All Michigan Judges Are Liars Or Incompetent: The Michigan Judicial Licensing Scam Vote "NO" On Proposed Amendment And Put Citizens Back In The Courts Virginia L. Cropsey, J.D. What's black and tan and looks good on an attorney? In the 1996 general election, Michigan residents will have the opportunity to strike a dramatic blow to the state's legal monopoly. By voting "no" on a proposed constitutional amendment quietly lined up for the ballot by a nearly unanimous Michigan legislature, they can dump the requirement that one must be an approved member of the state legal monopoly in order to run for judge! Early this year the Michigan Senate and House passed Senate Joint Resolution D, which would require judicial candidates to be "admitted to the practice of law" for five years in order to run for judicial office. This is a pretext. What it would really do is paper over a dirty big Michigan secret of forty years: there is no requirement that one be a member of the State Bar monopoly to run for judge in Michigan! I drafted the attached Request for Investigation and Disciplinary Action to be filed with the Judicial Tenure Commission against any judge of a court of record in Michigan. I believe it provides a correct alternative legal analysis of an issue that appeared in the AntiShyster a year ago: since Article VI, Section 19 of the Michigan Constitution requires judges to be licensed, and there is no license, are they judges? Yes, if you understand that the licensing requirement was never executed - see Grievance. The earlier article suggested they were "defacto judges". You wouldn't expect the powers to leave their authority in real doubt, would you? The effect of nonexecution is that the clause is not operative, therefore there is no requirement that one be licensed to run for judge in Michigan! But if you decide to litigate this to run in the next election, do it right and don't stick your fellows with an unwholesome precedent. In the meantime, you can put the heat on the Michigan judiciary by filing the Grievance on as many Michigan jurists as you can. While there is no license and the Michigan Supreme Court and State Bar have routinely acknowledged there is none, all Michigan judicial candidates sign an affidavit swearing, among other things, that they have a license to practice law. This means they are either perjurors or incompetent to fill out their own candidacy forms. Inspires confidence, doesn't it? One diligent citizen has filed a Grievance every business day for the last several months. When asked if he was pursuing any particular order he said, "Well, I saw a newscast about the five worst and five best judges in Detroit, so I filed on them for ten days..." For all have sinned when it comes to lying about the license. The Tenure Commission, by its Executive Director, responds with a letter acknowledging receipt of each Grievance and assigning it a number. Then it sends a letter noting the Commission is not an Appellate Court. So we've added a clause in the Grievance stating that they need do no more than take notice of what is the law. Then to confuse matters, the letter states that the Commission has concluded that it will not take action by formal complaint. Don't be discouraged! MCR 9.207 provides that even if the Commission doesn't file a formal complaint, it may "admonish the respondent" or "recommend to the Supreme Court private censure, with a statement of reasons in support of its recommendation." The Judicial Tenure Commission is provided for under Const. 1963, Art. VI, Section 30 and MCR Subchapter 9.200. For more information, write or call the Commission. It surely helps the cause to let groups like this know we're thinking of them regularly. Recent news reports indicate that grievances against circuit court judges were up by more than 50% since 1990 and they will be even more intimidated if they see lots of citizens understand this hoax. We're planning further action, like finding out if judges also implicated in the perjury heard the Grievance over our objection. We also intend to challenge the response as not clearly notifying us whether a final disposition has been reached. The rules entitle us to such notice, but in some correspondence, the Commission seems to be claiming confidentiality in excess of the scope accorded in the rules. Additionally, you can further the effort by pursuing other actions suggested in the Grievance. Contact Governor Engler. The Republicans want to take over the third branch anyway. That's what the certification of adoption attorneys mentioned in the Grievance is about. Contact Secretary of State Candice Miller and ask if she will discontinue her predecessor's practice of requiring judicial candidates to swear they are "licensed" when the law doesn't require one. Contact your state legislators and ask them about their vote on this stinker. Write/call your county sheriff and prosecutor and ask them to prosecute the judges in their county for perjury. You can see that quo warranto, the usual method for challenging usurpation of a public office, MCR 3.306, has been made an ineffective remedy by the requirement that one must apply to the Attorney General and be willing to post a bond of a potentially unlimited amount for the Attorney General, at his discretion, to proceed with the action. We do encourage individuals to write unFrank Kelley and request that he do his duty and prosecute a quo warranto action against every judge of a court of record in Michigan - which he should do without making an individual citizen bear the expense in as obvious a case of usurpation as this. Remember that a major objective is to show our elect that we see through some of their legal haystacks, so before you use, read and understand the Grievance and the Court Rules. The JTC doesn't have jurisdiction over federal judges. The