyer looking at a real transcript.
Overbreadth pertaining to the rights of attorneys and others.
History of Oppression of Lawyers by Corporate Ficta and other tyrants
In England the power of the press was recognized - and taken from the people. We must remember that although we take our orderly system of courts from England, England is an older country infected with the disease of imperialism and oppression. It is like comparing America's older diseased east coast to the newer freer west coast. In the 1500's or 1600's England forbade all printing on unlicensed printing presses. John Stuart Mills protested. In America we had the trial of Peter Zenger for seditious libel. Zenger's jury acquitted him and then the judge put the jury in jail! The first amendment is meant to prohibit any abridgment of printing or speaking - and that is obvious from the historical context - and now the current 5 generations have obviously forgotten and they have permitted the lawyer licensing acts to abridge the speech rights of lawyers. These bar acts are a product of corporate ficta and the robber barons as evinced by the date of their inception.
Backpedaling by the bar: Things that were illegal even for licensed lawyers during the window of bar oppression
Being a woman. Myra Bradwell was denied admission to the Illinois bar in 1869 due to her being a married woman. The U.S. Supreme Court affirmed the denial of Bradwell. Bradwell v. People of State of Illinois, (U.S. Ill. 1872) 83 U.S. 130, 21 L.Ed. 442, 16 Wall. 130. About he same time Clara Foltz became the first woman to practice in California despite a statute restricting the practice of law to "any white male citizen". See A History of America Law by Professor Lawrence Friedman, page 639 and the bibliographies therein.
Being black. See History of American Law, page 639. California only permitted white males to practice law at first.
Living in another state - Piper, N. Hampshire v (1985) 84 L Ed 2d 205. Kathryn Piper, a Vermont resident passed the New Hampshire bar. New Hampshire barred her from practicing until she moved across the river into Hampshire. Briefs of amici curiae urging the U.S. supreme court to defy the constitution and uphold this oppressive and unconstitutional rule were filed by Rehnquist and the following 12 backwards and oppressive states: Iowa Tennessee Virginia, Hawaii (by Tany Hong, Attorney General), Indiana, Kansas, Missouri, Nevada, Ohio, Wisconsin, Wyoming, North Carolina, Texas. Kathryn Piper won her right to travel in interstate commerce as late at 1985!
Advertising
Talking about a case with the press.
Soliciting
Okay, advertising is permitted, but not direct mail solicitation. Wrong. Ficker v Curran (1996) 950 F Supp 123, affirmed 119 d 3d 1150 overturned Maryland's ban on direct mail solicitation of persons accused of jailable traffic offenses.
Talking to jurors: Rapp v Disp. Bd. Of Hawaii Supreme Court (Feb 1996) 916 F Supp 1525 pro se lawyer Rapp desired to speak with jurors after their verdict. Hawaii disciplinary rules prohibited this without the court's permission. Rapp sued for declaratory and injunctive relief against the Hawaii Supreme Court (as did Palaschak's client against the California Supreme Court) and prevailed. He obtained a preliminary injunction prohibiting enforcement of the rule.
Speaking in court after being convicted of failure to appear on traffic tickets and eating LSD. This is Palaschak's situation.
Things that were illegal in England without a license
Printing!
Things that were illegal for lawyers before the 1st amendment - and even after for a while.
Seditious libel - Speaking out against the government.
The lawyers are enjoying more freedom as a result of having challenged the various bar acts. They have litigated to be able to advertise, to associate, to recommend lawyers, and otherwise speak and write. Palaschak now says that lawyers should be able to speak in court without license!
California Supreme Court had a personal interest in the case. Palaschak was counsel for a lawyer
who sued the California Supreme Court. The court retaliated and purported to take Palaschak's license but the taking was void ab initio for a multitude of constitutional infirmities.
In Palaschak's case his license is still intact because the act of taking it was void ab initio. The California Supreme Court reportedly purported to take away Palaschak's license after Palaschak sued the California Supreme court for a client lawyer whose license had been unlawfully suspended by the Supreme Court unconstitutional creation, the state bar pseudo court.
Methods of Oppression: Punishing the lawyer for the sins of the client
Double Jeopardy and the beginning of the recent attack on human lawyers by corporate ficta
Kelley, Luan. California case. This lawyer received her 2nd DUI. The state bar ignored the lack of nexus and ignore the double jeopardy clause - and the preemption by the DMV. The bar suspended her bar license.
Overbreadth cases pertaining to lawyers and others
Condon, Estate of (__1998) 65 Cal App 4th 1138, 76 Cal Rptr 2d 922. Not supervening.
Baird v State Bar of Arizona (1970) 27 L Ed 2d 639, Annotation @953 Subject: Overbreadth. Bar applicant refused to answer question in bar application regarding his past to age 16 regarding membership in organizations advocating overthrow of government. Note that Judge McMecarch or whomever in Mariposa county refused to take the loyalty oath part of the oath specifically quoted in the California constitution.
Bates v Arizona (1977) 53 L Ed 2d 810. Legal Clinic Advertised. Subject: Overbreadth and 1st amendment. The 6th most pertinent case here.
Cohen v California (1971) 30 L Ed 2d 124. "Fuck the draft" written on the back of jacket in court hallway.Overbreadth was the basis of this decision.
Doran v Salem Inn (1975) 45 L Ed 2d 648. Overbreadth. 3 stripper bars. Ballet Africanus. Leading case. Joe Redner, famous owner of the leading stripper bar in Tampa recognized the name of this case which I chatted with him in Jan 2000. Redner is facing enforcement of an overbroad statute to stop lap dances in his night clubs.
Erznoznik v City of Jacksonville ( ) 45 L Ed 2d__. Overbreadth. Baby's butt argument regarding drive in theater. The statute was declared unconstitutional because it was so broad as to include the depiction of a baby's butt which the court felt, would not be offensive to anybody.
Ficker v Curran 950 F Supp 123, Affirmed at 119 F3d 1150.Attorney solicitation. Overbreadth regarding bar acts regulating attorneys. Attorney solicitation law was held unconstitutional. Used in brief 3596 at page 10.
Houston v Hill (1987) 96 L Ed 2d 390. Pick on somebody your own size. Overbreadth. Charles Alan Wright argued this case. "Interview" with police as they were chasing a suspect. Defendant said "Why don't you pick on somebody your own size!" The statements were not fighting words or obscenity. The Supreme Court ruled in favor of the guy shouting at police as they were chasing a suspect. It is okay to be provocative. Any non-speech was pre-empted by state statute. Extrapolation from Houston case: With regard to laws against attorneys speaking without license: Any non-truth is pre-empted by fraud statutes. Any truth is protected by the 1st amendment. The supreme Court said that the city "had numerous opportunities to narrow and has not done so." Similarly the state bar act suffers from overbreadth and the implied and also explicit ambiguity of defining what constitutes the practice of law.
Keyishian v Board of Regents (1967) 17 L Ed 2d 629, 385 U.S. 589. Pedler registration. Overbreadth.Ordinance required solicitors to register with the police. Ruled unconstitutional.
McSurely v Ratliff (1967) 282 F Supp 848 (E.D. Ky. 1967). Anti communist law. Raid. Court declared Kentucky's anti sedition law unconstitutional. Case arose from overbreadth, an unjustified raid based on an overbroad statute. See McSurely v McClellan (1976) 553 F2d 1277, 1282, note 9 (D.C. Cir. 1976)(en banc) discussing a safekeeping order for the personal diaries and other seized items of McSurely. The case ordering the return of the documents of McSurelys is McSurely v Ratliff (1968) 398 F2d 817 (6th Cir 1968). The endnotes of In Our Defense contain an excellent brief regarding the search and seizure issues in a politically motivated raid.
Hackin v Lockwood (1966) 361 F2d 499. District court held that Arizona's ABA requirement is constitutional. The court skirted the issue by holding that requiring graduation from an accredited school is constitutional - avoiding completely the issue that ABA requirements were instituted at the behest of Carnegie, a paradigm robber baron, and foisted upon the public in the age of the robber barons with the obvious effect of promoting corporate ficta and limiting the practice of law and even the teaching of law to the wealthy. We can see the folly now in retrospect with the multitude of non-ABA schools in California.
Hackin v Arizona (1967)19 L. Ed. 2d 347; 389 U.S. 143; 88 S. Ct. 325. Overbreadth case. There was no written majority opinion. Douglas's strong and cogent dissent shames the majority in this case. Lawyer Hackin having been denied admission to the Arizona bar nonetheless defended a guy who was denied counsel by the court because the proceeding was, hypertechnically, civil in nature, habeas corpus. Hackin stepped forward where bar volunteers failed to do so, defended the otherwise defenseless, and was prosecuted for practicing without a license. Maybe he failed to write a good brief - although he persuaded Justice Douglas.
Deprivation of License Requires Prior Due Process; It is a property interest.
In Re Ming 469 F 2d 1353 (7th Cir. 1971) Even federal court rules must render due process. Disciplinary proceeding. The Executive Committee of the United States District Court for Northern District of Illinois issued suspension order, and appeal was taken. The Court of Appeals, Pell, Circuit Judge, held that if a conviction itself is to be used to show commission of underlying acts which are of such nature as to form basis for disbarment or suspension, conviction must have reached finality, or at least to the extent of exhaustion of direct appeals. In addition, the Court held that failure to afford hearing prior to issuing order of suspension based on misdemeanor conviction violated due process. Reversed. If a conviction itself is to be used to show commission of underlying acts which are of such nature as to form basis for disbarment or suspension, conviction must have reached finality, at least to the extent of exhaustion of direct appeals. U.S. Dist. Ct. Rules, N.D. Ill., General Rule 8. District courts are free to adopt their own local rules defining grounds for disbarment and suspension and the procedures to be followed; however, such rules must meet the essential requirements of due process. License to practice law constitutes a type of "new property" the divestment of which cannot be affected without affording substantial due process, including the opportunity to be heard and to confront and cross-examine adverse witnesses. Failure to afford hearing prior to issuing order of suspension based on misdemeanor conviction violated due process.
Bell v Burson (1971) 26 L Ed 90, 401 US 535 State cannot take a driver license without hearing. Used in motion 3596 at page 3.
In Re Crow (1959) 3 L Ed 2d 1025-27. Annotation 3 L Ed 2d. Essentially overruled by Ming. Non criminal disbarment. Attorney disbarred in Ohio. U.S. Supreme Court issues OSC. He responded. Douglas dissents that they should have appoint a committee.
Annotation re In Re Crow 3 L Ed 2d 1960-65
Lawyers Practicing in California with no California Bar License
Birbrower v Superior Court of Santa Clara County (1998) 70 Cal Rptr 2d 304, 17 C 4th 119, 949 P2d 1. New York lawyer was permitted to collect part of his fees for work done in California? This was not a 1stamendment issue - but a fee collection case.
The multitude of classes of non lawyers permitted to practice law in California. This is subdocument #5939. See www.lawyerdude.netfirms.com/5939.html
Prisoners can be lawyers for other prisoners. Johnson v. Avery (1969), 393 U.S. 483 www.lawyerdude.8k.com/Avery.html
Where civil rights lawyers are otherwise unavailable, lawyers from other jurisdictions must be brought in.
Any next friend can apply for a writ of habeas corpus. U.S. v Houston 273 F 915, 916 cited by Douglas in Hackin v Arizona 19 L Ed 2d 347.
Non lawyers can be executors and administrators in probate court.
Non lawyers can appeal decisions of the workers compensation board on behalf of clients?
Non lawyers can appeal decision of social security board on behalf of clients?
Cases Applying the Clear and Present Danger Test to Lawyers and others
Brandenburg v Ohio (1969) 23 L Ed 2d 430, 395 US 444, 89 S Ct 1827. Clear and present danger not there for Klan speech. Clarence Brandenburg was Ku Klux Klan member. Clear and Present Danger test was finally used to overrule an obstruction to speech. Compare to Debs case circa 1914 where clear and present danger test was not fully ripe. Used in brief 3596 at page 7 and 8.
Bridges v California (1941) 314 US 263, 62 S Ct 194. Extremely Serious and Very Imminent test. Contains the text: "Extremely Serious and Very Imminent" (clear and present danger - how clear and how present). Newspaper editorial talked about a present case in violation of court gag order. Cited for contempt of court. Overruled as I recall. Cited in brief #3596 at page 6.
Craig v Harney (1946) 91 L Ed 1546, 331 U.S. 367. Criticism of judge not clear and present danger. Regarding clear and present danger test: Mere possibility of danger is not enough. Used in briefs at 3567.1, 3569.1, 3596.6. Case is on point because it was about a Newspaper being critical of a layman as judge. Hey, I criticized a judge for Melvin Loser and was prosecuted for it also.
Debs v U.S. (1919) 63 L Ed 566, 249 U.S. 211. 1917 draft objector. Predecessor to Brandenburg in 1969. 1917 draft interference case. Used in brief at 3596.7
Gentile v State Bar of Nevada (1991) 115 L Ed 2d 888. Nevada bar act unconstitutional. Clear and Present danger test controls here. Gentile gave a press conference about a high profile case that he was handling. The bar tried to discipline him. The U.S. Supreme Court declared that the Nevada bar act was unconstitutional! Palaschak contends herein that the California bar act is unconstitutional for a multitude of infirmities, many arising since the 1986 attack on human lawyers by Diane Yu, a genetically weak socialist, a shill for corporate ficta and the enemy of individualism which is the essence of America.
