February 6, 2009
Greets and Huggers. Posted the evening of February 6, 2009. There is a storm brewing in our legislature. No doubt, partisan lines will be drawn. Politics as usual. At the center of that storm is an issue that will directly affect you and I. A proposed amendment to R.S.Mo. 484.040: “The power to admit and license persons to practice as attorneys and counselors in the courts of record of this state, or in any of them, is hereby vested exclusively in the supreme court and shall be regulated by rules of that court; provided, however, that such power shall not extend to establishing or maintaining a mandatory state bar association in which any person licensed to practice law in this state is required to be a member of such association.” In short, it would make Bar membership voluntary while allowing our Supreme Court to regulate, set the criteria for, who may practice law in Missouri, instead of regulating the practice of law. Can our legislature do that? I believe it can: Missouri Constitution, Article V, Section 5. “The supreme court may establish rules relating to practice, procedure and pleading for all courts and administrative tribunals, which shall have the force and effect of law. The rules shall not change substantive rights, or the law relating to evidence, the oral examination of witnesses, juries, the right of trial by jury, or the right of appeal. The court shall publish the rules and fix the day on which they take effect, but no rule shall take effect before six months after its publication. Any rule may be annulled or amended in whole or in part by a law limited to the purpose..” emphasis added. Because rules established by the supreme court have “the force and effect of law”, isn’t the “may be annulled or amended” by the legislature in the form of “a law limited to the purpose” a limitation on the power of our supreme court: a check and part of the balance espoused in our form of government?
Should SB 210 become law, it raises two interesting questions. Is our Supreme Court bound by the law? And what would happen to our Bar, (it is after all, a committee of our Supreme Court, with the Clerk of the Supreme Court being it’s Treasurer)? I believe our Supreme Court would declare the statute unconstitutional inspite of the clear and unambiguous language contained in Article V, Section 5, (Any rule may be annulled or amended in whole or in part by a law limited to the purpose.). because it believes, rightly or wrongly that: “The judiciary is necessarily the sole arbiter of what constitutes the practice of law. Statutes may aid by providing machinery and criminal penalties but may not extend the privilege of practicing law to persons not admitted to practice by the judiciary. Such statutes are merely in aid of, and do not supersede or detract from, the power of the judiciary to define and control the practice of law.” Eisel v. Midwest BankCentre, 230 S.W.3d 335 (Mo. 2007). Share with me … isn’t the declaration “Such statutes are merely in aid of, and do not supersede or detract from, the power of the judiciary to define and control the practice of law. ” a direct contradiction of “Any rule may be annulled or amended in whole or in part by a law limited to the purpose.“? Isn’t it a logical leap to go from “The supreme court may establish rules relating to practice, procedure and pleading for all courts and administrative tribunals …” to “ … define and control the practice of law.”? Isn’t the practice of law more than appearing before courts and administrative tribunals? Further, absent the statutes defining the practice of law and imposing criminal sanctions … what power does the supreme court have to enforce it’s rules? And that begs the ultimate question: what could our legislature do when/if the supreme court ignored or held unconstitutional SB 210? I have no clue.
What would happen to our Bar if membership became voluntary? Nothing. Instead of paying “Bar Dues”, you would be paying a yearly “license fee” to fund the Office of Chief Disciplinary Counsel, (perhaps the same amount that is taken out of your Bar Dues now, $161.00?) Would it lose members? Perhaps in the beginning … until it started providing services that made membership attractive … like reduced rate CLE’s. I think the biggest change would be in the membership of current Bar Advisory Committees. But then again, maybe not, since they are currently already voluntary. It would result in a dramatic upheaval of the current Bars power structure and make the Bar much more sensitive to it’s members desires.
Florence, Colorado (CNN) – Prison employee sentenced to prison for having sex with inmate. “A former prison secretary has been sentenced to six months in federal prison for having sex with an inmate she was supposed to be supervising, a spokesman for the U.S. Attorney’s office in the District of Colorado said Friday … Sligar, who acknowledged having detailed her activities in a journal, said she obtained a cell phone with a non-local phone number so McClain could call her without raising suspicion and admitted she gave him contraband that included photographs with explicit sexual poses, the plea agreement added.” Rumor has it, she got caught when the inmate pasted the revealing photos she smuggled in to him, on the wall of his prison cell. The good news? Her journal is for sale on Ebay and is expected to fetch 6 figures, (”Hustler” magazine [Note: I was going to provide a link to the magazines website – but, frankly, even I found it offensive!!], is currently winning — beating out “Current Inmate Digest”!)
And here in our America as “red light” cameras become the rage, what we have to look forward to … BBC NEWS – Fines fraud hits Italian drivers. “Thousands of drivers in Italy are expected to seek compensation after it was revealed that a system to catch them jumping red lights was rigged. More than 100 people, including police officers, are being investigated as part of the fraud … It is believed more than a million drivers have been trapped by the system. But it is now claimed the lights were rigged to change from yellow to red in three seconds instead of the regulation five or six seconds … Instead of an average 15 fines a day in some places, the figure jumped to more than 1,000. The fraud may have netted as much as $170m for those involved.” One of the cornerstones of American criminal jurisprudence, is the right to confront your accuser. How do you confront a grainy picture? “Red light camera” advocates claim the cameras result in reduced intersection fatalities. They do … but further research shows an increase in non-fatal accidents, (especially rear-enders). The bottom line? They are a revenue enhancing mechanism for cash strapped cities. A means to by-pass the Hancock Amendment.
