What a Recent In-Chambers Order By JUSTICE SCALIA Illustrates about The Supreme Court
by Beverly Mann
crossposted with Annarborist
Dan here..This post is quite long but interesting in the workings of the court and decision making process. Take the time, you will be rewarded.
WHAT A RECENT IN-CHAMBERS ORDER BY JUSTICE SCALIA ILLUSTRATES ABOUT THE SUPREME COURT
In a recent court order issued from his chambers that garnered attention in the legal blogosphere but not in the mainstream media, Justice Antonin Scalia stopped immediate enforcement of a Louisiana state appellate court ruling requiring several major tobacco companies to pay more than $240 million to fund a state program to help smokers quit the habit.
The Louisiana court ruling came in a lawsuit filed on behalf of all smokers who live in that state. The case is a class action filed under Louisiana state class-action procedural law, rather than under federal class-action law. The smokers allege that the companies violated Louisiana’s civil fraud law by distorting public and scientific knowledge about the addictive properties of nicotine.
In Louisiana as in most states, the claim of fraud in a civil lawsuit normally requires proof that the plaintiff relied, to his or her detriment, on the defendant’s misrepresentations. But in this case, the Louisiana appellate court ruled that class lawsuits alleging fraud are exceptions to that rule; under Louisiana class-action law, the class does not have to prove detrimental reliance on the part of the members of the class. So the smokers in this case had to prove only that the companies lied about whether the great body of scientific research showed conclusively that nicotine is highly addictive. Which they proved.
The companies asked the Louisiana Supreme Court to hear the case, claiming numerous violations of their constitutional right to due process of law, including that the right to “an opportunity to present every available defense.” Specifically, here, the defense that the smokers did not rely on the distortions of scientific fact. The companies asked the Louisiana Supreme Court to hear the case in order to decide (among other things) whether states can change the normal substantive or procedural requirements for proving the claim alleged, simply because the case is a class lawsuit rather than on in which one or just a few people are suing. The state supreme court declined to hear the case.
Under the Supreme Court’s procedural rules, once a state’s highest court has refused to hear a case, or a lower federal appellate court has issued a ruling, the losing party can ask a single justice to put the lower court’s ruling on hold while the party has a chance to ask the Supreme Court to hear the case. Each of the justices is assigned to one or two regions of country for purposes of considering such requests. Scalia is assigned to the region in which Louisiana is located. The tobacco companies asked him to “stay” the Louisiana state court’s ruling until sometime next winter or spring, when the Court decides whether it will grant the companies’ by-then-filed request to hear the case.
As Scalia acknowledges in granting the stay, these requests are almost never granted. The party requesting it must convince the justice that there is a reasonable probability that Court will decide that that case will be among the roughly 70 cases the justices will hear that annual term; the Court receives approximately 9,000 petitions a year. The party must also show a significant possibility that the Court, once it agrees to hear the case, will reverse the lower-court ruling, and that irreparable harm will result if the lower-court ruling is enforced before the Court decides the case. And even then, Scalia said, repeating language he wrote in another ruling on another such request 20 years ago, “sound equitable discretion will deny the stay when ‘a decided balance of convenience’” weighs against it. The internal quote is from a 1923 opinion in a case in which, presumably, the irreparable harm that resulted when the lower-court ruling was enforced before the Court decided the case did not trump the inconvenience caused by the stay.
For all the high hurdles Scalia says the tobacco companies had to scale in order to persuade him to issue the stay, what’s striking is not that he thinks they scaled them but rather why he thinks they did. He cites as sufficiently important the issue of “[t]he extent to which class treatment may constitutionally reduce the normal requirements of due process. He also cites what he says is “[n]ational concern over abuse of the class-action device” and says thus national concern “induced Congress” to allow most major class actions—but not this lawsuit, because the smokers all are residents of a single state— to be litigated in federal court so that these lawsuits “would be subject to important procedural limitations.” And he says that, because this particular case had to be litigated in state court under state laws, the tobacco companies will have no opportunity to have any federal court hear their claims that a state court violated the companies’ federal constitutional rights.
“T]he constraints of the Due Process Clause will be the only federal protection” against violations of the companies’ due process rights by the state courts, he says, sounding appalled.
Unless, that is, the Supreme Court agrees to hear the case. The Supreme Court should, and probably will, agree to hear the case, he says, because, well, otherwise “the constraints of the Due Process Clause will be the only federal protection” against violations of the companies’ due process rights by the state courts. He sounds appalled.
