|Subject: * * * A Former Lawclerk Who No Longer Trusts Judges * * *|
|Date: Mon, 11 Apr 2005 18:25:44 -0700|
Los Angeles, California April 11, 2005
President of the American Bar Association
Dear Mr. Grey:
I have served as a lawclerk for two of the finest District and Circuit judges, both liberal and conservative, in the entire Federal Judiciary. I studied law under half a dozen other current federal judges at the University of Chicago Law School, where I received my J.D. in 1992.
A balanced and even-handed appreciation, acquired only after hours if not days of hard work and exhaustive consideration, of the legal and factual issues in every case was always the cornerstone of law and judicial decisionmaking as I learned it, both from great conservatives like Michael W. McConnell and liberals like Diane Wood at Law School, or Stephen Reinhardt and Kenneth L. Ryskamp in whose chambers I worked on the opposite ends of both the political spectrum and the geographic boundaries of this country.
Civil rights actions, and every other procedure by which the people might challenge their government or the wealthy, have been struck down and redefined and limited almost out of existence. Rather than using the Courts to protect the poor, Judges maximize the advantage of the rich, strike down the rights of the pro se or indigent parties. The quality of mercy is most definitely strained in this country, and everyone knows it.
It can be said that few if any “modern” judges keep the balance nice and even. That is my experience, the experience of those around me, and in fact I know of only a few widely scattered exceptions all of whom I can count with one hand. The most common characterization of judges behind their backs, even among seasoned lawyers, is not as scholars or workaholics but as “eight hundred pound gorillas.” The judges with whom I studied and worked were only scholars and workaholics, but the simians have come to the bench in greatest numbers and at all levels.
And for this reason, the even well-balanced scales, that ancient ideal and symbol of the judiciary seems to be everywhere dead.
I am sending you two recent essays I have “published” on-line, but I would like to add that, based on my experience, I have devoted my entire strength, my entire educational background, and what remains of my own judge-shattered career to fighting judicial immunity, restricting judicial discretion to that which the law allows, and in general to reimpose the lofty rights enshrined in the Constitution of the United States on a judiciary which seems to have all but forgotten that all men are created equal.
In short, I think you are wrong—the American judiciary as a whole has not earned our respect. There is a certain parallel—albeit not exact—between what I have written below and what Texas’ Junior Senator said on the Senate Floor the other day—the American judicial system has degenerated to the point that no one can trust it, and it must be reformed—or else the constitution itself will crumble and dissolve in a cesspool of the people’s disappointed tears and bloodied lives.
The judiciary and its judges are the least visible and most poorly understood branch and actors of the government, but it can no longer be said that they have just powers derived from the consent of the governed.
Charles E. Lincoln, Lago Vista, Texas.
Response to “Judges Deserve Our Respect, Not Our Scorn”
— By: Charles E. Lincoln
Citizen’s Response to the ABA Statement
Dear Mr. Grey:
I have written elsewhere on this website (A Comparison of “An Act for the Relief of the Parents of Theresa Marie Schiavo”with existing law under 28 U.S.C. §1343 and 42 U.S.C. §1983), that from at least one perspective it is Congress who cast the ultimate vote of no confidence in the judiciary when it re-enacted pre-existing laws to guarantee that Terri Schiavo’s case could be reviewed in the Federal Courts. If Congress had believed that the U.S. Courts were consistently (or even “ever, recently”) willing to follow and apply the laws already enacted by Congress and entered on the books, such as 42 U.S.C. Section 1983, it is hard to understand why Congress would have needed or bothered to enact a special bill for Terry Schiavo that did not expand on the rights already conferred by that statute.
It was once my privilege to work for a man whom I consider to be one of the finest U.S. District Judges in the state of Florida, actually in all the United States, the Honorable Kenneth L. Ryskamp of Palm Beach, a man of utterly unimpeachable integrity, intelligence, and honor. One of Judge Ryskamp’s mottos was “if judges don’t follow the law, then who will?”
Now, however, it seems that one can rely on both State and Federal Judges for little else other than their complete willingness to disregard the law, to twist it to purposes inverse from original framer’s or legislative intent (if the law involved is constitutional or statutory) or unrecognizably out of the original context and factual framework (if the law involved is based on judicial precedent).