BBC NEWS – Zimbabwe cholera cases top 60,000. “More than 60,000 people in Zimbabwe have now been infected by cholera, the World Health Organization (WHO) says. This figure had been described by the UN’s health agency and other agencies as being the “worst case scenario” in the epidemic which broke out in August … Health experts estimated late last year that 60,000 cases of cholera in Zimbabwe would be a worst-case scenario. But, in latest figures released by the WHO in Geneva, some 60,401 Zimbabweans now have the disease. The death toll stands at 3,161.” And it will only get worse. Zimbabwe, (formerly known as Rhodesia), was once the jewel of the African continent but through mismanagement under Prime Minister Mugabe, “Life expectancy at birth for males in Zimbabwe has dramatically declined since 1990 from 60 to 37, among the lowest in the world. Life expectancy for females is even lower at 34 years. Concurrently, the infant mortality rate has climbed from 53 to 81 deaths per 1,000 live births in the same period. Currently, 1.8 million Zimbabweans live with HIV.”
BBC NEWS – Synagogue desecrated in Venezuela. “An armed gang has ransacked the oldest Jewish synagogue in the Venezuelan capital Caracas after occupying the building for several hours. About 15 unidentified men broke into the building before daubing graffiti on the walls and desecrating scriptures. They also called for Jewish people to be expelled from the country.” It may come as a shock to some, but anti-semitism is alive and well in this world. Most of the time it is subtle but other times it rears it’s ugly head in daylight. Ignorant bigotry remains ignorant bigotry … and it is pervasive: “Three German Catholic organizations have shown solidarity with Pope Benedict XVI, who has come under fire over his decision to lift the excommunication of Bishop Richard Williamson, a known Holocaust denier.”
BBC NEWS — Split Anglicans call in mediators. “Leaders of the Anglican Communion are to employ professional mediators in an attempt to resolve their ongoing dispute over sexuality. The announcement came at the close of a five-day meeting of senior bishops held in Alexandria, Egypt. The Archbishop of Canterbury, Dr Rowan Williams, said there was “deep division” among member churches.” The Anglican Church was torn apart by the appointment of the Rt. Rev. V. Gene Robinson to be the first openly gay Bishop of New Hampshire in 2003. One of the issues is gay marriage … kind of coming full circle when you consider the Anglican branch of the Roman Catholic church formally challenged the authority of Rome in 1536 when Henry VIII dissolved the monasteries and abbeys in response to Rome refusing to annul his marriage to Anne Boleyn.
BBC NEWS — First gay PM for Iceland cabinet. “Iceland has announced a new government that will be headed by the modern world’s first openly gay leader. Johanna Sigurdardottir was named new prime minister by the country’s coalition political parties. Iceland’s previous coalition cabinet of PM Geir Haarde collapsed last month under the strain of an escalating economic crisis.” Given the economic melt down of Iceland’s economy, I don’t see anything for Ms. Sigurdardottir to be gay about. But, I suppose, in hard times, you want a gay person to cheer you up.
Sitting here editing these Ramblings, (the Editorial Staff wondering if they will get any of the 870 Billion dollars of the “Economic Stimulus Plan” — I told them to forget it.) Nationwide, 600,000 more jobs lost in January with unemployment at 7.6 percent. In Michigan and Rhode Island, the unemployment rate is over 10 percent and California is at 9.3 percent. Rumor has it, some Californians are sneaking into Mexico to find work. In other news, the Peanut Corporation of America shipped peanut products IT KNEW were tainted with Salmonella. So lets see, the SEC was asleep at the wheel and now we find, so was the FDA. Let’s hope the United States Nuclear Regulatory Commission has at least one competent eye open!! I spent the better part of the week learning how to do a 501(c)(3) application for 7 Bells Sanctuary, Inc., (Susan talked me into being on the Board of Directors). I remain firm in my conviction that we are to be good shepherds. As evidenced by the scandals surrounding some of the big name Televangelists, there is a difference between talking the talk and walking the walk. If you choose to walk the walk, the path isn’t easy, (if it were, everyone would be walking with you). As it stands, on this road, I have the best companion, helpmate, lover and friend, a man can have: we support each other when the road gets bumpy … in life there is no substitute for taking the moral highground: in the practice of law, there is NO EXCUSE not to. What makes the trip worthwhile is being able to share the view with Susan! And for that I will say a prayer of thanks when I drift off to sleep tonight … and a prayer for the safe and soon return of our men and women in uniform, (care to join me?) Be and sleep well, the best there is, is walking the walk, so you can. If my post offends, I apologize in advance – that is not my intent. As always …
A Warm Brotherly Hug
Karl (the dumb old country lawyer from Holden, Missouri … and the “Editorial Staff”, Willie, Karly, my ‘Lil Buddy and Dinker … the copy boy)