As many of you know I have been blogging a lot the past few days. It’s great to notice that people are tuning in. It was also great that no objected to me granting myself immunity. đ
At this point, any of you who have been observing and who want to report about what you have observed, please post those reports now.
Please state in the text of your post whether you are amenable to having it publicly posted.
Hey everyone, thanks for the support. I’m rolling now.
My understanding is that I am to report to WordPress, problems that I observe.
1. This blog does not appear in the top 20 hits on Yahoo, even though last evening it was the first hit when I checked.
2. I was noticing something strange about my stats on this blog. I had checked them a couple of times, and noticed about late afternoon, that the number of visitors had not risen, but the number of hits had risen. I am not a technical person but I am wondering if this is a possible security breach.
Recommendations of the Special Prosecutor:
1. A no fault system for harm to parties/clients in the justice system.
Just as marriage were once fraught with each spouse attempting to prove some type of misconduct by the other, just as those involved in car accidents used to expend precious resources trying to show how the accidents had happened and who was at fault, my disciplinary case has shown how many resources we use in attempting to prove fault in ethics and misconduct matters for lawyers and judges.
When spouses had to go after each other, things got crazy, with people hiring private investigators to slink around and try to get audio or pictures of the other one doing wrong. Uh, remind you of anything? (I know that Lucy Wieland (or according to her, her husband) sent a private investigator to a press conference I held in December 2006, to get an audio of me speaking about her.) I attempted to obtain audio of cour hearings, literally for years, and got blocked, presumably because the people who had the authority to make the decision, were influenced by their own fear that if the audio got into my possession, that they would get in trouble.
Many of the “ethics” issues aren’t really ethics issues. They are attempts at preventing harm. Once the harm has occurred, punishing the person who someone believes violated a rule, can cause more harm. And, more to the point, it can distract those of us in the system who should be spending our time focusing on the customer of the courts – the clients.
A lof more could be said on this point; there is a lot more to figure out about how it would implement. But the recommendation is sound; it worked in the marriage and car accident arenas, and it could work for us.
2.    Amnesty for all wrongdoers.
This is a big one, folks. I think that sometimes when people think about me, they place their own values onto me, assuming I think the same way about the world as they do. They see me through their own eyes. I am not a vindictive person. Sure, I get angry now and then and spew a bit. But I really am not driven by revenge. I kind of don’t even get it. I’m not saying I am better than those of you who spent (inordinate amount of) time thinking of ways to “get” someone who you think slighted you. I’m just saying I’m different. The up side of my way of thinking is that once done, it’s done. And if we can heal it, we can move past it.
I don’t have any desire to see any judges in jail, and I don’t even have any desire to see police officers in jail. Unless they have committed a violent act, most people do better with self-improvement (healing themselves from within) than they do with someone scolding them and making them give penance. As I said when I was talking about the Catholic church, we had to go throug this phase. Judges had to feel what it is like when you are the accused; when you are the one with the fear that your career could be over, that you could have your freedom taken away from you. It’s all been a great learning experience. Time to move on.
3.    That said, we do need to expose what happened.
The fact that I am willing to move on doesn’t mean we are entirely done. We have a public to serve. And although some of you might be the unfortuante ones who are the “examples,” we do need to expose the evidence so that the public knows what is going on “back stage” in the courts.
The public can only help us fashion reform, if they first know what has happened.
I won’t hear anyone grouse about their reputations being tarnished by this process. After the humiliation I went through this past year, really, yours will be trivial. I paid the biggest price, and you all know it.
4.    Establish a fund for those harmed.
People were harmed in the past decade. And people were harmed in the process. Rather than spending years litigation about fault, and because the defendants (from my estimation) are all or nearly all state employees (and the state has a duty to defend them, but also to pay annuities for those harmed by negligence), establish a fund much as that the State funded following the bridge collapse.
Although I would never compare our situation to that tragedy, there is allure in the notion that we could “cut to the chase,” acknowledge that people were harmed by accident (or, more precisely, because that was the way it had always been done) and that there should be compensation.
