Category Archives: What is Judicial Reform?

What is an Attorney: Part 5

This continues the series, “What is an Attorney?” (go to that category for prior posts).

“Attorney” means attorney, professional law association, corporation, or partnership, authorized under applicable law to practice law.

(Black’s Law Dictionary, sixth Ed., West Publishing Co., 1990).  This definition begs the question:  what is the applicable law for an “attorney” to be able to practice law?  I’ll follow up on that in a later post, but here are some preliminary comments.

How many Advocates are practicing in Minnesota courts, who have not been admitted to the practice of law?  (See definition of advocate at Part 4 of this series).

“Advocates” are common in domestic-abuse-type courts.  They claim their conversations are privileged (like an attorney-client privilege, I guess), and they argue their client’s cause, even appear in court for them. Has the Office of Lawyers Professional Responsibility ever investigated any of those Advocates?  Me thinks not. Has any of them ever been investigated for practicing law without a license?  Again – don’t think so.

Is a law license even unnecessary?  Or – are the ‘domestic abuse’ advocates treated more favorably because of their viewpoint?

Do we live in a state where practicing law/advocating a client’s cause without a license is the safest way to go – because then the OLPR cannot claim jurisdiction over you?  This is a sad testament to how sick that system has gotten.  And we, the Public, are entitled to reform government.  See Art. I, sec. 1 of the Minnesota Constitution.

OBJECT OF GOVERNMENT. Government is instituted for the security, benefit and protection of the people, in whom all political power is inherent, together with the right to alter, modify or reform government whenever required by the public good.

We are tired of a system that just protects insiders – and those who cow tow to them. The Public does not want to pay for a sick system where insiders stay in power by vilifying attorneys who POINT OUT PROBLEMS IN THE SYSTEM, and targeting them for a take-down.  The Public, quite simply, does not want to pay for that anymore.

Who would want a law license in Minnesota?  After what I have been through – gosh, I wouldn’t recommend it to anyone.  Apparently, it just paints a target on your chest.

Time for change.

White person holding target

May 15, 2013.  No deriviative works are authorized by copyright holder(s).

Full disclosures demanded from Lorie S. Gildea and Staff

This is being re-blogged from Jill Clark Continues.  I also sent an email yesterday to  Rita DeMeueles with the site address: so she would be sure to note the demand for disclosures.


I have spoken with Rita DeMeules, MN Supreme Court Commissioner.  I am aware that she reports directly to Lorie S. Gildea.  I am also aware of documents purporting to be ‘orders’ in In re Clark, that state at the bottom, that Gildea “took no part” in the decision.   How am I to believe that is true?  When the staff report to her?

Full disclosures are demanded, by end of business day Thursday, May 16, 2013, including but not limited to:

1) all involvement of Gildea in In re Clark;

2) a list of all meetings regarding In re Clark that were not held in the courtroom including who was in attendance and what was discussed;

3) a list of all meetings regarding In re Clark that did not involve the full Court and including who was in attendance and what was discussed;

4) why the recusal motion filed by Clark July 2012 was not considered and decided by the full court (from talking to DeMeueles, it sounds like there is some “docket” that motions and other matters must be placed on, and that staff decide what will be placed there, and why – why isn’t the public told that what we file can be sidelined by staff?  And how am I to believe, under those conditions, that staff did not do what Gildea, their supervisor, wanted them to do?)

5) whether the motion to change status of email evidence filed February 2012 was considered and decided by the full Court, and if not – why not.

Look, this is just for starters.  I am going to have MANY MORE questions.

May 14, 2013 (re-blogged May 15, 2013 on jillclarkspeaks).  No derivative works are authorized by copyright holder(s).

What is judicial reform: Equal – Not equal

Liberty Bell with Philadelphia buildings

One of my concerns, over the years, has been the absence of ‘equal protection’ rights for Americans.

I live in Minnesota, and as an attorney I have for a decade represented Minnesotans who have attempted to assert their ‘equal protection’ rights, in both state and federal courts.