McSurely v Ratliff (1967) 282 F Supp 848 (E.D. Ky. 1967). Hysterical raid held illegal. Anti sedition act unconstitutional. Kentucky's anti sedition law is unconstitutional. Mc Surely's statements are protected by the clean and present danger test. An overbroad statute combined with ignorant officials caused an unjustified raid. See McSurely v McClellan (1976) 553 F2d 1277, 1282, note 9 (D.C. Cir. 1976)(en banc) discussing a safekeeping order for the personal diaries and other seized items of McSurely. The case ordering the return of the documents of McSurelys is McSurely v Ratliff (1968) 398 F2d 817 (6th Cir 1968). The endnotes of In Our Defense contain an excellent brief regarding the search and seizure issues in a politically motivated raid.
Relaxed Standing to Defend Fundamental rights such as Equal Protection. Vicarious Standing.
Craig v Boren (1976) 50 L Ed 2d 397. Relaxed standing to challenge denial of equal protection. Vicarious standing to defend fundamental rights. Compare to private attorney general.
Cases Pertaining to Rights of Prisoners to Access to the Courts
Johnson v Avery 1969: www.lawyerdude.8k.com/Avery.html
Gluth v Kangas (1988) 773 F Supp 1309 @ 1321 (D Ariz) Right to xerox copies in jail. "Draconian" copying by hand is not required. Jails and prisons must provide copying service - but Illinois jail denied Palaschak copying rights (while allowing other prisoners copying services - but only after Palaschak began litigating. Cited in Palaschak brief #3591 at page 0.1.
Procunier v Martinez (1974) 40 L Ed 2d 224, 416 US 396, 84 S Ct 1800 Mail is a right.(Added 7 August 2001) This was a class action. Procunier, Director of California Dept. of Corrections told prisoners that mail was a privilege and not a right - until somebody litigated this case. I read about this case in Lawrence Friedman's 1993 book entitled Crime and Punishment in American History.
Revisisions and additions yet to be made:
There are 20% more cases to be added from my handwritten 1999 brief in folder #99-1:
Procunier v Martinez. (1974) Before this case, California told prisoners that mail was a privilege - not a right.
Train of cases: United trans v Michigan bar; UMW v Illinois bar; Brother hood v Virginia bar
List of cases that have not yet been transcribed from the original handwritten brief:
Marbury v Madison (1803) 2 L Ed 60, 5 US 137, a void act is void ab initio
Bradwell v. People of State of Illinois, (U.S. Ill. 1872) 83 U.S. 130, 21 L.Ed. 442, 16 Wall. 130.)
Powell v Alabama
Ruffalo (1968) 20 L Ed 2s 117, 390 US 544, 88 S Ct 1222 and 20 L Ed 2d 1436 Attorney's right to practice in federal court as affected by his disbarment or suspension in sate court of other federal court.
Schware
Shuttlesworth v Birmingham
Strickland
maybe Supreme Court of New Hampshire v Piper (1985) 84 L Ed 2d, 470 US 274, 105 S Ct 1272.
Theard
U.S. v Guest
U.S. v Harrison Cronic
U.S. v Russell
William v Illinois
Wolf v Colorado
Yagman v Standing Committee. Standing Committee on Discipline of the United States District Court for the Central District of California v Stephen Yagman, defendant (9th Circuit, 1995) 55 F.3d 1430; 1995 U.S. App. LEXIS 12948; 95 Cal. Daily Op. Service 3958; 95 Daily Journal DAR 6873. See also the other preceding Yagman cases.
Younger v Harris
(ex part young - Minnesota)
Zenger, Peter
The following annotations citing Brandenburg need a home: Brandenburg v Ohio (1969) 23 L Ed 2d 430, 395 US 444, 89 S Ct 1827. Clarence Brandenburg was Ku Klux Klan member. Clear and Present Danger test was finally used to overrule an obstruction to speech. Used in brief 3596 at page 7 and 8. Brandenburg is cited all the major constitutional law treatises and the following treatises:
21 L Ed 2d 976 The Supreme Court and the right of free speech and press,
38 L Ed 2d 835 The Supreme Court's development of the "clear and present danger"rule and the related rule concerning advocacy of unlawful acts as limitations on the constitutional right of free speech and press,
45 L Ed 2d 725 Supreme Court's views as to overbreadth of legislation in connection with First Amendment rights,
86 L Ed 758 Right of petition and assembly under the Federal Constitution's First Amendment - Supreme Court cases,
96 ALR Fed 26,
20 ALR4th 327.
Footnotes:
1. Bell v Burson (1971) 29 L.Ed.2d 90, 402 U.S. 535, 91 S.Ct. 1586. Driver license may not be taken without a hearing.
2. Alderman, Ellen, and Kennedy, Caroline. In Our Defense. Avon Books. New York. 1991. ISBN0-380-71720-4. Available in paperback from Barnes and Noble. $13.50.
3. Full text of 6085: § 6085. Rights of defense to charges Any person complained against shall be given fair, adequate, and reasonable notice and have a fair, adequate, and reasonable opportunity and right:
(a) To defend against the charge by the introduction of evidence.
(b) To receive any and all exculpatory evidence from the State Bar after the initiation of a disciplinary proceeding in State Bar Court, and thereafter when this evidence is discovered and available. This subdivision shall not require the disclosure of mitigating evidence.
(c) To be represented by counsel.
(d) To examine and cross-examine witnesses.
(e) To exercise any right guaranteed by the California Constitution or the United States Constitution, including the right against self-incrimination.
He or she shall also have the right to the issuance of subpoenas for attendance of witnesses to appear and testify or produce books and papers, as provided in this chapter.
4. Visions of Liberty, Ira Glasser (of the ACLU), 1991, Little, Brown, and Company, New York, page 159 et. seq. Talks about Lilburne's case from 1648 wherein Lilburne successfully argued for appointed counsel. Available at Port Hueneme library.
Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal [118 U.S. 356, 374] hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution
Yick Wo v Hopkins, Sheriff (1886) 118 U.S. 356
http://www.lawyerdude.netfirms.com/yickwo.html
Topical Index. Click here for the Index to Brief 3789.
Practicing law without a license is a right under the 1st amendment - a right that cannot be abridged. “ . . .shall make no law . . . . abridging the freedom of speech, or of the press; or the right to petition the government for a redress of grievances.” - 1st amendment Speech, petition, counseling, and association are all 1st amendment rights. They are “privileges” ( “ No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States - 14th amendment)
of citizenship under the 14th amendment “privileges and immunities” clause and you have an immunity from prosecution for exercising these rights!
This is www.lawyerdude.8k.com/3789.html
Revised Sunday, March 2, 2003. Minor upgrade Tuesday, April 8, 2003.Sunday, June 22, 2003, Dec 15, 2003. Fixed link April 26, 2004.
Related pages:
The prettier version of this page is at www.lawyerdude.8m.com/3789.pdf
The table of authorities for this page is here: http://www.lawyerdude.8m.com/3789authorities.html
Table of Contents, Tables of Authorities and other incidentals and front matter are at this link: www.lawyerdude.8m.com/3789frontmatter.html
Table of Contents: http://www.lawyerdude.8m.com/3789contents.html
Table of Authorities cited in this brief: http://www.lawyerdude.8m.com/3789authorities.html
The story of my arrest for writing brief #2871: http://www.lawyerdude.8m.com/3789myarrest.html
The smoking gun. They arrested me for writing this Brief #2871: http://www.circuitlawyer.8m.com/2871.html
A brief history of harassment by the Ventura prosecutor: http://www.lawyerdude.8m.com/3789history.html
Some comments on my trial: http://www.lawyerdude.8m.com/3789mytrial.html
Tribute to Professor David Harrell: http://www.lawyerdude.8m.com/3789harrell.html
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Analysis #3789 (formerly 3601):
The 1st Amendment Rights of Lawyers
Everybody’s 1st Amendment Right to Association
The state bars lose here. Read these cases.
Preliminary Version #3.01 - 90% Complete. This document was lost from my computer in my hard drive crash of 2002 but it was up on the net at the time so I did not lose it.
Brief 3789 is big. Here are some of the auxiliary parts:
1. Table of Contents, Tables of Authorities and other incidentals and front matter are at this link: www.lawyerdude.8m.com/3789frontmatter.html
2. Table of Contents: http://www.lawyerdude.8m.com/3789contents.html
3. Index to brief #3789: http://www.lawyerdude.8m.com/3789index.html
4. Table of Authorities cited in this brief: http://www.lawyerdude.8m.com/3789authorities.html
5. The story of my arrest for writing brief #2871: http://www.lawyerdude.8m.com/3789myarrest.html
6. Brief #2871: http://www.circuitlawyer.8m.com/2871.html
7. My trial. www.lawyerdude.8m.com/3789mytrial.html
8. A brief history of harassment by the Ventura prosecutor: http://www.lawyerdude.8m.com/3789history.html
9. Tribute to Professor David Harrell: http://www.lawyerdude.8m.com/3789harrell.html
Brief #3789
Lawyers are a class of People Recognized in the Constitution.
The 6th amendment to the constitution says that you have a right to effective assistance of counsel. “ . . .the accused shall enjoy . . .the assistance of counsel for his defense”
(6th amendment in total says : In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense)
That is what I am: I am counsel. See Ex Part Garland for this discussion and a superb discussion of the constitutional right to be a lawyer.
Licensing of the right to speak is proscribed by the 1st amendment
Stanford Professor Lawrence Friedman says in his classic History of American Law (which book is cited as authority by the U.S. Supreme Court in their opinions) says that the only legitimate purpose of a bar association is to test for competence. My research keeps leading me back to Professor Friedman's truth. Ironically a firm policy of the California Bar is that they do not disbar or discipline for incompetence. Presumably a lawyer who has once passed the bar exam is presumed competent.
I contend that disbarment must be prohibited or curtailed because it is used as a tool to chill the speech of dissidents like me.
California Constitution, article 6, section 9: "The state bar of California is a public corporation. Every person admitted and licensed to practice law in this state is and shall be a member of the State Bar except while holding office as a judge of a court of record."
This statute (wrongfully escalated to constitutional status by the power grabbing California bar) defines the membership of the bar. My research shows that the legislative intent behind this ambiguous statute is not that lawyers may not be disbarred - although that is what it seems to say. I nonetheless contend that once admitted you should not be disbarred. The Supreme Court in (Theard?) says that disbarment is serious and should not be done for trivial reasons - something that our California Bar should take to heart.
Remember that bar organizations were originally conceived to combat a corrupt judiciary in the days of Tamany Hall. (Source: History of American Law by Professor Lawrence Friedman) And today, we lawyers, a few of us, continue to fight corruption such as the over-reaching of the California Supreme Court which took action against me after I pointed out their wrongdoings on behalf of a client in federal court. The California Supreme Court should have recused it self in my
case - and should have invited me to participate in the proceedings.
Here are the cases that have vindicated our 1st Amendment Right to Association:
United Transportation Workers (Teamsters) v Michigan Bar (1971) http://www.lawyerdude.netfirms.com/teamster.html 28 L Ed 2d 339, 401 US 576, 91S Ct 1076, and that line of reasoning holds that the bar may not interfere with people who are trying to vindicate the civil rights of their associates.
NAACP v Alabama (1958) http://www.lawyerdude.netfirms.com/naacp2.html 2 L Ed 1488, 357 US 449, 78 S Ct 1163. The attorney general of Alabama sought to enjoin the NAACP from riling up those pesky Negroes. The Negroes won. Notice that in this old case they even wanted the membership lists - like in the communist cases.
NAACP v Button (1963) http://www.lawyerdude.netfirms.com/naacp3.html 9 L Ed 2d, 371 US 415, 83 S Ct 328. The NAACP Legal Defense Fund brought suit in federal court in the eastern district of Virginia in 1957. These suits sought an injunction against enforcement of 5 statutes. Lawyers at the meetings risked disbarment and laymen risked criminal prosecution under the challenged statute for merely advising Negroes that they could file a lawsuit. NAACP won. This is a boring but fairly thorough opinion. Justice Douglas, the court's strongest liberal called a spade a spade. He said that this statute was designed to combat the trend of the Negroes to integrate schools and vindicate their rights that the Supreme Court enunciated in 1954 in Brown v Board of Education. NAACP v Button is right before Wong Sun in Lawyer's Edition. Both are from a fruitful era of the court when our rights were being vindicated. Wong Sun is the case that I cited in my LSD brief - but my appointed lawyers dropped the ball. It is about testimony of a co-conspirator, absence of consent, coercion, and defending against police abuse in drug cases.
