The state disciplinary board’s aggressive enforcement of Rule 1.6 (which is kept confidential) keeps lawyers silent while purporting to protect an imagined judicial integrity. The rhetoric of the American Bar Association misdirects identification of the problem which they authored and recommended to every state judiciary.
Undermining Justice. Usurping Authority.
(1984 – 2009)
Lawyers mandated to silence… in Congress, the White House, in Government.
Cash for Kids. Foreclosures through fraud. Injustice.
In 2013, non-Lawyers finally found it and filed a Constitutional Challenge.
The state supreme court has a conflict of interest because they enacted it, so we took it to federal court.
The federal district court improperly dismissed (and neglected to mention they were required to follow the PA version of Rule 1.6). #13-4614
The third circuit court affirmed and denied en banc review (while also neglecting to mention they were required to follow the PA version of Rule 1.6). #13-4591
________________________________________
We hereby present
the United States Congress, and
the President of the United States
a Constitutional Challenge of Rule 1.6 of the Rules of Professional Conduct
An unconstitutional law in every state which causes inescapable injustice and excuses and ignores judicial misconduct and corruption.
Rule 1.6 requires that Rule 1.6 be kept confidential.
Rule 1.6 requires the courts to conceal their corruption and injustice caused by Rule 1.6 – the same unconstitutional law being challenged.
Rule 1.6 is exposed; yet, the problem law still permits fraud, corruption and injustice to conceal itself.
Rule 1.6, an invalid and void unconstitutional law, is relentless.
PREEMPTION
Befitting a constitutional law, doctrine or statute, federal preemption continues to draw the interest and resources of the highest court in the land.
The U.S. Supreme Court accepts petitions for certiori and decides preemption cases.
THE SUPREMACY CLAUSE
The Supremacy Clause provides that the Constitution, and the laws and treaties stemming from it, are the supreme law of the land.
U.S. CONSTITUTION. Article VI, clause 2.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any state to the Contrary notwithstanding.
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
The Supreme Court has held that when there is a conflict between a state and federal law, the state law is invalidated because the federal law is supreme.
Even a state regulation designed to protect the state’s vital interest must yield because
“under the Supremacy Clause, from which our preemption doctrine is derived, ‘any state law, however clearly within a State’s acknowledged power, which interferes with or is contrary to federal law, must yield.’”
The Supreme Court defined preemption to “be either express or implied, and is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose.”
PREEMPTION JURISPRUDENCE
The Constitution itself has already clearly made and announced the fundamental judgment regarding the relation of federal and state power: so long as the federal government has the constitutional power to enact the law, then the federal law is granted supremacy over conflicting state actions.
There are numerous instances of the Supreme Court, and lower courts, stating that the process of determining appropriate preemption is an inquiry into congressional intent; however, the intent of the Constitution is clearly to preempt every state law which would abridge, diminish, subvert or deny rights and privileges which were secured for the People.
But the roots of the doctrine are most clearly seen in Marbury v. Madison, where Chief Justice Marshall stated: “The province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion.”
CONSTRUCTION OF THE LAW
The legitimacy of construction by an unelected entity in a republican or democratic system becomes an issue whenever the construction is controversial, as it frequently is.
RULEMAKING AUTHORITY
Conceding, in 1934, the limited competence of legislative bodies to establish a comprehensive system of court procedure, and acknowledging the inherent power of courts to regulate the conduct of their business, Congress authorized the Supreme Court to prescribe rules for the lower federal courts not inconsistent with the Constitution and statutes.
Their operation being restricted, in conformity with the proviso attached to the congressional authorization, to matters of pleading and practice, the Federal Rules of Civil Procedure thus judicially promulgated neither affect the substantive rights of litigants nor alter the jurisdiction of federal courts and the venue of actions therein and, thus circumscribed, have been upheld as valid.
Under the Rules Enabling Act, procedural rules may not modify “any substantive right” but laws in conflict with the rules are “of no further force or effect.”
While Challenging Rule 1.6 of the Rules Of Professional Conduct, the Federal Court was obligated under Rule 1.6 to dismiss the matter but neglected to indicate the reason. Rule 1.6 mandates they conceal that Rule 1.6 is the reason. Instead, like a child caught by surprise, they just made stuff up…
THE CONSTITUTION IS THE SUPREME LAW OF THE LAND
The Judiciary may make rules, unless they violate substantive rights.