Many people do not realize that in addition to the US Constitution, each State has its own Constitution.  The US (federal) Constitution provides the “floor” – the level of individual rights below which the states cannot go.  States can provide more rights to their citizens.  That is, they can interpret their own Constitutions to provide for rights above the “floor” mandated by the federal constitution.

The Bill of Rights (the first 10 amendments to the US Constitution) secures for Americans those individual rights that were presumed before the creation of the nation state of America.  They were, at first, not included in the US Constitution, because they were presumed by the framers to have existed before the constitution was created.

To me, this philosophical foundation is important to understanding our democratic form of government and all of constitutional law.  The basic notion is this:  the public (that is, the citizenry, the private, non-government people) ceded its power to government, so it could to govern them in the collective good.  This transfer of power was not a gift.   This transfer of power was in exchange for the inalienable, individual rights that became enumerated in the Bill of Rights.

You can read my prior posts on this topic, in particular relating to the courts, and my version of judicial reform, by going to the category, “What is Judicial Reform?”

During the national discussion of the proposed constitution, some in the Americas grew doubtful – what if government ‘forgets’ that it promised us (the public) these inalienable, individual rights in exchange for the power?  What if government just starts to do whatever it wants with that power?  To address that concern, the individual rights were codified in the Bill of Rights.

Surely that was enough to protect each individual American, right?

The Bill of Rights supplements the three-branch structure of government found in the main body of the Constitution.  This has been referred to as a system of “self-governance.”  Of course, it is also called our democracy.

It is not a pure democracy (like that in the ancient city of  Athens), because even by the time the US Constitution was created, there were already too many people for each to have his or her own voice in the way the government daily governed.  In America, the founder created a system of representational democracy, meaning that we vote for representatives to carry our voice in the roundtable discussion that is known as the legislative branch.

But like the ancient Greeks, we Americans each retained our power to challenge government.  We are specifically permitted to tell our government that we disapprove of the way it is using the power that we entrusted it with.

Of course, we can also tell government how it can do better in the future.

Those are our rights.  A right is something of substance that we can enforce.  A right is useless (and it is not really a right), if we cannot enforce it.  For example, you don’t really have the right to freely speak, if you have to withstand years of government investigation and prosecution, because you spoke.

If we don’t remember these philosophical roots, in my opinion, we go quickly astray.  The risk is that once government has our power, that it will function by and for government, and ignore the original pact with the public that created its power in the first place.

In the Civil War reconstruction era, the Fourteenth Amendment was passsed by Congress, then adopted by the People.  It overruled the US Supreme Court’s decision in Dred Scott v. Sandford (1857), which had held that Black people could not be ‘citizens’ of the US.

The Fourteenth Amendment also contains what has become known as the “due process clause,” which restricted state and local government deprivations of life, liberty, or property.

The Fourteenth Amendment also contained what is now called the “equal protection clause.”  This phrase promised all Americans equal protection under the law.  It specifically mandated that each state provide equal protection to its citizenry.

This is all found in Section 1 of the Fourteenth Amendment:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.  No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

(Emphasis addded.)  Despite the plain language of the Fourteenth Amendment (a part of our constitution adopted by the People), the case law in the federal courts began to chip away at the right to equal protection.  Around the country, federal courts began to narrow and limit the plain language that promised equal protection for all.

Although a much longer discussion of the analysis federal courts used over the next 35 years to limit the plain language of the equal protection clause is warranted at some point, this post is intended as a summary.

In 1966, at the height of the ‘civil rights era,’ the US Supreme Court decided two cases on the same day:  City of Greenwood v. Peacock, 384 U.S. 808, and Georgia v. Rachel, 384 U.S. 780.  Lower federal courts have interpreted these cases somewhat differently.  See, for example, Perkins v. State of Miss., 445 F.2d 7 (5th Cir. 1972):

This sentence had led many interpreters of Peacock to conclude that the Supreme Court, despite the painstaking elaboration of removal criteria in Rachel, intended to limit the removal remedy exclusively to prosecutions in which the conduct charged as a criminal offense is protected by a Federal equal civil rights law (see discussion of the “scope of conduct” theory, infra).  It plainly did not.