Which is itself notable. Whether the federal legislation enacted earlier this decade that allows defendants in most class actions to have the case litigated in federal rather than state court, and that indeed places to important procedural limitations on class lawsuits—limitations that make it, let’s say, challenging to litigate the case as a class action at all—or whether instead the legislation was the culmination of intense lobbying efforts by business groups, the admission by a Supreme Court justice that the extent to which a state may constitutionally reduce the normal requirements of due process in any particular type of case (or in any one case at all) depends, as far as the Supreme Court is concerned, on the popularity of one side or the other in the litigation is startling. But it also is accurate.
Or, rather, what is accurate is that what matters to the Supreme Court is the popularity among the justices themselves of the party, or of the underlying cause of the party, who’s claiming a violation of the right to due process of law or any other constitutional right by a state court.
The origin of this lies in a legal theory known as legal federalism, which in this context is a theory of law that holds that the lower federal courts should have only severely-limited (and in many instances no) authority to force state courts to comply with constitutional provisions that guarantee individuals certain rights, limitations similar in key respects to those that existed before the Civil War and the post-Civil War constitutional amendments and civil rights legislation.
The theory, in its most extreme version, is that the states are similar to sovereign nations in their right to determine their own laws and policies, almost completely unobstructed by federal laws, including constitutional rights. The term “federalism,” in other words, has a counterintuitive meaning; it is an “ism” that holds that the 50 states are merely a loose federation of separate sovereign governments, joined together in an association for the very limited purposes, such as defense against foreign nations. It is a longstanding cause of the ideological right and was a decades-long cause of William Rehnquist, who crusaded for this ideology throughout his career, as a lawyer, an associate Supreme Court justice, and finally as chief justice. Retired Justice Sandra Day O’Connor, and justices Anthony Kennedy and Clarence Thomas are vocal advocates of this ideology, the latter expressly adopting the most extreme view it: that states are sovereigns for nearly all purposes, that what is at issue is the states’ “dignity,” and that maintaining the dignity of the states trumps maintaining the dignity of individuals.
So it’s surprising that in the 1970s and ‘80s, liberal justices such as Thurgood Marshall, Hugo Black and William Brennan (unlike John Paul Stevens and William O. Douglas) joined conservative colleagues to create a legal-federalism juggernaut that indeed appears to require the lower federal courts to categorically dismiss virtually all lawsuits filed in federal court that allege a violation of a constitutional right by a state court.
At least as the lower federal courts have for decades interpreted these Supreme Court pronouncements, those courts must summarily dismiss these lawsuits because the court lacks “subject-matter jurisdiction” (the legal authority) to hear cases alleging violations of due process or other constitutional rights by state courts, or must accommodate the state court—or, as the Supreme Court phrases it, accord the state court “comity”—by “abstaining” from these cases even if those courts do have jurisdiction to hear the claim.
“Doctrines,” the courts and lawyers call these Supreme Court procedural pronouncements. By which they mean procedural rules that the Supreme Court fabricates, usually in order to keep certain parties or classes of parties out of federal court, or to protect certain potential defendants from becoming defendants in a particular lawsuit or type of lawsuit. These doctrines, which have the force of jurisdictional statutes, disregard actual federal jurisdictional statutes, in apparent contravention of the Constitution. And because the doctrines, unlike the actual jurisdictional statutes that the doctrines flout, are notoriously imprecise and malleable and have exceptions and multipart tests that the lower-court judges can opt to acknowledge the existence of or not, the application of these quasi-statutes varies depending on whether the judge or judges want the case to be litigated in federal court, or, for that matter, at all.
The one that is interpreted to decree that federal courts have no authority to hear such challenges is known as “the Rooker-Feldman doctrine,” named for a 5-4 Supreme Court opinion (District of Columbia Court of Appeals v. Feldman) issued in 1983 that vastly expanded a then-60-year-old Supreme Court opinion (Rooker v. Fidelity Trust Co.). The one that requires the lower federal courts must “abstain” from hearing (simply refuse to hear) these challenges as long as the underlying case remains pending in state court, irrespective of whether or not the lower federal courts have jurisdiction to do so, is known as the “Younger abstention doctrine.” It’s named for 1971 Supreme Court opinion called Younger v. Harris. Originally a doctrine that applied only to prohibit the lower federal courts from enjoining an ongoing state criminal case, it quickly became one that applied to all cases, and whose exceptions the lower federal courts almost never call upon. Although it is unlikely that either Marshall or Brennan foresaw that the wild metastasizing of these doctrines, the lower federal-court judges have found these doctrines extremely useful as a way to reduce their caseload by summarily dismissing a good number of civil rights lawsuits. So nearly all such lawsuits are spontaneously dismissed shortly after they’re filed. Which, with but one express exception and another de facto one, has suited the Supreme Court just fine thus far.
