There is no better way for each of us to participate in seeking a public solution to the problems we have described in other posts, as revealed through the analysis of the Don Bailey disciplinary process, than to understand the jurisdiction of the courts, and exactly how they do business in cases such as these. The Don Bailey situation is quite unique, as it involves a clear clash between two wholly separate “jurisdictions”, state and federal, implicating some very important principles at the heart of our system of government. We hope eventually to provide you with all the detail you will need on these concepts of what is known as “federalism”, but for now we commend you to The Federalist Papers, a series of essays published in 1787 under the name Publius (written by Alexander Hamilton, James Madison, and John Jay), explaining the advantages of the U.S. Constitution.
Briefly, as it relates to this case, there has been a clear trend in civil rights cases to invoke the Eleventh Amendment to maintain rigid separation between the jurisdiction of the federal courts and actions involving the affairs of state government, and some of the judges involved in the Bailey matter have used the Eleventh Amendment, properly to be sure in cases, to leave litigants without a remedy in federal court. More recent activist conservative courts, such as the Supreme Court in Bush v. Gore, have gravely blurred those lines, and the Don Bailey situation reveals the evils to be avoided. In this case, the state courts and the federal courts have deliberately crossed all jurisdictional lines, and have combined their efforts to cutoff civil rights cases that involve public corruption.
The Bailey Docket:
The first document is what is known as a petition to invoke the Pennsylvania Supreme Court’s extraordinary or “King’s Bench” jurisdiction. The Pennsylvania Supreme Court is among the most powerful courts in the country, and King’s Bench jurisdiction derives, as its name implies, from the extensive powers of the courts at English common law, and essentially allows the Court to take jurisdiction of any matter pending in any of the courts of the state. In this case it was requested because of the imminent public importance of issues of judicial corruption in light of the “kids for cash” scandal that led to former Luzerne County Judge Ciavarella being sentenced to 28 years in prison for corruption on the second day of the Bailey hearings. The petition specifically raises issues of prosecutorial and judicial misconduct, and wholesale violations of the rights of Mr. Bailey and his clients. It was denied less than 24 hours from its filing. Please feel free to read it and decide if you think it should have been denied so quickly.
The next document is the Complaint for Discipline that was actually filed by the Office of Disciplinary Counsel (Killion and Fulton) initiating this public proceeding. Please note that among the accusations being made against Mr. Bailey is that he wrote and submitted a document to the U.S. Supreme Court on behalf of his client Thom Lewis (since when is that a crime?) that Mr. Bailey did not even write, yet they refuse to withdraw this claim knowing it to be false. The rest of the allegations speak for themselves, and the proof offered at the hearing will fill in the details.
The discipline answer is Mr. Bailey’s response to the complaint, corresponding to each numbered paragraph. It speaks for itself.
Bailey has filed a Complaint in federal court, which was filed in an effort to have the federal court stop the imminent denial of the rights of Bailey and his clients by going into the pending hearing without having any right to present the evidence that needed to be presented. The Complaint names Bailey and 25 “John/Jane Doe” plaintiffs, his clients, and there will likely be updates to these pleadings sometime in the not-too-distant future.
The following document is the motion for injunctive relief filed by Bailey to stop the hearings. It was denied by a Judge of the Western District of Pennsylvania, Nora Barry Fisher, who just last year was specially assigned to the Middle District (where Conner, Kane, Jones, and Carlson are located) to deal with a case against other Middle District Judges. It was dismissed.
Again, we expect to have transcripts of the proceedings in the near future.