Other lower federal courts cited to Rachel and Peacock to limit the removal of criminal cases by statute (the text of which tracks the Fourteenth Amendment almost exactly), based on the notion that Congress intended to benefit only the newly emancipated race.

This is just one example of how federal courts constrained the plain language of the equal protection clause.  For years, nearly every equal protection action brought under §1983, was dismissed based on the notion that the American seeking equal protection of the laws must first prove he was a member of “the” protected class, former slaves.

Since filing a removal petition of a state criminal case in 2002 (State v. Yeazizw (prosecuted by City of Minneapolis), 02-cv-4134), I have studied these phenomena.  My client base in state criminal cases has been largely African American.  Even if we assume that the intended beneficiary of the Fourteenth Amendment was the newly emancipated race, then how do we explain the record numbers of African Americans sent to prison, in clearly disproportionate numbers?  If that race was the intended beneficiary, then clearly we are viewing a failure.

In the year 2000, the US Supreme Court decided a case that could have set this right.  In City of Willowbrook v. Olech, 528 U.S. 562 (2000), in a PER CURIAM opinion, the High Court held:

The [equal protection] Clause secures every person within a State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by a statute’s express terms or by its improper execution.

528 U.S. 562 (2000), emphasis added, case here.

No longer did Americans need to prove they were former slaves to deserve the equal protection of the laws.  In fact, they no longer had to prove they were part of a protected class, at all.  Olech adopted the First Circuit’s doctrine, that any American can be a “class of one,” and demand equal protection – equal enforcement – of state laws.

This made sense.  Not only did Olech acknowledge the plain language of the Fourteenth Amendment (which we the Public adopted), it acknowledged a fundamental principal of our democracy:  that everyone is equal before the law.

So why hasn’t Olech had impact in the lower courts?  I leave scholars and jurists to ponder this question, which I will address in a later post.

As part of this look-back, I point out that in Peacock, the US Supreme Court, when narrowly construing the removal statute, listed other ways that Americans being wrongfully prosecuted in a state’s criminal justice system could come to the federal courts for help.  Sadly, nearly every avenue on this list is now gone.

The Peacock list (p. 383-84) Current state of the law
The US Supreme Court can accept the case on certiorari after the highest state court acts or declines to act, as occurred in Shuttlesworth v. Birmingham, 382 U.S. 87 (1965). “The US Supreme Court received 7,738 petitions for Writ of Certiorari (requests for case review) in 2008… This represents about a 20% increase over the number of cases submitted a decade earlier, and 234% more than the 2,313 the Court received in 1960.”  Opinions are written in about 75 of petitions filed (or around 1%).  Note 1 (emphasis added).
“Cases where Negroes are prosecuted and convicted in state courts can find their way expeditiously to this Court, provided they present constitutional questions.”  England v. Medical Examiners, 375 U.S. 411 (Concurrence by Douglas, J.) Not really….  In that case, plaintiff sought an injunction in federal district court, which abstained and sent the parties back to state court.  Supposedly, the plaintiffs could have come back to federal court after the state court ruled on the state question, but because the plaintiffs litigated their federal constitutional question in state court and lost there, they were  not able to litigate the constitutional question in federal court.  See also the Pullman abstention doctrine and the Rooker-Feldman doctrine.
If the state prosecution or trial on the charge of obstructing a public street or on any other charge would itself clearly deny their rights protected by the First Amendment, they may, under some circumstances, obtain an injunction in the federal court.  See Dombrowski v. Pfister, 380 U.S. 479. Although it’s true, injunction is appropriate in certain cases, the trend has been for federal courts to deny these motions, sending the litigant back to state court for the criminal case.  See also the discussion of the Heck bar, below.
If they go to trial and there is a complete absence of evidence against them, their convictions will be set aside because of a denial of due process of law. Thompson v. Louisville, 362 U.S. 199. That case was the grant of certiorari, very rare now (see above).
If at their trial, they are in fact denied any federal constitutional rights, and these denials go uncorrected by other courts of the State, the remedy of federal habeas corpus is freely available to them. Fay v. Noia, 372 U.S. 391. Uh, no.  See AEDPA.
If their federal claims at trial have been denied through an unfair or deficient factfinding process, that, too, can be corrected by a federal court. Townsend v. Sain, 372 U.S. 293. That was a habeas case.  See above.
Under 42 U.S.C. § 1983 (1964 ed.) the officers may be made to respond in damages not only for violations of rights conferred by federal equal civil rights laws, but for violations of other federal constitutional and statutory rights as well. Monroe v. Pape, 364 U.S. 167. In 1994, Heck v. Humphrey barred numerous such cases.  Other impediments to §1983 cases abound but are beyond the reach of this summary.


