Dear Michael - Re: Questions About the Federal J.A.I.L. Bill
- Questions AboutThe Federal J.A.I.L. Bill(By Michael Christian Warnken - mcwarnken@...)Dear Michael:Thank you for taking the time to critique the federal J.A.I.L. bill. You have placed a lot of time into this project, and we were wondering about your legal background. Could you tell us how you acquired your legal knowledge as shown in your remarks.We will respond to your suggestions intermittently via a distinctive color.
Thoughts on Federal Jail - It seems to me that this is pretty well written. I can only assume that it be meant to be codified in Title 28 of the Federal Statutes. I am not sure what process you plan on using to get it codified, but that is not up to me. I just wish to give my thoughts on what I have read.
Section (a) I like the idea of J.A.I.L. and it certainly gives the media something to chew on, however, even to the honest Judges, I can see this as a potential slap in the face for them in its acronym name. And it is not like I think that they do not deserve it. Heck reading some of the instances in which Federal Judges were impeached blow me away and certainly of the Nine (If I remember correctly) Federal Justices that have been impeached and removed by the Senate and the acts of which they were convicted demonstrates to me that more than just the one should have been put in a hole and served hard time.
- This would be in the discretion of Congress.
It is in my opinion that you need to put forth some sort of more palatable name for it. Id tell the membership of J.A.I.L. for support and drumming up driving interest it is the J.A.I.L. Proposal but I would definitively call it Judicial Accountability Review and something else relative such as Fraudulent recourse or the like. Making a nice acronym would be nice as well. Something that has a better chance of not gaining a greater amount of lobbying against it by the collective Federal Judges. It will certainly have opposition in the group, but there is often much in a name and garnering more opposition to something you wish to be enacted is not really desired. Just a thought!
Nothing about what your law has to do with Integrity at all. Integrity is more or less a neutral action or way of approach something. By my view, Integrity may be achieved by either the carrot, the stick or just by the way one is, by their own virtue. This measure is definitively the Stick approach to things (as it needs to be!) and since immunity effectively takes any thorn of punishment away, the Federal Judges are currently not beholden to anything or anyone short of horrid acts. Once in a while you gotta let others save face. I think it really needs to be a law set forth with another name.
- When the issue about the name was brought up at our meeting, the measure had been called the Judicial Reform Act of 1996. However, we had found that there were other "judicial reform acts" out there, having no relation to what we were proposing. So that term was too broad.
- We decided that it was important to include the word "accountability" in the title, since that was key. Also, the form of the measure should be known from the title, and so the word "initiative" was to be included. (We're talking mainly about the state measure, since the federal bill is somewhat incidental to the state initiatives. It is the initiative process that is first and foremost with J.A.I.L. and only about half the states are initiative states.) The name boiled down to "Judicial Accountability Initiative" or J.A.I.
- Then one member said that if we added the word "law" the acronym would be J.A.I.L. and everyone thought it was a good idea. It was considered to be a good "attention getter" --which it is. Any more benign term would be glossed over and ignored as just another judicial reform movement and it wouldn't get the attention it deserves. We have had some complaints about the name, however they miss the point-- it does bring attention and if people are interested in judicial accountability, they will look into the measure beyond its acronym or website name.
Section (c) The statement within this section Notwithstanding Common law seems very odd to me. Common Law establishes immunity for many of these Judicial Bloodsuckers. It would seem that we would want this to Supercede common law as it currently exists. Common law is currently in violation of the US Constitution as I see it and repugnant to the latter as the findings in Marbury v. Madison would suggest. Even the English Star Chamber as it was presided over by Coke, from which the so called Judicial Immunity came from, not every Judge was granted immunity. I think that clause is out of place. It seems it should not be there at all. The foundations of Judicial Accountability need to be re-poured and to recognize any of the past decisions to which set this immunity into place need to be over-ridden. It needs to be established clearly in statute as to when and how Judicial-Immunity should be set into place if at all.
- We have discovered through experience that there is no way in which J.A.I.L. could be written that would be palatable with the legislators. J.A.I.L. will have to be pushed through by popular demand. There is a quote that says, "Politicians never see the light until they feel the heat." How correct this is. This is why we must start J.A.I.L. in an initiative state, and proceed from there to other initiative states (not necessarily all of them), before getting to the non-initiative states and eventually the federal J.A.I.L. bill. That is the plan. You see, Congress is jealously protecting the judicial status quo above all things.
I personally consider the fact that if a Judicial Officer has his defense provided to him or her for free by his or her jurisdiction (Federal, State or County Attorney ) then that is keeping the Judge well above being harassed.