objection is not that they don't have a license. That clause of the Constitution was never executed (implemented by the legislature), so it's inoperative. There is no requirement that one have a license to run for judge. That's why they've had to introduce the proposed constitutional amendment - to add the language "admitted to the practice of law" to the state constitution. Currently the Michigan Constitution says "license", that means the executive branch controls the process. When the Michigan Supreme Court and Attorney General said it was the "inherent power" of courts to regulate the practice of law, they didn't address Article VI, Section 19. It's a separation of powers problem as to which branch controls regulation of the practice of law. We would argue that neither branch has this power because of the right to counsel of choice. When you write letters to the editor or call talk radio to oppose the Amendment, consider making these points: 1. The proposed amendment does not resolve the separation of powers problem that has existed since 1955. The amendment leaves the clause that says "licensed", which would mean regulation of the legal profession is a function of the police power and therefore of the executive branch. By adding the clause that says judicial candidates must have been "admitted to the practice of law" for five years, the issue is confused, because admission to the practice of law is currently controlled by the judiciary. Which branch controls regulation of the practice of law? It doesn't matter to our elect, who are more than willing to enact vague and improper constitutional law. After all, they just want "admitted to the practice of law" so they can justify keeping non-state approved citizens off the judicial ballot. The 1955 amendment was another example of willful legal malpractice - amendments that require legislative implementation always contain the language, "The legislature shall implement this provision with appropriate legislation." This was not done in 1955 because they did not want to resolve the separation of powers issue then, either. They just wanted to keep non-state approved citizens off the judicial ballot. Vote "No" to oppose willful malpractice in drafting the law, and especially, the Constitution. (Send copies of the Grievance to substantiate, or quote, document from it.) 2. Our elect think we're smart enough to vote them in, but that's about it. Anything else we do, drive, carry a gun, marry, or argue law, is beyond our ken and we have to be tested first by them. Voting is one of the most dangerous, awesome responsibilities there is, but there's no test for that - literacy, productivity (property ownership). Who are they kidding with this self-serving double standard? Only those dumb and irresponsible enough to vote for them in the first place. Licensing is a violation of the presumption of innocence and of the due process right to liberty. If licensing had anything to do with integrity, the lawyers in the legislature wouldn't have put this atrocity on the ballot. Competence? Competent in chicanery. But they're state approved. 3. It doesn't make any sense to create a more entrenched judiciary (five years practice requirement) when we have placed term limits on the legislature, limiting the extent to which it is entrenched. 4. The judiciary is not covered by the Freedom of Information Act or the Administrative Procedures Act. It is therefore an inadequate vehicle for oversight. This is an important opportunity. Someone(s) should make a full-time effort of alerting the citizenry and everyone should take it upon themselves to spread the word. If I were a legislator, I wouldn't vote for the proposed concealed weapons legislation. It's unconstitutional to require citizens to obtain a license to exercise a constitutional right! Instead of wasting time on such immoral objectives, wouldn't it be much better to prevent the extension of the licensing power the state is sneaking through with this proposed amendment?Answer: A. Doberman *** GRIEVANCE AND REQUEST FOR INVESTIGATION AND DISCIPLINARY ACTION Judicial Tenure Commission 211 W. Fort Street, Ste. 1410 Detroit, MI 48226 313/256-9104 Grievance and Request for Investigation and Disciplinary Action of: This Grievance and Request for Investigation and Disciplinary Action is made pursuant to Michigan Constitution 1963, Article 6, Section 30 and MCR 9.207. I make this request for the reason that, on information and belief, _____________________________________ committed perjury by filing a false Judicial Candidates Affidavit of Constitutional Qualification to run for judicial office. That affidavit contained the representation, "I am licensed to practice law in Michigan." Constitution 1963, Article 6, Section 19 states that "(j)ustices and judges of courts of record must be persons who are licensed to practice law in this state." No such license exists. As a matter of law, licensure is a function of the police power and therefore of the executive branch of government. The Michigan Constitution forbids any branch of government from exercising powers properly belonging to another branch. Michigan Constitution, Article III, Section 2. The following analysis should not be construed as a concession that review of any sort is necessary to resolve this issue. See MCR 9.203(B). It is a clear matter of law. The only issue is whether the named jurist knew the law, as a jurist should be presumed to know it when making the affidavit, and therefore committed perjury. By concluding that the named jurist is a jurist to assume jurisdiction of a grievance, the Commission has done what could also be construed as "appellate review". The Commission may not use this argument only when it suits state interests. The use of the term "licensed" in Article 6, Section 19 is significant, because