Primus, In Re (1978) http://www.lawyerdude.netfirms.com/primus.html 56 L Ed 2d 417, 436 US 412, 98 S Ct 1893. Subject of annotation at Lawyer's Edition 2nd 56:841 entitled Licensing and Regulation of Attorney as restricted by rights of free speech, expression, and association which is the closest treatise on point regarding free speech rights of lawyers. Her Supreme Court brief is at 56 L Ed 2d 838. Edna Primus was a lawyer in private practice who volunteered her time to the ACLU. South Carolina stupidly argued that solicitation, like advertising, invades the privacy of other's - as though Primus's client was not desperately in need of a free lawyer. In the summer of 1973, welfare mothers were sterilized or threatened with sterilization as a condition of continued Medicaid relief. Mary Williams had been sterilized by the authorities via Dr. Clovis Pierce. Primus informed Mary Williams by letter that the ACLU would take her case and sue Dr. Pierce. This letter was the smoking gun - sorta like Palaschak's brief telling Melvin Looser that the court could not send him to jail for being poor. In October 1974 the secretary of the Board of Commissioners on Grievances and Discipline of the Supreme Court of South Carolina filed a formal complaint that Edna Primus had engaged in solicitation in violation of the Canons of Ethics. (Back in 1973 Black's Law Dictionary published the ABA Canons of Ethics and many of us thought that the ABA ethics were the last word. Since then each state has carved out its own niche of oppression. Edna Primus replied that the 1st amendment and 14th amendment gave her immunity for her letter. After a hearing on 9 Jan 1976 the full board approved a private reprimand. On March 17, 1977 the Supreme Court of South Carolina put its rubber stamp on the deal - likely without any input from Primus. On July 9, 1977 Primus brought action in the U.S. Supreme court. Her action is based primarily on a 1963 case NAACP v Button - and in view of the clarity of the right to association spelled out by the court in 1963 I wonder why South Carolina would bring this disciplinary action but for their bureaucratic macromegalomaniac personality. (See Palaschak's theory on macropsychology - which says that bureaucracies have their own personalties which are bad from the perpetual life of the bureau and the exaggerated sense of useful purpose and wisdom. Their mistake is the bureaucracies have no wisdom or insight.) Observe that all the lawyers being disciplined in these cases were representing people who were typical of groups of people gaining their rights. Examples Primus represented a welfare mom; in NAACP v Button it was Negroes who were gaining their rights; in the union cases it was unions against the monopolies; in Palaschak's case it is poor victims of traffic court and the very lawyers like Primus who, in California, are subjected now to a barrage of trivial, merit less attacks by the bar (representing the moneyed interests) sometimes for acts having no nexus to the practice of law. Example: Palaschak's traffic tickets and having eaten LSD. Rehnquist dissented in this opinion. The companion case is Ohralik v Ohio state bar 56 L Rf 2d 444, 436 US 447, 98 S Ct 1912. Ohralik was an ambulance chaser entitled to the same first amendment rights but he lost on appeal while Primus won because she took no money. Does your right to speech end if you are paid for it? No.
Related inadequate treatise: L Ed 2d 100:1049 State Regulation of judicial proceedings as violating commerce clause (Art 1, section 8, clause 3) of Federal Constitution - Supreme Court Cases.
Primus's 1978 brief cites 8 cases, namely:
NAACP v Button (1963) http://www.lawyerdude.netfirms.com/naacp3.html - which is discussed above;
Brotherhood of Railroad Trainmen v Virginia,
United Mine Workers V Illinois State Bar,
United Transportation Union v State Bar of Michigan, http://www.lawyerdude.netfirms.com/teamster.html
NAACP v Alabama http://www.lawyerdude.netfirms.com/naacp2.html ,
Buckley v Valeo,
US v Cook (1872) 21 L Ed 538,
Hamling v US 41 L Ed 2d 590,
Thompson v Louisville 4 L Ed 2d 654.
Notice that in most of the cases the bar organization is on the losing side, on the side of oppression. The bar is controlled by the money interests. Money is against labor. That is why we see the Teamsters, Mine Workers, and other unions against the bar. The Unions represent the workers.
Ohralik v Ohio state bar http://www.lawyerdude.netfirms.com/ohralik.html 56 L Ed 2d 444, 436 US 447, 98 S Ct 1912. Ohralik in his brief at 56 L Ed 876 cited the following cases:
Louisville Var v Hubbard 282 Ky 734, 739, 139 Sw2d 773, 775,
Bates v State Bar of Arizona 53 L Ed 2d 810,
Virginia State Board of Pharmacy v Virginia Citizens Consumer council 48 L Ed 2d 346,
NAACP v Button 9 L Ed2d 405,
State v Rubon (1930) 201 Wes 30,32, 229 NW 36, 37,
Cole v Arkansas 92 L Ed 644,
US v O'Brien 20 L Ed 2d 672.
Brotherhood of Railroad Trainmen v Virginia ex.rel. Virginia State Bar (1964) 12 L Ed 2d 89, 377 US 1, 84 S Ct 1113. Court struck down an injunction barring union from directing its members to certain favored lawyers.
United Transportation Union v State Bar of Michigan (1971) 28 L Ed 2d 339, 401 US 576, 91S Ct 1076 These were the teamsters. The court vindicated the rights of the Teamsters to associate and refer members to its own chosen lawyers.
Alien and Sedition cases and communist sympathizer cases - Reagan was a snitch.
About 1450 Gutenberg invented the printing press and within 100 years Star chamber circa 1556
passed statutes requiring a license to print. History is a study of the rich trying to oppress the poor.
Our 1st amendment is written against a background of licensing of the right to print and licensingof lawyers is nothing more than licensing the right to print where it is most important - and licensing the right to speak - and the first amendment says that these right and the right to petition for redress of grievances shall not be abridged. The state bar act abridges them and is unconstitutional.
I must put these authorities on the computer. I printed them longhand.
The Supreme Court of California talks about its inherent power to discipline lawyers. There is no such inherent power!! However, we do have an inalienable rights - - and the California Supreme Court oversteps its bounds when it attempts to curtail my right to speak.
This oppression in the name of the bar's inherent power is a product of the age of robber barons.
A study of the use of the words "inherent power to discipline lawyers" shows that they began to be used during the age of the robber barons during an age when drugs and alcohol became illegal and when the IRS began to tax us - in short, in the age of oppression.
Scope of this Treatise: 1999 Trial; Upcoming 2001/2 Trial.
This treatise lists the authorities that I found in my research in jail in Ventura from July through September 1999 while awaiting trial for "advertising or holding oneself out to be entitled to practice law" while one's license from the California bar is suspended or revoked. My purpose is to put the articles in a retrievable form. My purpose then was also to assist court reporters as they reported my oral arguments citing these cases; the list save them from asking me to spell each case name for them. My treatise and discussion of these articles although sometimes typewritten was not on my computer, of course, because although I demanded a computer - and the press releases for the Ventura jail brag about their state-of-the-art law library - in fact I was denied access to a computer or word processor. I cited many of these cases in my written requests for Jury Instructions.
In 1999 I put all the authorities into one list for use by the court reporter regarding spelling and citation of cases that I planned to mention in my argument.
In the year 2000 I demanded (using this brief) to speak in court without retaliation - and who would think that in our supposed free country a lawyer would need to defend his right to speak? Like a frog in a cooking water we have grown accustomed to something harmful. An implicit tactic of corporate ficta is the utilization of their perpetual life by patient and stealthy encroachment because they know that one generation will forget the lessons of the previous human generation. Case in point: This generation has forgotten our right to speak was unlawfully abridged by the state bar act of previous generations.
Everybody (hyperbolically speaking) living now mistakenly believes that the bar may abridge
speech despite the clear wording of the California and U.S. constitutions - but if we had lived as long as corporate ficta we would never have let this happen; things like this happen by generation - after the last remaining mortal human objector has died.
I recognize that I may lose credibility if I say that all lawyering is protected activity - but, on the other hand, everybody know that the 1st amendment protects speech and writing. Generally speaking, all that a lawyer does is write, speak, read, and listen.
If you think a little harder you will realize that a lawyer does 2 other things:
#1 he is a proxy for the litigant. For example, he may plead "not guilty" for the defendant or speak on behalf of a litigant who is geographically distant from the court;
#2 he is a fiduciary; for example: he receives the check from the insurance company and pay the client.
Both of these non-speech activities have their own life outside the bar because both of these functions are routinely done by non-lawyer (and have been for centuries) - and both have their own remedies for wrongs.
Ancient and continuing Proxy function outside the bar.
As to the function of proxy, that position is called "attorney" and historically was the person who spoke for the principle when he could not be there in person - in the days when geographical distance was more of an obstacle than it is today. Even today we have "attorney-of-fact" registration in the hall of records to record who is the actual person entitled to be proxy for another - and these people don't run into objection from the bar. They can manage property and other affairs including writing of checks. The organized bar has attempted to limit the participation by proxy of person who have not joined their compulsory club, but if the person is weak and harmless, often the court will let him speak, especially if there is a language difference - - or if there is any other reason for which a proxy would benefit the court.
If we were to be in the business of policing proxies then we would first abolish the position of public defender because most of the malpractice action lies there.
The fiduciary function outside the bar
Bankers, stock brokers, attorneys-in-fact, co-signers on joint checking accounts, spouses, and the 16 year old who runs the cash register at McDonalds - these people all perform fiduciary functions - and none need be bar members.
Bar laws are exemplary of much of what is wrong with bad legislation
The codes do not match the common law
When the state bar codifies the common law regarding disbarment it writes lazily and draws the distinctions with a camera instead of a sharp pencil
The codes attempt to modify the common law in a way that everybody partially ignores
Remedy of disbarment is used too rashly today - if it should be used ever.
I challenge you to show me a case where a person should be disbarred. I can show you at least two where the person should not have been disbarred - and there seems to be a pattern of not inviting disbarment candidates to the disbarment hearing.
Bar's only legitimate function is testing and admission - and maybe disbarment for something
grievous.
The definition of moral turpitude should remain what it has always been - not devalued as bar prosecutors would like it to be.
Lawyers may not lawfully be compelled to be super-citizens - because citizens merely definethemselves by how well they serve corporate ficta! Furthermore, it is a denial of equal protection.
1.Any attempt by the state bar or the court to restrain Palaschak's speech constitutes unlawful prior restraint in violation of Near v Minnesota (1931) 75 L. Ed. 1357; 283 U.S. 697; 51 S. Ct. 625. Konigsberg made a Near argument in his successful argument before the U.S. Supreme Court in the blacklisting days. SeeKonigsberg v State Bar of California, et. al. (1957)1 L. Ed. 2d 810 , 353 U.S. 252, 77 S. Ct. 722. The Near argument is applicable and determinative today also.
2.
3.Any person (a prospective client for example) has standing to challenge the infringement of Palaschak's rights just as Dr. Griswold challenged the infringement of his patient's rights in Griswold v Connecticut. Conversely Palaschak has a right under Griswold to vicariously assert the speech rights of other humans.
4.
5.Corporate ficta has learned more by virtue of perpetual life than we humans can learn during our short non-perpetual life. Bills of Pains and Penalties is the issue of this decade. Just as some folks took several decades to learn that McCarthy's blacklisting and Viet Nam were instruments of oppression foisted by corporate ficta on those whose idea of freedom differed from their, so now today Bills of Pains and Penalties (and other hidden complicated dirty tricks and rigged games) are used to further their agenda. If is to be expected that the bar will use an ever evolving arsenal of instrument of oppression.
1.Any subsequent criminal prosecution violates the 1st amendment.
1.The state bar act is unconstitutional as an abridgement of freedom of speech and press.
1.The state bar act as applied to Palaschak violates a multitude of constitutional precepts.
.
Fundamental constitutional Law: A void act is void ab initio. Marbury v Madison.
Marbury v Madison (1803) 2 L Ed 60, 5 U.S. 137 is cited by Palaschak in brief #3596 at page 3.
Brief Remembrance of Outspoken People's Lawyers Previously attacked by the bar
Attorney William Kunstler was sentenced to 4 years in prison by angry Judge Julius Hoffman for his successful defense of the Chicago 7 in 1968. He won on appeal. See In Re Kunstler __ (CA7 Chicago circa 1969). See also Dellinger et al. Dellinger was the lead named defendant in the Chicago 7? See My Life as a Radical Lawyer, the autobiography of Attorney William Kunstler.
Attorney Steven Yagman was purportedly suspended by the secretive standing committee on discipline of the U.S. district court for his out of court writings regarding Judge Keller's alcoholism on the bench. Yagman prevailed - but then the California state bar whacked Yagman for a year.
Attorney Melvin Belli was prosecuted for appearing on a television commercial promoting his favorite brandy.
Attorney Marvin Mitchelson was prosecuted after his rise to fame in the palimony case involving Lee Marvin.
List of Players in the Battle to Free the Human Lawyers
On the Side of Freedom
Former U.S. Attorney General Ramsey Clark, counsel for Steven Yagman, wanted to prosecute the police for busting heads at the Democratic Convention in 1968.
Attorney Steve Yagman of Santa Monica, California
Attorney Gentile of Nevada
Attorney Douglas Palaschak of California
Attorney William Kunstler, now deceased. His biography is My Life as a Radical Lawyer
Attorney Harold Perry made emancipation of human lawyers his life's work, but failed to buy a computer and lost touch with the world.
Our Opposition: The Oppressors, the shills of corporate ficta and instruments of oppression
Diane Yu. Never had a human client in her life. Political appointee from a political family. She is the modern yellow peril - epitome of a race without respect of individualism and human rights. In 1983 she was in charge of grading the bar exam and it was graded wrong for the first time in history. In 1986 she began a crusade to castrate male lawyers resulting in the state bar pseudo court where the prosecution hired the pseudo judges. Palaschak challenged the constitutionality of this court in a lawsuit against the California supreme Court. The court retaliated and purported to disbar Palaschak but such a disbarment is void ab initio.
List of the Top Ten most pertinent cases:
#1 Condon, Estate of (1998) 65 Cal Ap 4th 1198, 76 Cal Rptr 922. Not supervening.
#2 Yagman v Standing Committee of Bar Examiners. Yagman criticized the judges in newspaper.
#3 NAACP v Button. Non bar members gave legal advice.
#4 Newman v Piggie Park (1968) Use of term "Private Attorney General"
#5 United Transportation Workers Union (Later named Teamsters) V State Bar of Michigan. Union gave legal advice.
#6 Schware v Board of Bar Examiners.
#7 Bates v Arizona Legal Clinic Advertised
#8 Craig V Boren (1976). Overbreadth. One defendant asserted rights to the other.
#9 Gentile v State Bar of Nevada. Lawyer gave press conference about clients case.
Notes about my coded shorthand used herein.
Sometimes I used a shorthand to indicate where I refer to a case in one of my numbered briefs or motions. Example: 3596.8 means that I refer to the cited case in motion #3596 at page 8.