I have recently worked very hard to clarify and limit the proper understandings of two doctrines, Rooker-Feldman and Younger v. Harris which support or even advocate a national judicial policy of “jurisdictional helplessness” which has been used to defeat federal civil rights litigation. Cf., Susan Bandes, “Evaluating Rooker-Feldman’s Jurisdictional Status, 74 Notre Dame Law Review, 1186 n. 58 (1998-1999)(Symposium: Rooker-Feldman Doctrine: worth only the powder to blow it up?).
The simple but unspoken truth is that the judicial over-extension and over-application of both Rooker-Feldman and Younger v. Harris, far beyond what those extremely sound precedents originally stood for in the context of the facts and circumstances of the cases they decided, are part and parcel of a nationwide movement over the past two decades to cut-back on the civil rights progress which the Courts had made against arbitrarily and capriciously oppressive, discriminatory, and biased local customs, policies, and practices during the 1950s-1970s.
It is politically impossible for the anti-civil rights crowd to repeal such monumental pieces of civil rights legislation as 42 U.S.C. Section 1983, but it has so far not been at all politically impossible to whittle away civil rights piece-by-piece judicial rewriting of these laws to the point where they no longer effectively enforce or preclude ANYTHING.
So, when the terribly sympathetic case of Terri Schiavo made it to the top of the news, Congress had no choice but to recognize the reality that activist anti-civil rights judges, many in the name of “opposing judicial activism”, had so curtailed the civil rights laws of these United States, so obliterated the enforcement of the law as an expression of the “consent of the governed”—acting through their democratically elected representatives in Congress, that Terri Schiavo’s ONLY access to the Federal Courts to clarify the extent of her SUBSTANTIVE due process rights was for Congress to RE-ENACT the Ku Klux Klan Act of 1871 (now 42 U.S.C. Section 1983) specifically in her name and for her benefit only.
It is patently obvious (as I described in my article) that Congress specifically intended to eliminate the barriers set up by both the judge-made Rooker-Feldman and Younger v. Harris jurisdictional and “abstention” doctrines, in enacting the Schiavo bill—-while Congress shied away from expanding Terri’s (or anyone else’s) substantive due process rights to life, liberty, or property.
Thus, Congress showed, for all the world to see, that Congress knows what the U.S. Courts have done to the U.S. Civil Rights law, and Congress, albeit to no result or end, wanted to give Terri Schiavo, or her parents, a one-time access to the U.S. Judiciary, acknowledging thereby what everyone knows: namely that, historically, the US Courts were the “last best hope” for those whose life, liberty, and property was threatened or endangered.
Charles E. Lincoln
Charles E. Lincoln lives in Lago Vista, Texas. After his B.A. at Tulane in New Orleans (1980), he received a Ph.D. from Harvard University in 1990 and a J.D. from the University of Chicago in 1992. He clerked for U.S. District Court Kenneth L. Ryskamp in Palm Beach, Florida, in 1992-1993 and before that was a judicial extern for U.S. Circuit Judge Stephen Reinhardt, 9th Circuit Court of Appeals, Los Angeles, in 1988-9
Theresa Marie Schiavo”with existing law under
28 U.S.C. §1343 and 42 U.S.C. §1983
— By: Charles E. Lincoln — 4/5/05
Substantive And Procedural Due Process:
A Comparison of
“An Act for the Relief of the Parents of Theresa Marie Schiavo”
with existing law under 28 U.S.C. §1343 and 42 U.S.C. §1983 ©2005
By: Charles E. Lincoln
Much of the discussion in the media over the past week concerns the impact of Congress’ private bill regarding Terri Schiavo on Federal-State relations. Congress had a choice between granting Terri special procedural due process rights (which is what they did) and granting her substantive due process rights (which they expressly chose NOT to do—it says so in the statute). See Terri Schiavo bill.
Procedural due process (federal review of state cases) is what the Federal Courts (without express Supreme Court sanction or approval) have been curtailing through my favorite paired boogeymen “Rooker-Feldman” jurisdiction (Rooker v. Fidelity Trust) and “Younger v. Harris“ abstention—against people with causes like Charlie’s which do raise well-established substantive rights (e.g. Freedom of Speech, the right to the care and education of one’s own children).
The whole problem with Schiavo is that there ARE no well-defined substantive due process rights that apply to an unconscious person’s right to live (or be kept alive) anywhere in the bill of rights, the Fourteenth Amendment, or any of the Supreme Court’s cases. It’s a recent problem of technological origin and the courts haven’t caught up.