An odd position for self-styled constitutional originalists and textualists to take. Not to mention justices who think that constitutional protections beyond, say, the right to own a gun, or the right to keep the government from exercising eminent domain over their real property, are important too.
Under the Constitution, it is Congress that decides the types, or subject matter, of cases that the federal courts have the legal authority to hear, although of course Congress can’t give the federal courts authority, or remove the authority, to hear types of cases that the Constitution bars federal courts from hearing or that requires the federal courts to hear.
Absent some specific constitutional bar to federal-court subject-matter jurisdiction, the Constitution requires the federal courts to hear the types of cases that Congress, in legislation (“jurisdictional statutes”) says those courts must hear. Or so it would seem, especially to self-styled constitutional originalists and textualists. Like Scalia.
The basic, generic jurisdictional statute that gives the lower federal courts the authority to hear cases challenging the constitutionality of laws, government policies, or actions by a government official or employee says simply that the federal courts have jurisdiction to hear any case that concerns a question of federal law. The statute applies to issues of constitutional, statutory and regulatory law. Because constitutional protections apply not only to the federal government but also, under the Fourteenth Amendment (which was adopted in 1868 in the aftermath of the Civil War), to the states and local governments, the statute that gives the lower federal courts the authority to hear cases that claim a violation of constitutional or federal statutory law by a state or local government or state- or local-government official. The first section of that Amendment bars states from making or enforcing any law that “abridge[s] the privileges or immunities of citizens of the United States,” and from “deprive[ing] any person of life, liberty, or property, without due process of law; nor deny[ing] to any person within its jurisdiction the equal protection of the laws.”
But there’s a more specific jurisdictional statute than the generic one, the Civil Rights Act of 1871, which deals only with alleged violations of a constitutional right by a state or local government or an official or employee of one. The explicit purpose of its main section, 42 U.S.C. § 1983, is to give the federal courts the authority to hear cases that allege violations constitutional civil rights by state or local governments or their officials or employee. It is clear and direct and until it was amended in 1996 contained no limitation at all on the authority of the federal courts to hear cases that allege violations of constitutional rights by any of the three branches of state government, and for the first century of its existence was thought to treat constitutional violations by state courts the same as it treated constitutional violations by state legislatures ( in, say, enacting an unconstitutional statute) or by the state’s executive branch.
In 1996, Congress amended the statute to place certain minor limitations on the jurisdiction of the lower federal courts to hear cases alleging constitutional violations by state courts. But the language of the amended statute makes clear that except for those exceptions, the lower federal courts may hear challenges to the constitutionality of state-court actions.
No matter. The more moderate of the federalist justices have acknowledged that nothing in the Constitution prevents the lower federal courts from hearing cases that challenge the constitutionality of state-court procedures, rulings or declarations of state law. Instead, they invoke the comity ground or say that the lower federal courts have no statutory authority to hear these cases, the federal-question jurisdictional statute and the Civil Rights Act of 1871, notwithstanding.
The latter is particularly curious; it’s based on the Court’s opinion in Feldman that said, for mysterious reasons, that a jurisdictional statute that gives the Supreme Court the authority to hear cases that a state’s appellate courts have considered, if the state courts’ rulings raise federal constitutional or federal statutory issues also prohibits the lower federal courts from hearing those claims. The statute says nothing of the kind—something the Supreme Court finally admitted, in a 2005 unanimous opinion that acknowledged amid expressions of dismay that the lower federal courts had been routinely misinterpreting the Feldman opinion since it was issued 22 years earlier.
But the former—comity—is odd, too. Never explained by those who sing the praises of a judicially induced policy of this type of comity to state courts, a policy that requires the lower federal courts to defy federal jurisdictional statutes, is why the states’ judicial branch is entitled to more comity than the states’ legislative and executive branches. There is little question but that the lower federal courts have jurisdiction under the generic federal-question statute and the Civil Rights Act of 1871 to hear the case. Unless, of course, the challenge to the constitutionally of the statute, enacted by the state legislature, or the executive-branch policy or edict ties in somehow with a state-court case involving the party that wants to challenge its constitutionality. Then, well … uh- oh.
Rehnquist, the most virulent federalist justice in recent decades, explained this by noting that state courts are courts of “competent jurisdiction” to consider constitutional issues. Which is true, but beside the point. The federal courts are, under acts of Congress, courts of competent jurisdiction to hear these cases, too. But, more important, when it is the state court itself, rather than a state legislature or state executive branch, that commits the constitutional violation or creates an unconstitutional rule of law, there is especially no legitimate reason for the Supreme Court to decree the state courts, as a matter of comity and in defiance of federal statute—not to mention the Constitution’s supremacy clause, which requires the states to comply with federal law—free to violate constitutional rights. Unless professional courtesy is considered a legitimate reason.