The Methodology of Oppression of Human Lawyers by Corporate Ficta
Depublish Cases where individualists win. Publish cases which further corporate agenda.
Example: In Palaschak's case, his victory at the court of appeal was ordered depublished. Then the California Supreme Court appointed its own lying shill lawyer for Palaschak, heard the case without the entire transcript, reversed the court of appeal, and published the decision.
Depublication is ultra vires legislation by a court and violates stare decisis.
Depublication is euphemism created by the oppressive Lucas court to disguise and ancient instrument of oppression - censorship. Logically, after centuries of law we would rarely run into a word that has not been used before. The word "depublication" isn't even in the dictionary. After centuries of law Lucas needed a euphemism - a new word to disguise censorship - because everybody know about censorship - so Lucas calls it "depublication". The court has no business fostering its own agenda by abuse of the depublication rules. The court has no business entering the world of publication decisions. The court achieved that purpose by holding that unpublished decisions may not be cited as binding precedent. This is an abuse of power for at least 2 reasons: #1 Rules of decisions is a legislative subject - and courts may not legislate; #2 We all know about stare decisis; stare decisis is natural and logical - and the court may no more regulate stare decisis than it could regulate gravity.
The efforts of Hyperlaw to eliminate monopolistic activities of West Publishing.
Hyperlaw's website is chock full of authoritative information reporting the extensive litigation between Hyperlaw and demon West Publishing. There is a lot to talk about in this subject area. I refer you to the Hyperlaw web site.
The Age of Communication is freeing us from biased reporting of decisions.
In bygone days, the cost of reporting a decision via paper to a lawyer was more than the cost today. Today most decisions are reported via internet at a cost of virtually zero. In bygone days, the court achieved its societal goal of wide dissemination of its opinions by making a deal with a publisher. In exchange for monopolistic rights to the decision, the publisher assured publication nationwide. There is no longer a need for this deal with the devil.
Effect Depublication by shuffling the forum
For many years complaints about lawyers were heard by a panel of 3 lawyer peers. The decision could be appealed as any ruling by an administrative agency. The result was that decisions about lawyers appeared in the published cases - and rightly they should - so that everybody could see what was happening. Then in 1989 the state bar and the supreme court violated the California constitution and created a state bar pseudo court with its own appellate panel. The result was that the standards of behavior established through decades of decisions were now secretly ignored. The state bar pseudo court hired by state court prosecutors served its employer by changing the standard. The decisions remain hidden from the public because they decisions are not where they were before. The bar and the supreme court effected depublication by causing the decisions to be made my non-judicial bodies and therefore not reported in the case reporters.
Oppressive Admission to the federal court is controlled by federal local rules - an example of
power grabbing and oppression at the highest level. Congress shall make no law abridging speech - and the judges shall make no laws period. Also, the federal constitution does not give anybody the right to prohibit speech or regulate the practice of law in the federal courts - and to the extent that California constitution requires membership in the state bar such violates the nobility clause - and others - and maybe was only added in the constitution of 1949.
The result is that lawyers have rights in federal court that vary from state to state and are controlled by the judges in those local courts. Judges have no legislative authority and their attempt to grab it is unconstitutional.
Debunking Legal Fictions: You have a right to eat and distribute illegal pills and to do other
private things - including writing things for people - and you have a right to speak in public - even in court. Penumbra doctrine - also known as double delta theory in integral calculus.
Griswold v Connecticut (1965) 14 L Ed 2d 510, 381 U.S. 479, 85 S. Ct. 1678. Penumbra. Relaxed standing. Vicarious standing. Cited in Palaschak briefs #3567 at page 1 and #3596 @ 2. Dr. Griswold gave illegal drugs (birth control pills) to his patients. He used relaxed standing to defend his pill distribution by saying that the privacy rights of his patients in their procreative (or not) liberty permitted him to give them the pills. Justice Douglas's legacy to the free world!
Debunking legal fictions: Ignorance of the Law is a Defense. Related Defense is "I contest the
Law"
In People v Goodin (1902) 136 Cal. 455; 69 P. 85. The government ran a road for years through Goodin's ranch. When the government straightened the road, Goodin reclaimed the land on which the old crooked road had run. Then he was accused of destroying state property - the old pavement. Goodin won.
State Bar Taint is an Unconstitutional Bill of Pains and Penalties - Like a Bill of Attainder
Ex Parte Garland (1866?) 18 L Ed 366, 4 Wall 333@ 377 is one of only 20 cases where the supreme court mentions "Bill of Pains and Penalties." A lawyer who had served in the confederacy and subsequently pardoned was challenged by __ when he wanted to practice law again. The supreme court ruled that __ which purported to bar his practice was a bill of pains and penalties - and therefore unconstitutional.
Just as in Criminal cases, each litigant is entitled to show the court what is behind the judicial
decisions that would be an element in curtailing his rights at the instant hearing. All presumptions of regularity are legal fictions.
1.Palaschak contends that his 1992 misdemeanor conviction and subsequent disbarment were unlawful and void ab initio being fruits of the forbidden tree. The presumption of regularity has been destroyed by subsequent actions of Matz - and for other reasons - and the issues is always there because ___ says that the evidence shall not be used for any reason. Palaschak would have challenged the use at his bar hearing of any testimony stemming from Officer David Matz's raid at Palaschak's office in 1991 but it was never offered when Palaschak was there. The Supreme Court never had a complete transcript not a brief of the suppression issues. Now today, after David Matz proved his dishonesty to the world by shoplifting from Petco in 1999 the door is opened to ask the questions that we could not in 1992.
The Lawyer's Right to effective assistance of counsel at Bar Hearings
Palaschak's purported suspension and/or disbarment are void ab initio because the equal protection clause and Argersinger imply that B&P 6085 be interpreted to require appointment of counsel for those who cannot afford it. Palaschak demanded appointment of counsel at his bar hearing and pseudo hearing officer David Wesley erred in ruling that indigents are not entitled to appointed counsel in bar cases. Palaschak's appellate rights at the hearing were denied by the subsequent seizure of his car and temporary banishment from the hearings - not to mention bias due to Palaschak's having sued the bar and the supreme court for another lawyer.
Palaschak demanded counsel at his bar hearing and was denied counsel, the judge incorrectly ruling that the statute did not provide for appointed counsel but his logic is patently defective as follows: The U.S. Supreme Court in Gideon, Argersinger and their progeny has ruled that the equal protection clause is what mandates appointment of counsel for indigents. Obviously the constitution, like B&P 6085, does not in its wording prescribe appointment of counsel, but since the wording is the same and the equal protection clause applies to both, the result is that appointed counsel is required by Cal Bus & Prof Code § 6085.
"§ 6085. Rights of defense to charges Any person complained against shall be given fair, adequate, and reasonable notice and have a fair, adequate, and reasonable opportunity and right . . .(c) To be represented by counsel. . . ."(3)
1.Even the test books are confused (or perhaps obsequious to the bar) and list in the annotations to 6085 cases that were overruled by the U.S. Supreme court specifically an by implication. A 1902 case, Vaughn comes to mind.
A state bar hearing punishes a lawyer for his acts and is therefore quasi criminal and the entire panoply of criminal protections accrue. Spevack v Klein (1967) 17 L Ed 2d 574, 385 U.S. 511; 87 S. Ct. 625.
"The self-incrimination clause of U.S. Const. amend. V, has been absorbed in U.S. Const. amend. XIV, and it extends its protection to lawyers as well as to other individuals, and it should not be watered down by imposing the dishonor of disbarment and the deprivation of a livelihood as a price for asserting it." - Spevack v Klein
1.The bar denied Palaschak his right to confront and cross examine witnesses by banishing him from the hearing for 1.5 days during which time it took testimony from witnesses.
1.Over Palaschak's objection the bar hearing officer, an employee of the prosecutor used evidence stolen from Palaschak's office, a completely innocent information form from a client or job application taken to the police by the bar's witness, an emotionally troubled hysterical woman, the theft having been kept secret from Palaschak until the bar produced its administrative record.
1.The bar failed to comply with discovery. Palaschak submitted detailed and significant special interrogatories that were arrogantly ignored.
Counsel of choice
Twenty opinions of the U.S. Supreme court support the litigants 6th amendment right to counsel of choice. Only one opinion, Leis v Larry Flynt, discusses the rights of out of state attorneys to handle an Ohio case but the lawyers and the court failed miserably by failing to see the obvious 1st amendment right of a person (any person) to speak in this country anywhere. The bar act is an abridgment of speech - just another one of the many abridgments of speech that the bar acts have foisted upon lawyers in the age of the robber barons. The U.S. Supreme court failed us in this case. Although it failed to grant certiorari and hear oral arguments, in nonetheless ruled against Larry Flynt. I cannot understand this anymore than I can understand the California Supreme Court calling me the "appellant" in People v Palaschak where the state appealed to the California Supreme Court which acted rashly without a complete transcript or a valid brief.
A defendant's interest in adequate representation is "perhaps his most important privilege" protected by the Constitution. Powell v. Alabama, 287 U.S. 45, 70. - Dissent in Leis v Larry Flynt et.al. (1979) 58 L Ed 2d 717, 439 U.S. 438, 99 S Ct 698
Palaschak is uniquely qualified to handle the issue of unlawful disenfranchisement by virtue of
his having sued the California Supreme court in federal court on precisely this issue for another client - which is precisely why Palaschak is disenfranchised today - retaliation by the Supreme Court who should have recused itself due to conflict of interest, personal interest, and the implied bias, and the appearance of impropriety and actual impropriety.
Although Palaschak is not an out of state lawyer, he is a wrongfully disenfranchised lawyer who has brooded and pondered the unlawful disenfranchisement issue since 1992 - 8 years. During that time he litigated in behalf of wrongfully disenfranchised lawyers and disenfranchised non-lawyers. Indeeddisenfranchisement is Palaschak's expertise. Unlawful disenfranchisement is precisely the issue facing Dr. Bevan. Palaschak's right to speak and Dr. Bevan's right to have Palaschak speak are both protected political speech the highest classification of protected speech. The constitution says that this right shall not be "abridg[ed]". And of course, the court grants relaxed standing to those advocating the rights of others - and even grants them the status of private attorney general, one who. . .
"obtains. . .not for himself alone but also as a "private attorney general" vindicating a policy that congress considered of the highest priority." - Newman v Piggie Park(1968) 19 L Ed 2d 1263.
Although the Supreme court strangely did not talk about the 1st amendment, it did offer some logic equally applicable to this situation of Dr. Bevan and his wrongfully disenfranchised expert:
"We are persuaded, however, that where a right has been conferred on citizens by federal law, the constitutional guarantee against its abridgment must be read to include what is necessary and appropriate for its assertion. In an age of increased specialization and high mobility of the bar, this must comprehend the right to bring to the assistance of an attorney admitted in the resident state a lawyer licensed by 'public act' of any other state who is thought best fitted for the task, and to allow him to serve in whatever manner is most effective, subject only to valid rules of courts as to practice before them. Cf. Lefton v. City of Hattiesburg, 333 F.2d 280, 285 (5 Cir. 1964). Indeed, in instances where the federal claim or defense is unpopular, advice and assistance by an out-of-state lawyer may be the only means available for vindication." - Spanos v. Skouras Theaters Corp., 364 F.2d 161, 170 (en banc) (CA2 1966).
1.Palaschak's disenfranchisement is a badge of honor because it was imposed unlawfully by the California Supreme Court after he sued them. At every step of the way he has vindicated just licensing issues in the face of oppression by corporate ficta. It is his unlawful disenfranchisement that gave him the motivation to research the issue for 8 years. His disenfranchisement is precisely what makes him the lawyer best equipped for this task!
Palaschak's Right to Effective Assistance of Counsel
Argersinger v Hamlin (1974) 32 L Ed 2d 530 Follow up to Gideon. Amplifies Gideon. Cited in Weinreb.
Cronic, U.S. v Harrison (1984) 466 U.S. 648, 665. Cited by Alderman and Kennedy book In Our Defensepage 402, 259. Companion case defining the standard for competence is Strickland v Washington 466 U.S. 688. Kennedy and Alderman discuss Harrison Cronic in detail in the book In Our Defense on pages 259 et seq.
Lilburne's case. (1648): The right to counsel in this country was afforded to at least one defendant nearly 2 centuries prior to the 6th amendment as explained by Ira Glasser of the ACLU in his book Visions of Liberty:
In 1637, a Puritan activist named John Lilburne imported and distributed various political tracts and was brought before the Star Chamber. Lilburne refused to be examined under oath, claiming that it violated "the law of the land" and invoking the Magna Carta. Condemning the oath as a procedure that was fundamentally unfair, Lilburne said that he would not take it even "though I be pulled to pieces by wild horses." Lilburne was held in contempt of court, publicly whipped, fined, and jailed in solitary confinement. He wasn't released until 1641. But his crusade for fair procedures and his willingness to absorb severe punishment rather than forsake principle inflamed the public - on both sides of the Atlantic - and Lilburne became a great symbol. He suffered, but not without effect: In 1645 Parliament set aside the judgment again Lilburne, finding that it had indeed violated "the law of the land and Magna Carta." In 1648 he was granted damages for his unjust imprisonment.. .
Lilburne led the Levelers. He was arrested again and again and died in prison at age 43. . .
. . . At his very last trial he won the then unprecedented right to receive a copy of the charges again him and to be represented by a lawyer [a right demanded by defendant Palaschak herein]. - quotation fromVisions of Liberty(4) by Ira Glasser.
Criminal rights of Defendants Generally
Weinreb, Leading cases in Constitution rights of defendants - or something like that. 1982 edition. Stolen by jail guards in Illinois after Ventura extradition agent Al Wiegand refused to permit Palaschak to bring his law books with him.