- Your conclusion "common law establishes immunity for many of these Judicial Bloodsuckers..." is correct. We are both on the same wavelength. I think the problem here is in our interpretation of the word "notwithstanding." It is meant to supersede "common law" --"notwithstanding" being used as a synonym of "regardless," to wit, "regardless of common law or any other provision to the contrary..." You will find "common law" again used in the final paragraph (u). "Preeminence shall be given to this statute in any case of conflicts with any other federal statutes, case law, or common law to the contrary...."
Also, considering the fact that all words have meaning and can be interpreted and re-interpreted, there could be a need to directly state that bad behavior is in fact opposed to Good Behaviour or a time absent Good Behaviour as delineated in the US Constitution Article III Section 1. As seemingly benign as it may be, bad behavior does not necessarily mean not good behavior. I think you need to be outright specific, remember almost every Judge was an attorney at some point and quite capable of twisting anything (as attorneys do!). It would seem to me to be more powerful to change the final clause to state and thus be in violation of the Article III section 1 of the US Constitution for which Judges are to serve during times of Good Behaviour. Or something along those very lines.
- This is dealt with in paragraph (s) "Public Indemnification. No federal judge complained of, or sued civilly by a complainant pursuant to this statute shall be defended at public expense or by any elected or appointed counsel, nor shall any federal judge be reimbursed from public funds for any losses sustained under this statute." This provision does not offend our U.S. Constitution providing for life tenure during good behavior nor a reduction of their salary. A defense at public expense is an additional benefit to their salary not provided by the Constitution. Depriving them of a defense at public expense does not diminish their salary, it merely places them on a level playing field with everyone else.
- This observation is worthy of serious discussion. I realize what you are concerned about is the exercise of discretion by individual Congressmen on the meaning of the term "bad behavior," and you wish to remove all discretion and state that it shall be a violation of Article III, Sec. 1 of the U.S. Constitution. I agree with your premise and certainly would love to deprive Congress of their discretion in this matter. However, I fear tying down Congress from exercising discretion on "bad behavior" would not fly constitutionally.
- The impeachment process is clearly the exercise of discretion of the individual members of Congress. I'm concerned about interfering with that discretionary process. My question is whether the J.A.I.L. bill defining more specifically "bad behavior" (to be a violation of Article III, Sec. 1) would be effectually rewriting Article I, Sec. 2, Clause 5 setting forth the House having "the sole power of impeachment." If the SFGJ under J.A.I.L. found a judge to be in violation of Article III, Sec. 1 and Congress (the House) was bound thereby, the House would not have "the sole power of impeachment." It appears to me that it would be transferring "the sole power of impeachment" as it relates to the judiciary, from Congress to the Special Federal Grand Jury if the J.A.I.L. bill specifically provided conclusiveness regarding the violation of Article III, Sec. 1.
- Would I personally be in favor of your proposition of limiting Congress? Of course! But there is more than my personal preferences involved here. (Very good observation-- thank you! It puts the matter to a real test and I'm glad it's written as it is for reasons stated above).
This may seem silly to you, but I just think it needs this to be nailed down. Read the 11th Amendment of the US Constitution. Effectively, it is an attempt to grant immunity for the State Governments severally. If you read Monell v. NY Dept. of Social Services, the Supreme Court discovered a way to pretty much penetrate this immunity since it was not written more specifically and I might add thankfully so.
- However, notwithstanding the above, all is not lost. While it is true that we "lowly citizens" are prosecuted at the drop of a hat for any rinky-dink preconceived notion, and the "high and mighty" basically never prosecutes one of its own for even genuine crimes, it will prosecute one of its own for "crimes" causing them embarrassment (in an attempt to cover up their embarrassment). Just so, Congress will not hesitate to justify the actions of a federal judge by not voting for impeachment. But imagine the same federal judge being brought before Congress for the 8th time for impeachment proceedings. Eventually, when Congressmen go home to face their constituents, they will have to answer why they have chosen not to support impeachment of such judge. J.A.I.L. will take its toll on all Congressmen in due time because they will not be able to avoid the embarrassment forever.
In the decision of Monell, the plaintiffs attorneys persuaded the Supreme Court that they can in fact sue governments. As I believe Justice Brennan wrote in his opinion in the Monell decision (there are lots of parts to this decisions and most quite substantive so I am again doing my best here from memory) the 11th Amendment was established in a manner not intended to give government agencies the ability to commit repetitive, overt tortuous acts! It was something like, but well reasoned. In other words, the fact that you have this immunity is for actions was not established to protect those who would use the immunity to assault and damage individuals with impunity over and over, thus the 11th Amendment exists almost solely in writing. I do not see it as desirable to potentially open the doors for this to be rendered moot in a similar way as well if that is in fact possible!
