2005 NEWS & COMMENTARIES

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December 2005

MERRY CONSPIRACY?

“And judges? That system’s corruption goes so deep that that’s another encyclopedia unto itself.”

Nancy Levant, NewsWithViews.com

I’ve been thinking about the term “conspiracy theory.” It carries negative connotations. So I thought I’d talk about conspiracy theories, their theorists, and why we are inundated with them this holiday season. . . . We know that our government is not our government anymore. We know that our Constitution is nothing more than paper, and we know that American history is bad for children. Why do we know this? Because our government is not a government, but is, in fact, a conspiracy. For instance, we thought, as per our Constitution, that we had built in checks and balances to trap governmental corruption – checks and balances like the House, Senate, and judges. We were wrong, because the House and Senate voted for so many Constitution- dicing acts that the Constitution, as it stands today, is practically an illegal document. And judges? That system’s corruption goes so deep that that’s another encyclopedia unto itself.

Inside the First Amendment
Too Much Secrecy Is A Challenge To Justice
By Paul K. McMasters, First Amendment Center

Because nearly every matter of consequence and controversy in our society eventually winds up in court, Americans have a vital interest in staying informed about how well justice is delivered. . . . Unfortunately, the judicial system is as susceptible as the other branches of government to reflexive secrecy. The courts are under enormous pressure to keep a vast array of information out of the sight -- and thus away from oversight -- of ordinary citizens. . . . In the course of trying criminals and refereeing disputes between private parties, judges at the local, state and federal levels constantly are called on to protect personal safety and privacy. In addition, they worry about revealing national security information, disrupting ongoing law enforcement investigations or exposing corporate secrets. So they shut the public out in many important ways. . . . Judges regularly seal confidential information about defendants, plaintiffs, informants, witnesses and jurors. They issue orders muzzling the parties to legal action, they keep information off the public docket and they deny access to discovery material and settlements. They close courtrooms. It would be reassuring if each decision to hide information were rendered only after due consideration of the citizens' right of access to information about the government institutions that influence every aspect of their lives. That is not always the case, however, given the pressure on judges to clear dockets and to be responsive to the wishes of the contending parties.

OREGON

This Land Is Not Your Land
Judges go wild.
By Kimberley A. Strassel
12-15-05 -- Reformers, take note. There's a big lesson to be learned from this state's ongoing, bare-knuckle fight over property rights. Ballot initiatives are all well and good, but they are only half the equation. First, voters must boot judges who legislate from the bench. . . . Oregonians, like many others, have been fighting to force their state government to honor property rights. Like reformers in other states, residents here had seized upon the one tool more powerful than entrenched state politicians: the ballot initiative. In 2000 and again in 2004, voters passed measures to protect landowners from state regulations that reduced their property value. . . . Yet nothing has changed. This is because initiatives are only as powerful as the court system lets them be. Two separate judges struck down the property measures on embarrassing legal grounds. And voters can't count on a state Supreme Court that revels in meritless decisions to right things on appeal.

Judge's Ghost-Written Opinion Reversed

New York Lawyer, By Justin Scheck, The Recorder

5-12-05 -- The Ninth Circuit's latest removal of notoriously truculent Los Angeles federal Judge Manuel Real could mean a big-money trial for San Francisco plaintiff lawyer Stephen Cox, a name partner at Cox & Moyer. . . . In criticizing Real last week for issuing an opinion basically written by defendant E.I. DuPont de Nemours, a three-judge Ninth Circuit panel ordered the case be assigned to a new judge. . . . That's a small victory for Cox, who in 1994 discovered that chemical giant DuPont had submitted fraudulent test data in suits brought against it by orchid growers who said the company's popular fungicide Benlate was damaging crops. . . . Cox is now representing a group of growers who settled suits against DuPont in the 1990s before the revelation that DuPont's lawyers had manipulated test results. The growers claim their settlements were undervalued due to DuPont's fraud. . . . The case bounced between a Hawaii district court and the Ninth Circuit for several years before being transferred to Real — an L.A. judge brought to Hawaii to temporarily fill a vacancy.