Gideon v Wainwright (1963) 372 U.S. 335. Henry Fonda portrayed Gideon in the movie Gideon's Trumpet.Defendants are entitled to appointed counsel even in non-capital cases. The court extended this right even further in Argersinger.
Griffin v Illinois (1956) 100 L Ed 891, 351 US 12, 79 S Ct 585, 55 ALR2d 1055 - Indigent's right to appointed counsel on first appeal of right. You have a right to a free transcript on your 1st appeal. Traffic court thwart this right in California by making you jump through a hoop and attempting to make you agree to a settled statement on appeal - which precludes you from later thinking up issues that are apparent to the skilled lawyer looking at a real transcript.
Overbreadth pertaining to the rights of attorneys and others.
History of Oppression of Lawyers by Corporate Ficta and other tyrants
In England the power of the press was recognized - and taken from the people. We must remember that although we take our orderly system of courts from England, England is an older country infected with the disease of imperialism and oppression. It is like comparing America's older diseased east coast to the newer freer west coast. In the 1500's or 1600's England forbade all printing on unlicensed printing presses. John Stuart Mills protested. In America we had the trial of Peter Zenger for seditious libel. Zenger's jury acquitted him and then the judge put the jury in jail! The first amendment is meant to prohibit any abridgment of printing or speaking - and that is obvious from the historical context - and now the current 5 generations have obviously forgotten and they have permitted the lawyer licensing acts to abridge the speech rights of lawyers. These bar acts are a product of corporate ficta and the robber barons as evinced by the date of their inception.
Backpedaling by the bar: Things that were illegal even for licensed lawyers during the window of bar oppression
Being a woman. Myra Bradwell was denied admission to the Illinois bar in 1869 due to her being a married woman. The U.S. Supreme Court affirmed the denial of Bradwell. Bradwell v. People of State of Illinois, (U.S. Ill. 1872) 83 U.S. 130, 21 L.Ed. 442, 16 Wall. 130. About he same time Clara Foltz became the first woman to practice in California despite a statute restricting the practice of law to "any white male citizen". See A History of America Law by Professor Lawrence Friedman, page 639 and the bibliographies therein.
Being black. See History of American Law, page 639. California only permitted white males to practice law at first.
Living in another state - Piper, N. Hampshire v (1985) 84 L Ed 2d 205. Kathryn Piper, a Vermont resident passed the New Hampshire bar. New Hampshire barred her from practicing until she moved across the river into Hampshire. Briefs of amici curiae urging the U.S. supreme court to defy the constitution and uphold this oppressive and unconstitutional rule were filed by Rehnquist and the following 12 backwards and oppressive states: Iowa Tennessee Virginia, Hawaii (by Tany Hong, Attorney General), Indiana, Kansas, Missouri, Nevada, Ohio, Wisconsin, Wyoming, North Carolina, Texas. Kathryn Piper won her right to travel in interstate commerce as late at 1985!
Advertising
Talking about a case with the press.
Soliciting
Okay, advertising is permitted, but not direct mail solicitation. Wrong. Ficker v Curran (1996) 950 F Supp 123, affirmed 119 d 3d 1150 overturned Maryland's ban on direct mail solicitation of persons accused of jailable traffic offenses.
Talking to jurors: Rapp v Disp. Bd. Of Hawaii Supreme Court (Feb 1996) 916 F Supp 1525 pro se lawyer Rapp desired to speak with jurors after their verdict. Hawaii disciplinary rules prohibited this without the court's permission. Rapp sued for declaratory and injunctive relief against the Hawaii Supreme Court (as did Palaschak's client against the California Supreme Court) and prevailed. He obtained a preliminary injunction prohibiting enforcement of the rule.
Speaking in court after being convicted of failure to appear on traffic tickets and eating LSD. This is Palaschak's situation.
Things that were illegal in England without a license
Printing!
Things that were illegal for lawyers before the 1st amendment - and even after for a while.
Seditious libel - Speaking out against the government.
The lawyers are enjoying more freedom as a result of having challenged the various bar acts. They have litigated to be able to advertise, to associate, to recommend lawyers, and otherwise speak and write. Palaschak now says that lawyers should be able to speak in court without license!
California Supreme Court had a personal interest in the case. Palaschak was counsel for a lawyer
who sued the California Supreme Court. The court retaliated and purported to take Palaschak's license but the taking was void ab initio for a multitude of constitutional infirmities.
In Palaschak's case his license is still intact because the act of taking it was void ab initio. The California Supreme Court reportedly purported to take away Palaschak's license after Palaschak sued the California Supreme court for a client lawyer whose license had been unlawfully suspended by the Supreme Court unconstitutional creation, the state bar pseudo court.
Methods of Oppression: Punishing the lawyer for the sins of the client
Double Jeopardy and the beginning of the recent attack on human lawyers by corporate ficta
Kelley, Luan. California case. This lawyer received her 2nd DUI. The state bar ignored the lack of nexus and ignore the double jeopardy clause - and the preemption by the DMV. The bar suspended her bar license.
Overbreadth cases pertaining to lawyers and others
Condon, Estate of (__1998) 65 Cal App 4th 1138, 76 Cal Rptr 2d 922. Not supervening.
Baird v State Bar of Arizona (1970) 27 L Ed 2d 639, Annotation @953 Subject: Overbreadth. Bar applicant refused to answer question in bar application regarding his past to age 16 regarding membership in organizations advocating overthrow of government. Note that Judge McMecarch or whomever in Mariposa county refused to take the loyalty oath part of the oath specifically quoted in the California constitution.
Bates v Arizona (1977) 53 L Ed 2d 810. Legal Clinic Advertised. Subject: Overbreadth and 1st amendment. The 6th most pertinent case here.
Cohen v California (1971) 30 L Ed 2d 124. "Fuck the draft" written on the back of jacket in court hallway.Overbreadth was the basis of this decision.
Doran v Salem Inn (1975) 45 L Ed 2d 648. Overbreadth. 3 stripper bars. Ballet Africanus. Leading case. Joe Redner, famous owner of the leading stripper bar in Tampa recognized the name of this case which I chatted with him in Jan 2000. Redner is facing enforcement of an overbroad statute to stop lap dances in his night clubs.
Erznoznik v City of Jacksonville ( ) 45 L Ed 2d__. Overbreadth. Baby's butt argument regarding drive in theater. The statute was declared unconstitutional because it was so broad as to include the depiction of a baby's butt which the court felt, would not be offensive to anybody.
Ficker v Curran 950 F Supp 123, Affirmed at 119 F3d 1150.Attorney solicitation. Overbreadth regarding bar acts regulating attorneys. Attorney solicitation law was held unconstitutional. Used in brief 3596 at page 10.
Houston v Hill (1987) 96 L Ed 2d 390. Pick on somebody your own size. Overbreadth. Charles Alan Wright argued this case. "Interview" with police as they were chasing a suspect. Defendant said "Why don't you pick on somebody your own size!" The statements were not fighting words or obscenity. The Supreme Court ruled in favor of the guy shouting at police as they were chasing a suspect. It is okay to be provocative. Any non-speech was pre-empted by state statute. Extrapolation from Houston case: With regard to laws against attorneys speaking without license: Any non-truth is pre-empted by fraud statutes. Any truth is protected by the 1st amendment. The supreme Court said that the city "had numerous opportunities to narrow and has not done so." Similarly the state bar act suffers from overbreadth and the implied and also explicit ambiguity of defining what constitutes the practice of law.
Keyishian v Board of Regents (1967) 17 L Ed 2d 629, 385 U.S. 589. Pedler registration. Overbreadth.Ordinance required solicitors to register with the police. Ruled unconstitutional.
McSurely v Ratliff (1967) 282 F Supp 848 (E.D. Ky. 1967). Anti communist law. Raid. Court declared Kentucky's anti sedition law unconstitutional. Case arose from overbreadth, an unjustified raid based on an overbroad statute. See McSurely v McClellan (1976) 553 F2d 1277, 1282, note 9 (D.C. Cir. 1976)(en banc) discussing a safekeeping order for the personal diaries and other seized items of McSurely. The case ordering the return of the documents of McSurelys is McSurely v Ratliff (1968) 398 F2d 817 (6th Cir 1968). The endnotes of In Our Defense contain an excellent brief regarding the search and seizure issues in a politically motivated raid.
Hackin v Lockwood (1966) 361 F2d 499. District court held that Arizona's ABA requirement is constitutional. The court skirted the issue by holding that requiring graduation from an accredited school is constitutional - avoiding completely the issue that ABA requirements were instituted at the behest of Carnegie, a paradigm robber baron, and foisted upon the public in the age of the robber barons with the obvious effect of promoting corporate ficta and limiting the practice of law and even the teaching of law to the wealthy. We can see the folly now in retrospect with the multitude of non-ABA schools in California.
Hackin v Arizona (1967)19 L. Ed. 2d 347; 389 U.S. 143; 88 S. Ct. 325. Overbreadth case. There was no written majority opinion. Douglas's strong and cogent dissent shames the majority in this case. Lawyer Hackin having been denied admission to the Arizona bar nonetheless defended a guy who was denied counsel by the court because the proceeding was, hypertechnically, civil in nature, habeas corpus. Hackin stepped forward where bar volunteers failed to do so, defended the otherwise defenseless, and was prosecuted for practicing without a license. Maybe he failed to write a good brief - although he persuaded Justice Douglas.
Deprivation of License Requires Prior Due Process; It is a property interest.
In Re Ming 469 F 2d 1353 (7th Cir. 1971) Even federal court rules must render due process. Disciplinary proceeding. The Executive Committee of the United States District Court for Northern District of Illinois issued suspension order, and appeal was taken. The Court of Appeals, Pell, Circuit Judge, held that if a conviction itself is to be used to show commission of underlying acts which are of such nature as to form basis for disbarment or suspension, conviction must have reached finality, or at least to the extent of exhaustion of direct appeals. In addition, the Court held that failure to afford hearing prior to issuing order of suspension based on misdemeanor conviction violated due process. Reversed. If a conviction itself is to be used to show commission of underlying acts which are of such nature as to form basis for disbarment or suspension, conviction must have reached finality, at least to the extent of exhaustion of direct appeals. U.S. Dist. Ct. Rules, N.D. Ill., General Rule 8. District courts are free to adopt their own local rules defining grounds for disbarment and suspension and the procedures to be followed; however, such rules must meet the essential requirements of due process. License to practice law constitutes a type of "new property" the divestment of which cannot be affected without affording substantial due process, including the opportunity to be heard and to confront and cross-examine adverse witnesses. Failure to afford hearing prior to issuing order of suspension based on misdemeanor conviction violated due process.
Bell v Burson (1971) 26 L Ed 90, 401 US 535 State cannot take a driver license without hearing. Used in motion 3596 at page 3.
In Re Crow (1959) 3 L Ed 2d 1025-27. Annotation 3 L Ed 2d. Essentially overruled by Ming. Non criminal disbarment. Attorney disbarred in Ohio. U.S. Supreme Court issues OSC. He responded. Douglas dissents that they should have appoint a committee.
Annotation re In Re Crow 3 L Ed 2d 1960-65
Lawyers Practicing in California with no California Bar License
Birbrower v Superior Court of Santa Clara County (1998) 70 Cal Rptr 2d 304, 17 C 4th 119, 949 P2d 1. New York lawyer was permitted to collect part of his fees for work done in California? This was not a 1stamendment issue - but a fee collection case.
The multitude of classes of non lawyers permitted to practice law in California. This is subdocument #5939. See www.lawyerdude.netfirms.com/5939.html
Prisoners can be lawyers for other prisoners. Johnson v. Avery (1969), 393 U.S. 483 www.lawyerdude.8k.com/Avery.html
Where civil rights lawyers are otherwise unavailable, lawyers from other jurisdictions must be brought in.
Any next friend can apply for a writ of habeas corpus. U.S. v Houston 273 F 915, 916 cited by Douglas in Hackin v Arizona 19 L Ed 2d 347.
Non lawyers can be executors and administrators in probate court.
Non lawyers can appeal decisions of the workers compensation board on behalf of clients?
Non lawyers can appeal decision of social security board on behalf of clients?
Cases Applying the Clear and Present Danger Test to Lawyers and others
Brandenburg v Ohio (1969) 23 L Ed 2d 430, 395 US 444, 89 S Ct 1827. Clear and present danger not there for Klan speech. Clarence Brandenburg was Ku Klux Klan member. Clear and Present Danger test was finally used to overrule an obstruction to speech. Compare to Debs case circa 1914 where clear and present danger test was not fully ripe. Used in brief 3596 at page 7 and 8.
Bridges v California (1941) 314 US 263, 62 S Ct 194. Extremely Serious and Very Imminent test. Contains the text: "Extremely Serious and Very Imminent" (clear and present danger - how clear and how present). Newspaper editorial talked about a present case in violation of court gag order. Cited for contempt of court. Overruled as I recall. Cited in brief #3596 at page 6.
Craig v Harney (1946) 91 L Ed 1546, 331 U.S. 367. Criticism of judge not clear and present danger. Regarding clear and present danger test: Mere possibility of danger is not enough. Used in briefs at 3567.1, 3569.1, 3596.6. Case is on point because it was about a Newspaper being critical of a layman as judge. Hey, I criticized a judge for Melvin Loser and was prosecuted for it also.