- As I recall, I think Monell deals with whether a government entity is "a person" under 42 §1983. I think the exception to 11th Am. sovereignty was decided in Ex parte Young. (State officials don't carry the sovereignty of the state when they violate the law). It should be noted that court decisions, including those of the U.S. Supreme Court, do not carry the day under J.A.I.L. when the question before the SFGJ is: Did the judge violate the Constitution or laws in pursuance thereof, and did he do it willfully? It is not, what saith the Supreme Court justices. America has degenerated down to not what the law says, but what do the courts say the law says. It is exactly this (the law itself) with which the SFGJ is concerned-- not "stare decisis" (what the courts say). Judicial immunity is itself a judge-created doctrine-- not law.
Section (d) The statement of Criminal Conduct bothers me since the Criminal Code (Title 18) is a monopoly to Federal Prosecutors. Those potentially could be friends of the Judge or their hearts may in defense to the US itself over the interests and protection to the individual.
- The 11th Am. is pro-immunity (for the states) and the J.A.I.L. bill is essentially anti-immunity (for judges, when they abuse judicial immunity). I don't see the comparison here.
It does seem that section (e) clears this issue up since it gives them the ability to appoint an independent prosecutor. To me, this supposes that it is not to be a standing prosecutor in the Federal system, but it does not preclude this. That could be a bad idea or a good idea. I would go so far as to put parameters around this.
- That's why J.A.I.L. disqualifies government prosecutors. They have a conflict of interest. Once the SFGJ indicts a federal judge, they assign one of their own special (non-government) prosecutors who work for the Jury, to handle the prosecution of their indictment. If there arises a potential conflict, in the Jury's estimation, they may assign any other of their special prosecutors. Actually there is no bar to the SFGJ assigning a team of special prosecutors for any matter. (See paragraph (e) which you acknowledge below).
Effectively, this would seem to be a case in which the grand Jury acts as a Magistrate is interesting. What rules or thresholds need to be garnered by this body? A majority, plurality, 15 of 25, what if jurors are absent? Rules should be ironed out in a affirmative manner and then relaxed only if a great threat or anomaly occurs.
- Yes, the J.A.I.L. bill does preclude government prosecutors when it states "non-governmental... special prosecutors..."
Section (e) This is an idea for any and all persons who may be part of an investigation.Methods for which the pool of prosecutors, Investigators and Advisors to are chosen:1. There needs to be a standard for selection of the professionals to be used.2. Of the pool of persons to be selection to fill the role of the hired personnel as part of the investigation, A questionnaire of facts and questions relative to conducting a proper trial without hanky panky! (for lack of a better expression!) should be established, filled out by each applicant and signed under penalty of perjury and potentially investigated to substantiate such claims and then this information be maintained for a period no less than: 25 years and be available to the public domain as well.3. Requirements of the chosen prosecutors:a. Relations between hired individual (Prosecutor, investigator and advisor) and the Judicial officer in question needs to be established and or their spouse.b. Other ideas see CA code of Civil Procedure section 170-170.9 as a goodframework!c. Potential decisions that the Judicial officer may have made that may or may not have had an effect on a potential hiree (almost like voire dire) and this could be considered for the Grand Jurors as well.
- The basic purpose of Grand Juries is to determine probable cause. Within the context of J.A.I.L. it is a Special Grand Jury designed to deal exclusively with judges and no one else. In its civil context, it determines on an objective standard, whether a civil suit against a judge would be frivolous and harassing, or would fall within the exclusions of immunity as set forth in provisions of the bill. Paragraph (o) sets forth "A majority of thirteen shall determine any matter." Paragraph (k) states that the SFGJ shall establish rules for its operation, including enforcement of attendance.
Section (f) Interesting, keep them away from the Judges court!
- The above items are internal matters of the Special Federal Grand Jury which will be established by its own rules.
Section (g) No thoughts here.Section (h) It seems that funding for this should be mandatory in some manner or form. In my mind, estimated costs of operation should be established and that should be paid by the Federal District Court for which Jurisdiction it exists. In fact, Id give it such strong teeth to suggest that court operations be halted if this is not funded.