So despite the guilt list in Peacock (you know, we are blocking you here, but you have all these other avenues), the ways in which Americans were supposedly able to keep the state criminal justice system in check through the federal courts, most of those are effectively gone.

This has left our country in a state where state court judges can do, literally, whatever they want, ignore the federal constitution, put innocent Americans in prison, use the criminal justice system to protect police and other government workers from civil liability, knowing that statistically, they will likely get away with it.  (This is a summary, but it is based on a decade of observations and litigation in which I have vigorously fought these very issues.)

And sadly, Americans have had little, if anything, they can do about it.

This is not to blame any specific judge or even court.  It is to paint an overview, to perhaps inspire new ways.

Perhaps each of these abstention doctrines, over time, had a good motive.  Perhaps they were always, as they appear to be, a way to control the workload of the federal courts.  I understand that there are not resources to try every case twice.  And I believe federal judges are overworked (they are currently expected to manage crushing loads).  But the answer is more judges, not less justice.  If instead of paying to keep innocent people in prison each year, we used those public monies for more judges, we could solve this problem.

Or, even with limited resources, if now and then, federal judges granted a removal petition, or enjoined a state criminal action, it would send a deep, resounding message through the state courts, a message much louder than any individual voice can make on its own.

Collectively, these abstention doctrines, the federal courts’ unwillingness over the past 35 years to plow into the problems in the state criminal justice systems, needs a fresh look.


In the next post in this series, I’ll discuss the Minnesota Constitution’s “equal protection” clauses.

Note 1, see Wiki, here

Judicial Reform: Time for a Paradigm shift

You’ve heard that phrase, “re-arranging deck chairs on the Titanic?”  It refers to efforts that are wasted, because they are useless.

Judicial reformists will take any progress they can get.  But what they really want is a paradigm shift for the Third Branch.

Stated another way, if we keep doing what got us here, we will never get out of it.  If we keep using the bricks to rebuild the house in the same way, we will keep seeing the same problems.

We all know there are problems.  America’s rate of incarceration is too high.  America has the fewest judges per capita of any so-called first-world nation.  We can’t stop tinkering (baby steps eventually lead to new roads).  But judicial reformists believe it is time to stop re-arranging the deck chairs.  Let’s figure out where the iceberg got us, plug the hole in the side, and get on our way.

Part 1 of this series discussed the roots of the American self-governance system (here).  James Madison believed that we should never restrict liberty.  The solution, for Madison, was to inhibit tyranny:  tyranny of government over the people and the tyranny of the majority.

Many know that the three branches of government were designed to thwart tyranny through checks and balances.

But its not as well known that the concept of federalism (having both a state and federal government) was also part of the effort to foil tyranny.  The concept as explained by Madison, was to cut the country first in half (federal v. state) and then again.  This would maximize the checks and balances.  (Federalist Paper #51, here).

If we forget the structure of our government, the tools we have been given to hinder tyranny, we can spend lots of time and resources re-arranging the deck chairs without getting to the source of the problem.

At times, we need the federal government to be a check (and balance) on the state government.  At times we need the state government to be a check (and balance) on the feds.

