The goal is to better understand Justice Albin's views on Constitutional and criminal law as well as legal ethics. This approach was chosen because it is informative as to Justice Albins's impartiality while divorced from any potential charges of partisan inquiry. To accomplish this goal the following detail is divided into three parts. Part one introduces the question and offers a standard for appraising Justice Albin’s answer. Part two discusses why the question is appropriate to the Senate confirmation hearing. Part three seeks to identify some of the elements that one would expect Justice Albin to consider in his answer.
I. The Question for Justice Albin.
Is a state legislator, who is also a state licensed attorney, subject to accountability for misconduct pursuant to the New Jersey Rules of Professional Conduct ("RPC") , Federal District Court Rules, Civ. Rules 101.1, 101.4 (pdf.), and or Federal Rule of Appellate Practice, FRAP 46 (pfd), for acts that facilitate, are accessory to, or actually participates in the production, distribution or consumption of marijuana for medicinal purpose? And if so, does the Court or its Agency have an independent duty to prosecute the infraction(s)?
RPC 8.4(b) reads:
"It is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;..."
Moreover, it appears that in New Jersey, an actual criminal conviction is not necessary to invoke disciplinary action.
"Under RPC 8.4(b), all that is required for discipline is a finding that there was a criminal act. There need not be a conviction or even an indictment for the crime in order for discipline to be imposed. See Matter of Hasbrouck, 140 N.J. 162, 166-167, (1995). Indeed, even an acquittal on criminal charges do not bar the imposition of discipline from the same allegations. Matter of Rigolosi, 107 N.J. 192, 206 (1987); In re Pennica, 36 N.J. 401, 418 (1962). Nor does it matter that the attorney was given immunity from criminal prosecution. In re Tumini, 95 N.J. 18 (1983). Nor does the attorney's admission into a pretrial intervention program bar discipline for the acts giving rise to the underlying charge. Matter of Asbell, 135 N.J. 446 (1994). See also New Jersey Court R. 1:20-13(b)(3) (providing that, although a temporary suspension will be lifted on a reversal of a conviction, disciplinary proceedings will not be terminated)."
II. Why the Question is Appropriate for the Senate Confirmation Hearing.
First, "assuring impartiality does not require that the judge pretend to lack views on important topics of constitutional law.' Proof that a Justice's mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.'" Chief Justice Rehnquist (pdf.). And, see: Laird v. Tatum, 409 U.S. 824 (1972).
Thus, questions concerning criminal as well as civil law are appropriate because they fall under the Constitution's domain and Justice Albin's experience raises the expectation he has a high level of proficiency in this area.
Additionally, the Supreme Court Justices are ultimately responsable for resolving ethical controversies that arise within the legal profession.
And finally, questions concerning participation in past cases, while appropriate,
provide no potential basis for muddling his responses or the lack thereof. And, as the questions are not case specific there is no danger to the future review of cases that may come before the Court.
Second, "The people's confidence is not an inalienable right bestowed upon the Court either by the Constitution or the creator. That confidence is a matter to be earned by every public official, but especially unelected life-tenured judges who are generally unaccountable to the public. Sometimes this unaccountability protects integrity. But sometimes, it invites bad behavior." Lazarus, Point 5, Paragraph 27.
Public "Deference to the judgments and rulings of courts depends upon public confidence in the integrity and independence of judges. ... Although judges should be independent, they should comply with the law ... Public confidence in the impartiality of the judiciary is maintained by the adherence of each judge to this responsibility. Conversely, violation ... diminishes public confidence in the judiciary and thereby does injury to the system of government under law. Model Code of Judicial Conduct, Canon 1 commentary.
In short, while it is important to ascertain whether Justice Ablin's view of the law reflects mainstream thought, it is less important that he agree with established law. What is important, however, is that he is informed by it, acknowledges it and, until changed, respect its. Republican Party of Minnesota v. White, 536 U.S. 765, 772 (2002).
Third, it is said "A lawyer is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice." As a member of the Supreme Court, Justice Albin is responsible for the ethical conduct of those involved in the profession. Just as legislators are accountable to ethical constraint, lawyers are also subject to ethical constraint.
Thus, Justice Albin's views on ethical rules, such as misconduct that rises to the level of professional misconduct and hence Supreme Court sanction, are also appropriate to the public's confidence and trust in the integrity of the judicial institution.
