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** Article III Judges

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    J.A.I.L. News Journal Los Angeles - April 9, 2001 _____________________________________ For a beautiful navy blue T-shirt with J.A.I.L. on the back and
    Message 1 of 1 , Apr 9, 2001

      J.A.I.L. News Journal
      Los Angeles - April 9, 2001
      For a beautiful navy blue T-shirt with "J.A.I.L." on the back and www.jail4judges.org large and visible over the pocket, imprinted in a bright yellow-gold lettering, send your check payable to J.A.I.L. for $11.95 plus $4 S&H. (Discounts on volume quantities.) Wear them to your next courthouse function and watch the reaction.
      Article III Judges
      (A Study On The Subject)
      The Capacity of Article III Judges
      BY: Dan Meador (Jan. 20, 2000)

      Tim McCrory recently sent Ralph Winterrowd and I hunting for a case that
      allegedly claims there are no longer any Article III judges of the United States. The case in question is Hatter v. United States, which was decided in the Court of Claims (#705-89, decided Nov. 9, 1990), then was reviewed by the Federal Circuit Court of Appeals (185 F.3r 1356 (Fed.Cir. 1999)). Ralph downloaded the Court of Claims decision from his Internet law service, then forwarded it to me.

      The matter is important to the constitutionalist/patriot community for
      several reasons. One in particular is that one and possibly more patriot
      researchers use the "no Article III judge" defense at length, and whether or not that is the case, it usually doesn't even illicit a response. The defense relies on the fact that Federal judges pay income taxes and therefore don't qualify under the prohibition against reduction in compensation of judges of the United States found in Article III, Sec. 1 of the Constitution.

      As it turns out, the Hatter case is of no value here as one of the fact
      stipulations agreed to by judges who initiated litigation, and the defense, is that the judges are Article III judges. Their status under Article III, Sec. 1 was conceded, not contested. The Court of Claims decision, which covers the history of the issue, is interesting and informative as it accounts for evolution in thinking on the subject.

      The first time tax on the judiciary came up was during the Civil War.  Former Chief Justice Tanny handled the matter with a letter. His argument was subsequently reinforced by an Attorney General opinion. The subject didn't come up again until Congress imposed an income tax on judges via the revenue act of 1918. The matter was litigated, and the Supreme Court found in favor of judges who alleged that the compensation clause prohibits the other two branches from taxing judges. However, Justice Holmes wrote a dissenting opinion that was to prevail in the 1930s: A tax imposed uniformly on the population at large does not diminish compensation of judges. As citizens, judges are obliged to support government via the tax system to the same extent anyone else is.
      Through the years, the compensation clause was put in perspective: It is
      intended to protect the people, not judges. Therefore, a uniform tax which does not reduce the base salary, but merely reduces take-home pay at rates the same as those imposed on everyone else, does not have intimidation purpose or effect.

      Judges appointed prior to Congress bringing Federal employees, including
      judges, into the Social Security system initiated the Hatter case. This had been the position in the 1930s: Judges appointed prior to the Federal income tax being extended to the judiciary were excluded from the tax. However, that position was later trashed, too, and the Hatter court rejected both constitutional and contractual arguments.

      In the course of the decision, the Hatter court equated Social Security
      deductions to an income tax. Following cites in the opinion should be
      enlightening to those who believe the Social Security system operates as
      a trust with individual trust accounts.

      Clearly, judges and the Department of Justice consider current Federal
      judges as being properly appointed within the framework of Article II, Sec. 1 of the Constitution. However, to accept that as the final word on the subject misses the core issue. The question should be "In what capacity is a judge operating in at any given time?"
      This matter has been at issue since the Canter case (356 Bales of Cotton) in the early part of the last century. The issue was salvaged cotton retrieved from a shipwreck off the coast of Florida. Florida was at the time a territory, not one of the several States. A Florida territorial tribunal disposed of the salvaged cotton. The disposal was challenged in Federal district court as Article III, Sec. 2 vests exclusive admiralty and maritime jurisdiction in courts of the United States, exclusive of courts of the several States.

      In the decision, former Chief Justice John Marshall set down troubling
      precedents. First, since Florida was a territory rather than a State of the Union, Congress was not limited by the Constitution, and Article III of the Constitution did not apply. Therefore, the Florida court could in fact exercise whatever powers Congress vested within the territory and
      territorial waters. In almost the same breath, Marshall said that territorial courts are not Article III courts, and cannot be clothed with Article III judicial power of the United States.

      The problem which has never been clearly resolved is this: How is it that courts of the United States, including the Supreme Court, review and/or rule on territorial court decisions? If territorial courts are not technically constitutional courts, and cannot be vested with Article III authority, what authority does an Article III judge or court have over decisions relating to judicial affairs in territories and insular possessions of the United States? The question has never been definitively addressed.

      A curious situation along this line developed in the first half of the  Twentieth Century: Citizens and corporate entities in the District of
      Columbia do not fall within the framework of the "diversity of citizenship" provision that accommodates litigation between two or more States of the Union. Since that avenue was blocked, Congress authorized convening the United States District Court of the District of Columbia (construed as a territorial court) in district courts of the United States located in the several States. Article III judges appointed to the various districts were authorized to accommodate, or to preside in, these surrogate courts.

      Again, it required considerable rationalization to justify Article III judges presiding in divisions of a territorial court, and to the best of my knowledge, there has never been a definitive judicial statement on the subject. However, it follows that if the court is territorial, and cannot be cloaked with Article III character, the Article III judge steps out of Article III character when and if he presides in a territorial court. In a manner of speaking, it is extra-judicial duty beyond the outer limits of Article III judicial authority and immunity.

      The Hatter decision goes to original, not functional capacity, so it is of no value in determining if a judge is functioning as an Article III judge in any given setting.

      This is where two elements must be considered: First, the "United States
      District Court" is a territorial court (Balzac v. Puerto Rico (1922)), where the "District Court of the United States" is the first-level Article III court of the United States (Mookini v. United States (1938)). Second, the "United States" is the proper principal of interest in courts of the United States other than territorial courts, where the "United States of America, ss, President of the United States" is the principal of interest in insular possession territorial courts (see judicial provisions for Puerto Rico & the Virgin Islands in Title 48 of the United States Code). The "United States of America" first appeared as a principal of interest via 1918 legislation (see notes following the current 18 U.S.C. § 1001).

      Finally, the "United States of America" currently identified as principal in Federal civil and criminal prosecution is a political coalition or compact of insular possessions of the United States. Distinction between the two court systems can be verified by comparing 26 U.S.C. §§ 7323 & 7402, with the "United States" named as principal of interest in § 7402, as is the case for 18 U.S.C. § 3121.

      Our two factors, then, are (1) the territorial court (actually, a private court), and (2) a foreign principal.

      Analogously, a major league baseball umpire might occasionally umpire a
      Babe Ruth League ball game. Where the baseball commissioner might
      penalize a professional player for kicking dirt or spitting on an umpire, he would probably be amused if one of his umpires complained about a 14-year-old boy tromping on his toes. In other words, if an Article III judge presides in a territorial court, Article III affords him no privilege or protection as his presence does not clothe the territorial court with an Article III character. When the game is played in an unauthorized ballpark, and the players aren't part of the designated league, the commissioner of baseball cannot discipline the players or protect his umpires.

      Dan Meador
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