Debs v U.S. (1919) 63 L Ed 566, 249 U.S. 211. 1917 draft objector. Predecessor to Brandenburg in 1969. 1917 draft interference case. Used in brief at 3596.7
Gentile v State Bar of Nevada (1991) 115 L Ed 2d 888. Nevada bar act unconstitutional. Clear and Present danger test controls here. Gentile gave a press conference about a high profile case that he was handling. The bar tried to discipline him. The U.S. Supreme Court declared that the Nevada bar act was unconstitutional! Palaschak contends herein that the California bar act is unconstitutional for a multitude of infirmities, many arising since the 1986 attack on human lawyers by Diane Yu, a genetically weak socialist, a shill for corporate ficta and the enemy of individualism which is the essence of America.
McSurely v Ratliff (1967) 282 F Supp 848 (E.D. Ky. 1967). Hysterical raid held illegal. Anti sedition act unconstitutional. Kentucky's anti sedition law is unconstitutional. Mc Surely's statements are protected by the clean and present danger test. An overbroad statute combined with ignorant officials caused an unjustified raid. See McSurely v McClellan (1976) 553 F2d 1277, 1282, note 9 (D.C. Cir. 1976)(en banc) discussing a safekeeping order for the personal diaries and other seized items of McSurely. The case ordering the return of the documents of McSurelys is McSurely v Ratliff (1968) 398 F2d 817 (6th Cir 1968). The endnotes of In Our Defense contain an excellent brief regarding the search and seizure issues in a politically motivated raid.
Relaxed Standing to Defend Fundamental rights such as Equal Protection. Vicarious Standing.
Craig v Boren (1976) 50 L Ed 2d 397. Relaxed standing to challenge denial of equal protection. Vicarious standing to defend fundamental rights. Compare to private attorney general.
Cases Pertaining to Rights of Prisoners to Access to the Courts
Johnson v Avery 1969: www.lawyerdude.8k.com/Avery.html
Gluth v Kangas (1988) 773 F Supp 1309 @ 1321 (D Ariz) Right to xerox copies in jail. "Draconian" copying by hand is not required. Jails and prisons must provide copying service - but Illinois jail denied Palaschak copying rights (while allowing other prisoners copying services - but only after Palaschak began litigating. Cited in Palaschak brief #3591 at page 0.1.
Procunier v Martinez (1974) 40 L Ed 2d 224, 416 US 396, 84 S Ct 1800 Mail is a right.(Added 7 August 2001) This was a class action. Procunier, Director of California Dept. of Corrections told prisoners that mail was a privilege and not a right - until somebody litigated this case. I read about this case in Lawrence Friedman's 1993 book entitled Crime and Punishment in American History.
Revisisions and additions yet to be made:
There are 20% more cases to be added from my handwritten 1999 brief in folder #99-1:
Procunier v Martinez. (1974) Before this case, California told prisoners that mail was a privilege - not a right.
Train of cases: United trans v Michigan bar; UMW v Illinois bar; Brother hood v Virginia bar
List of cases that have not yet been transcribed from the original handwritten brief:
Marbury v Madison (1803) 2 L Ed 60, 5 US 137, a void act is void ab initio
Bradwell v. People of State of Illinois, (U.S. Ill. 1872) 83 U.S. 130, 21 L.Ed. 442, 16 Wall. 130.)
Powell v Alabama
Ruffalo (1968) 20 L Ed 2s 117, 390 US 544, 88 S Ct 1222 and 20 L Ed 2d 1436 Attorney's right to practice in federal court as affected by his disbarment or suspension in sate court of other federal court.
Schware
Shuttlesworth v Birmingham
Strickland
maybe Supreme Court of New Hampshire v Piper (1985) 84 L Ed 2d, 470 US 274, 105 S Ct 1272.
Theard
U.S. v Guest
U.S. v Harrison Cronic
U.S. v Russell
William v Illinois
Wolf v Colorado
Yagman v Standing Committee. Standing Committee on Discipline of the United States District Court for the Central District of California v Stephen Yagman, defendant (9th Circuit, 1995) 55 F.3d 1430; 1995 U.S. App. LEXIS 12948; 95 Cal. Daily Op. Service 3958; 95 Daily Journal DAR 6873. See also the other preceding Yagman cases.
Younger v Harris
(ex part young - Minnesota)
Zenger, Peter
The following annotations citing Brandenburg need a home: Brandenburg v Ohio (1969) 23 L Ed 2d 430, 395 US 444, 89 S Ct 1827. Clarence Brandenburg was Ku Klux Klan member. Clear and Present Danger test was finally used to overrule an obstruction to speech. Used in brief 3596 at page 7 and 8. Brandenburg is cited all the major constitutional law treatises and the following treatises:
21 L Ed 2d 976 The Supreme Court and the right of free speech and press,
38 L Ed 2d 835 The Supreme Court's development of the "clear and present danger"rule and the related rule concerning advocacy of unlawful acts as limitations on the constitutional right of free speech and press,
45 L Ed 2d 725 Supreme Court's views as to overbreadth of legislation in connection with First Amendment rights,
86 L Ed 758 Right of petition and assembly under the Federal Constitution's First Amendment - Supreme Court cases,
96 ALR Fed 26,
20 ALR4th 327.
Footnotes:
1. Bell v Burson (1971) 29 L.Ed.2d 90, 402 U.S. 535, 91 S.Ct. 1586. Driver license may not be taken without a hearing.
2. Alderman, Ellen, and Kennedy, Caroline. In Our Defense. Avon Books. New York. 1991. ISBN0-380-71720-4. Available in paperback from Barnes and Noble. $13.50.
3. Full text of 6085: § 6085. Rights of defense to charges Any person complained against shall be given fair, adequate, and reasonable notice and have a fair, adequate, and reasonable opportunity and right:
(a) To defend against the charge by the introduction of evidence.
(b) To receive any and all exculpatory evidence from the State Bar after the initiation of a disciplinary proceeding in State Bar Court, and thereafter when this evidence is discovered and available. This subdivision shall not require the disclosure of mitigating evidence.
(c) To be represented by counsel.
(d) To examine and cross-examine witnesses.
(e) To exercise any right guaranteed by the California Constitution or the United States Constitution, including the right against self-incrimination.
He or she shall also have the right to the issuance of subpoenas for attendance of witnesses to appear and testify or produce books and papers, as provided in this chapter.
4. Visions of Liberty, Ira Glasser (of the ACLU), 1991, Little, Brown, and Company, New York, page 159 et. seq. Talks about Lilburne's case from 1648 wherein Lilburne successfully argued for appointed counsel. Available at Port Hueneme library.
Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal [118 U.S. 356, 374] hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution
Yick Wo v Hopkins, Sheriff (1886) 118 U.S. 356
http://www.lawyerdude.netfirms.com/yickwo.html
Topical Index. Click here for the Index to Brief 3789.
Saturday, September 12, 2009
Why so many worry's about a bunch of rangers coming and killing a bunch of mexicans? tony vendido knows............
Crosby County courthouse Capitol flower bed Washington County courthouse
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Case Search Results Case Search Results on Case # 13-02-00130-CV
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Case Information:
Case Number: 13-02-00130-CV
Date Filed: 3/4/2002
Style: SISTER CARMEN DE LLANO, ET AL.
v.: PABLO SUESS, AND FROST NATIONAL BANK, TRUSTEES OF THE JOHN G. KENEDY, JR. CHARITABLE TRUST
Original Proceeding: No
Transferred From:
Transfer In Date:
Transfer Case No:
Transferred To:
Transfer Out Date:
Trial Court Information:
Trial Court: 206th District Court
Trial Court Judge: Hon. Rose Guerra Reyna
Trial Court Case #: C-291-93-D
Trial Court Reporter: Michelle Robertson
Punishment:
Parties:
Party Party Type
Carmen de Llano, et al. Appellant
Pablo Suess, and Frost National Bank, Trustees of the John G. Kenedy, Jr., Chari Appellee
Case Events:
Date Event Type Description
3/11/2009 Case stored
8/14/2006 Record sent to storage
6/7/2006 Form to request stored records
12/9/2005 Record sent to storage
9/30/2005 Record sent to storage
9/23/2005 record sent
9/20/2005 Mandate Issued
7/5/2005 Address Change Appellee
6/16/2005 Miscellaneous Motion Disposed Appellant
6/16/2005 Memorandum opinion issued
1/20/2004 Letter brief filed Appellee
10/16/2003 Motion for leave to file Post Sub Brf DISPOSED Appellee
10/1/2003 Post submission brief filed Appellee
10/1/2003 Motion for leave to file post submission brief Appellee
10/1/2003 Filing Fee Paid Appellee
10/1/2003 Post Submission brief received Appellee
8/14/2003 Letter Marked 'Received' Appellant
7/24/2003 supplemental clerk's record
7/17/2003 ADVISORY - tickler as to event to come
6/26/2003 Copy of Letter Appellee
6/19/2003 Motion for leave to file Reply Brief DISPOSED Appellant
6/18/2003 Record checked in
6/18/2003 Additional copy of a letter Appellee
6/18/2003 Additional copy of a letter Appellee
6/17/2003 Letter sent Appellee
6/12/2003 ADVISORY - tickler as to event to come Appellant
6/9/2003 Record checked in Appellant
6/9/2003 Exhibit Used in Oral Argument Appellant
6/9/2003 Submitted
6/9/2003 Additional copy of response Appellee
6/9/2003 Objection filed Appellee
6/6/2003 Miscellaneous Motion Disposed Appellant
6/6/2003 Objection filed Appellee
6/6/2003 notice filed Appellant
6/6/2003 Additional copy of response Appellant
6/6/2003 Objection filed Appellee
6/5/2003 Objection filed Appellee
6/5/2003 Response to _____________. Appellee
6/5/2003 Objection filed Appellee
6/5/2003 Response to _____________. Appellant
6/4/2003 Motion for leave to file reply brief Appellant
6/4/2003 Filing Fee Paid Appellant
6/4/2003 Miscellaneous Motion Appellant
6/4/2003 Filing Fee Paid Appellant
6/3/2003 Reply Brief Filed Appellant
6/3/2003 Reply brief markd Appellant
5/22/2003 CHECKOUT SHT FOR REQUESTED DOCUMENTS Appellant
5/20/2003 CHECKOUT SHT FOR REQUESTED DOCUMENTS Appellant
5/15/2003 Submission Edinburg
5/12/2003 CHECKOUT SHT FOR REQUESTED DOCUMENTS
5/8/2003 Mo ext. of time to file REPLY BRIEF Disposed Appellant
5/7/2003 Submission Edinburg
4/29/2003 Submission Edinburg
4/24/2003 Mo -ext of time to file REPLY BRIEF Appellant
4/24/2003 Filing Fee Paid Appellant
4/23/2003 Letter filed Appellant
3/31/2003 Record returned Appellee
3/28/2003 Copy of Letter Appellee
3/28/2003 Oral argument requested Appellee
3/28/2003 Brief Filed Appellee
3/28/2003 Oral argument requested Appellee
3/28/2003 Brief Filed Appellee
3/18/2003 CHECKOUT SHT FOR REQUESTED DOCUMENTS Appellee
2/13/2003 Mot. for Ext. File Brief Disp. Appellee
2/4/2003 Mot. for Ext. to File Brief Joint - Appellant and Appellee
2/4/2003 Filing Fee Paid Appellee
1/30/2003 Miscellaneous Motion Disposed Appellee
1/17/2003 Filing Fee Paid Appellee
1/17/2003 Miscellaneous Motion Appellee
1/16/2003 supplemental reporter record filed
1/16/2003 Supplemental Reporter Record Pages
1/10/2003 Appendix filed Appellant
1/9/2003 Mot. for Ext. File Brief Disp. Appellee
12/23/2002 Mot. for Ext. to File Brief Appellee
12/19/2002 Miscellaneous Motion Disposed Appellant
12/19/2002 Mot. for Ext. File Brief Disp. Appellee
12/11/2002 Mot. for Ext. to File Brief Appellee
12/11/2002 Filing Fee Paid Appellee
12/9/2002 CHECKOUT SHT FOR REQUESTED DOCUMENTS Appellee
12/6/2002 Response to _____________. Appellee
12/6/2002 Clerk's Record properly prepared Appellant
12/5/2002 CHECKOUT SHT FOR REQUESTED DOCUMENTS Appellant
12/5/2002 Mot. for Ext. File Brief Disp. Appellant
12/4/2002 Exhibits Returned after being checked out.