Since these Court-created doctrines are, by the Court’s own admission, simply policy choices made by the Court itself, and since the doctrines defy clearly-constitutional federal statutes, the question is why the Court decreed them in the first place. And why it sat back, year after year, for more than two decades, as it watched the lower federal courts deny access to those courts in case after case. After case. It wasn’t as if the Court had not been asked during those 22 years to review those lower-court opinions. Suffice it to say that it had been asked, more than once.
What was different this time was who it was that was asking the Court to hear the case, and who was representing that party in the petition asked the Court: Exxon Mobil Corporation was the petitioner to the Court. Its lawyer was former Clinton administration solicitor general Seth Waxman, the Justice Department official that heads the Department’s appellate and Supreme Court litigation office, who is now a partner at mega-power-firm Wilmer Cutler Pickering Hale and Dorr.
And as those of us who closely watch the Supreme Court’s actions know, nearly all of the civil cases that the Court agrees to heart each term are those filed by a member of tiny claque of ultra-prestigious Washington, D.C.-based Supreme Court practitioners, most of whom once served as a law clerk to a Supreme Court justice, all who now have highly lucrative practices based largely on their ability to gain the attention of the Court. The Court waits years and even decades to agree to address a procedural or constitutional issue until just the right party, represented by just the right, lawyer asks it to decide the issue. To a surprising degree—surprising at least in objective terms—the Court treats these lawyers as its de facto case screeners in civil cases and in white collar criminal cases. In any event, few petitioners whose case falls into one of those categories and who are not represented by a member of this tiny, elite cadre has access to Supreme Court review.
When after its 22 years of objectively inexplicable passivity, the Court finally agreed at the behest of Exxon Mobil to rein in the lower federal courts’ blanket use of the Rooker-Feldman doctrine, it did so in a manner so unintelligible that one of its members, Justice Stevens (who had written a stinging dissent in Feldman), mistakenly proclaimed the doctrine dead, in two separate opinions he wrote the next year, once in a dissent on other grounds, the other a concurrence, both times writing only for himself. The Rooker-Feldman and Younger doctrines don’t apply just to cases that raise constitutional issues; they apply equally to any case in which there is or was a related state-court case. In the Exxon Mobil case, the company was suing an oil company owned by the Saudi government. The company invoked a federal jurisdictional statute that gives the federal courts jurisdiction over foreign states in business and certain other types of cases, under certain circumstances.
But Exxon Mobil had filed its federal lawsuit while a state-court case filed by the Saudi oil company involving the same business transaction was pending in state court, so the lower federal courts dismissed the case, saying that under Rooker-Feldman those courts lacked jurisdiction to hear the case. The Supreme Court, after chastising the lower courts throughout the country for improperly interpreting that doctrine throughout the previous two decades and routinely dismissing any lawsuit related to a state-court one, held the lower federal courts indeed had jurisdiction to hear the case. But it did so in an opinion so imprecise, and containing mutually contradictory language, that the lower federal courts now routinely dismiss lawsuits under the Rooker-Feldman doctrine unless the federal lawsuit was filed before all the appeals in the state-court case ended. The rational is that the Court did, after all, appear to say that the real purpose of the doctrine was to comply with the Constitution’s Full Faith and Credit Clause and the federal Full Faith and Credit Act, both of which require the federal government and all the states to treat any one state’s court orders just as that state would treat them. And states don’t treat their own court’s orders as enforceable until the case is over.
Which renders the Court’s ruling effectively worthless except to Exxon Mobil. Coupled with the Younger doctrine, after all, which the Court continues to reaffirm every chance it gets, the opinion does nothing to remove the conundrum that the two doctrines combine to create: In comity to the state courts, and so as to not interfere with ongoing state-court proceedings, the lower federal courts cannot hear these cases as along as the state-court case is pending. And once the state-court case is over, the federal courts cannot hear these cases, because of the Full Faith and Credit Clause and the Full Faith and Credit Act.
Except that the Full Faith and Credit Clause and the Full Faith and Credit Act should have no such effect. Or, if they do, then they also prohibit the lower federal courts from hearing cases that claim that a state statute violates federal constitutional or statutory law. The Full Faith and Credit Clause and the Full Faith and Credit Act require the federal government and all the states to treat any one state’s statutes just as that state would treat them. These federal laws should no more bar federal-court jurisdiction to hear claims that a state-court action or pronouncement violates the Constitution then they should bar federal-court jurisdiction to hear claims that a state statute violates the Constitution.