Minimal time could be spent assessing damages (and there are plenty of good mediators and special masters who could serve in that function), and we could spend our energy figuring out what to change so that it does not happen again.
I guess I need to realize that there may be some of you who think you can still go on the way you have been. I really don’t think that’s true. Denial is not a river in Egypt, and it attacks us all at times. If you are caught up in it, if you are still fighting because you think you can reclaim “the way things used to be,” I caution you.
First, consciousness, once raised, can never be “un”-raised. That’s something we learned in the 60’s.
Second, your public won’t allow it. Cetain insiders have been telling members of the public, for many, many years, essentially, that if they questioned judges, they were crazy or worse. Turns out, many of them were right, their suspicions justified, their concern warranted. So you owe it to them to consider that they had a point. And that they should be listened to better in the future.
Third, I think you’ll find, if you can slow down enough from the evidence creating and evidence destroying, that you have left a trail as wide as the Grand Canyon. What made me so irritating to system insiders, for many years, was my uncanny ability to first sense of
The doctrine that speech can be criminalized if it is the âinstrumentality used to commit the crimeâ misses the point. And if it is permitted to persist, the exception will swallow the rule. Because you could make the argument that any speech that is criminalized is the instrumentality.
Under that analysis the legislature could pass a statute that criminalizes writing our your grocery list. We all know thatâs silly, but letâs walk it through. If you write a grocery list, then the words used in the grocery list are the instrumentality of the crime.
We live in a country, in a state, with significant problems. We all know that. Things have been rough these last few years. If any speech can be criminalized, the populace will not feel free to criticize government. And look where that got us.
For that matter, we wonât feel free to criticize private people, or businesses, for fear they will sue for defamation.
If you look at the roots of defamation, as I did this morning, it was used by Roman Emperors to stifle any speech but theirs.
Interestingly, the edict at that time was that those who located a defamatory document were required to burn it, to never step forward with it. (Go to Wikipedia, and key in âdefamation.â) So the irony in my disciplinary matter, is that Judge Wieland gave a bunch of documents to the OLPR, claiming she had been some version of defamed. If we are true to our roots, she should have burned those documents and said nothing further.
This has always been an obtuse aspect of defamation lawsuit. To come forward and claim harm, you must re-publish the very material that you are claiming harmed you in the publication.
The law has attempted to get around this in certain ways. But there are other problems with defamation. Originally, truth was not a defense. Wikipedia attaches some type of Roman edict (I do not know where this came from), claiming that anyone acting in the public safety could step forward to denounce the libel. And if he was right, he would receive a great commendation. And if he was wrong, he would be âvisitedâ with capital punishment.
Now, that puts the truth-seeker at great risk. I kind of feel like that Roman dude, who must have debated long and hard before stepping forward in the public good. The risk is high, the ultimate risk. The risk has been high for me as well. They (and we all know who it is) have forced me to stand and defend my license. They have had no shame in attempting to imply I am not a good lawyer.
I will put my lawyering up against anyoneâs. But itâs really more than that. In the early days, the way you proved that you were right in stepping forward to protect the public good, was by arguing what was morally right. We seemed to have lost our way. With so many technical rules of ethics (oh yeah, complete with competing provisions, interpretations by case law, advisory opinions by the Lawyers Board, and the sundry MSBA article by Mr. Klausing or Mr. Cole), what about what is right?
Members of the public are fond of saying someone got off on a technicality. What about all the people who got on on a technicality? Who are good people, meaning no harm, but caught up in the system, fighting until their arms and fight are full of glue and the system has them stuck to the floor. When can we cut through the technical details and ask â what is the right thing to do here?
What is the right thing to do here?
Look, people have a right to be concerned about their reputation. But the nature of things today, where so much is on computers, and bad even false allegations can fly around the world in an instant by email, itâs time we revisited the way in which we conceptualize this claim.
At least in a lawsuit you can stand and fight. Itâs the behind-the-scenes retaliation that is the most harmful and the hardest to get at.