12/4/2002 Filing Fee Paid Appellant
11/26/2002 Additional Copies of Brief Appellant
11/26/2002 Additional Copies of Misc. Motion Appellant
11/25/2002 Brief Filed Appellant
11/25/2002 Case ready to be set
11/25/2002 Record checked in
11/25/2002 Brief received. Appellant
11/25/2002 Oral argument requested Appellant
11/25/2002 Miscellaneous Motion Appellant
11/19/2002 Mot. for Ext. to File Brief Appellant
11/19/2002 Filing Fee Paid Appellant
11/14/2002 Mot. for Ext. File Brief Disp. Appellant
11/8/2002 Filing Fee Paid Appellant
11/8/2002 Mot. for Ext. to File Brief Appellant
11/8/2002 Green card in Appellant
11/4/2002 10 day letter sent Appellant
10/30/2002 supplemental clerk's record District/County Clerk
10/3/2002 Mot. for Ext. File Brief Disp. Appellant
9/24/2002 Supplemental Exhibits Filed Court Reporter
9/19/2002 Green card in
9/18/2002 Mot. for Ext. to File Brief Appellant
9/18/2002 Filing Fee Paid Appellant
9/18/2002 Copy of Letter Appellee
9/16/2002 10 day letter sent Appellant
9/6/2002 CHECKOUT SHT FOR REQUESTED DOCUMENTS Appellant
8/28/2002 supplemental clerk's record
8/20/2002 supplemental clerk's record
8/20/2002 Copy of Letter Appellee
8/14/2002 CHECKOUT SHT FOR REQUESTED DOCUMENTS Appellant
8/7/2002 Reporter's Record Filed
8/7/2002 Court Reporter Pages
7/15/2002 Appearance of Counsel Appellee
7/9/2002 Exhibits Filed Court Reporter
7/9/2002 Court Reporter Pages Court Reporter
7/9/2002 Reporter's Record Filed Court Reporter
7/8/2002 Statement Filed Appellee
7/1/2002 request for documents Court Reporter
6/24/2002 request for documents Court Reporter
6/10/2002 ADVISORY - tickler as to event to come Court Reporter
5/20/2002 request for documents Court Reporter
4/29/2002 Clerk's Record Filed
4/22/2002 30 Day Letter Sent Court Reporter
4/22/2002 docketing statement filed Appellee
4/22/2002 Statement Filed Appellee
4/22/2002 docketing statement filed Appellant
4/22/2002 Statement Filed Appellant
4/19/2002 ADVISORY - tickler as to event to come Court Reporter
4/16/2002 docketing statement filed Appellee
4/12/2002 30 Day Letter Sent Court Reporter
4/12/2002 30 Day Letter Sent District Clerk
4/12/2002 Notice for docketing statement Appellee
4/12/2002 Notice for docketing statement Appellant
4/12/2002 Copy of Letter Appellee
3/4/2002 Filing Fee Paid Appellant
3/4/2002 Notice of Appeal Filed Appellant
Calendars:
Set Date Calendar Type Reason Set
9/20/2005 Case Stored Case stored
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Skip sub navigation menu for Texas Courts Online, go to main navigation menu for Texas Courts Online Thirteenth
Court of
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Case Search Results Case Search Results on Case # 13-02-00130-CV
Add to CaseMail | Printer-Friendly Version
Case Information:
Case Number: 13-02-00130-CV
Date Filed: 3/4/2002
Style: SISTER CARMEN DE LLANO, ET AL.
v.: PABLO SUESS, AND FROST NATIONAL BANK, TRUSTEES OF THE JOHN G. KENEDY, JR. CHARITABLE TRUST
Original Proceeding: No
Transferred From:
Transfer In Date:
Transfer Case No:
Transferred To:
Transfer Out Date:
Trial Court Information:
Trial Court: 206th District Court
Trial Court Judge: Hon. Rose Guerra Reyna
Trial Court Case #: C-291-93-D
Trial Court Reporter: Michelle Robertson
Punishment:
Parties:
Party Party Type
Carmen de Llano, et al. Appellant
Pablo Suess, and Frost National Bank, Trustees of the John G. Kenedy, Jr., Chari Appellee
Case Events:
Date Event Type Description
3/11/2009 Case stored
8/14/2006 Record sent to storage
6/7/2006 Form to request stored records
12/9/2005 Record sent to storage
9/30/2005 Record sent to storage
9/23/2005 record sent
9/20/2005 Mandate Issued
7/5/2005 Address Change Appellee
6/16/2005 Miscellaneous Motion Disposed Appellant
6/16/2005 Memorandum opinion issued
1/20/2004 Letter brief filed Appellee
10/16/2003 Motion for leave to file Post Sub Brf DISPOSED Appellee
10/1/2003 Post submission brief filed Appellee
10/1/2003 Motion for leave to file post submission brief Appellee
10/1/2003 Filing Fee Paid Appellee
10/1/2003 Post Submission brief received Appellee
8/14/2003 Letter Marked 'Received' Appellant
7/24/2003 supplemental clerk's record
7/17/2003 ADVISORY - tickler as to event to come
6/26/2003 Copy of Letter Appellee
6/19/2003 Motion for leave to file Reply Brief DISPOSED Appellant
6/18/2003 Record checked in
6/18/2003 Additional copy of a letter Appellee
6/18/2003 Additional copy of a letter Appellee
6/17/2003 Letter sent Appellee
6/12/2003 ADVISORY - tickler as to event to come Appellant
6/9/2003 Record checked in Appellant
6/9/2003 Exhibit Used in Oral Argument Appellant
6/9/2003 Submitted
6/9/2003 Additional copy of response Appellee
6/9/2003 Objection filed Appellee
6/6/2003 Miscellaneous Motion Disposed Appellant
6/6/2003 Objection filed Appellee
6/6/2003 notice filed Appellant
6/6/2003 Additional copy of response Appellant
6/6/2003 Objection filed Appellee
6/5/2003 Objection filed Appellee
6/5/2003 Response to _____________. Appellee
6/5/2003 Objection filed Appellee
6/5/2003 Response to _____________. Appellant
6/4/2003 Motion for leave to file reply brief Appellant
6/4/2003 Filing Fee Paid Appellant
6/4/2003 Miscellaneous Motion Appellant
6/4/2003 Filing Fee Paid Appellant
6/3/2003 Reply Brief Filed Appellant
6/3/2003 Reply brief markd Appellant
5/22/2003 CHECKOUT SHT FOR REQUESTED DOCUMENTS Appellant
5/20/2003 CHECKOUT SHT FOR REQUESTED DOCUMENTS Appellant
5/15/2003 Submission Edinburg
5/12/2003 CHECKOUT SHT FOR REQUESTED DOCUMENTS
5/8/2003 Mo ext. of time to file REPLY BRIEF Disposed Appellant
5/7/2003 Submission Edinburg
4/29/2003 Submission Edinburg
4/24/2003 Mo -ext of time to file REPLY BRIEF Appellant
4/24/2003 Filing Fee Paid Appellant
4/23/2003 Letter filed Appellant
3/31/2003 Record returned Appellee
3/28/2003 Copy of Letter Appellee
3/28/2003 Oral argument requested Appellee
3/28/2003 Brief Filed Appellee
3/28/2003 Oral argument requested Appellee
3/28/2003 Brief Filed Appellee
3/18/2003 CHECKOUT SHT FOR REQUESTED DOCUMENTS Appellee
2/13/2003 Mot. for Ext. File Brief Disp. Appellee
2/4/2003 Mot. for Ext. to File Brief Joint - Appellant and Appellee
2/4/2003 Filing Fee Paid Appellee
1/30/2003 Miscellaneous Motion Disposed Appellee
1/17/2003 Filing Fee Paid Appellee
1/17/2003 Miscellaneous Motion Appellee
1/16/2003 supplemental reporter record filed
1/16/2003 Supplemental Reporter Record Pages
1/10/2003 Appendix filed Appellant
1/9/2003 Mot. for Ext. File Brief Disp. Appellee
12/23/2002 Mot. for Ext. to File Brief Appellee
12/19/2002 Miscellaneous Motion Disposed Appellant
12/19/2002 Mot. for Ext. File Brief Disp. Appellee
12/11/2002 Mot. for Ext. to File Brief Appellee
12/11/2002 Filing Fee Paid Appellee
12/9/2002 CHECKOUT SHT FOR REQUESTED DOCUMENTS Appellee
12/6/2002 Response to _____________. Appellee
12/6/2002 Clerk's Record properly prepared Appellant
12/5/2002 CHECKOUT SHT FOR REQUESTED DOCUMENTS Appellant
12/5/2002 Mot. for Ext. File Brief Disp. Appellant
12/4/2002 Exhibits Returned after being checked out.
12/4/2002 Filing Fee Paid Appellant
11/26/2002 Additional Copies of Brief Appellant
11/26/2002 Additional Copies of Misc. Motion Appellant
11/25/2002 Brief Filed Appellant
11/25/2002 Case ready to be set
11/25/2002 Record checked in
11/25/2002 Brief received. Appellant
11/25/2002 Oral argument requested Appellant
11/25/2002 Miscellaneous Motion Appellant
11/19/2002 Mot. for Ext. to File Brief Appellant
11/19/2002 Filing Fee Paid Appellant
11/14/2002 Mot. for Ext. File Brief Disp. Appellant
11/8/2002 Filing Fee Paid Appellant
11/8/2002 Mot. for Ext. to File Brief Appellant
11/8/2002 Green card in Appellant
11/4/2002 10 day letter sent Appellant
10/30/2002 supplemental clerk's record District/County Clerk
10/3/2002 Mot. for Ext. File Brief Disp. Appellant
9/24/2002 Supplemental Exhibits Filed Court Reporter
9/19/2002 Green card in
9/18/2002 Mot. for Ext. to File Brief Appellant
9/18/2002 Filing Fee Paid Appellant
9/18/2002 Copy of Letter Appellee
9/16/2002 10 day letter sent Appellant
9/6/2002 CHECKOUT SHT FOR REQUESTED DOCUMENTS Appellant
8/28/2002 supplemental clerk's record
8/20/2002 supplemental clerk's record
8/20/2002 Copy of Letter Appellee
8/14/2002 CHECKOUT SHT FOR REQUESTED DOCUMENTS Appellant
8/7/2002 Reporter's Record Filed
8/7/2002 Court Reporter Pages
7/15/2002 Appearance of Counsel Appellee
7/9/2002 Exhibits Filed Court Reporter
7/9/2002 Court Reporter Pages Court Reporter
7/9/2002 Reporter's Record Filed Court Reporter
7/8/2002 Statement Filed Appellee
7/1/2002 request for documents Court Reporter
6/24/2002 request for documents Court Reporter
6/10/2002 ADVISORY - tickler as to event to come Court Reporter
5/20/2002 request for documents Court Reporter
4/29/2002 Clerk's Record Filed
4/22/2002 30 Day Letter Sent Court Reporter
4/22/2002 docketing statement filed Appellee
4/22/2002 Statement Filed Appellee
4/22/2002 docketing statement filed Appellant
4/22/2002 Statement Filed Appellant
4/19/2002 ADVISORY - tickler as to event to come Court Reporter
4/16/2002 docketing statement filed Appellee
4/12/2002 30 Day Letter Sent Court Reporter
4/12/2002 30 Day Letter Sent District Clerk
4/12/2002 Notice for docketing statement Appellee
4/12/2002 Notice for docketing statement Appellant
4/12/2002 Copy of Letter Appellee
3/4/2002 Filing Fee Paid Appellant
3/4/2002 Notice of Appeal Filed Appellant
Calendars:
Set Date Calendar Type Reason Set
9/20/2005 Case Stored Case stored
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Tuesday, August 18, 2009
Monday, June 22, 2009
Fraud enforcement is firing John Hubert ,Mary Cano,Noel Pena Imelda Perez Guevara would be a start for mail fraud tampering with govt records ......
e Overview Table of Contents
Controlling Fraud in Medicaid and Other Welfare Programs - S.B. 30
by Senator Zaffirini, et al.
House Sponsor: Representative Maxey
§ Requires the Texas Department of Human Services (DHS) to take a number of steps to improve the detection and enforcement of fraud under the food stamp and financial assistance program. These include:
§ improving the time it takes to establish an overpayment claim;
§ using the telephone to collect reimbursement from a person who received a benefit in error;
§ participating in the Federal Tax Refund Offset program;
§ keeping records of fraud cases referred for prosecution;
§ using a computer system to compare state information with federal immigrant and foreign visitor information to prevent people from illegally receiving public assistance benefits;
§ identifying Medicaid recipients who are eligible to receive similar assistance under Medicare and analyzing claims to ensure that allowable Medicare payments are sought first, and matching Medicaid claims to determine if other programs should appropriately pay the claims; and
§ identifying each Medicaid service under which the state is eligible for enhanced federal reimbursement and ensuring that the state receives the highest reimbursement.
Fraud Detection and Prevention
§ Requires the Health and Human Services Commission (HHSC) to set a minimum goal for DHS recovering a percentage of benefits that were granted in error.
§ Requires reduction in general revenue appropriation if DHS failed to meet its goal.
§ Allows HHSC to grant an award to an individual who reports fraud or abuse of funds in Medicaid.
§ Makes HHSC, through a new office of investigations and enforcement office, responsible for investigating and enforcing fraud in health and human services.
§ Requires HHSC and the office of the attorney general (OAG) to take a number of joint actions on Medicaid fraud. These include: signing a memorandum of understanding on developing and implementing joint written procedures for processing fraud cases; preparing reports on fraud detection and prosecution activities; signing a memorandum of understanding for HHSC to provide investigative support on certain cases, and cooperating with entities participating in "Operation Restore Trust," a federal fraud detection program.
§ Prohibits HHSC and the OAG from collecting investigation and attorney's fees unless the state gets a penalty, restitution, or other reimbursement. Requires HHSC to refer cases to local prosecuting attorneys if the office of the attorney general fails to act within 30 days.
§ Requires HHSC to develop a fraud detection training program.
§ Requires HHSC to use learning or neural network technology to identify and deter fraud in Medicaid.
§ Establishes the Medicaid and Public Assistance Fraud Oversight task force to assist HHSC in improving the efficiency of fraud investigations and collections.
§ Requires a number of actions and techniques by HHSC to improve fraud detection and prevention. These include:
§ compiling statistics on fraud, publicizing successful fraud prosecutions prevention programs, and ensuring that a toll-free number is available for reporting fraud;
§ developing a cost-effective method of identifying applicants for public assistance in Texas counties bordering other states who are already receiving assistance in those states; and
§ verifying automobile information used in determining eligibility and establishing a computer matching system with the Texas Department of Criminal Justice (TDCJ) to prevent someone in prison from illegally receiving public assistance benefits.
§ Consolidates staff and transfers responsibilities to HHSC from DHS' utilization and assessment review function and TDH's claims review and analysis group and policy and data analysis group.
