Citizen's Response to the ABA Statement

Dear Mr. Grey:

In Response to: "Judges Deserve Our Respect, Not Our Scorn"  ©2005

        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.

Sincerely,

Charles E. Lincoln

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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."

Additional Response to the ABA Statement

with references to Mr. Zerman's Response  ©2005

Mr. Grey:

The Schiavo case was a sad one, and a despicable display of the criminal use of guardianship power ‑ not just the right to live or die, but Schiavo's use of Terri's damage award, while depriving her of rehabilitation over the years, and Greer's interest in protecting the guardian instead of the ward, with all the appellate judges protecting each other, in turn.

On the other hand, it taught Americans that they MUST arrange for their advance directives, and finally, and most importantly:  IT OPENED THE DOOR TO A LONG OVERDUE DIALOGUE ABOUT THE JUSTICE SYSTEM ‑ including unethical lawyers ‑ thanks to you, sir.

Having read Atty. Gary Zerman's reply to your 3/25/05 "These judges deserve your respect, not your scorn," I must applaud his efforts in demonstrating why absolute judicial immunity is wrong I'd also like to add the following:

Omitted from his reply ‑ and from the references he cited, is the following:

  U.S. Constitution, Art. III, Sec. 1, states, in part: "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior..."

 Therefore, while there is no authority for absolute immunity, there most certainly is a prohibition against it. I haven't checked the annotated cases (which I have long ago begun reading with a deep distrust of the judiciary), but since you feel the need to defend the judiciary generally, please answer these questions:

1. Is knowingly acting without jurisdiction "good" behavior?

2. Is knowingly violating an individual's constitutional protections "good" behavior?

3. Is granting blanket immunity to judges sued in their individual capacities "good" behavior?

4. Is showing favoritism to one side over another "good" behavior?

5. Is a failure to even read pro‑se papers "good" behavior?

6. When judges prohibit pro‑se litigants from filing papers, preventing them from making a complete record for appeal, is that "good" behavior?

7. Is depriving a pro‑se litigant of appellate review by a three‑judge panel and ignoring appellate issues raised by such litigant "good" behavior?

8. Is failure of any judge to obey controlling authority "good" behavior?

These are just some samples of the usual bag of dirty tricks, but well documented

SO MUCH FOR THE MYTH OF JUDICIAL IMMUNITY!

 As an example, consider these specific questions which I presented to the U.S. Supreme Court last year on behalf of all pro-se litigants:

"CONSTITUTIONAL:

“(Inherent Authority)
Whether the use of "inherent authority" or "power" of a district court judge to sua-sponte dismiss an unrepresented Sec. 1983 claimant's action at the pleading stage, thus preventing and avoiding an adversarial proceeding with pretrial proceedings available to other litigants, is constitutionally repugnant and a violation of 1st (access), 5th (due process/equal rights), 7th (jury trial) Amendment guarantees, as encompassed in the 14th Amendment?

"(Disparate Treatment):
Whether clearly disparate treatment of lawyered and nonlawyered cases by a Circuit court or judge, such as failure to apply Supreme Court and Circuit precedent uniformly, e.g., de novo and abuse-of-discretion reviews applied in lawyered cases but not in nonlawyered cases, is a deprivation of the constitutional guarantee of due process of law and equal protection of the laws?

"SUPERVISORY ENFORCEMENT:
  Whether this Court, in its supervisory capacity, will enforce its own orders on certiorari to a Circuit which fails to obey its clarification of Federal Rules of Civil Procedure and requirement for an adversarial disposition of an action on the merits, as opposed to dismissal at the pleading stage?"

These issues are of national importance, affecting the rights of all pro-se litigants, based on an unlawful precedent set in my case. Does refusing to hear the petition constitute "good" behavior? And doesn't that give judges incentive for corruption?

Justice O'Connor, in an overseas speech last year, said "...judges have to give reasons.". But supreme court denials of most petitions for certiorari don't give any reasons whatever! Many federal judges use one-word responses to motions: "Denied." Other judges fail to support their decisions with supporting authority, or to state what papers they read, in addition to all the legal aberrations they indulge in, with impunity, to date.

We are aware that since Pulliam v. Allen (1984), state judges were lobbying their federal brethren for immunity. It took 12 years to finally accomplish some form of liability protection from Sec. 1983 suits, in a downright SNEAKY amendment to the Civil Rights Act. In 1992 law reformers stopped such an amendment from even going to committee, but in 1996 they were otherwise engaged. That amendment must be revisited, as repugnant to the Constitution..

THE COURTS ARE IN CHAOS AND RUNNING AMOK!

"It is a Maxim among these Lawyers, that whatever hath been done before, may legally be done again: And therefore they take special Care to record all the Decisions formerly made against common Justice and the general Reason of Mankind. These, under the Name of Precedents, they produce as Authorities to justify the most iniquitous Opinions; and the Judges never fail of decreeing accordingly." --  Jonathan Swift:  Gulliver's Travels,  Part IV; Chapter V; 1735

ABSOLUTE JUDICIAL IMMUNITY BY JUDICIAL FIAT,
AND THE ALMOST ABSOLUTE CORRUPTION WE HAVE EXPERIENCED SINCE,
WILL BE THE DOWNFALL OF THE JUDICIAL SYSTEM!

As Mr. Zerman said, respect is earned. It can't be enforced through judicial tyranny. And as far as lawyers are concerned, their image is at the lowest ebb, ever! No amount of public relations will help, as long as judges carry bar cards.

The cause of all of this is that all three branches of government are run by lawyers, working together for their common good, instead of for the general welfare.  (Preamble to the U.S. Constitution.)

  Lori Duboys -- http://www.victimsofguardians.net/

Also See Lori's Original Response: Strictly on the Law: "Judges Deserve our Respect"?

Charles E. Lincoln's Additional Response to Mr. Grey

Dear Mr. Grey:

        I have served as a law clerk 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 decision making 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.

        I do not believe that the judicial ideals I learned working for these men, the judges whom I served, or at law school, are reflected or embodied in the larger body of current American (state or federal) judiciaries AT ALL. Judges have learned to use their power in manners which I can only describe as consistently oppressive, arbitrary, capricious, and violative of the Constitution. 

        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.

Other Citizens' Responses -- page 1

“Shocking Our Consciences” -- By: Dorothy Mataras

JUDICIAL RESPECT -- By: Mary Connors

Strictly on the Law: "Judges Deserve our Respect"? -- By: Lori Duboys

"They are simply dedicated public servants" -- By: Ed Heimlich

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Click below link for Gary Zerman's Response -- on Page 2

Reply to ABA President-Mr. Robert J.Grey, Jr.’s Statement
Re Attacks on the Judiciary. By: Gary Zerman