The issue of access to a federal court to ask for relief from a final state-court judgment that violates a fundamental constitutional right, whether because of the nature of the judgment or because due process was denied in the process of arriving at the judgment is a tremendously important one if state governments really are not free to violate constitutional rights. This is especially true in cases such as child custody, child visitation, adult guardianship and adult conservatorship cases—cases that are perhaps the most susceptible to constitutional violation, ranging from inappropriately intrusive overreach into family relationships, to bald, jaw-dropping violations of even the most basic due process. These cases normally end only when the child reaches the age of majority or the adult dies. Although the Younger doctrine ostensibly has exceptions for irreparable injury and for cases in which the state court system has no method of access to quick appellate rectification, the federal courts—which unlike state-court systems are set up to hear emergency matters—the federal courts invariably claim that the doctrine requires the court to “abstain.”
These cases usually involve the rights of ordinary individuals. And as with tobacco companies in the case in which several tobacco companies asked Justice Scalia to stay the judgment temporarily and in which he obliged, the constraints of the Due Process Clause will be the only federal protection against violations of even the most basic of due process rights by the state courts. Except that for them, those constraints are meaningless. The Supreme Court almost certainly won’t be asked to hear their cases—the costs involved in filing such petition, even apart from attorneys’ fees, runs several thousand dollars—and wouldn’t agree to hear their cases even if asked.
This is not to ignore the possibility that given the large number of cases of that type in state family-law and probate courts, federal courts could be overwhelmed with petitions for temporary or permanent relief in these cases. It is instead to say that the decades-long categorical removal of any actual federal process by which to enforce the requirement that states comply with the Constitution serves to effectively remove the requirement that states comply with the Constitution. The Court lacks the authority under the Constitution to order the lower courts to refuse to comply with a clear statute that itself is constitutional, even if the Court fears that compliance with the statute would overwhelm those courts; that is a matter for Congress, not the Supreme Court, to address. But it is in any event unlikely that a restoration of the right to access to lower-federal-court review for those whose theoretical access to Supreme Court review borders on cruel sham (in other words, virtually everyone) would be unlikely to overburden the lower federal courts. The restoration of the availability, as required by the Civil Rights Act, of a quick federal-court process by which continued profound irreparable injury can be ordered halted—the recognition by state-court judges that this process is available—likely would itself reduce dramatically the number of instances in which the process would be legitimately used, especially because many of the violations in these cases occur through de facto policies of the local or state court system (policies that sometimes violate the state’s own statutes as well as clear constitutional law). Once a policy is held unconstitutional by a federal court, the state courts are unlikely to continue the policy.
Ultimately, what’s at issue here is not simply who, theoretically, has access to federal court but who has enforceable constitutional protections, and under what circumstances.
In 2006 the Supreme Court recognized in a high-profile bankruptcy case that the federal Bankruptcy Act gives federal bankruptcy courts the authority to consider challenges to final state-court judgments that are relevant to issues in the bankruptcy case. But, well, that was a bankruptcy case, not a challenge to the constitutionality of a state-court ruling, and the Court skirted the Rooker-Feldman doctrine by not even mentioning it. And of course the Exxon Mobil case, in which the Court did discuss that doctrine, was a standard business-law case. I figure it will take another oil company to ask the Court recognize that the Civil Rights Act of 1871, like the Bankruptcy Act and like the statute that gives the federal courts jurisdiction over foreign states, gives the federal courts the authority to review the constitutionality of state-court actions, before the Court agrees to do that.
Or maybe the same oil company. Unless some other type of large corporation hires a member of the prestigious Supreme Court bar to ask the Court to do so.
Just don’t call it judicial activism!
I can’t believe that I didn’t know until I read this that section 1983 was amended in 1996 so that it would include all three branches of government! I’ve been thinking about going back to court to try to get the Jane Bennett v. Kay Sieverding restraining order overturned. Not that I ever wanted to have sex or be near Jane Bennett, but it is bad for my reputation and employability. Jane Bennett and I were only neighbors never lovers or roommates and no statutory basis was stated. Judge Garrecht stated that what he was doing was the same as if a prosecutor had applied for it but then after the prosecutor dismissed the criminal charge (she didn’t file a written statement of probable cause, request a warrant, meet with me, have an arraignment, or request a restraining order), the judge continued the restraining order and Jane Bennett followed me around Steamboat Springs asking the police who reported to her husband, (who has a felony conviction for conspiracy to sell hash but kept that secret when he was president of the Steamboat City Council) to arrest me for being outside of my house where she could see me. So because we couldn’t live there safely or normally, I had to sell my house to Bennett’s lawyer for $580,000 and now it is for sale for $1.3 Million. I think the Rooker Feldman doctrine wouldn’t apply because the state didn’t apply for the restraining order. Judge Garrecht issued it after finding that I molested Jane Bennett but that wasn’t on her complaint so I was denied my right to confrontation and I was denied discovery of the molesting charge. Jane Bennett herself said under oath that there was no offensive touching and she claims to be competent enough to have a driver’s license.