§ Requires certain actions of DHS in fraud detection and enforcement. These include:
§ using private collection agents as an additional method to collect reimbursements for benefits granted in error;
§ studying the impact of expedited food stamp delivery on fraud; and
§ studying the feasibility of collecting benefits granted in error by garnishing wages or filing property liens.
§ Requires advance authorization for ambulance transportation except for emergencies.
§ Requires actions to ensure that a child's durable medical equipment provided under Medicaid is as prescribed, fits, and that the family is instructed in its use.
§ Provides for surety bonds for each provider of medical assistance in a type of service that has demonstrated significant potential for fraud and abuse.
§ Authorizes certain agencies to obtain criminal history records relating to a Medicaid provider or a person who applies as a provider.
§ Requires certain information and other contractual, disclosure, and audit provisions from managed care organizations that contract with Medicaid.
Fraud Enforcement
§ Requires HHSC to establish a pilot program for conducting random on-site reviews of persons who apply to provide Medicaid health care services.
§ Requires HHSC to develop a new provider contract for health care services that contains provisions designed to strengthen HHSC's ability to prevent Medicaid fraud.
§ Requires TDH to develop a competitive process for obtaining durable medical equipment.
§ Requires TDH to conduct an automated review of physician, laboratory, and radiology services to identify improper billing practices.
§ Establishes administrative penalties for false claims or failure, to provide health services required under contract.
§ Provides for deductions from lottery winnings for a person who has been determined to be delinquent in reimbursing DHS for errors in food stamp or financial assistance.
§ Provides that it is unlawful for managed care organizations contracting for Medicaid to fail to provide required Medicaid health care services, to fail to provide required information, to engage in fraudulent activity involving enrollment of a person, or to obstruct an investigation by the attorney general.
§ Increases civil penalties for violations and adds special penalties for incidents involving children, elderly or disabled persons.
§ Requires certain agency directors to suspend or revoke a provider agreement and other permits for a person who is found liable under this section. Bars persons found liable from providing Medicaid services for 10 years or longer.
§ Authorizes a person to bring a civil action under certain provisions relating to Medicaid fraud.
§ Provides for actions by a person who is discharged or discriminated against due to a lawful act under certain provisions on Medicaid fraud.
§ Establishes a range of criminal offenses (misdemeanors and felonies) for unlawful acts under certain provisions on Medicaid fraud, including revocation of certain health professional licenses for felony convictions.
§ Provides for suspension of drivers' licenses or recreational licenses issued by the Parks and Wildlife Department for failure to reimburse DHS for an error in food stamps or financial assistance in excess of $250.
Top
Increased Penalties for Medicaid Fraud - H.B. 1637
by Representative Alvarado
Senate Sponsor: Senator Carona
§ Increases civil penalties if a false statement or representation under a Medicaid claim results in injury to an elderly person, a disabled person, or a person younger than 18 years of age.
§ Bars a person found liable for this action from providing or arranging for Medicaid health care services for 10 years.
§ Authorizes a period of ineligibility longer than 10 years to be provided by rule.
§ Exempts a person who operates a nursing facility from both Medicaid ineligibility provisions.
§ Permanently prohibits a person from providing or arranging for Medicaid health care services if the person is convicted of Medicaid fraud, and the person's fraudulent act results in injury to an elderly person, a disabled person, or a person younger than 18 years of age.
§ Makes a person who commits certain unlawful acts liable to the state for an increased civil penalty for each act that results in injury to an elderly person, a disabled person, or a person younger than 18 years of age.
§ Requires commissioners or directors of certain human services or health care regulatory agencies to suspend or revoke provider agreements, permits, licenses, or certifications, if a person has been found liable for civil remedies under Medicaid fraud.
§ Exempts a person who operates a nursing facility from mandatory suspension or revocation, but gives the commissioners or directors authority to suspend or revoke provider agreements, permits, licenses, or certifications.
§ Prohibits a person found liable for civil remedies under Medicaid fraud from providing or arranging for Medicaid health care services for 10 years.
§ Exempts a person who operates a nursing facility from both Medicaid ineligibility provisions.
§ Authorizes professional disciplinary actions under applicable licensing law or rules for a person who commits an unlawful act.
§ Requires agencies to request a waiver or authorization from a federal agency if necessary for implementing these provisions, and authorizes a delay in implementing provisions if a federal waiver is required.
Top
DHS Fraud Prevention and Detection - H.B. 2123
by Representatives Maxey and Naishtat
Senate Sponsor: Senator Moncrief
§ Requires the Texas Department of Human Services (DHS) to develop and implement policies and procedures designed to improve DHS administered entitlement programs that use electronic benefits transfer (EBT) cards.
§ Requires DHS and the comptroller to coordinate their efforts to cross-train staff whose duties include fraud prevention and detection.
§ Requires local law enforcement agencies that seize an EBT card to immediately notify DHS, and return the card.
§ Requires the EBT system operator and installer to report to DHS and the United States Department of Agriculture suspicious activity relating to a retailer's participation in the food stamp program.
§ Requires DHS to compare a retailer's food stamp sales volume with the retailer's total food sales to determine whether the retailer is eligible to receive free point-of-sale terminals.
§ Requires DHS, through the use of a computerized matching system, to at least semiannually compare department information relating to food stamp transactions with comparable information from the comptroller and other appropriate state agencies. Requires all entities to take necessary measures to keep information confidential.
§ Requires DHS to close certain accounts which have not been used by the account holder during the preceding 12 months.
Controlling Fraud in Medicaid and Other Welfare Programs - S.B. 30
by Senator Zaffirini, et al.
House Sponsor: Representative Maxey
§ Requires the Texas Department of Human Services (DHS) to take a number of steps to improve the detection and enforcement of fraud under the food stamp and financial assistance program. These include:
§ improving the time it takes to establish an overpayment claim;
§ using the telephone to collect reimbursement from a person who received a benefit in error;
§ participating in the Federal Tax Refund Offset program;
§ keeping records of fraud cases referred for prosecution;
§ using a computer system to compare state information with federal immigrant and foreign visitor information to prevent people from illegally receiving public assistance benefits;
§ identifying Medicaid recipients who are eligible to receive similar assistance under Medicare and analyzing claims to ensure that allowable Medicare payments are sought first, and matching Medicaid claims to determine if other programs should appropriately pay the claims; and
§ identifying each Medicaid service under which the state is eligible for enhanced federal reimbursement and ensuring that the state receives the highest reimbursement.
Fraud Detection and Prevention
§ Requires the Health and Human Services Commission (HHSC) to set a minimum goal for DHS recovering a percentage of benefits that were granted in error.
§ Requires reduction in general revenue appropriation if DHS failed to meet its goal.
§ Allows HHSC to grant an award to an individual who reports fraud or abuse of funds in Medicaid.
§ Makes HHSC, through a new office of investigations and enforcement office, responsible for investigating and enforcing fraud in health and human services.
§ Requires HHSC and the office of the attorney general (OAG) to take a number of joint actions on Medicaid fraud. These include: signing a memorandum of understanding on developing and implementing joint written procedures for processing fraud cases; preparing reports on fraud detection and prosecution activities; signing a memorandum of understanding for HHSC to provide investigative support on certain cases, and cooperating with entities participating in "Operation Restore Trust," a federal fraud detection program.
§ Prohibits HHSC and the OAG from collecting investigation and attorney's fees unless the state gets a penalty, restitution, or other reimbursement. Requires HHSC to refer cases to local prosecuting attorneys if the office of the attorney general fails to act within 30 days.
§ Requires HHSC to develop a fraud detection training program.
§ Requires HHSC to use learning or neural network technology to identify and deter fraud in Medicaid.
§ Establishes the Medicaid and Public Assistance Fraud Oversight task force to assist HHSC in improving the efficiency of fraud investigations and collections.
§ Requires a number of actions and techniques by HHSC to improve fraud detection and prevention. These include:
§ compiling statistics on fraud, publicizing successful fraud prosecutions prevention programs, and ensuring that a toll-free number is available for reporting fraud;
§ developing a cost-effective method of identifying applicants for public assistance in Texas counties bordering other states who are already receiving assistance in those states; and
§ verifying automobile information used in determining eligibility and establishing a computer matching system with the Texas Department of Criminal Justice (TDCJ) to prevent someone in prison from illegally receiving public assistance benefits.
§ Consolidates staff and transfers responsibilities to HHSC from DHS' utilization and assessment review function and TDH's claims review and analysis group and policy and data analysis group.
§ Requires certain actions of DHS in fraud detection and enforcement. These include:
§ using private collection agents as an additional method to collect reimbursements for benefits granted in error;
§ studying the impact of expedited food stamp delivery on fraud; and
§ studying the feasibility of collecting benefits granted in error by garnishing wages or filing property liens.
§ Requires advance authorization for ambulance transportation except for emergencies.
§ Requires actions to ensure that a child's durable medical equipment provided under Medicaid is as prescribed, fits, and that the family is instructed in its use.
§ Provides for surety bonds for each provider of medical assistance in a type of service that has demonstrated significant potential for fraud and abuse.
§ Authorizes certain agencies to obtain criminal history records relating to a Medicaid provider or a person who applies as a provider.
§ Requires certain information and other contractual, disclosure, and audit provisions from managed care organizations that contract with Medicaid.
Fraud Enforcement
§ Requires HHSC to establish a pilot program for conducting random on-site reviews of persons who apply to provide Medicaid health care services.
§ Requires HHSC to develop a new provider contract for health care services that contains provisions designed to strengthen HHSC's ability to prevent Medicaid fraud.
§ Requires TDH to develop a competitive process for obtaining durable medical equipment.
§ Requires TDH to conduct an automated review of physician, laboratory, and radiology services to identify improper billing practices.
§ Establishes administrative penalties for false claims or failure, to provide health services required under contract.
§ Provides for deductions from lottery winnings for a person who has been determined to be delinquent in reimbursing DHS for errors in food stamp or financial assistance.
§ Provides that it is unlawful for managed care organizations contracting for Medicaid to fail to provide required Medicaid health care services, to fail to provide required information, to engage in fraudulent activity involving enrollment of a person, or to obstruct an investigation by the attorney general.
§ Increases civil penalties for violations and adds special penalties for incidents involving children, elderly or disabled persons.
§ Requires certain agency directors to suspend or revoke a provider agreement and other permits for a person who is found liable under this section. Bars persons found liable from providing Medicaid services for 10 years or longer.
§ Authorizes a person to bring a civil action under certain provisions relating to Medicaid fraud.
§ Provides for actions by a person who is discharged or discriminated against due to a lawful act under certain provisions on Medicaid fraud.
§ Establishes a range of criminal offenses (misdemeanors and felonies) for unlawful acts under certain provisions on Medicaid fraud, including revocation of certain health professional licenses for felony convictions.
§ Provides for suspension of drivers' licenses or recreational licenses issued by the Parks and Wildlife Department for failure to reimburse DHS for an error in food stamps or financial assistance in excess of $250.
Top
Increased Penalties for Medicaid Fraud - H.B. 1637
by Representative Alvarado
Senate Sponsor: Senator Carona
§ Increases civil penalties if a false statement or representation under a Medicaid claim results in injury to an elderly person, a disabled person, or a person younger than 18 years of age.
§ Bars a person found liable for this action from providing or arranging for Medicaid health care services for 10 years.
§ Authorizes a period of ineligibility longer than 10 years to be provided by rule.
§ Exempts a person who operates a nursing facility from both Medicaid ineligibility provisions.
§ Permanently prohibits a person from providing or arranging for Medicaid health care services if the person is convicted of Medicaid fraud, and the person's fraudulent act results in injury to an elderly person, a disabled person, or a person younger than 18 years of age.
§ Makes a person who commits certain unlawful acts liable to the state for an increased civil penalty for each act that results in injury to an elderly person, a disabled person, or a person younger than 18 years of age.
§ Requires commissioners or directors of certain human services or health care regulatory agencies to suspend or revoke provider agreements, permits, licenses, or certifications, if a person has been found liable for civil remedies under Medicaid fraud.
§ Exempts a person who operates a nursing facility from mandatory suspension or revocation, but gives the commissioners or directors authority to suspend or revoke provider agreements, permits, licenses, or certifications.
§ Prohibits a person found liable for civil remedies under Medicaid fraud from providing or arranging for Medicaid health care services for 10 years.
§ Exempts a person who operates a nursing facility from both Medicaid ineligibility provisions.
§ Authorizes professional disciplinary actions under applicable licensing law or rules for a person who commits an unlawful act.
§ Requires agencies to request a waiver or authorization from a federal agency if necessary for implementing these provisions, and authorizes a delay in implementing provisions if a federal waiver is required.
Top
DHS Fraud Prevention and Detection - H.B. 2123
by Representatives Maxey and Naishtat
Senate Sponsor: Senator Moncrief
§ Requires the Texas Department of Human Services (DHS) to develop and implement policies and procedures designed to improve DHS administered entitlement programs that use electronic benefits transfer (EBT) cards.
§ Requires DHS and the comptroller to coordinate their efforts to cross-train staff whose duties include fraud prevention and detection.
§ Requires local law enforcement agencies that seize an EBT card to immediately notify DHS, and return the card.
§ Requires the EBT system operator and installer to report to DHS and the United States Department of Agriculture suspicious activity relating to a retailer's participation in the food stamp program.
§ Requires DHS to compare a retailer's food stamp sales volume with the retailer's total food sales to determine whether the retailer is eligible to receive free point-of-sale terminals.
§ Requires DHS, through the use of a computerized matching system, to at least semiannually compare department information relating to food stamp transactions with comparable information from the comptroller and other appropriate state agencies. Requires all entities to take necessary measures to keep information confidential.
§ Requires DHS to close certain accounts which have not been used by the account holder during the preceding 12 months.
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