There is an expression along the lines of: few things being more irrelevant than an un-funded mandate! We need to keep it so that there is not any discretion to the fund what-so-ever. I used to sit on the Santa Barbara City College Board of Trustees. On one instance, we were looking into putting up more buildings on campus. Part of doing this potential venture involved us making sure all facilities were up to snuff for disabled people. By state law (wrong or right) we could not build anything new until and unless those not up to code were brought up to code. Seems to me that teeth this powerful could be put into this potential law. A line item in the law such that no courts operate until and unless this exists. In other words make is a mandatory insurance for operation policy. If people can be damaged, then to operate at all must exist. This may be met with a certain resistance, but I think it should be this way. Otherwise, congress may not see it as necessary or proper to fund it regardless if they shall or not!I have heard that there is a law that was co-authored by Senator Hollings (D-SC) and another Senator on the Republican side of the Fence that mandates a balanced Federal Budget. This entire amendment is rendered totally moot since the Senate regularly votes to push its enactment into the ever further into the future! Strange things occur in the Governing bodies that can render law ineffective.
- J.A.I.L. is not a court process. It is an independent process conducted by the People and its funding is mandatory from the sources set forth.
Section (i) Seems excessive, but I cannot see why not. We should put in strong controls for who should join these ranks.
- The federal J.A.I.L. bill is not an initiative process, nor a constitutional amendment. While a federal constitutional amendment is available, there is no federal initiative process. Passage of the federal J.A.I.L. bill relies solely upon Congress. We cannot make Congress fund anything. We can however make it politically uncomfortable for them not to pass and fund J.A.I.L. Our only alternative would be to seek an amendment to the U.S. Constitution, which is not off the table. Federal J.A.I.L. absolutely must be passed one way or another. Passage by whatever means cannot be an option!
Section (j) See thoughts included in Section (h)Section (k) A list of what is considered to be all Federal Remedies should (needs to be!) to be established and easily acquired and or to be handed out by these jurors so that it be clear cut to anyone part of this. Is appealing to the Supreme court and thusly being granted Certiorari be included here. This could be a remedy! It takes more than 6 months to do this.
- This appears so because the salaries of federal judges are excessive. Is it unreasonable that those who sit in judgment (the SFGJ) of judges who sit in judgment of others, for them to receive 50 percent of those judges (whatever the amount is)? [rhetorical]
Section (l) It seems odd to me to have the Jurors be inhabitants of Washington DC . In my mind, this is too exclusive of a Jury pool altogether. I think all members of all Federal Courts should be included in this, not just those near the Thurgood Marshall Federal Courthouse. I further think that there needs to be one of these in each Federal Judicial District. Maybe the compensation should be lower for these Jurors.
- The six-month period refers to the time following exhaustion or attempted exhaustion of federal court remedies (not the time it takes for the exhaustion process itself) before bringing a complaint to the SFGJ. Federal court remedies are already established by law.
Section (m) I think the jury pool should be established by the Secretaries of State by the several states. The US Secretary of State should select from a pool of The Nation and from DC for the DC District Court since the DC Court it is of greater importance than the typical US District Court where decisions that are clearly of greater import than that of the regular federal Courts are made. The way the jurors are selected should be retained for specific time period so that the propriety of selection be able to be verified. Maybe since there is 25 Jurors each state be alternatively represented in the DC Jury pool selection!
- You are not the first one to make this suggestion. I have already written on the complexity of alternatives. As the J.A.I.L. bill is written, the only jury pool are the inhabitants of the ten square miles of D.C. It makes it simple, there are no travel considerations. People are people, whether inhabitants of D.C. or Virginia. If we include Virginia, then what about the other 49 states? Imagine the complexity of attempting to draw one juror from each two states, making a total of 25 members, or drawing two jurors from each of the federal circuits. And consider the variables of travel time and costs, all to achieve a nationwide SFGJ. Is an inhabitant of California to be preferred above that of Washington, D.C? And let us not forget, these SFGJ are not sitting in representation of a geographical area, but to decide whether a federal judge has violated the law, and did it willfully.
Section (n) Seems fine.Section (o) Seems well reasoned. I still do not like the maintenance of Immunity, but it may be needed to effectuate Justice However, I am compelled by the fact that the Judge is not granted a paid attorney for this, they need to retain their own council!
- Here you are proposing a federal national registry of all people in the nation for such a pool. Give the federal government an opportunity to federalize anything, and they will take it. We already have too much control among the states from Washington, D.C. All we are looking for is 25 citizens who meet the qualifications of paragraph (L). That is not that complex of a problem. Shall we purposely make it very complex as government is known to do?
Section (p) More verbiage on actions being committed outside (absent and repugnant to) Good behaviour (Aticle III Section 1) needs to be verbalized here.