What do you think?
Without knowing much about legal issues, I suspect that there is a crucial precedent setting concern here that involves similar cases but in regards to other health issues such obesity, type 2 diabetes and other diet-related diseases. Of course there have been class-action suits involving diseases caused by negligence, but “the claim of fraud in a civil lawsuit normally requires proof that the plaintiff relied, to his or her detriment, on the defendant’s misrepresentations”‘ has more bearing on detrimental food and beverage products because these are ‘not’ commonly regarded as dangerous as compared to tobacco products. Consumers do not , in other words, consume most food and beverage products knowing that there are harmful ramifications and in many instances the advertising thereof suggests otherwise. And so, the requirement to demonstrate fraud will actually be much less onerous in cases that do in fact involve prior knowledge of health risks.
Consider the implications then of how these types of products are exported all over the world, and how big of a factor these exports are to the US economy, and the importance of this case in Louisiana intensifies immensely. Negative externalities galore with US courts providing the precedents. It is doubtful that this class-action suit will be settled anytime soon, if ever. Interfering with the empire’s progress does not often occur.
No, sec. 1983 ALWAYS included all three branches. It’s just that beginning in the 1970s, the Supreme Court, and especially in the 1980s, the Court began creating and expanding these “doctrines” that effectively removed state judicial branches from the reach of sec. 1983. But the conservatives who gained control of Congress in 1994 were behind the curve and didn’t realize this, so they amended that statute–the first time that that statute, enacted in 1871, was amended–to expressly place certain limitations on the use of that statute to challenge the constitutionality of state-court actions.
In doing so–especially since the limitations are pretty innocuous (in my opinion); Clinton was president then and probably wouldn’t have signed anything worse–they actually reaffirmed that the statute indeed was always intended to reach, and would continue to intend to reach, state judicial branches, albeit in not in the narrow circumstances that the amended statute identified.
No, sec. 1983 always was intended to reach all three branches of state government. The pre-amendment language of the statute—the statute had never been amended until 1996—had no language at all limiting or negating its application to the judiciary. When the conservatives in Congress decided to amend the statute in 1996, it was because they didn’t realize that the Supreme Court, beginning in the 1970s and accelerating in the 1980s, had creates these “doctrines” that the lower federal courts were interpreting as effectively removing state judicial branches from the reach of the statute.
The amended version actually does something that the original version did not: it expressly acknowledges that the statute was intended to, and historically was interpreted to, apply to the states’ judicial branches. The language added to the statute by the 1996 amendment actually is, in my opinion, pretty innocuous—Clinton was president then, and probably would have vetoed anything more limiting—actually says outright that, except for the circumstances covered by the new limiting language, the statue applies to state judiciary branches just as it does to state legislative and executive branches, just as the statute always did.
Except that it doesn’t, because the Supreme Court and the lower federal courts have effectively rewritten it.
No, sec. 1983 always was intended to reach all three branches of state government. The pre-amendment language of the statute—the statute had never been amended until 1996—had no language at all limiting or negating its application to the judiciary. When the conservatives in Congress decided to amend the statute in 1996, it was because they didn’t realize that the Supreme Court, beginning in the 1970s and accelerating in the 1980s, had creates these “doctrines” that the lower federal courts were interpreting as effectively removing state judicial branches from the reach of the statute.
The amended version actually does something that the original version did not: it expressly acknowledges that the statute was intended to, and historically was interpreted to, apply to the states’ judicial branches. The language added to the statute by the 1996 amendment actually is, in my opinion, pretty innocuous—Clinton was president then, and probably would have vetoed anything more limiting—actually says outright that, except for the circumstances covered by the new limiting language, the statue applies to state judiciary branches just as it does to state legislative and executive branches, just as the statute always did.
Except that it doesn’t, because the Supreme Court and the lower federal courts have effectively rewritten it.
Under 42 1985(1) there is the right to sue and the right to contract. The right to contract there I think, but I am not a legal historian, is the source code of employment law. But there is not much case law that actually cites 1985(1) right to sue. What the statute actually says is the same right to sue as white people. Which as a “white” person, I interpret as the same right to sue as other white people or non-white people. Which means procedural due process, right?
