SECTION 1983 – THE FEDERAL CIVIL RIGHTS ACT – DOES IT PROTECT ATTORNEYS?

SECTION 1983 OF FEDERAL CIVIL RIGHTS ACT  – does it apply to Kentucky Attorneys?

Two Kentucky cases are currently
(Nov. 2011) before the 6th. Cirt. Court of Appeals due to rulings of U.S.
District Judge Danny Reeves of the Eastern Dist. of Kentucky

In both appeals, the Kentucky Bar
Association is alleged to have violated the constitutional rights of Kentucky
attorneys.  Judge Reeves dismissed both
complaints on the theory the federal courts have no jurisdiction to review the
denial of constitutional rights by the Kentucky Bar Association.

In the John M. Berry, Jr. case,
he was sanctioned for writing a letter to the Legislative Ethics Commission
questioning their legal reasoning. The BAR did not actually prosecute Berry,
but they investigated him for almost two years and failing to obtain a formal
charge, they placed a warning letter in his KBA personnel file.

He was warned by the Bar Counsel to limit his
exercise of his First Amendment rights.
Judge Reeves ruled that the federal courts have no jurisdiction to review
constitutional deprivation of an attorneys rights by state bar associations.
(??)

In Berry’s appeal to the 6th. Circuit
it is reported that the ACLU who is representing Berry, cited some 66 cases in
which the Federal Courts have granted review of constitutional violations by
state bar association.  Once such case
involved Marcus Carey who obtained a ruling from the 6th. Circuit to the effect
that Supreme Court Rules regarding conduct of judges, were
unconstitutional.  Apparently Judge
Reeves legal assistants failed to find any examples of federal courts allowing
the protection of Section 1983 rights for attorneys.

In the Eric Deters case, Judge
Reeves ruled that his court had no jurisdiction to review a recusal motion
which the Kentucky Chief Justice refused to consider, although the applicable
rule required the Chief Justice to “immediately” consider such
motions.  It is reported to LawReader
that Judge Reeves filed a complaint with the Ky. Bar Association due to the
fact that Deters sought constitutional rights protection in the federal
court.  The Bar Counsel has
“certified” a claim for $18,800 as their cost for defending the Bar
against Deter’s federal law suit.  The
Bar Counsel is seeking new sanctions against Deter’s for filing a lawsuit in
federal court seeking constitutional review.
The Bar Counsel did not wait for the ruling of the 6th. Circuit which is
still pending.   Some have viewed this
new charge against Deters, which was filed after his acquittal of most charges
they had against him, as punishment for challenging the Bar Counsel.

Deters motion for a recusal of the KBA Trial Commissioner alleged that
in the middle of the hearing the Trial Commissioner reported to the Deters that
his law partner took over the civil case in which Deters was alleged to have
charged an” exhorbitant fee of $1500″.  The complainant fired Deters and hired the
Trial Commissioner’s law partner.  The
Trial Commissioner’s law partner was paid $25,000 to complete the law suit.  The Trial Commissioner while he reported the
situation to Deters, refused to recuse himself.

Deters reports that he requested that the Bar Counsel provide him a
breakdown of the costs and expenses imposed upon him in the
“certifed” report, but the BAR has claimed he has no right to such an
accounting as that information is “confidential”.

In an encouraging and rational decision, the Board of Governor’s
recently agreed to review Deter’s request for an accounting of the cost and
expense bill.  Deter’s motion will be
heard on Nov. 18, 2011.

Our review of the Sup. Ct. Rules suggest that the Bar Counsel can
collect “costs and expenses” but that many Court rulings distinguish
“costs” as being different than “attorney fees”.  The rule does not mention the right of the
Bar Counsel to seek a refund of “attorney fees” in attorney
discipline actions.   The fact that
Deters was acquitted of l5 of l9 charges brought against him raises a due
process argument.

We have seen no justification for
a “cost” bill of $18,800 which the Bar Counsel assigned to their
defense of Deter’s federal lawsuit.
There was no trial, only a summary judgment motion which they quickly won.  $18,800
for defending against one motion????