Both the Florida and 11th Circuit courts agreed only that there is no precedent in John Ashcroft’s (now very old) “Cruzan” or any of the relevant cases that establish or identify any affirmative rights which have been violated in Terri’s case.
Meanwhile, Congress wanted to give the impression of doing something while in fact doing nothing, so Congress granted Schiavo’s parents an extra procedural “bite at the apple”—by re-enacting statutes that already existed but which the Courts have essentially defined out of existence.
So the next question is: What does it mean that Congress knows that the existing Civil Rights statutes enacted by Congress are not being implemented or enforced by the Courts, and that it takes a special bill to get full, already statutorily authorized review of even a high profile case where no known substantive rights can be identified? Does it mean that Congress tacitly approves the lower Court treatment of Civil Rights’ statutes? Or does it mean that Congress was disturbed by the notion that the Courts are not even giving procedural due process a chance, and that Congressional displeasure with the status quo of civil rights jurisprudence is reflected in the enactment of the special bill in the Schiavo case?
If the latter is true, how can litigants use the case to support a roll-back in the draconian anti-civil rights “shotgun blast” mis-application of “Rooker-Feldman” and “Younger v. Harris?”
THE STATE OF THE LAW BEFORE THE SCHIAVO BILL
Either Congress has completely forgotten the civil rights laws already on the books (and chose to re-enact statutes with uncanny similarities to those already in existence), or else Congress recognizes that the Federal Courts have all but stopped enforcing the civil rights laws as a matter of “anti-civil rights judicial activism” under the rubrics of Rooker-Feldman or Younger v. Harris and accordingly enacted a “one time private exemption” to provide another procedural “bite at the apple” for a politically popular cause.
There is simply no getting around the fact that the Schiavo bill merely restates the basic enabling acts for civil rights litigation under the Constitution, and adds nothing to those laws. Too many people are blaming the state and federal court judges for doing nothing. But the truth is that Terri Schiavo and her parents have spent more time in and received more judicial attention from both state and federal courts than 99.99% of all death row inmates. If there had been, as so many supporters of Terri Schiavo and her parents maintain, any misconduct or conduct in excess of or in variance from the Florida or Federal Constitutions on the part of Florida Circuit Judge Greer, 42 U.S.C. §1983 as amended in 1996 already provided both a federal forum an express remedy IDENTICAL if not stronger than the Schiavo “private bill.”
There has been no denial of PROCEDURAL DUE PROCESS in the Schiavo case—as Judge Frank Easterbrook of the 7th Circuit would undoubtedly say, “Terri Schiavo and her parents have received ‘oodles of process’” (cf. Szabo v. Digby, 1987). The problem for Terri and her parents is a massive default of either judicially or congressionally determined SUBSTANTIVE DUE PROCESS rights on the side of keeping Terri Schiavo alive—and on this point both the Federal and State Courts have quite simply concurred from the Middle District of Florida in Tampa through the 11th Circuit en banc.
One way to think of this is that the generally anti-Plaintiff, anti-civil litigation Republican Congress granted a one-time exemption to Terri Schiavo’s parents to file a frivolous lawsuit (lacking in any possible allegation of violation of any express substantively guaranteed rights) without granting to either Terri or her parents one single substantive right which would make that lawsuit less frivolous. In short, Congress’ posturing was nothing but a cruel and meaningless hoax.
Section 1 of the Schiavo bill (signed into law on March 21, 2005) invested the U.S. District Court for the Middle District of Florida with
“jurisdiction to hear, determine, and render judgment on a suit or claim by or on behalf of Theresa Marie Shiavo for the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States…..”.
Title 28 U.S.C. §1343(a)(3)-(4) already provided that:
“The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person: to redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege, or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States; to recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote.”
Except and unless Congress forgot about the existence of 28 U.S.C. §1343(a)(3)-(4), what did Congress add by enacting Section 1 of the Schiavo bill? Could it be that Congress knew that the courts were systematically refusing to exercise its pre-existing jurisdiction to hear civil rights cases authorized by 28 U.S.C. §1343(a)? So, was Congress making a one-time exception to Rooker-Feldman and Younger v. Harris abstention doctrines, or has the judicial refusal to enforce the civil rights laws simply become so ingrained and routine that Congress completely forgot about the express language of pre-existing statutes?