The Legislature keeps the executive in check through legislation.  And when the Legislature gets out of balance, the courts should be there to keep it in check.

For years in Minnesota, our courts have been doing the work of the Legislature, instead of keeping them in check.

The Legislature has many members, lots of staff, plenty of attorneys.  But the Legislature has taken the easy road, refusing to do the research necessary to comply with the Constitutions.  (The Minnesota Legislature must ensure its laws comply with both the US and the Minnesota Constitutions.)

Then, the Legislature has expected the courts to do their work.  The Legislature has expected people like me (or underfunded public defenders) to wait years for the right ‘test case’ to raise an issue in the courts, a constitutional issue that the Legislature should have researched in the first place.

Next, the Legislature has expected the Attorney General to go to court to argue that their statute should prevail.

Then, the Legislature has expected the courts to figure out how to make constitutional sense out of their laws.

Surprisingly, the courts have done this for the Legislature.

And what have the courts gotten in return?  In return, the Legislature has cut their budget to the point they can barely operate.  The Legislature has required the courts to collect money (filing fees), deposit it into the general fund, then required the courts to go back to the Governor and Legislature to beg to get some of that money back to fund the courts.

The underfunded courts, rather than sending badly drafted statutes back to the Legislature telling them – sorry, this does not comply (we call this “striking” statutes, or “declaring them unconstitutional”), the courts have tried in case law to make sense of any mess the Legislature puts out.

For an example, see State v. Crawley, a case from 2012, where the Minnesota Supreme Courts twists the statute into a pretzel in order to try to “save” it – rather than striking it, sending it back to the Legislature with a little note pinned to it that says, “try again!”

If the courts did this, the legislature would learn, quickly, that it cannot continue to abdicate its responsibility.

Cases that try to make sense of unconstitutional statutes do not protect the public.  This tradition has harmed the People of the State of Minnesota.  Because police officers don’t do 10 hours of constitutional research into case law before they arrest someone.  They look at the statute.  Narrowing statutes by case law creates a bigger mess than the Legislature created in the first place.

And, it only incentivizes the Legislature to continue to abandon its duty to the Constitutions.

In Minnesota, the Legislature has passed a statute that requires the Attorney General to support the statute if it is challenged by an individual.  In other words, the Legislature wants the AG to argue that the statute wins, and the constitution loses.  That is backwards.

The Constitution is a higher law than statutes.  What we’ve done over time, is to elevate statutes above the constitution.  Revitalizing our Constitutions is a  major part of judicial reform.

To make it worse, the Legislature has, through its selected counsel, for many years, waived its appearance in the district court and the court of appeals.  For everyone else, the courts require that arguments be made below before they can even be considered at the Supreme Court level.  Yet the Legislature has been given special privileges, has been permitted to waltz in at the last minute, making arguments the individual cannot possibly tackle at that late stage of the game.

The Third Branch has always had the power to stop this.

Based on simple judicial rules, the Legislature loses when it fails to appear in the district court.  It loses again when it fails to appear in the court of appeals.

The AG will likely say it lacks resources to appear in court every time a statute is challenged.  Time to get out the tiny violins.  The Legislature controls the purse.  If the AG is underfunded, who should bear the brunt of that?  Maybe the AG wouldn’t have to appear in court so much, if the Legislature drafted better statutes.

Imagine, as well, how many resources one individual does not have.  Yet we’ve forced individuals to be private attorneys general, to fight for the Constitutions.  We’ve expected individuals to take their time (sometimes they sit in jail during this) and resources (which they don’t have, either), to try to save our government.  Is it any wonder these people feel disenfranchised?

The paradigm shift?  Send the Legislature packing.  Tell the Legislature, in no uncertain terms, the Third Branch is here to be a check and balance on you, and it’s time you started doing your job.

Tell the Legislature, no more free rides.

Tell the Legislature that the courts don’t have enough money to be re-writing all the messy statutes that the Legislature puts out – not until the Legislature gets serious about funding the courts.

