From the July 1998 Idaho Observer:

Do Idaho Attorneys Have a License to Practice?

"Think of it as a state being"

by Hari Heath

Does membership in the American Automobile Association give ordinary Americans a valid license to drive? Would membership in the National Rifle Association permit one to carry a concealed weapon? By joining the North American Hunting Club would a person be licensed to hunt in North America? If answer to the previous questions are no, then why is membership to a state bar association construed as a "license" for attorneys to "practice" law?

by Hari Heath

Alfred Adask published an article in the AntiShyster Magazine a while back entitled "Deemed to be Licensed." It was a humorous expose' on the fact that Attorneys in Texas don't actually have a physical license to practice law but are somehow "deemed" to be licensed by reason of their membership in the State Bar Association.

I found this to be a curious situation and thought I would conduct an informal investigation of Idaho's "license to practice law." It is, after all, against the law, to practice law without a license in Idaho. Surely our Idaho Attorney's wouldn't knowingly break the law.

I ran into some attorneys that I knew, and during the course of our conversations, I asked if I could see their license to practice law. One continued to talk about hunting and fishing and avoided the subject. The other mumbled something about he was once issued a certificate years ago, but neither could show an actual license.

As Mr. Adask pointed out in his article, this non-issued "license" which all judges and attorneys are "deemed" to have, furthers the independent, non-accountable grip the private bar associations have on the judicial branch of government. Our Idaho Constitution doesn't require any "license to practice law."

Some time passed since my original informal investigation on the Idaho "license to practice law." As a defendant who was actively litigating my right to travel without a drivers "license," so long as I didn't injure others, or damage their property, I thought this could be a prime opportunity to see if the prosecutor and magistrate prosecuting me were "licensed."

Subpeona

The Idaho State Bar ignored my first letter seeking a copy of the Prosecutor Payne's and Magistrate McGee's "license to practice law," so I issued a Subpoena Duces Tecum demanding either a copy of their licenses or a letter on their letterhead stating that they did not have a license to practice law.

The Idaho State Bar responded by sending a letter on its letterhead stating:

"The Idaho State Bar does not have physical "licenses to practice law" for our members, so I am unable to provide you with copies. However, I can give you the following information:

Douglas Paul Payne is an active member in good standing of the Idaho State Bar. He is currently licensed to practice law in Idaho.

Daniel J. McGee is also a member in good standing of the Idaho State Bar. He is currently a judge in the state and, therefore, does not practice law.

Sincerely, Annette Strauser, Membership Administrator."

Motion to dismiss

I then incorporated this in a Motion to Dismiss and filed it with the court (Benewah county case number CR 97-00407). Excerpting from my Affidavit in Support of Motion to Dismiss:

No license to paractice law

Both Prosecutor Douglas Paul Payne and Magistrate Daniel J. McGee do not have "licenses to practice law," as required by statute to hold and conduct the public offices which each officer has assumed. This fact is further evidenced in Exhibit B, a true and correct copy of a letter from Annette Strauser, Membership Administrator for the Idaho State Bar, attached hereto.

Idaho Code 31-2601 requires that the Prosecuting Attorney be "... an attorney and counselor at law duly licensed to practice as such in the district courts of this state..."

Idaho Code 1-2206 (2) requires that Attorney Magistrates be "...currently licensed to practice law in the state of Idaho."

As evidenced in the letter from Annette Strauser (Exhibit B), Prosecutor Payne and Magistrate McGee do not have "licenses to practice law." Further in the letter, Ms. Strauser claims that Douglas Paul Payne "is currently licensed to practice law in Idaho."

To follow up this letter and clarify its contradictory statements, which first states that there are no "licenses to practice law" and then states that Douglas Paul Payne "is currently licensed to practice law in Idaho." I called the Idaho Supreme Court and Annette Strauser, on the morning of April 22, 1998.

In my phone call to the Idaho Supreme Court I was informed, by the several clerks that I talked to, that when a new attorney passes the bar exam and is sworn in at the Supreme Court, then the Supreme Court issues a Certificate of Admission.