Section (q) Seems well reasoned. I do not like having a Federal Judge on the trial at all. I just do not like it considering it still opens up the possibility for a Judge to ask for Judicial Immunity (Since as written the Notwithstanding Common law clause still exists!) and they may also demur. Does a Judge have the ability to appeal each decision? Who else could sit as a Judge, perhaps the Chairman of the Senate Judiciary Committee or some other Federal Administrative Judge in the Executive Branch? Just an idea.
- The use of judges in cases before courts are the way our system is established. J.A.I.L. does not seek to change that. In such position within J.A.I.L. the judge only serves as a referee in keeping decorum. It is the trial jurors who decide all matters, including sentencing. Like any other criminal case, a convicted judge has his rights of appeal afforded him. J.A.I.L. does not deprive a federal judge of any of his rights under the laws or the Constitution. Of course, those judges hearing such appeals are themselves under the same processes as the judge who was indicted by the SFGJ.
Section (r) There is something I do not like about allowing Criminal Prosecutors discretion in these matters that bothers me. I watched one time a cop be charged under the lightest of way considering the facts of the incident he was involved in. Had it been me, I would have been nailed by numerous felonies. I know this may be worrisome forethought on my part, but I worry about keeping the incentives of proper prosecution in order. If I am not mistaken, as per Imbler v. Pachman, DAs and I believe Federal Prosecutors are granted Judicial Immunity and not just Executive Immunity as per the decision in Sheuer v. Rhodes . I do not see Federal Prosecutors having proper incentive in trying a case which could potentially water their own immunity down. It would seem that they may be a potential problem.
- Our system of justice allows prosecutorial discretion. J.A.I.L. does not alter that discretion. It does, however, open a recourse for another alternative with the SFGJ once the prosecutor fails or refuses to prosecute a subject judge. J.A.I.L. seeks to have the system work the way it was designed to work, and if the system does work, then there will be little need for the SFGJ. But like a fire escape, it has to be there just in case the system does not work. Remember, we are not trying to supercede the system, but create accountability to existing laws.
Section (s) Good! Keeps the incentives to behave properly and rule according to law in tact.
Section (t) No thoughts here.
Section (u) This should be done once per month. Since Jurors are impaneled at varying times (monthly), some will be more familiar and others less. I should think it appropriate that these Jurors be reminded of the duties of their job with some greater regularity. The Judges may be served by this as well. As per your compensation suggestions, the Jurors are being paid well enough to endure hearing it regularly!
1. Should it be written that whatever individual who is damaged by the hand of said Judge in question have the opportunity to have a new trial exclusive of damages that may be gained by the prosecution of such a Judge for violation of statute.
- We already have civil remedies at law such as was exercised by Bivins. Further, fraud vitiates everything it touches, including a trial. Is it not true that willful violations of law by a federal judge in order to arrive at preconceived judgment are the exercise of fraud, and that fraud vitiates everything it touches, including a trial?
2. Is this for just Federal Trial Judges or Federal Appellate Judges as well? Should the Supreme Court be included and that effectively be written in. What if decisions where made corruptly in tandem?
- "The term 'federal judge' or 'judge' shall mean any federal justice, judge, magistrate, commissioner, or any person shielded by judicial immunity." (b) 2 of definitions. Are not U.S. Supreme Court Justices "justices," and are they not persons shielded by judicial immunity?
3. Does all other methods of recourse include appeal to the US Supreme Court which can in effect take much longer than the 6 months given to file on a Judge?
- Answered in (k) above.
4. Does a severability clause need to be added here? It might not be, but in effect, it might. Just a thought.
- I do not understand your application of severability in this context.
Final thoughts: These are thoughts by me. They do not represent those of a qualified member of the bar with any federal litigation experience whatsoever, but in fact the thoughts of a concerned and interested individual. As the Constitution did not put forth mechanics to establish what conduct would be Good Behaviour and supposedly Bad Behaviour standards or what would not be and who and how that would be determined, this seems to be the best attempt so far to place this in solid form. You are welcome to consider my thoughts on this matter or dismiss them due to lack of understanding or an existing protection that already exists for the idea I put forth (thus redundant!). I hope this helps and would at least be considered to make what exists more durable to the potential political unbinding of time as the rest of our constitution has been put through.
Michael Christian Warnken
- Michael, I am impressed with your propensity of thinking on your own. I believe you would make an excellent JAILer. I hereby invite you to become an official JAILer in your state. I would be pleased to hear your say "Yes," and to inform me as to which state you are in. God bless you.