Oh, and by the way, the US Supreme Court has already decided, many years ago, that narrowing by case law is a dangerous proposition, and that the courts are in trouble if they use that technique, and do not ensure that every single case follows it.  (See Kemna v. Lee, here).  Why would the courts take on all that extra responsibility?  Especially if they are underfunded.

We were gifted, in this country, with a structure of government designed for multiple checks and balances.  But the branches must take that job seriously, or it won’t work.

Get tough, courts.  Stop letting the Legislature run roughshod over you.  You are a co-equal branch.  Let Minnesotans knows that the Legislature is expected to follow the law.  Get busy doing your job protecting the Constitutions.

Obviously, the point of cutting the country first in half, means that Americans are entitled to rely on the federal half, at times when their constitutional rights are not being protected in the state courts.  More on that in the future!  (See Page “Our federal lawsuit against the Minnesota courts” at the top of the homepage.)

What is Judicial Reform? Part 2: Boiling it down

Part 1 of ‘What is Judicial Reform’ explored the roots of our nation, the Federalist Papers, the “tyranny of the majority.”  (Part 1 here).

That post reviewed that Madison (Publius) cautioned that we should never ration liberty.  The solution is to protect liberty by controlling tyranny.

As we assess what can be changed for the better in our courts, it’s important to remember our roots.

This post boils down what I think the judicial reform movement is all about.

1.     A judge cannot be a king.  The founders of this country affirmatively rejected monarchy as a form of government.  They sought to remove the “king” from the system. They were tired of the reason for government actions being, “because I said so.”  We need to remember that, and make sure it’s applied to the judiciary, and not just the executive branch.

Judges were not meant to be the “kings” of their courtroom.  The founders did not envision that judges would do whatever they wanted, merely beause they are a judge.

It is antithetical to our form of government to let any man be a king.

2.  The reasons for judicial decisions cannot be secret.

Kings make up laws as they go along.  They change the law when they want to.  Dictators keep the law secret.  They keep their subjects off balance by preventing them from knowing the rules (he who makes the rules wins).

In a democracy, we decided long ago that the law would be public.  There is no point in the law otherwise.  It’s by making laws public that we give people the chance to conform their conduct.

Secret laws keep the public off balance, they give power to those who create them, and who change them at will.  Secret laws make people kings.

(And we know from #1 – judges cannot be kings.)

3.  If it’s not about applying the law, the system makes no sense.

Judges are given authority and power so they can apply the law.  If we waver from this, if we let judges make decisions based on secret criteria, the system makes no sense.

Secret laws aren’t always written on paper – hidden in the back room somewhere (although sometimes they are!).  When I speak of hidden rules, I also mean the culture of how judges decide among themselves how they will rule.  I am also referring to the “back room deals” that do exist in our system.

Because none of that is about the law.

We can’t keep the culture because it’s comfortable.  If we need to make big change to get back to our roots – so be it.  That’s what reform is all about.

Judicial reformists say, “why should we (the public) pay lots of tax money for a system that does not make sense?”

4.  Applying the law also means following the law.

I try as much as possible to credit those judges who do follow the law.  I acknowledge them here.

But there are judges who either decide to do it, or who drift unconsciously into a place where they act like they are above the law.

If they think people don’t notice – judicial reformists are here to say they do.

Judges who act like they are above the law is a hot issue for judicial reformists.

Those who are charged with enforcing the law must obey the law.

A system that does not require its judges to obey the law sends the message that it’s not about the law, it’s about status, or who has friends in the system, or who has money.  That does not encourage self-compliance.

And without self-compliance, the system falls apart.

5.  The judicial branch is supposed to be the watchdog.

The courts are not just “one more” branch of government.  The judicial branch was created to help protect the public from the tyranny of government and the tyranny of the majority.

  • Keeping the executive in check.  This is easily seen in the courts’ watchdog role over the exeucutive branch.  For example, if the city government won’t give you public documents, you can sue in court to enforce sunshine laws.
  • Keeping the legislature in check.  Since Marbury v. Madison, courts have kept the legislature in check by assessing the constitutionality of statutes.  If if the ‘majority’ wants a statute, the statute might still offend the constitution – usually an issue of the courts protecting individual rights.