Section 2 of the Schiavo bill makes it clear that only the parents of Terri Schiavo have standing under this bill and specifically authorizes suit against “identical parties” to the state court litigation, which normally would present a problem under Rooker-Feldman (if the state court cases were final), and Section 2 also specifically exempts Schiavo litigants from any requirement of exhaustion of state court remedies and liberates the federal court from any requirement to give res judicata or any other issue preclusive effect to any previous state court decisions and specifically provides that “The District Court shall entertain and determine the suit without any delay or abstention in favor of State Court proceedings….”
Obviously, Congress was aware of both judge-made Younger v. Harris and Rooker-Feldman constraints on civil rights litigation in enacting the Schiavo bill, but was unaware of Zinermon v. Burch, 494 U.S. 108, 124-5, 110 S.Ct. 975, 982-3, 108 L.Ed.2d 100 (1990) and the courts’ statements in the Zinermon opinion that exhaustion of state court remedies is not required to institute suit under 42 U.S.C. §1983, (it should be noted, however that, the ACLU cited Zinermon on the definition of due process in its amicus brief in Schiavo to the U.S. Supreme Court).
Section 3 of the Schiavo bill provides that:
“After a determination on the merits of a suit brought under this Act, the District Court shall issue such declaratory and injunctive relief as may be necessary to protect the rights of Theresa Marie Schiavo under the Constitution and laws of the United States…..”
Again, one must wonder how this differs from the pre-existing language of 42 U.S.C. §1983, “Civil Action for Deprivation of rights” and whether Congress has forgotten the status of existing US law:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable….
As always, 42 U.S.C. §1983 must be read together with its companion “Proceedings in vindication of civil rights” 42 U.S.C. §1988(b):
In any action or proceeding to enforce a provision….of this title…..the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, such officer shall not be held liable for any costs, including attorney’s fees, unless such action was clearly in excess of such officer’s jurisdiction.
It is reasonable to infer that in enacting the Schiavo bill, Congress may have intended an act of meaningless legal, purely symbolic, import. It is equally plausible that Congress completely understood that the substantive due process question of whether Terri Schiavo had any affirmative right to stay alive against the will of her husband and legal guardian was simply a political potato “much too hot to handle” but that the buck could be passed to the Courts by re-authorizing “procedural due process” by giving another “notice opportunity” for Federal review of state court litigation despite the Federal courts recent history of “anti-review” procedural jurisprudence.
If Congress had chosen to reaffirm the civil rights enabling statutes which are “on the books” by making affirmative reference to 28 U.S.C. §1343(a) and 42 U.S.C. §1983, Congress could have reinvigorated civil rights litigation in federal courts against the stain of Rooker-Feldman and Younger v. Harris abstention and refusal jurisprudence. Alternatively, Congress could have taken the more meaningful step (from the standpoint of Terri Schiavo and her parents, anyhow) of enacting an affirmative substantive right to nourishment to persons who are unconscious and have never executed a living will, “DNR”, or “no extreme measures” directive. Congress rejected these latter, “substantive due process” alternatives, however, in sections 5, 6, 7, and 8 of the Schiavo Act.
So the question remains—what does it mean that Congress enacted a “special bill” for Terri Schiavo which gave her parents another “procedural bite at the apple” but no substantive due process rights to life or liberty and expressly did not change the general law regarding substantive rights, assisted suicides, or patient self-determination?
It may mean that Congress was tacitly admitting that the Federal Courts have gone so far in their 1980s-1990s “anti-civil rights activism” of abjuring the originally intended mandate of the civil rights acts under Rooker-Feldman and Younger v. Harris that there is, in effect, no viable outlet under existing law to obtain Federal Courts’ review over state-court actions, except to re-enact the very laws which are already on the books.
Charles E. Lincoln lives in Lago Vista, Texas. After his B.A. at Tulane in New Orleans (1980), he received a Ph.D. from Harvard University in 1990 and a J.D. from the University of Chicago in 1992. He clerked for U.S. District Court Kenneth L. Ryskamp in Palm Beach, Florida, in 1992-1993 and before that was a judicial extern for U.S. Circuit Judge Stephen Reinhardt, 9th Circuit Court of Appeals, Los Angeles, in 1988-9.”
On behalf of National J.A.I.L., we express our deepest gratitude to Charles Lincoln for sending J.A.I.L. a copy of this provocative and meaningful testimony which carries with it the utmost degree of respect and credibility. May this lead to an awakening of the People to end this scourge of judicial corruption, by passing J.A.I.L. throughout this country as soon as possible. This is indeed an Evil that is no longer sufferable. -Barbie
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