I then called Annette Strauser to confirm this process and to try get a better explanation as to how an attorney can be "licensed to practice law" when there are no "licenses to practice law." Strauser confirmed that the process described by the Supreme Court clerks to admit a new attorney to the bar was correct.

Strauser further explained that the "license" for an attorney was different than, for example, a hunting or fishing license, which was an actual paper license. Strauser told me to think of an attorney's license "as a state of being."

Strauser also stated that to become a member of the bar and maintain status as a member in good standing, an attorney must pay membership fees, provide information about any trust accounts they may have, and occasionally participate in continuing legal education requirements.

I have also learned from prior phone conversations with the Idaho State Bar, that the bar is a private association, not a governmental entity or office.

From the evidence and information that I have been able to gather thus far, an attorneys' "license to practice law" is not any kind of bona fide "license," but rather a certificate of membership in a private non- governmental association, which makes some attempt at self regulating its members. At best, it may be an "implied license," and best was described by Idaho State Bar Membership Administrator Strauser "as a state of being."

The above mentioned code sections require a prosecutor to be "duly licensed" and attorney magistrates to be "currently licensed to practice law."

Black's Law, Sixth Edition, offers the following relevant definitions of license:

"A permit, granted by an appropriate governmental body, generally for a consideration, to a person, firm, or corporation to pursue some occupation or to carry on some business subject to regulation under the police power."

"Certificate or the document itself which gives permission."

"The permission by competent authority to do an act which, without such permission, would be illegal, a trespass, a tort, or otherwise not allowable."

Implied license: "One which is presumed to have been given from the acts of the party authorized to give it."

Black's Law, Sixth Edition offers the following relevant definitions of Duly:

"In due or proper form or manner; according to legal requirements. Regularly; properly; suitable; upon a proper foundation, as distinguished from mere form; according to law in both form and substance."

Idaho Code 9-101, states that "Courts take judicial notice of...[t]he true signification of all English words and phrases, and of legal expressions."

The ACCUSED contends that as offices of public trust, the Prosecutor which must be "duly licensed" and the attorney magistrate who is to be "currently licensed" as required in the Idaho Code sections, must have a bona fide license, not an "implied license" which, as has been shown herein, is nothing more than a certificate of membership in a private association, which the Membership Administrator of said association has told me to think of an Attorney's license "as a state of being."

Such metaphysical "licenses" or memberships certainly do not conform with "the true signification of the English word" "license," are not "according to law in both form and substance"; "in due or proper form or manner"; and are not "A permit, granted by an appropriate governmental body."

Further, most "licenses" are issued by an executive office of government, such as a sheriff's office, or an administrative agency, such as the Department of Fish and Game. The Idaho State Bar is a private, non- governmental association, which deems its memberships to be licenses, and through this metaphysical construction has created a monopolistic control over the judicial branch of public government.

If such a membership in an association is sufficient "license" to hold an office of public trust, then similar memberships should suffice for other areas of "licensed" activity.

Is a membership in the American Automobile Association a valid license to drive?

Would membership in the National Rifle Association permit one to carry a concealed weapon?

By joining the North American Hunting Club would a person be licensed to hunt in North America?

If a group of individuals wished permission to do "an act which, without such permission, would be illegal, a trespass, a tort, or otherwise not allowable," could they then form an association, issue memberships, deem themselves "licensed," and grant permission to the associations members to do an act which was otherwise not allowable?

The charges in the instant case against the ACCUSED should be dismissed because the prosecutor is not "duly licensed" to practice law, and the magistrate is not "currently licensed to practice law," therefore both are not in compliance with the statutory requirements of their respective offices.

Final outcome

And what result can one expect when one presents a Motion to Dismiss like this one to the local magistrate court? Magistrate McGee refused at two different hearings to allow this motion to be argued. At the first hearing, while not allowing me to make any argument on the motion, Magistrate McGee made a prosecutorial argument from the bench against the merits of the motion.     

And what argument could he have made against this motion, you might ask? The kind that has been all too common in the continuing saga of my right to travel case: Sheer avoidance of the facts and the law.