If courts give up this role, if they “side” with goverment, if they “protect” government workers from other branches from being accountable under the law, instead of forcing them to obey the law, we have lost our way.

6.    It’s about equal rights.

The majority opinion should not automatically prevail in court.

The court is the place the individual who goes against the grain, who believes something different, who does not acede to the majority – has an equal chance of winning.

The courts are the place the ‘little guy’ should be able to come, feel safe, feel confident that the law will be applied – not some popularity contest.

That’s what is means to put the law above politics, to put it above gossip and junior high vendettas.

Judges who are worried about “what their friends will think” if they rule in favor of the “unpopular” person or belief, or whether they will get an angry phone call from the sheriff, or what other judges will say at the Friday morning breakfast, probably don’t belong in the job.  That’s not the rule of law – that’s the rule of men.  And it’s killing this great institution.

7.  It takes effort to do the real work of judging.

I’ve seen judges favor police, favor prosecutors.  I’d go so far as to say that some bench cultures give prosecutors everything they want.  I’ve observed judges refuse even to consider that police engaged in bad conduct.

That’s a refusal to follow the law.

Judicial reformists have a pretty good idea how so many innocent people end up in prison.

I’ve also observed judges protecting the “budget” of another branch.

I’ve watched judges insert language in their order that is obviously designed to protect some government worker.  I’ve seen this happen when that wasn’t even an issue raised by the parties.

If judges so identify with public workers that they are willing to disregard the facts and the law to protect these people from being held accountable, the system falls apart.

Judges are supposed to protect the public.  Nowhere is it written that they should worry about how much it will cost the executive branch if a social worker is found to have engaged in bad conduct.  Nowhere is it written that judges should protect criminal prosecutors from every Brady motion, because that is also an ethics violation for them.  Writing this type of policy into the case, without opening discussing it in case law, is a type of secret law.

8.  Don’t do what’s natural, do what’s right.

This misuse of power by judges might be natural.  Because they are themselves employees of government, they may drift into a place where they want to protect people like them.  Those thoughts are natural.  But that instinct must be overcome to do the real work of judging.

People who come to court are often emotional about their own story.  That’s natural; it’s instinct.  Judges ask those people to put the emotion aside while interacting with the court.

Judges ask people to be thoughtful about their responses.  To quantify the damage.  To intellectualize the harm.

What’s good for the goose is good for the gander.

Judicial reformists ask judges to put aside instinct, stop doing just what’s natural or easy.  We (the public) need you to make a conscious effort not to drift into tyranny.

Our liberty depends on it.



What is Judicial Reform: Part 1: Tyranny of the Majority

There is a lot of discussion about judicial reform throughout the country.  But what is it?  It is a healthy sign of our democracy that a number of different groups with differing philosophies claim the name, ‘judicial reform.’  What are the common threads in the judicial reform philosophies?

And what are the differences?

Surely, a book could be written on this topic.  This series of posts is a brief discussion.

America’s Roots:  The Federalist Papers

Many branches of the judicial reform movement harken to the roots of our system of government.

When potential ratification of the US constitution was being discussed in 1787-88, Publius published arguments in favor of the constitution.  These papers have now been attributed to James Madison, Alexander Hamilton and John Jay.  In the 20th Century, the compilation of those articles became called The Federalist Papers.  Every political science major in the 20th Century likely studied them.  Federal judges have cited to them.

It’s never wrong to review the theoretical foundation of our system of government.  Even with the lapse of years, there are always lessons to be learned from our roots.  But like any analytical tool, this review should be kept in perspective.  There is simply no way that Hamilton, Jay and Madison could have predicted our 2012 world.  (Although if they were alive and writing today, I bet they’d have a blog….).

Of course, The Federalists were not writing on a blank slate.  They, each in turn, were influenced by philosophers and other writers of their time.  Madison, it is said, drew from the works of Montesquieu and Hume, and other writers of the enlightenment.  And The Federalists’ writings have been commented on over time.