According to Thurgood Marshall,
“The 1871 Congress intended § 1 to “throw open the doors of the United States courts” to individuals who were threatened with, or who had suffered, the deprivation of constitutional rights, id. at 376 (remarks of Rep. Lowe), and to provide these individuals immediate access to the federal courts.” Patsy v. Board of Regents of State of Florida, 457 U.S. 496 (1982)
Basically, the defendants don’t want plaintiffs to have access to federal court and at the same time they don’t want you to have access, or procedural due process, in state court. They want to win and deny responsibility for their tortious acts and they want to avoid paying judgments. So they argue to the Federal Court that they should not provide a forum. The defense lawyers argue, “dismiss this case” for their entire careers, over and over again, to the same judges, with whom they develop relationships.
When I was preparing for my pro se litigation, I read Prosser’s theory that lawsuits are a way to efficiently order society because they expose corruption. Also, if lawsuits are encouraged to litigation, or mediation or settlement earlier rather than later, then the damages are less. Australia, for instance, had a vexatious litigation statute and they ruled that it was vexatious for smokers to sue tobacco companies. Consequently, more people smoked longer then if smoker and tobacco issues were litigated earlier. So if you agree with that theory that it is better to communicate then to hide problems, then you think that more access to court is better. Therefore, the best solution is to have redundancy in courts. So if there is a problem with one, like a corrupt judge, or even delays, or even transportation or translation problems, then the litigants will be able to go to the other. In the case of a corrupt judge, the best public policy is early detection and early intervention.
The courts are supposed to meet the needs of the litigants and by definition that is a hearing on the merits. The jurisdictional statutes must be construed so as to comply with the First Amendment’s Right to Petition.
The courts are supposed to meet the needs of the litigants and by definition that is a hearing on the merits. The jurisdictional statutes must be construed so as to comply with the First Amendment’s Right to Petition.
Silly Lawyers
People like me should stop smoking tabacco because people like you think it is so bad ! #2 on the list from the folks that taught us about the food pyramid.
#1 on the list, being cedentary.
Scalia is not above breaking the law when he has to. George Bush vs Al Gore.
Anyway, when can I buy a joint to ease my aches and pains which, unfortunately, come too often.
The courts are supposed to meet the needs of the litigants and by definition that is a hearing on the merits. The jurisdictional statutes must be construed so as to comply with the First Amendment’s Right to Petition.
ie
If you charge me wit a crime, the burden to you is to show cause ?
Just watching the great Biography channel featuring the life of Lucky Luciono. Quite revealing. I learned that if you really want to be a criminal, you need to go to prison. There is no better education available.
So, logically, what is the US thinking ? We have the largest Prison population of all the gentrified societies, bar none.
Some of us speculate that it may be due to the republican private prison industry lobbying and writing the laws about which particular lifestyle infractions should be punished with the maximum incarceration (cash flow).
Us simple citizen say, WTF. Why don’t the people on Wall Street go to prison for stealing so much money. But, our Ivy League friends tell us that we should not look at the situation like that. We should be happy that we have a job and just STF up. Unfortunately, our government agrees. If you are a dweeb from a wealthy family that goes to Harvard, Princeton, Uof Chicago, you have immunity.
These dirty little bastards can’t be sent to prison. We need to bail them out, cover their stealing of the American middle class retirement savings. We are talking trillions of dollars.
Where are all the big talking Layres, now.
kay:
“are supposed to meet”
I have not see a court yet which meets the needs of the complainant or defendent of little means. As bev notes, it is the status of the applicant and the legal firm used which appears to garner attention from the courts. The days of Gideon are gone and the upper court has further denied access to themselves by limiting the number of cases it will hear to a miniscule 85/year for SCOTUS.
The court effectively has rewritten the protections granted under the 14th amendment to serve its needs, special interests, and thereby block challenges to state rulings. The Slaughterhouse, Reese and Cruikshank cases were used to block challenges to the state violation of the civil rights of Black Americans after the Civil War by construing the meaning of the 14th Amendment as written. In effect, it allowed state courts the ability to determine the rights of its citizens with little threat of federal jurisdication unless there was a threat to national citizenship (try denying the birthright citizenship of a person born in the US), etc. which was the limitation placed upon the fedral courts by the Miller SCOTUS. The court selectively chooses what individual rights of the citizens will be covered under the privileges and immunities clause of the 14th amendment.
It will be interesting to see Justice Scalia resolves the contradiction between his original intent view of the 14th amendment, that it was only intended to be applied to cases involving freed slaves (and they are all dead!) and the need for due process for the most deserving of our citizens, the largest corporations. Apparently the authors of the 14th amendment intended to free the citizen corporations from the bounds of unfriendly state court decisions. Is it possible the Justice has uncovered some long lost tome of Senator Jacob Howard’s in support of this?
