Subpart 2.4 - Significance of "The Bar"
A. Refusing to Enter the Bar
There is a general theory among these groups that the term "esquire" following an attorney's name is a "title of nobility," in violation of the United States Constitution. In Article I, Sections 9 and 10, the Constitution states that no title of nobility shall be granted by the United States and, furthermore, that no state shall grant titles of nobility. Because of this, several things occur. First, the states lose legitimacy in the eyes of these groups because they confer licenses upon attorneys — thus magically turning them into "esquires" and illegally granting titles of nobility. Second, and most important for purposes of this text, courts which have a bar - the area in front of the gallery - have a space that is reserved for attorneys only (supposedly). Therefore, the thinking goes, a member of these groups cannot "enter the bar" lest they either become an "esquire" or acknowledge the validity of the "title" - which consequence is more feared is not quite clear.
A second, and related, reason is often used to support the "titles of nobility" theory. In 1810, Congress proposed what would have been the 13th Amendment to the U.S. Constitution. This amendment would have forbade any United States citizen from receiving a title of nobility and from holding public office if he or she did so. The proposed amendment was never ratified by the states, however. Twelve states did accept the proposed amendment - but thirteen of the then seventeen states were required for it to be adopted. The problem that arises is that, apparently, there were communications problems between the state and federal governments in 1810 and, as a result, the text of the "13th Amendment" made an appearance in a particular Virginia law book.[14] Virginia was one of the states that did not accept the proposed amendment. A member of one of these groups made this "discovery" some time ago, and has subsequently argued (and taught to the masses) that this amendment was actually ratified. Because of this, all attorneys are violating the constitution - especially those who hold public office. This is just another way to validate the belief that attorneys — as we know them today - are, as a class, just bad, illegal and corrupt people. The members of these groups want nothing to do with that, and therefore refuse to "enter the bar" and choose not to "take the stand" to testify.
B. Typical Responses to the Bar Argument
1. Acquiescence - the result of this argument is that adherents will refuse to take the stand to testify. How to deal with this is a matter of judicial discretion, the answer to, which is guided by the court's values - i.e., whether the resulting fight is worth accommodating the litigant's demand. It is possible that a court could acquiesce and allow the litigant to be sworn outside of the bar and testify from his or her seat, for example. This is likely a matter of court procedure that can be changed to fit a given circumstance. While acquiescence relieves the initial burden of having to deal with the litigant's outburst, resistance, etc., it does hamper the appearance that the court treats litigants equally and that the court is committed to a consistent process. The authors hesitate to use a "slippery slope" argument, but must point out that, if courts are to begin Mk. accommodating members of these groups in every tedious demand such as this, where does such accommodation stop? Further, what does the court do when members of another group demand the same concession? It is suggested that courts take the ramifications of a decision to accommodate seriously when deliberating over how to approach this problem. Finally, consider the circumstances and the end result of a person's refusal to enter the bar. Where that person is a witness is one thing - and clearly a contemptible offense. Where the person is a party, however, is another. When that person essentially refuses to testify, they are harming their own cause and will likely be seen to have waived any objection.
2. Refuse to Accommodate/Contempt - It is clear that it is within the court's authority to use the contempt power when a litigant refuses to obey the court's lawful command. A few things bear noting, however. First, it is possible that the use of the contempt power against a person who refuses to enter the bar will be construed as a violation of the litigant's First Amendment right against the abridgment of his or her free speech. Though likely a claim without merit,[15] it could give rise to a federal civil rights action against the judge. Such a case is a non-winner, from the plaintiff's point of view, but does result in the successful harassment of the judge and forces the judge and likely the state to defend a lawsuit.
3. Creative Resolution - It appears that the chief concern for members of these groups is something that can often be alleviated through semantics. That is, the problem may not be that they enter the bar, but that they will be thought of as accepting a title of nobility and will be discredited before their peers for acquiescing and lending credence to a system they do not believe in. One way to alleviate this concern might be for the court to question the litigant as to why they do not wish to enter the bar, and then to "agree" to decree that, for the purposes of testifying, the litigant is not accepting a title of nobility. It is, to this author's point of view, a simple way of alleviating much of the problems attendant with dealing with these groups in your courts. It is not unlike being willing to remove the offending flag or otherwise accommodating these folks in an efficient and legally irrelevant way. It goes a long way toward gaining some measure of cooperation.
C. Additional Authority
1. The First Amendment Problem - Trial judges have enormous power to control the conduct of affairs in their courtroom. Any challenge to a judge's use of the contempt power will likely be based upon the premise that a judge's use of that power comes in violation of the First Amendment. Learned commentators suggest that this possible problem be viewed in the following manner: First, if viewed as a restriction or other harm based on the content of the individual's speech, the individual is likely to lose because of the necessity of content-based regulations in the courtroom. Second, the courtroom is considered a "non-forum" in which reasonable regulations designed to "permit the orderly conduct of business of the court are both inevitable and permissible."[16] Justice Stevens alluded to this problem and its solution in his concurrence in Consolidated Edison v. Public Service Commission, 447 U.S. 530, 545 (1980). There, he discussed the Supreme Court rules, which dictate the order in which parties may present their argument. He justified those content-based restrictions on just these grounds - that the court was a non-forum and that only certain types of expression relevant to the conduct of the judicial process are permitted. Inasmuch as a person might argue that their refusal to enter the bar is an expressive act, there is simply no room for that act in the efficient conduct of the judicial process.
2. Titles of Nobility - several courts have passed on the validity of the claim that "esquire" and other terms are titles of nobility:
· Woodson v. Davis, 887 F.2d 1082 (4th Cir. 1989) ("Officer of the Court" is not a title of nobility).
· Hilgeford v. People's Bank, 113 F.R.D. 161 (N.D.Ind. 1986) (being a "lawyer" is not having a title of nobility).
· Frederick v. dark, 587 F.Supp. 789 (W.D.Wis. 1984) (being a "lawyer" is not having a title of nobility).