10TH AMENDMENT

Pusillanimous Senate Protects Rogue Federal Judges

By: Devvy, NewsWithViews.com

"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite." – James Madison, "Federalist No. 45," Jan. 26, 1788

On Dec. 2, 2005, U.S. District Court Judge Matthew Kennelly ruled that Illinois restrictions on the sale of sexually explicit, violent video games to minors is unconstitutional and barred the state from enforcing a law passed by their Legislature. Opponents of this law, which would have gone into effect Jan. 1, 2006, declared it a restriction on free speech. . . . Judge Kennelly agreed by ruling "the law would interfere with the First Amendment and there wasn't a compelling enough reason, such as preventing imminent violence, to allow that." Kennelly further went on to say, "In this country, the state lacks the authority to ban protected speech on the ground that it affects the listener's or observer's thoughts and attitudes." . . . These retailers who complained so loudly about this law have not had their free-speech rights abridged. They can still sell to anyone over the age of 18. The 50 state legislatures in this republic are part of a union, but they are also separate, sovereign republics unto themselves. State legislatures routinely pass legislation that restricts the sale or consumption of certain products by minors. For example, states pass legislation that prohibits minors from purchasing and consuming alcohol and tobacco. The key word here is minors. . . . The retailers of these videos displaying violence and sexually explicit material operate within the states of the Union and are therefore under the control of the state just like any other retail enterprise. The Illinois State Legislature passed this law, not to violate the free speech of retailers who sell this garbage, but to restrict sales to minors. This is their right under the 10th Amendment.

VERMONT

ABOVE THE LAW

The Buck Stops Where?

-- Scott Huminski

In 1999 I parked my van outside of a state courthouse presided over by Judge Nancy Corsones.  On my van were placards describing Judge Corsones’ rulings concluding, “Judge Corsones: Butcher of the Constitution”.

Infuriated,  Judge Corsones gathered her troops; court clerks, sheriff department staff and engineered a plan to ban me from state courthouses for life.

I brought suit in federal court and the U.S. Second Circuit Court of Appeals in Manhattan declared that the conduct banishing me from state courthouses for life violated the first amendment right to expression and to observe and attend court proceedings.

I received federal judgments against the lowly sheriff’s department personnel, court clerks and it seems everyone except Judge Nancy Corsones.

The courts found that everybody except the mastermind of the illegal behavior could be held responsible.--Why? Judicial immunity anoints the privileged class, judges, and holds them to a standard of behavior lower than the street cop, court clerk, court maintenance personnel or the average citizen.

One wonders what logic punishes the average citizen, but lets the privileged class get away with the same conduct. Under this logic we apply now in the United States, Hitler would have been found to have had executive privilege at the Nuremburg trials and, had he been alive, he would have escaped punishment.

Judge Corsones continues to butcher the constitution and destroy human lives with unaccountable zeal, after all, she is above the law. This is the result of judicial immunity; everybody gets punished and held accountable except those who supposedly possess the most knowledge and responsibility to uphold the law.

Click to Read the Scott Huminski story

JUDGES ON TRIAL

Midwest Today

You hear a lot about “activist judges” these days, as members of the judiciary are coming under increasing attack from all sides. Conservatives denounce them for supposedly making liberal decisions that run contrary to widely accepted concepts of morality, while liberals, on the other hand, decry decisions from the courts that erode personal freedoms. Regardless of your political perspective, there’s no denying that during the last 50 years, the U.S. judiciary has been moving inexorably toward supremacy over the other two branches of government.

Without any Constitutional mandate, judges have asserted broad influence over political, social, and economic policy. They have banned the public recognition of God, redefined marriage, undermined national sovereignty, released a flood of pornography, interfered in elections, turned violent criminals loose and undermined property rights.

Despite the outward appearance of deliberation, what we witness now as an ongoing feature of the conduct of the judiciary at every level amounts to a judicial riot, in which judges and justices take it upon themselves to disregard the prerogatives of the other branches of government in order to assert an exclusive and some say tyrannical control of public standards and conduct.

They have done all this while insulating themselves from accountability, under the guise of protecting judicial “independence,” even when they commit acts while on the bench which are improper or illegal.

Clearly, that is not what the Founding Fathers intended. The Constitution and the important Federalist Papers show that the legislative branch — elected by the people — was to be the strongest and the judiciary to be the weakest “department of power.” But it hasn’t turned out that way. <MORE>

Another federal judge twists 1st Amendment
By Devvy Kidd, © 2005 WorldNetDaily.com

"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite."

– James Madison, "Federalist No. 45," Jan. 26, 1788

On Dec. 2, 2005, U.S. District Court Judge Matthew Kennelly ruled that Illinois restrictions on the sale of sexually explicit, violent video games to minors is unconstitutional and barred the state from enforcing a law passed by their Legislature. Opponents of this law, which would have gone into effect Jan. 1, 2006, declared it a restriction on free speech. . . . Judge Kennelly agreed by ruling "the law would interfere with the First Amendment and there wasn't a compelling enough reason, such as preventing imminent violence, to allow that." Kennelly further went on to say, "In this country, the state lacks the authority to ban protected speech on the ground that it affects the listener's or observer's thoughts and attitudes."

SEPTEMBER 2005

Utterly outrageous decision . . . read it and weep!