Ideology, the final refuge when the facts don’t support the conclusion we want.
I can’t convince even myself that i understand any of this.
I should say by way of full disclosure that i don’t like Scalia and i don’t like tobacco companies. But if i squinch my eyes just right and imagine that this was really a case of a state court denying “full protection” in a civil rights case, Scalia would probably be doing the right thing.
On the other hand, as I think the post demonstrates, the “law” is complex enough that it can be made to mean whatever the last judge wants it to mean… and that judge might not even know he is biased.
on the other other hand, i can’t honestly say i can think of an answer to this. given long enough and enough public pressure the congress and the courts will eventually do what the people think they want. and that is scary enough.
but none of us should be terribly surprised that the rich get a higher quality of justice than the poor.
It is rather interesting that Justice Scalia and the court seem to have a sympathy when it comes to rights of corporate citizens, and a lesser regard when it comes to real, living, breathing individual citizens. And speaking of bankruptcy and federal law, could it be a remote possibility that the recently enacted BAPCPA in 2005, raises questions regarding the 14th Amendment’s equal protection clause? What I mean is that corporate persons are treated differently than individual citizens.
Kay
i think you are essentially right, but if there is any way for you to let go of this you need to. Most of the rest of us have had to come to terms with what we regard as injustice. It’s part of life. You can ruin the rest of yours by trying to get your “rights.”
Kay, that reply of mine actually was just to the first sentence of your post, which concerned whether or not sec. 1983 as originally enacted applied to the judiciary. But, to answer your question about whether Rooker-Feldman would not apply because it wasn’t the State that requested the restraining order, the answer is that it doesn’t matter. What matters is that it was a state court that issued the restraining order.
As you know, I know much more about your case than you put into your post, and I know that it stemmed from a long feud between your family and your next-door neighbors, and that your neighbor was the head if the City Counsel, etc., etc., ….
Kay, that reply of mine actually was just to the first sentence of your post, which concerned whether or not sec. 1983 as originally enacted applied to the judiciary. But, to answer your question about whether Rooker-Feldman would not apply because it wasn’t the State that requested the restraining order, the answer is that it doesn’t matter. What matters is that it was a state court that issued the restraining order.
As you know, I know much more about your case than you put into your post, and I know that it stemmed from a years-long feud between your family and your next-door neighbors, and that your next-door neighbor was the head if the City Counsel, etc., etc., ….
Well my life goes on. The whole mess of the property dispute and taking in steps accompanied by the unconstitutional prosecution without a written statement of probable cause or an arraignment caused a lot of downhill trauma, emotional distress, reputation damages and financial damages.
1.) I am only 56 and seem extremely healthy except I don’t like to stand on my feet for long periods of time. 2.) I need money. 3.) I need to constructively occupy myself or I get bored. 4.) I am very creative. For instance, just in the last week I have been thinking about two unrelated entrepreneurial ideas that I thought of myself. If I could raise money for these ventures, then I could also support myself in a better fashion than the alternatives. If I could relieve myself of the reputation damage issues of the restraining order, it would be easier for me to court investors.
There are other reasons why getting rid of the Jane Bennett v. Kay Sieverding restraining order would be good for me. We might want to visit Steamboat Springs. This summer it seemed too stressful to go to my husband’s high school reunion. And we still have friends there. And I still have my ski equipment; if I was going to ski again after 10 years of not skiing once, Mt. Werner would probably be a good place because it has a lot of intermediate runs and I could probably remember my way there, since I had season ski passes there for I think 10 years. Plus we have old friends and our kids skied there and have friends there. So maybe we could actually visit Steamboat if the restraining order was gone.
The statutory procedure suggested on line at Colorado Courts is to provide proof of no criminal convictions following the criminal conviction that relates to the restraining order. But I didn’t have a criminal conviction related to the restraining order. In fact, I have never been criminally convicted. So I don’t want to file a form that says that I was criminally convicted when I was not.
I looked up Pulliam v. Allen, 466 US 522 and from that it looks to me like there is relief available in federal court. Then I looked up “Pulliam” and there are 2 pages of cases in the 10th Circuit. I read one the other day that seemed to require exhaustion thru the Colorado Court system; I thought I saved the pdf but now I can’t find it. But based on that I am thinking of filing for mandamus in the Colorado Supreme Court.
One difference between corporations and individuals is that where there is RICO, if there is a corporation, then the defense of “no organization” is lost.
I read some 10th Circuit decisions the other day but somehow I lost the files. One of them said something to the effect that in order for there to be RICO there has to be an organization, not just individuals. But if there is a corporation, then that whole line of argument is totally unnecessary, the issue is already conceded by the defendants.