And thatâs mostly what I have encountered. For years, I had a pretty good feeling about what was going on in the back rooms. That is, that people were taking my name in vain. I was told this, point blank, by some judges. Usually followed with, âand you are nothing like what I was told you would be like.â That made me feel better for the moment. But as the years wore on, it became clear that without being able to be present when people were attacking me, I was losing the battle.
What I finally came into possession of proved that I had been right all along. Actually, it was worse than I had ever imagined. I knew I was controversial (you know, those awful things like accountability and justice), but I had no idea the venom that flowed from some my way. I still, to this day, donât know what I did to inspire such anger. I have my theories (and being a good lawyer, I could prove about five of them, in court, to a jury, today), but I will never truly know.
I kind of donât care. That is, on some level, these people need to take care of themselves, and if anger at me if their issue, I guess, you know dude, some therapy might be in order. I have been busy taking care of myself, working diligently to take care of my clients (the notion that I might have harmed my clients is absurd, and you all know it), and trying to do a bigger piece for our system. Itâs part of who I am. I donât need to explain it to you, and I donât need to justify it. Itâs what makes me âtick,â as they say. And Iâm not in the mood to apologize for who I am (or my personality).
And I have been working on this project for 10 years. And it would be awesome if yâall would help me. There are many people who have (on their own) demarked themselves as my enemies. Some of you I wouldnât care to spend any personal time with. But you all have experience in this system, which could be brought to bear on the problems, if you would only just let go, and help.
No matter what people say about me, you know I am a hard worker. And itâs really overwhelmed me. There is so much fodder here, so much to work with, to try something new.
Hereâs an idea:
This morning I looked up âpolemicâ as a form of argument. It is pointed (to prove a particular hypothetic) and described as âharsh.â This is what lawyers do. Debate, it turns out (go figure) is fashioned to show both sides, and foster a compromise.
What modern juries often do is to come to a compromise. We as lawyers are not permitted to observe this, but we can see its traces. For example, criminal prosecutors know not to charge one offense, but to charge at least two, preferably three. Because a jury intent on compromise will likely, as a part of that compromise, convict on one. In civil, excessive force cases, there is often no room for compromise, because only one claim exists at the time of trial (not dismissed on motion according to some edict or other) and that being excessive force. Combine that with a morally wrong jury instruction, and the outcome is predictable. Lawyers and judges focus on polemics. Juries see it as a debate. But if both sides of the controversy are not before the jury at one time, the jury wonât see the big picture from which to forge the compromise. If a trial included not just the âcriminalâ charges against the member of the public (which in these cases is that the officer was just doing his job, using appropriate force under the circumstances), but also the âcivilâ issue (the allegation from the member of the public that the officer used too much force), the jury sees the broader picture.
Lawyers donât want jurors to ask questions, because they are worried they have crafted a house of cards that if they are clever enough to put on the show it will stand, but one question from one layperson could blow the whole thing. Jurors asking questions should be, could be part of the hearing if: 1) the evidence was gathered by a neutral magistrate and everyone knew what it was, had equal access to it, and presumed it would go before the jury; 2) the jury did not need to decide âfaultâ in the classic sense, but the hearing was used to educate the jury as to the circumstances in which the dispute arose; and 3) experts were used truly to educate the jury, and not to put on a show for one of the sides. This would include damages experts. This resembles using a jury for high-low arbitration (plus juror questions â which could even include â which is the low so high or why is the high so low).
What do you think?
Weâd need to move some pieces around the puzzle board to make this work. There are federal court issues, state court issues, and a lot that needs to be worked out. But itâs better than what we have been doing.
When you think about it, itâs kind of what I have been trying to do with my disciplinary case. I never, not for one second, thought I was âguiltyâ of anything. The whole thing has been a sort of grueling exercise. Although itâs been intriguing to be a party, rather than a lawyer, I canât say it has enhanced my position view of the system at all. Quite the contrary. I now have felt what it is like to be the little guy, when the system brings all it can to bear against you, but you know you did nothing wrong.
I am older, and wiser from the experience. I have great empathy for those who have been wronged by our system. And, perhaps not something that you wanted to hear, I have even more zeal to continue to work on solutions. If you think you had trouble shutting me up as a lawyer, think of what I can say as a member of the public!