the separation of powers problem presented by regulation of the legal profession was understood at the time the clause was added to the Constitution by a vote of the people on April 4, 1955. See 36 Michigan Law Review 82 (1937). Additionally, Article VI, Section 19 was improperly drafted, apparently intentionally to avoid opposition from the judiciary, and possibly to foster increased control of the judiciary by Democrats, because no clause mandating legislative implementation was included. News articles at the time indicate the 1955 election was characterized by increased Democratic efforts and success in obtaining judicial office, and charges by Republicans of "take-over". No one seems to have exposed this constitutional "black hole" set-up since it suited state power interests. The legislature may not have executed this clause of the Constitution in part due to the over broad holding of the Michigan Supreme Court in State Bar of Michigan v. City of Lansing, 361 Mich 185 (1960), where the court said it is the inherent power of the judiciary to regulate the practice of law. State Bar was cited by Attorney General Frank Kelley in a letter to the Executive Office on February 17, 1969, titled Analysis of House Bill No. 2115. HB 2115 was a bill to place regulation of the legal profession in the executive branch. Mr. Kelley opposed passage of that bill citing the holding in State Bar, supra. For whatever reason, the requirement of licensure was never "executed," as only licensure by the legislature could constitute implementation ("whether such provision is self-executing is determined largely by whether legislation is a necessary prerequisite to operation of the provision," Wolverine Golf Club v. O'Hare, 384 Mich 461, 180 NW 2d (1970)), and pursuant to self-executing rules of construction, that clause of the Constitution would be deemed inoperative. See Hackett v. City of Ferndale, 1 Mich App 6 (1965) which held that the requirement that jurists affirm that they are not over age 70 constituted execution of that provision of Article VI, Section 19, which was passed on the same date as the licensing requirement. It has been judicially recognized that Michigan justices and judges of courts of record have "a defacto license to practice law." Freed v. Martin, et. al., Calhoun Cir. Ct. #90-1502 CZ (1990). It is obvious that the legislature understands that Article VI, Section 19 was never implemented as statutory sections implementing the constitutional requirement of a judicial affidavit of qualification do not require judicial candidates to affirm that they are licensed. The Secretary of State's office seems to have freelanced this requirement on the advice of the Attorney General to keep non-Bar member citizens off the ballot, even though there is no law mandating a license because that clause was never executed. This is not an attempt on my part to promote attorney licensing, or regulation by the judiciary. I am opposed to it. I believe courts have usurped rights and powers to interpret the law which belong to the people and to juries. It appears that the push to institutionalize and integrate state bars was a protectionist reaction to the effect of the civil rights movement in the federal courts. During the 1930's through 1950's, as more provisions of the Bill of Rights were applied against the states through the 14th Amendment to the United States Constitution, it became apparent that it was only a matter of time until the 6th Amendment right to counsel would be applied against the states. Powell v. Alabama, 287 U.S. 53 (1932). In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792 (1963), the United States Supreme Court made the 6th Amendment right to counsel applicable to the states. In Powell, the United States Supreme Court recognized that the colonists rejected the British rule that held that the court could serve as counsel for the accused in major cases. How can it therefore be the "inherent" power of courts to regulate the practice of law as the Michigan Supreme Court held in State Bar, supra? Rather it seems that the regulation of the practice of law by the government is a violation of the right to counsel of choice, Chandler v. Fretag, 348 U.S. 3 (1954), and of free speech. Courts may maintain order by much less restrictive means. Indeed, some research indicates that a "missing 13th Amendment" to the U.S. Constitution was intended to cause those who accepted a legal "title", such as Bar membership, to lose citizenship and the right to hold office. This Amendment is not truly missing as it appears in the 1833 editions of the U.S. Constitution published in Michigan. My interest in filing this complaint is to express my condemnation of the shameful conduct of every member of the Michigan judiciary and of the named jurist in particular in participating in this licensing hoax by making a false affidavit which creates the appearance that licensure is required to run for judicial office in this state, when, pursuant to the law of self- execution it probably is not. In any event, Michigan jurists are not licensed and it is fraud and perjury to represent that they are. Since licensure is required to practice law and there is no licensure, the entire Bar is involved in this sham. Since there are no properly authorized lawyers, the right to counsel has been essentially outlawed. As Attorney General Frank Kelley was obviously aware of this situation in 1969 when he wrote the analysis of HB 2115, why did he thereafter advise Director of Elections Bernard Apol to exclude from the judicial ballot candidates who were not members of the Bar? (See Kelley letter to Apol dated September 18, 1970, advising him to omit American Independent Party nominee James Freed from the ballot because he was not licensed). Recently Mr. Kelley reaffirmed that it is the inherent