In October, 2013 I posted the following account of a shocking set of events I had to contend with in my professional life.
Indeed, it was the second huge legal battle under the Constitution arising from a somewhat minor event. Stephen Merrill
It seems the famous maverick lawyer has made a point of principle over the past year that is not working out well at all at the moment. Though the dilemma puts me out of the office for a time, the controversy itself is largely a tempest in a teapot.
Let me explain.
Back in 2009 shortly after coming to Alaska I had the misfortune of having four drinks on a Friday night and then spent the rest of the night in jail with a DUI charge. I was blood-tested at .102 BAC ninety minutes after driving, the point when my BAC would have been the highest given the drink or so still in my stomach when I was stopped. It was a first-offense charge.
The case was quite defendable, especially when the City committed a couple of major procedural mistakes. By the time the case got to a trial there were three constitutional grounds for dismissal, believe or not. They were strong grounds, too, one an absolute winner, failure to serve a probable cause summons ever.
To my considerable distress, the constitutional issues were treated like they did not exist by the traffic court. So, I appealed my conviction. To my consternation, the superior court, the criminal court of appeals and the Alaska Supreme Court also treated the appeal as if the constitutional issues had never been raised and argued. So did the City of Anchorage in its briefs. I was denied the protections of the Bill of Rights entirely.
So miffed, I appealed all of the way to the United States Supreme Court even though the chances of receiving a writ in the high court is less than 2%. I made the point in my brief that the Alaska Court System, at least in my case, chose to treat the Bill of Rights like it did not exist.
The writ was unsurprisingly denied. The US Supreme Court examines only novel areas of law, not the the mistakes of lower courts, even outrageous mistakes as with my trial.
That was far from the end of my problems though.
I reported my 2009 DUI arrest to the Alaska State Bar on Monday morning after the arrest. A committee was quickly formed to examine my sobriety.
Anyone from Alaska knows a state government religious principle is forcing drinkers into treatment no matter what.
I had a substance use assessment done by a local counselor who did a fine job. It said I tend to get myself in trouble with this sort of thing, but since I was unaffected by substance use in my personal and professional life, I did not need active treatment. That was January, 2010. I though it would end the state bar matter, but instead the proceeding shifted into limbo after the favorable assessment was discussed with the committee.
When my DUI case was finally over, the state bar committee struck back with a vengeance. It started anew almost three years after my DUI arrest.
I was ordered by the committee to see a particular counseling office with no explanation provided. When I saw the counselor the state bar appointed for me, the one and only time I saw her, I was alarmed at her quite odd behavior and lack of professionalism. I told the committee as much two business days later, long before any new report was written.
The appointed counselor's report is best characterized as libel and fraud aimed at the "patient" driven by the counselor's financial and personal needs. Every adverse finding made in the report was conclusively refuted, mostly by my past medical records. The details can be found in the appendix linked above, pp. 31-42. This crony statist woman wanted me in her therapy sessions. She wanted to terrorize me with her underserved power over me.
Yet, the state bar committee insisted I hire this woman and place her in control of my life. I declined. I pointed out my first assessment was far more professional and accurate.
I was denied though a trial on whether I need treatment.
I also offered to pass the hardest course there is on substance dependence avoidance.
The Alaska Supreme Court held I was not protected in my privacy from a state appointed counselor, or at least her report, no matter matter how incompetent and craven she is. It went on to hold that my license to practice can be temporarily suspended due to refusing the committee demand, even while being denied a hearing on the merits, the suspension to last until I have a disciplinary hearing, Bar Rule 26(i). The disciplinary charge would concern whether my arrest and conviction for first-offense, low BAC DUI placed into question my moral standing to practice law.
I still refused to hire the state appointed counselor or to carry out her recommendation for treatment. I pursued several angles for exoneration before the license suspension went into effect, but all failed in a quite determined Alaska Supreme Court. At two points the case took on a sort of Alice in Wonderland quality. I was flying in the face of something like religious conviction in this area of policy.
So, now I am returning to the US Supreme Court this week. The brief and appendix I filed are the top two links above. I rely on due process of law and personal privacy as constitutional liberties that have been denied to me.
Very different from my trip there last year, the facts of this new petition seem to hit all of the high points in why a writ of certiorari should be granted. I believe I truly have a chance at a writ being granted this time. It is still unlikely though.
The bad news is the Alaska bar has decided now to take its sweet time in bringing my charge and having the hearing that would end my temporary suspension. This also seems to be fine with the Alaska Supreme Court. So, it is quite unnerving.
I have a few more cards to play yet, too. A surrender of sorts may be forced onto me, though I will never hire that woman.
At least I will have fought this unusual invasion from the state to the last reasonable breath. Years ago I took a pledge with others in the Tidewater Libertarian Party to, at least in my own life, never allow to stand a great deprivation on my own liberties under the Bill of Rights without a big fight against the invading government.
At least I have kept that pledge. Stephen Merrill
On January 15, 2014, after three months of consideration, the US Supreme Court denied my second Petition for a Writ Certiorari in one year's time. It was by far the best Bill of Rights' petition before the Court during the term raising novel, large questions over the powers of state bar associations.
Thereafter, with the the help of the local Veteran's Administration, I was assessed for substance abuse yet a third time. The finding of the VA that I did not meet a diagnosis, nor need a treatment regime, was finally vindicated. I completed the same education course on substance use that had been recommended to me by my first assessor back in 2010, a 3-day class. This completed everything.
My license to practice law was restored on March 3, 2014. I have never been labeled as anything. Nor have I undergone mental health counseling.
So, this seems to be an ultimate victory, though one where the victor was beat up in a back alley quite badly.