And, you know itâs not over. You already have some glimpse of what I could do as a pro se attorney and representative of a class.
So letâs get real; Iâm not going away.
Work against me if you must, but consider, if you will, that there could be another way.
I have been trying to figure this one out since like May or June. Perhaps when I post that, you can help me describe it better.
Either everyone has privilege & immunities, whether speech is true, false, well-intentioned, polemical, or no one has it.
To criminalize speech is the beginning of totalitarianism.
The fine points of when you can criminalize speech or not, misses the point completely. Court opinions over 20 pages long, about whether an American, a Minnesotan, could or could not speak a few words, miss the point. The Minnesota Constitution guarantees the right to speak freely. One cannot speak freely if one is even the least bit concerned with being prosecuted, or sanctioned, or loss of property because of the speech. Because the fear will gag you, all by itself.
What lawyers and judges call the âchillingâ of speech, is impossible to prove in a court of law. To prove it, you would need to bring in, not just the one person brave enough to stand up and say âI know I should be fearful but this is the right thing to do,â you would need to bring in all 40,000 people who were too afraid to stand up. The whole point of constitutional lore making the âchillingâ of speech illegal, was to paint a broad, broad circle around the subject speech, to say, the diameter of this circle reaches far and wide, and if even one person who might possibly be afraid to speak out (in particular, to criticize government) because of a statute, rule, or court order, that is too many.
As one wise person said (guys, Iâm in my car, I canât get the exact quote and attribution for you right now, but think it was Clarence Darrow), said, in order to protect liberty, you need to have too much of it. Speech is liberty and liberty is speech. Itâs what itâs all about. Itâs what it has already been all about. From the Boston tea party, to no taxation without representation, to the present. In order to protect speech, you need to protect too much of it.
Sometimes speech makes people upset. I feel ya. But thatâs life.
Sometimes speech makes people want to act vindictively, like when you catch a judge doing something wrong, and they punish you for pointing it out. That, as well, is life.
Life in the big city, as they say.
Or, more properly, life in America.
This past year has been strange for me in the sense that I have seen such oddball, strange, even insane behavior from people, all around the issue of appointment v. elections (gosh, get over it already), and around whether or not I was going to publicly file the âemails.â I found it quite humorous the attempt to make me look crazy. Hey, I have my faults, but at least Iâm not acting like you guys.
Here’s what many of you have been waiting for. Attached is a copy of “pre-filing” qui tam disclosures. I worked diligently for this past year to follow all of the strictures of the qui tam statutes, but they are so onerous, and those who are able to interfere with computers seem to be able to get them no matter how much confidentiality I attempt to attempt.
I did provide pre-filing disclosures to the “government” in mid November, and it is my clients’ position that we are still entitled to sue on these issues, whether under that statute (the law does not demand the impossible), or under another.
I have thought long and hard about the public disclosure of these documents. I have a well-formed analysis as to why I am authorized to do this. And those of you thinking of trying to use one of the “three c’s” on me (you know, you criticize government, they make you crazy, criminal, or conspiracy nut), you should keep in mind what the exhibits would be at that trial, and what the jury will think of you for trying to slam someone who is trying to make things right.
I have taken as much care as I possibly could to maintain confidentiality where appropriate (even in these disclosures), and I have taken great care with the wording of each allegation, demarking it as a rumor if it were so.
I worked literally months on this, drawing from my own knowledge, from closed files, from emails provided by the Attorney General’s Office, and from other documents.
Attached is the memorandum to government (this one to the AG).
Attached here are the emails quoted from in the above memo.
Second, I am entitled to a name clearing hearing.
Public employees whose names are besmirched are entitled to such a hearing. Equal protection demands that I be as well.
Instead of submitting written appraisals of whether lawyer should be reinstated to the director, lawyers, judges, clients, members of the public should be permitted to appear in person. I am submitting this in a more-than-state-wide publication (this blog). Anyone responding to this summons and soliciation, will be absolutely immune, their comments absolutely privileged, and they will be invited to present evidence.