power of the judiciary to regulate the practice of law when the executive branch attempted to assert itself and certify adoption attorneys as provided by statute. See Op. Att'y Gen. #6844, 4/6/95. Kelley avoided analyzing Article VI, Section 19 in reaching his conclusion. It's inoperative, after all. This sham has earned Michigan ridicule from the national publication "AntiShyster." Early this year the Michigan Senate and House passed Senate Joint Resolution D, proposing an amendment to Article V, Section 19 of the state constitution. Under the guise of a five years of practice qualification, it would add the words "admitted to the practice of law," recognizing judicial control of the legal profession. Citizens should vote "no" when this is on the ballot because it does not resolve the separation of powers problem. It is only intended to prevent non-Bar members from running for judge, which they currently could do if they understood the law. The Detroit News referred to the "fragile legitimacy" of the Michigan judiciary in an editorial that smacked of blackmail over a Court of Appeals ruling on teacher strikes (Detroit News, April 2, 1995). It is the judiciary's own fault that its "title" has been clouded. State Bar of Michigan, supra, was not an appropriate case to have decided this issue as it was only a minor tax matter and did not involve a construction of Article VI, Section 19. How can the judiciary expect citizens to respect the law when the same judiciary, charged with preventing "stealthy encroachments" on liberty and that routinely upholds objectionable licensing and other regulation of citizens, so underhandedly relieves itself of both the burden of regulation and much needed competition for judicial office? I request that the Judicial Tenure Commission investigate whether the above-referenced jurist violated the standards of judicial conduct set forth in MCR 9.205 by committing perjury in filling out the above-referenced Judicial Candidates Affidavit of Constitutional Qualification and that a complaint issue as required. I note that under Section (E), conduct which occurred before assuming office "may constitute misconduct in office." I also recognize that a charge of perjury may be prosecuted by appropriate law enforcement authorities. I further note that the perjury alleged could make the jurist subject to removal by the governor and legislature under Michigan Constitution Article VI, Section 25, "Removal of judges from office," or for impeachment by the legislature under Michigan Constitution Article XI, Section 7. I further request that William Murphy, M. Richard Knoblock, Marianne O. Battani, Barry M. Grant, and Theresa Doss, as members of the Commission and as jurists subject to investigation on the same grounds, be disqualified under MCR 9.204 from participating in proceedings involving these charges. It is also noted that the Michigan Supreme Court has a conflict of interest with respect to exercising direct and exclusive superintending control of this matter under MCR 9.203 as this allegation applies to all members of that court. I swear that the above is true and correct to the best of my knowledge, information and belief. Date PROPOSED CONSTITUTIONAL AMENDMENT SENATE JOINT RESOLUTION D Summary of Exhibits 1. Free Press Article dated 11/8/95, presenting pretextual basis of the bill 2. Text of Article VI, Section 19. Note historical notes do not indicate amendment on April 4, 1955. 3. Text of talk/article circulated exposing licensing hoax 4. Judicial Tenure Commission Grievance suitable for filing against any Michigan judge for filing a false Judicial Candidates Affidavit of Constitutional Qualification. The Judicial Tenure Commission has received one of these Grievances against every judge of a court of record in Michigan. 5. Letters from Supreme Court and State Bar acknowledging there is no license 6. Judicial Candidates Affidavit Of Constitutional Qualification 7. Text of Senate Joint Resolution D 8. Sanitized analysis of Senate Joint Resolution D. How many legislators knew what they were voting on? 9. Michigan Law Review article from 1937 analyzing the separation of powers problem concerning regulation of the practice of law 10. State Bar of Michigan v. City of Lansing (1960): Michigan Supreme Court says it is the inherent power of courts to regulate the practice of law. 11. Hackett v. City of Ferndale (1965): Michigan Court of Appeals says legislative requirement of an affidavit that one is not over age 70 constitutes execution of Article VI, Section 19 provision enacted at same time as licensing requirement. (Licensing requirement cannot be executed unless legislature enacts licensing in executive branch.) 12. House Bill #2115, (1969): Legislature attempted to enact attorney licensing, but failed, partly due to Frank Kelley letter, also attached, citing State Bar. 13. Frank Kelley letter to Bernard Apol, Director of Elections, 9/18/70: Kelley advises Apol to omit James Freed from the ballot, but never answers the question, must one have a license to run for judge in Michigan? The American Independent Party candidates knew there was an issue, but weren't savvy enough to litigate it properly. Kelley is taking a position inconsistent with the one he took in his 1970 letter to Apol. Kelley is AG because he's behind so many charades of this sort. 14. Attorney General Opinion, April 6, 1995 that it is the inherent power of the judiciary to regulate the practice of law in response to Engler attempt to certify adoption attorneys. 15. Miscellaneous material, including AntiShyster article announcing that all Michigan judges are liars and Detroit News editorials noting there is no attorney licensing procedure and noting the "fragile legitimacy" of the Michigan judiciary; also, "Missing 13th Amendment", and Michigan documentation --