Tyranny of the Majority.

In conceptualizing a governing democracy, Federalist 10, now attributed to Madison, warned of the danger of factions.  Madison defined faction as “a number of citizens, whether amounting to a minority or majority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”

The danger of factions was tyranny – otherwise known as oppressive power.

Because the form of democratic government emphasized the will of the people by majority vote, Madison warned that the mischiefs of democracy would swallow the benefits.

“A pure democracy can admit no cure for the mischiefs of faction. A common passion or interest will be felt by a majority, and there is nothing to check the inducements to sacrifice the weaker party. Hence it is, that democracies have ever been found incompatible with personal security or the rights of property; and have, in general, been as short in their lives as they have been violent in their deaths.”

For Madison, it was impermissible to restrict liberty.  “The latent causes of faction are thus sown in the nature of man,” so the cure is to control their effects.

Over time, this concept (also discussed in Federalist 51) has become known as the tyranny of the majority.

Alexis de Tocqueville in Democracy in America Vol. I, published in 1835, posited that the dangers of the tyranny of majority over thought in America would lead to violence of party spirit and the judgment of the wise subordinated to the prejudices of the ignorant.

Published in 1859, John Stuart Mill’s work On Liberty discussed the tyranny of the majority as the “struggle between authority and liberty.”  This described the tyranny of government over the people, which must also be controlled.  And certainly, ‘liberty’ is a theme that frequently emanates from the pen of a judicial reformist.

These twin tyrannies (by the majority of the people and by government over the people) have been met in various ways in our democracy.

The Bill of Rights as Protector of Individual Liberty.

Of course, the US Constitution was ratified.  But shortly thereafter, several amendments were added in order to protect individual liberties, such as the First Amendment protecting free speech, association, and freedom of religion and the Fifth Amendment, which guarantees that the federal government will not deprive an individual of freedom or property without due process of law.  These are often called the Bill of Rights.

The US Supreme Court has over time applied the substantive liberty protections of the Bill of Rights to protect individuals from the tyranny by state governments.

US Justice Brandeis wrote in 1927,

Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law — the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.

Concurrence here.

The Role of the Courts in Protecting Individual Liberties.

Justice Brandeis was, of course, discussing the role of the courts in protecting the individual freedoms at issue.  And in particular, he was discussing the court’s role in deeming a majority vote by legislative enactment a violation of individual liberty.  (Now, we generally refer to this as the court’s review of the constitutionality of a statute.)

Indeed, a ‘cornerstone’ of our current system of government is the role of the courts in protecting individual liberty.

In 1900 US Supreme Court Justice Harlan wrote,

The doctrine of legislative absolutism is foreign to free government as it exists in this country. The cornerstone of our republican institutions is the principle that the powers of government shall, in all vital particulars, be distributed among three separate coordinate departments, legislative, executive and judicial.  And liberty regulated by law cannot be permanently secured against the assaults of power or the tyranny of a majority, if the judiciary must be silent when rights existing independently of human sanction, or acquired under the law, are at the mercy of legislative action taken in violation of due process of law.

Case here.

Why is this Relevant Now?

Minnesota and other parts of this nation are engaging in a struggle of factions and a debate about current government control, and how all of this affects liberty.  The debate?  How are members of the judiciary to be selected?  And when and how does the public have a role in what occurs in the judiciary once those judicial officers have been selected?  I’ll get into some particulars in my next post in this series.

But can it ever hurt for us as a debating community to remember our roots?  To remember the theoretical debate that spawned and shaped the three branches of government, and to intelligently, consciously select options grounded in law and liberty?

Justice Brandeis also wrote in 1927,

Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.

And I leave you with the notion that there is time and opportunity for full discussion.  Indeed, to prevent this debate from being marked by fear of change, holding onto current power, or silencing critics, all of those involved are called upon for fearless reasoning befitting our education, in furtherance of our political duty, and out of respect for the liberty that has been so long preserved by those who came before us.