Federal Courts may make rules, unless they violate substantive rights.
Federal Courts may make local rules, unless they violate substantive rights.
States may enact laws, unless they violate substantive rights.
State Judiciary may enact rules, unless they violate substantive rights.
Local state courts may make local rules, unless they violate substantive rights.
The Rules of Professional Conduct have been enacted into law, unless they violate substantive rights.
The Federal Court Local Rules for the Eastern District of Pennsylvania adopt the Rules of Professional Conduct enacted by the Supreme Court of Pennsylvania which includes Rule 1.6 which violates substantive rights provided in the Constitution of the United States.
Where substantive rights are violated, directly or collaterally, the law is repugnant to the Constitution and a nullity.
No matter how deeply the mandate of Rule 1.6 is buried and concealed, THE LAW MAY NOT VIOLATE SUBSTANTIVE RIGHTS.
The judiciary have buried an unconstitutional law so deep in the law books that they never expected any non-lawyer to find it, and survive to prove it while being denied their constitutional rights and the protection of the law.
Federal Rules of Civil Procedure Rule 83(a) allows for Local Rules under 28 USC § 2072 and 2074.
28 U.S.C. § 2072(b)
“Such rules shall not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.”
28 U.S. Code § 2072 – Rules of procedure and evidence; power to prescribe
(a) The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrate judges thereof) and courts of appeals.
(b) Such rules shall not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.
(c) Such rules may define when a ruling of a district court is final for the purposes of appeal under section 1291 of this title.
28 U.S. Code § 2074 – Rules of procedure and evidence; submission to Congress; effective date
(a) The Supreme Court shall transmit to the Congress not later than May 1 of the year in which a rule prescribed under section 2072 is to become effective a copy of the proposed rule. Such rule shall take effect no earlier than December 1 of the year in which such rule is so transmitted unless otherwise provided by law. The Supreme Court may fix the extent such rule shall apply to proceedings then pending, except that the Supreme Court shall not require the application of such rule to further proceedings then pending to the extent that, in the opinion of the court in which such proceedings are pending, the application of such rule in such proceedings would not be feasible or would work injustice, in which event the former rule applies.
(b) Any such rule creating, abolishing, or modifying an evidentiary privilege shall have no force or effect unless approved by Act of Congress.
United States District Court for the Eastern District of Pennsylvania
Local Rule 83.6(IV)(b)(para 2)
“The Rules of Professional Conduct adopted by this court are the Rules of Professional Conduct adopted by the Supreme Court of Pennsylvania…”
THE RULE-MAKING POWER AND POWERS OVER PROCESS
Among the incidental powers of courts is that of making all necessary rules governing their process and practice and for the orderly conduct of their business. However, this power too is derived from the statutes and cannot go beyond them.
LIMITATIONS TO THE RULE MAKING POWER.
The principal function of court rules is that of regulating the practice of courts as regards forms, the operation and effect of process, and the mode and time of proceedings. However, rules are sometimes employed to state in convenient form principles of substantive law previously established by statutes or decisions.
But no such rule “can enlarge or restrict jurisdiction. Nor can a rule abrogate or modify the substantive law.”
This rule is applicable equally to courts of law, equity, and admiralty, to rules prescribed by the Supreme Court for the guidance of lower courts, and to rules “which lower courts make for their own guidance under authority conferred.”
As incident to the judicial power, courts of the United States possess inherent authority to supervise the conduct of their officers, parties, witnesses, counsel, and jurors by self-preserving rules for the protection of the rights of litigants and the orderly administration of justice.
The courts of the United States possess inherent equitable powers over their process to prevent abuse, oppression, and injustice, and to protect their jurisdiction and officers in the protection of property in the custody of law.
Such powers are said to be essential to and inherent in the organization of courts of justice.
The courts of the United States also possess inherent power to amend their records, correct the errors of the clerk or other court officers, and to rectify defects or omissions in their records even after the lapse of a term, subject, however, to the qualification that the power to amend records conveys no power to create a record or re-create one of which no evidence exists.
JURISDICTION – CONGRESSIONAL AUTHORITY
Congress’s authority is limited by provisions of the Constitution such as the Due Process Clause, so that a limitation on jurisdiction that denied a litigant access to any remedy might be unconstitutional.