I’ve re-crafted the language from the Minnesota Rules of Professional Responsiblity, below, to fit this situation. This recrafting of a state statute was done in State v. Crawley; I see no reason why it should not be done here.
(1) The Director shall publish an announcement of the petition for reinstatement in a publication of general statewide circulation to attorneys soliciting comments regarding the appropriateness of the petitionerâs reinstatement. Any comments made in response to such a solicitation shall be absolutely privileged and may not serve as a basis for liability in any civil lawsuit brought against the person making the statement.
Prior to any suspension or disbarment, the attorney shall publish an announcement of the petition for reinstatement or in the nature of a petition for reinstatement in a publication of general statewide circulation to attorneys and judges and the public, soliciting comments regarding the appropriateness of the petitionerâs quasi-reinstatement, and the appropriateness of that attorney coming forward with evidence procured over roughly the last decade, in the furtherance of the public good. Any comments made in response to such a solicitation shall be absolutely privileged and may not serve as a basis for liability or sanctions in any civil, criminal or disciplinary proceeding.
I am also inviting you to submit commentary regarding the quasi-reinstatement of Attorney Jill Waite. And feel free to suggest other attorneys who have had their license yanked from them, who are entitled to a similar consideration.
Please appear at the Minnesota Judicial Center, January 14, 2013, at 10:00 a.m.
Continuing on in my role as special prosecutor, I am going to have some recommendations.
For the moment, I am urging that it is fundamentally unfair for the justice system to “use” me as a special prosecutor, and to make be bear this obtuse proceeding that has been described as an “ethics” matter. I have observed much bad conduct in the past years with regard to this matter.
As a matter of substantive due process law (under the Fourteenth Amendment to the US Constitution, with whatever clause parallels that under the Minnesota Constitution), I have
already had to bear up under one trial. Two trials is double jeopdary. My substantive right, plus the misconduct of various state officials, shoudl result in a complete dismissal of the substantive allegtions against me.
UPDATE: It’s past 5 PM on January 10 (the day after posting of this original post), and I have received no objections.
***
For the past many years, I have been functioning as a “special prosecutor,” ferreting out public official abuse of authority or other misconduct, investigating it, gathering evidence, and filing it with the courts. I have also put it before juries, who can tell their own story, but from my vantage point, they have gotten the message.
For the past decade, I have studied constitutional law and the law of co-called “immunities.” My clients have encountered the down-side of immunities, I even had a case where doctors claimed they were private, but still entitled to immunities. For those less familiar with the term, it essentially means immune from lawsuit. A person can be “immune” from civil lawsuit or “immune” from a criminal lawsuit. The same analysis would apply to a quasi-criminal proceeding, such as when the State, working with other public officials and private people, endeavors to take the license of an attorney.
Since 1993, the US Supreme Court has analyzed immunities using a “funtional” approach. Using this functional approach, my activites noted above have beenâ âclothed with the authority of state law.â â West, 487 U.S. at 49, 55 (quoting United States v. Classic, 313 U.S. 299, 326 (1941)), cited with approval in State v. Beecroft, Minnesota Supreme Court 2012 (A09-0390).
People in the system know I have been functioning as a special prosecutor in this respect. Those who have not been trying to get me for it, have been sitting by and watching as I have taken all the risk.
I am hereby granting myself immunity, under West, Beecroft and the functional approach. PLEASE TAKE NOTICE. Anyone objecting to this analysis, must file a written objection on this blog within 1 day (let’s day by 5 pm tomorrow), complete with factual allegations, legal analysis, a conclusion, and of course, a proposed order.
If any of these technical demands are not met, your objection will be ignored. And you will be added to my list of people who are “not cool.”
You can consider me as affirmatively granting the immunity, or that is has, organically, grown up over time. I believe either will suffice.
Using the former, I maintain that I carry with me, wherever I go, in whatever medium I choose, and using whatever criteria I so choose, at my discretion, to immunize any other individual (or group of individuals) to speak out on these issues.
Jill Clark continues 