III. Elements One Would Expect Justice Albin to Consider in His Answer About Malpractice.
PREMISE I: Since the Congress makes the law, the Executive enforces the law (as opposed to a case) and the judiciary is the arbitrator of disputes arising under the law, State "medical marijuana" laws appear to thumb their nose at the Constitution, the Congress and the Supreme Court. Moreover, such enactments create a constitutioanl crisis between the nations and state governments and between the Executive branch and Congressional and Judicial branches. Accordingly, as every state judge and justice has a duty to make the Constitution the supreme law it seems appropriate to ask Justice Albin his views on the law as it stands concerning "medical marijuana."
PREMISE II: THE CONTROLLED SUBSTANCES ACT ("CSA") IS THE "LAW OF THE LAND."
The main oblectives of Title II of the Comprehensive Drug Abuse Prevention and Control Act., the CSA, are to conquer drug abuse and to control the legitimate and illegitimate traffic in controlled substances. GONZALES v. RAICH, 545 U. S. 1, 12 (2005)[pfd] ... Congress was particularly concerned with the need to prevent the diversion of drugs from legitimate to illicit channels. Vol. 545 U. S. 12-13 ... To effectuate these goals, Congress devised a closed regulatory system making it unlawful to manufacture, distribute, dispense, or possess any controlled substance except in a manner authorized by the CSA. 21 U. S. C. §§ 841(a)(1), 844(a). The CSA categorizes all controlled substances into five schedules. § 812. The drugs are grouped together based on their accepted medical uses, the potential for abuse, and their psychological and physical effects on the body. §§ 811, 812. ... The CSA and its implementing regulations set forth strict requirements regarding registration, labeling and packaging, production quotas, drug security, and recordkeeping. Ibid.; 21 CFR § 1301 et seq. (2004). Vol. 545 U. S. 13.
PREMISE III: INVOLVEMENT IN OR FACILITATING THE PRODUCTION, DISTRIBUTION OR CONSUMPTION OF MARIJUANA FOR ANY PURPOSE, INCLUDING MEDICAL USE, IS A FEDERAL CRIME.
In enacting the CSA, Congress classified marijuana as a Schedule I drug. 21 U. S. C. § 812(c). ... Schedule I drugs are categorized as such because of their high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment. § 812(b)(1). ... By classifying marijuana as a Schedule I drug, as opposed to listing it on a lesser schedule, the manufacture, distribution, or possession of marijuana became a criminal offense, with the sole exception being use of the drug as part of a Food and Drug Administration preapproved research study. §§ 823 (f), 841(a)(1), 844(a); see also United States v. Oakland Cannabis Buyers’ Cooperative, 532 U. S. 483, 490 (2001). Vol. 545 U. S. 14.
PREMISE IV: THE SUPREMACY CLAUSE DEPRIEVES EVERY STATE GOVERNMENT OF ANY POWER FROM WHICH TO AUTHORIZE ITS MEDICAL USE.
The question before [THE COURT] is not whether it is wise to enforce the statute in these circumstances; rather, it is whether Congress’ power to regulate interstate markets for medicinal substances encompasses the portions of those markets that are supplied with drugs produced and consumed locally. Vol. 545 U. S. 9. The notion that California law has surgically excised a discrete activity that is hermetically sealed off from the larger interstate marijuana market is a dubious proposition, and, more importantly, one that Congress could have rationally rejected. Vol. 545 U. S. 30.
The fact that marijuana is used “for personal medical purposes on the advice of a physician” cannot itself serve as a distinguishing factor. Id., at 1229. The CSA designates marijuana as contraband for any purpose; in fact, by characterizing marijuana as a Schedule I drug, Congress expressly found that the drug has no acceptable medical uses. Vol. 545 U. S. 27.
When [Congress] enacted comprehensive legislation to regulate the interstate market in a fungible commodity, Congress was acting well within its authority to “make all Laws which shall be necessary and proper” to “regulate Commerce . . . among the several States.” U.S. Const., Art. I, § 8. That the regulation ensnares some purely intrastate activity is of no moment. Vol. 545 U. S. 22. When Congress decides that the “‘total incidence’ ” of a practice poses a threat to a national market, it may regulate the entire class. See Perez, 402 U. S., at 154– 155 (“ ‘[W]hen it is necessary in order to prevent an evil to make the law embrace more than the precise thing to be prevented it may do so’ ” (quoting Westfall v. United States, 274 U. S. 256, 259 (1927))). In this vein, we have reiterated that when “ ‘a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.’ ” E. g., Lopez, 514 U. S., at 558 (quoting Maryland v. Wirtz, 392 U. S. 183, 196, n. 27 (1968); emphasis deleted). Vol. 545 U. S. 17.
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