Congress is also free to legislate away prudential restraints and confer standing to
the extent permitted by Article III.
“Congress may grant an express right of action to persons who otherwise would be barred by prudential standing rules. Of course, Art. III’s requirement remains: the plaintiff still must allege a distinct and palpable injury to himself, even if it is an injury shared by a large class of other possible litigants.”
Warth v. Seldin, 422 U.S. 490, 501 (1975). That is, the actual or threatened injury required may exist solely by virtue of “statutes creating legal rights, the invasion of which creates standing, even though no injury would exist without the statute.” Linda R.S. v. Richard D., 410 U.S. 614, 617 n. 3 (1973); O’Shea v. Littleton, 414 U.S. 488, 493 n.2 (1974). Examples include United States v. SCRAP, 412 U.S. 669 (1973); Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972); Gladstone Realtors v. Village ofBellwood, 441 U.S. 91 (1979). See also Buckley v. Valeo, 424 U.S. 1, 8 n.4, 11–12 (1976). For a good example of the congressionally created interest and the injury to it, see Havens Realty Corp. v. Coleman, 455 U.S. 363, 373–75 (1982) (Fair Housing Act created right to truthful information on availability of housing; black tester’s right injured through false information, but white tester not injured because he received truthful information). It is clear, however, that the Court will impose separation-of-powers restraints on the power of Congress to create interests to which injury would give standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 571–78 (1992). Justice Scalia, who wrote the opinion in Lujan, reiterated the separation-of-powers objection to congressional conferral of standing in FEC v. Akins, 524 U.S. 11, 29, 36 (1998) (alleged infringement of President’s “take care” obligation), but this time in dissent; the Court did not advert to this objection in finding that Congress had provided for standing based on denial of information to which the plaintiffs, as voters, were entitled.
NECESSARY AND PROPER CLAUSE – Scope and Operation
Clause 18.
The Congress shall have Power * * * To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by the Constitution in the Government of the United States, or in any Department or Officer thereof.
The Necessary and Proper Clause, sometimes called the “coefficient” or “elastic” clause, is an enlargement, not a constriction, of the powers expressly granted to Congress. Chief Justice Marshall’s classic opinion in McCulloch v. Maryland 1818 set the standard in words that reverberate to this day. “Let the end be legitimate,” he wrote, “let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end.
JURISDICTION – SUPREME COURT
Implicit in the argument of Marbury v. Madison is the thought that the Court is obligated
to take and decide cases meeting jurisdictional standards.
“It is most true that this Court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution.” 19 U.S. (6 Wheat.) 264, 404, (1821).
DECLARATORY OR INJUNCTIVE RELIEF
But one who challenges a statute or possible administrative action need demonstrate only a realistic danger of sustaining an injury to his rights as a result of the statute’s operation and enforcement and need not await the consummation of the threatened injury in order to obtain preventive relief, such as exposing himself to actual arrest or prosecution. When one alleges an intention to engage in conduct arguably affected with a constitutional interest but proscribed by statute and there exists a credible threat of prosecution thereunder, he may bring an action for declaratory or injunctive relief.
Similarly, the reasonable certainty of the occurrence of the perceived threat to a constitutional interest is sufficient to afford a basis for bringing a challenge, provided the court has sufficient facts before it to enable it to intelligently adjudicate the issues.
JURISDICTION - EXECUTIVE ORDER
The Constitution was clearly intended to preempt state law.
Where state constitutions may not delegate statutory authority which exceeds the limits of authority and infringes upon the substantial rights protected by the Constitution of the United States law, Executive departments and agencies shall construe, in regulations and otherwise, a Federal statute to preempt State law only when the statute contains an express preemption provision or there is some other firm and palpable evidence compelling the conclusion that the Congress intended preemption of State law, or when the exercise of State authority directly conflicts with the exercise of Federal authority under the Federal statute….
Respectfully,
We petition the Supreme Court of the United States, the United States Congress and the President of the United States to take immediate action to repeal the rule, legislate a constitutional amendment or issue an executive order which indicates that Rule 1.6 which causes a collateral loss of constitutional rights and protection of the law is UNCONSTITUTIONAL and a nullity.
Terance Healy
Todd M. Krautheim
Todd Krautheim & Terance Healy are running to the theater shouting "LOOK AT OUR HOSE".
