Friday, May 23, 2014

Engaging in the Unauthorized Practice of Law in Indiana - Part III My Preliminary Statement

On 13 May 2014 G. Michael Witte, Attorney No. 1949-15 filed a Verified Petition to Enjoin the Unauthorized Practice of Law against yours truly. In this series of postings I will present to you some information about Mr. Witte, why Indiana Supreme Court Justice Steven David denied my motion to reinstate a felony charge against myself, what Indiana judge recently said I am smarter than most attorneys, and why attorney Vanessa Lopez Aguilera complained. More significantly though I will demonstrate how Mr. Witte and his ilk are attempting to harm children and deprive parents of opportunities to amicably and efficiently resolve their child custody disputes consistent with the policies of the State of Indiana.

Response to Petition to Enjoin the Unauthorized Practice of Law

State of Indiana
Stuart Showalter

Preliminary Statement

The hallmark of a free society is the security of personal liberties and freedom from government intrusion into the private workings of one's life. Essential to liberty is the freedom of exchange of information. Corresponding to this which is also essential to the stability of a free society is the rule of law.

Consider if you please this quote and the corresponding commentary from What is the Rule of Law by the ABA Division for Public Education
“[N]either laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.”
—U.S. Court of Appeals Judge Diane Wood, “The Rule of Law in Times of Stress” (2003)

Judge Wood’s comments highlight the need for, first, an open and transparent system of making laws and, second, laws that are applied predictably and uniformly. Openness and transparency are essential. If people are unable to know and understand what the law is, they cannot be expected to follow it. At the same time, people deserve to know why a particular law has been passed and why they are being asked to obey it.

The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

The foundation of our democratic republic is based upon the concept that government emanates from the people. Thus, it follows that government serves the people rather than people serving the government and consequently the people are the ultimate masters. It is then the people that have created the rule of law[fn1] and its administration is in their name. This includes petitioning the legislative bodies in support or opposition to existing or proposed laws. Additionally, it embodies respect for the inherent authority of the courts which shall provide a fair and just adjudication for the parties who appear before them whether they be individuals or the collective society through the state. It is to these ends that I am a member of the American Civil Liberties Union of Indiana and the Libertarian Party of Indiana of which I actively participate in both in an attempt to ensure limited government intrusion upon the liberties of the citizenry. Likewise for nearly 10 years I have written and proposed legislation, consulted with legislators, attended meetings and provided input to rule writing committees for the courts, and have testified on proposals before both. Child custody legislation that I wrote has been passed into law while ideas that I presented have been adopted into the Indiana Parenting Time Guidelines. The day after receiving this Petition to which I respond I provided testimony and my 14,000 word report presenting my novel ideas about how to increase child support to children while reducing conflict and litigation among parents.

Consistently I have espoused the virtues and necessity of liberty and respect for the rule of law which, to some people, may appear as competing forces but to me are complimentary. Often times this is difficult for parents engaged in child custody disputes to understand. The emotionally charged atmosphere around the right to raise one's child as one sees fit can evoke a visceral rejection of the court's authority. What often goes unrealized by a parent is that the authority of the court may prevent the other, their perceived adversary, from exercising his or her conflicting parenting wishes through the underlying goal of doing what is in the child's best interest.

A person who can help enlighten parents to this concept reduces hostilities and conflicts, mitigates the extent of litigation, and, ultimately, benefits the children caught between the two competing forces – adversarial parents. As someone who once stood on the precipice of rejecting the authority of the court or reluctantly acquiescing to what I felt was its improper child custody order, who then chose to accept the authority of the court and ultimately cease litigation, I feel qualified – rather compelled – to assist others in coming to the same realization, often without financial remuneration. The well-being of children, as I have seen through my son, demands it while the public policy of the State of Indiana encourages it[fn2].

It is then that when a litigator who is personally enriched by hostile litigation dips into the public till to attack such a benevolent actor that I reserve my most vociferous condemnation which is forthcoming herein. Such endeavors and discretionary public subordination should be reserved for an offense of public harm rather than as a means of fulfilling the private interest of a sole attorney. I, however, do realize that this proscription is countervailing to the status quo as imposed by a legal cartel and doing so brings forth a rebuke such as this formal undertaking. As Emile Durkheim expressed in his philosophy of sociological constructs: when an individual diverges from the norm of society based upon an individual moral code the group will express a strong condemnation or sanction.

While I have no objection to a restraint from practicing law, as I have already imposed one upon myself, I do take issue with and hereby respond to allegations which are false or impertinent, and charges which are ambiguous or lack enough clarity as to inform one so charged, or others who may be potentially subjected to such, as what acts are expected of him in negation or the appositive. This is precisely what Judge Wood referenced in stating that the law must not be arbitrary. The rule of law is not a government of men but a government of laws which while used to compel compliance by the ruled are equally applicable to restrain those who rule so that their rule and judgments are not arbitrary or unjust.

As I know nearly all of you Justices in some personal capacity I extricate such relation there from our relation here and express my confidence that you are likewise capably restrained administrators of law. I welcome the opportunity for this exchange to be a spark to igniting a clear and distinguishable rule as to what constitutes the practice of law. The American Bar Association proposed defining the practice of law[fn3] but this was not adopted into Rule 24 by the Indiana Supreme Court's rule making committee.

For all of these reasons and more which will be further espoused in the corresponding paragraphs I do hereby tender the following response to each individually numbered paragraph one through thirty-six (1-36) by corresponding numbered paragraphs. Adjudication on the merits or lack thereof by all members so empaneled is hereby welcomed.

Upcoming segments in this series will include
IV - The Factual Allegations: ACLU Ken Falk
V - The Factual Allegations: Jennifer Bonesteel
VI - The Factual Allegations: Angela Sims
VII - The Factual Allegations: Advertising
VIII - The Factual Allegations: Suppositions
IX - Interview with the Complainant: Attorney Vanessa Lopez Aguilera
X - Who has recommended me and what I recommend
XI - The Charges
XII - The Response Filed

If you would like to contribute any information about this matter or participate in the Response then please contact me.

1] The World Justice Project has proposed a working definition of the rule of law that comprises four principles: 1. A system of self-government in which all persons, including the government, are accountable under the law; 2. A system based on fair, publicized, broadly understood and stable laws; 3. A fair, robust, and accessible legal process in which rights and responsibilities based in law are evenly enforced; and 4. Diverse, competent, and independent lawyers and judges
2] It is the policy of this state to recognize the importance of family and children in our society [IC 31-10-2-1(1)], recognize the responsibility of the state to enhance the viability of children and family in our society [IC 31-10-2-1(2)], strengthen family life by assisting parents to fulfill their parental obligations [IC 31-10-2-1(4)], and provide a judicial procedure that, ensures fair hearings [IC 31-10-2-1(10(A)], recognizes and enforces the legal rights of children and their parents [IC 31-10-2-1(10(B)], and holds them accountable [IC 31-10-2-1(10(C)].
3] Section 2. Practice of Law Defined. (a) General Definition. The practice of law is ministering to the legal needs of another person for consideration given. This includes but is not limited to the following provided to another person: (1) Advice on a legal right; (2) Negotiation or settlement of a legal right; (3) Representation in a legal proceeding; (4) Selection, preparation or completion of a legal document; (5) Management of a law practice; or (6) Any other conduct determined to be the practice of law by the Indiana Supreme Court.

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©2008, 2014 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

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