Full Dismissal Order with Dissents in Adobe Format

9th Circuit's Kozinski Blasts L.A. Judge, Majority in Discipline Case
Justin Scheck, The Recorder
Can federal judges be trusted to police themselves? Alex Kozinski isn't so sure. . . . In a withering 39-page dissent, the 9th U.S. Circuit Court of Appeals judge ripped into his colleagues for going soft on a Los Angeles federal judge accused of misconduct. . . . Kozinski said U.S. District Judge Manuel Real abused his judicial office by entering orders so a female defendant -- whose probation he was supervising -- wouldn't be evicted and could remain in a house rent-free. . . . "Congress has surely not made us the most powerful judges in the world so we can bestow thousands of dollars of bounties on our personal favorites whenever we feel like it," Kozinski wrote. He said the 10-member Judicial Council of the 9th Circuit should have imposed a public reprimand and ordered Real to repay the owner of the home.

Ninth Circuit Panel Tosses Misconduct Case Against Manuel Real

Council Accepts Jurist’s Statement of Regret for ‘Misunderstandings,’ Dissenting Kozinski Says Judge Abused Power

By Kenneth Ofgang, Staff Writer

The Ninth Circuit Judicial Council has ended misconduct proceedings against U.S. District Judge Manuel Real of the Central District of California, saying the judge’s expression of regret for “misunderstandings” concerning his actions in a bankruptcy case constituted “adequate corrective action” under the judicial discipline statute. . . . The decision, released late Thursday, drew a sharp dissent from Judge Alex Kozinski, who said Real had “committed serious misconduct by abusing his judicial power.” . . . The council’s action, taken by a vote of 7-3, puts to an end the largely secret process put into motion after attorney Stephen Yagman filed a complaint against the 80-year-old jurist in February 2003. . . . Yagman was not, and did not represent, a party to the bankruptcy case. The statute, however, allows anyone who believes a judge has acted unethically to file a complaint. . . . Real did not return a MetNews phone call seeking comment Friday. . . . The case arose from the bankruptcy of Deborah M. Canter, the estranged wife of an owner of Canter’s Deli. Deborah Canter pled guilty in 1999 to loan fraud and making false statements under oath, and was placed on probation by Real.

Full Dismissal Order with Dissents in Adobe Acrobat Format

Judicial Activism: Part VI

by Thomas E. Brewton

8-24-05 -- Marbury v. Madison, decided in 1803, established the precedent that the Supreme Court has the power to declare Presidential and Congressional actions unconstitutional.  It was the start of judicial activism. . . . Judicial activism can be arbitrarily divided into three broad periods.  . . . The first of these was the assertion in 1803 by the Supreme Court of the power to declare acts of Congress or of the President unconstitutional. . . . The second period followed the end of the Civil War in 1865 and the ratification of the 13th Amendment (1865), 14th Amendment (1868), and the 15th Amendment (1870).  Between 1865 and 1901, huge interstate corporations came into existence, the nation expanded rapidly westward, and finance capitalism made Wall Street bankers major influences in economic decisions affecting every part of the nation.  The Federal government began to regulate interstate businesses and undertook many functions that earlier generations would have thought outside the scope of powers delegated by the Constitution to Congress or to the President.

Judicial Activism: Part VII

by Thomas E. Brewton

8-28-05 -- The second broadly defined period of judicial activism started in the years leading up to the Civil War, when the Supreme Court wrestled with Federal-state conflicts produced by the growth in commerce among the states and the changing nature of corporations and property rights. . . . The second, or middle, period of judicial activism was, on balance, a conservative one.  The Supreme Court more often than not restrained states and the Federal government when they sought to regulate corporations and to expand the scope of government activities. . . . This stands in stark contrast to the Supreme Court of the 20th century, when the educated public began looking upon socialism as the way of the future, and Justices responded, first with greater leniency toward government regulation, then, after 1937, with an aggressive thrust to push government toward welfare-state social justice. 

Judicial Activism: Part VIII

The Birth of an Issue

by Thomas E. Brewton

Judicial activism since the 1950s has been driven by liberalism's presumption that the mind of man controls everything, therefore any perceived imperfection in social conditions must, and can, be righted.  Katrina's destruction offers us a glimpse of a liberal social-justice issue aborning. . . . Close upon the heels of Hurricane Katrina, we can see a devastating legal storm gathering to exploit the free-for-all created by judicial activism under liberal-socialism's absence of moral and legal standards. . . . In a September 24, 2005, opinion article in the Wall Street Journal, Walter Olson writes about the process of creating an issue for judicial activism:

"Sometimes it takes a good lawyer to get an insurance company to pay up on the promises it made. But if you want insurers to pay billions on promises they never made -- risks they were at pains to avoid underwriting, never collected premiums for, and never set aside reserves against -- then a pair of very special lawyers, Jim Hood and Dickie Scruggs, are at your service.