CONSTITUTIONAL RIGHTS OF ALL
CITIZENS PROTECTED BY FEDERAL CIVIL RIGHTS ACT

42 U.S.C. § 1983 reads:[3]

Every person who under color of any statute, ordinance, regulation, custom,
or usage, of any State or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party
injured in an action at law, Suit in equity, or other proper proceeding for
redress, except that in any action brought against a judicial officer for an
act or omission taken in such officer’s judicial capacity, injunctive relief
shall not be granted unless a declaratory decree was violated or declaratory
relief was unavailable. For the purposes of this section, any Act of Congress
applicable exclusively to the District of Columbia shall be considered to be a
statute of the District of Columbia.

Section
1983 essentially made equitable relief available to those whose constitutional
rights had been violated by an actor acting under State authority. Normally
constitutional rights violations are remedied by specific performance including
injunctions by the courts. For example, if a person’s right to due process was
violated by a prison guard who was said to be acting under the authority of the
state, then that person could bring suit for monetary damages against the
prison guard. Without Section 1983, that person would have to seek an injunction
by the courts for the due process violation. The problem with such an action by
the court is that injunctions cannot apply to past harm, only future harm. So,
essentially the person would have an actionable cause-the constitutional
violation-with no adequate remedy. Most Section 1983 claims are brought against
prison officials by prisoners, but prisoner claims are usually dismissed as
being without merit. Claims can be brought by anyone stating a proper cause of
action.

Circumstances
changed in 1961 when the Supreme Court of the United States
articulated three purposes that underlay the statute: “1) ‘to override
certain kinds of state laws’; 2) to provide ‘a remedy where state law was
inadequate’; and 3) to provide ‘a federal remedy where the state remedy, though
adequate in theory, was not available in practice.’ “[4][5]

Now
the statute stands as one of the most powerful authorities with which state and
federal courts may protect those whose rights are deprived. Section
1983
of the Civil Rights Act provides a way individuals can sue to redress
violations of federally protected rights, like the First Amendment
rights and the Due Process Clause and the Equal Protection Clause of the Fourteenth
Amendment
of the United States Constitution. Section
1983
can be used to enforce rights based on the federal Constitution and
federal statutes, such as the prohibition of public sector employment
discrimination based on race, color, national origin, sex and religion.

In
some jurisdictions, 1983 has been applied directly to private employers when
litigants have sued under this act. It can also be applied in virtually all
jurisdictions in a more indirect manner to private employers if they are acting
under state or federal authority. For example, if an additional private
security company is hired by the police for an event and are given authority by
the police, and, during the event, the security company violates a
participant’s First Amendment
right, they can be sued under section 1983.

Although
some provisions were ruled unconstitutional in 1882, the Force Act and the Klan
Act have been invoked in later civil rights conflicts, including the 1964
murders of Chaney, Goodman, and Schwerner;
the 1965 murder of Viola Liuzzo; and in Bray v. Alexandria Women’s
Health Clinic
, 506 U.S. 263 (1993), in which the court ruled that
“The first clause of 1985(3) does not provide a federal cause of action
against persons obstructing access to abortion clinics.”

It was
also utilized in the 1969 case of Tinker v. Des Moines. By the time Beth
Tinker was in school, the law had expanded to make even school boards liable if
they stood in the way of people’s federally-protected rights.

Today,
the Civil Rights Act can be invoked whenever a state or local government
official violates a federally guaranteed right. The most common use today is to
redress violations of the Fourth Amendment’s protection against unreasonable
search and seizure. Such lawsuits concern false arrest and police brutality,
most notably in the Rodney King case.

The
Act was invoked in the 2010 Robbins v. Lower Merion School
District
case, where plaintiffs charged two suburban Philadelphia high
schools secretly spied on students by surreptitiously and remotely activating
webcams embedded in school-issued laptops the students were using at home,
violating their right to privacy. The schools admitted to snapping over 66,000
webshots and screenshots secretly, including webcam shots of students in their
bedrooms.[6][7]

 

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