We like to think of America as the land of the free, place of opportunity and beacon of liberty, but those founding principles are quickly eroding. Your book may have a vital impact. Newcomer political candidates continue to garner a tremendous following because they are expressing the frustrations of our people.
When alienated children remain alienated into their forties, what should the targeted parent do? Walk away because it’s too late? Reach for a relationship more assertively? Acknowledge birthdays and holidays while continuing to wait for them to have an epiphany?
There are lots of things you can do by virtue of your job as a circuit court judge.You can (in no particular order of importance- and BTW the following is not directed at any particular judge…if the robe fits…).
Deny motions without reading them; have your JA refuse to put motions on calendar without lawyers first faxing them to you (although you don’t read them); start court whenever you want; show up late; finish court whenever you want; make juries stay until midnight in a misguided effort to show everyone how hard you work; lecture lawyers from the bench about how you tried every case you had within sixty days of inception (in other words, lie); brag about how you are on the short list for an appointment to a higher court (ditto); and otherwise feel that you and only you stand between the rule of law and anarchy. Here’s what you must do: follow the law.
Which means here’s what you can’t do:
Have your bailiff close your courtroom to anyone at anytime without proper notice to the media and a hearing on an issue; tell people how to dress when they come to court (wearing a shirt that says “fuck you” has been held to be an expression of free speech under the First Amendment – which is part of the Constitution, which is a legal document that defines the ….oh never mind it’s a bit complicated),
You also CANNOT take personal property of people, without following Florida’s Forfeiture Statute (and it’s not entirely clear a member of the judiciary can be a “seizing agency” under the statute. ).
Which means that in order to seize the personal property of an individual, there must be an allegation that the property was used to violate Florida’s contraband laws; see, Fla. Stat. Ann. § 932.703 (West)
(1)(a) Any contraband article, vessel, motor vehicle, aircraft, other personal property, or real property used in violation of any provision of the Florida Contraband Forfeiture Act, or in, upon, or by means of which any violation of the Florida Contraband Forfeiture Act has taken or is taking place, may be seized and shall be forfeited subject to the provisions of the Florida Contraband Forfeiture Act. Contraband is defined as, inter alia: Any personal property, including, but not limited to, any vessel, aircraft, item, object, tool, substance, device, weapon, machine, vehicle of any kind, money, securities, books, records, research, negotiable instruments, or currency, which was used or was attempted to be used as an instrumentality in the commission of, or in aiding or abetting in the commission of, any felony, whether or not comprising an element of the felony, or which is acquired by proceeds obtained as a result of a violation of the Florida Contraband Forfeiture Act. ~ Fla. Stat. Ann. § 932.701 (West)
More Family Court Inspired Violence?Family courts are clearly set up to make fathers and mothers fight. It brings out the worst in both of us because its dealing with children, OUR children.
A strong correlation undoubtedly exists between ongoing custody battles and the violence arising from litigant abuses which can be found in a variety of mainstream news media reports.
But the sad part is all of the bickering, fighting, and ensuing violence, suicides, murders etc could mostly all easily be avoided.
How? Simple. Treat both mothers and fathers with equal respect. It should be de facto going into 75% or more of these child custody hearings that its going to be 50/50 custody end of story. Financial situations (aka so called child support) needs major reform but the key there is to start holding both parents responsible. Right now if the so called custodial parent can’t buy her kid some new clothes, tough shit, the kid goes to school in rags. But if noncustodial daddy doesn’t pay his so called “child support” one month, all hell breaks lose. He has accounts levied, ruins his credit, loses his house, loses his license, and some states goes right to jail.
Mommy doesn’t have to worry about all that if she doesn’t buy Johnny a new bike or is running 2 months late on the electric bill. Nor should she or ANY parent have to have their basic human rights removed for a matter dealing strictly with money. It’s a draconian system, a modern day form of slavery need seen since the Middle Ages.
So once we stop labeling parents important and unimportant in court, and stop making daddy a status quo weekend warrior ATM machine, that’s the only thing that will fix this.
The only reason we should ever have to get mediators and countless court appearances and allow all this crazy fighting to go on is if there is a PROVEN history of parental neglect OR if the parent willingly backs out from their god given right of shared custody.
Otherwise mostly all family court cases should in theory be so cut and dry that we shouldn’t even need or want mediators and lawyers and judges involved at all. No one would bother going to court and going through all this emotionally draining nightmare if it was de facto that the decision would be shared custody. As it stands now the women are given huge advantages and this of course leads to a class of entitled people who can (and do) use the government to maliciously and forcefully punish the other parent and take advantage of them. And the worst part is they have societies backing doing this resulting in their conscience being okay with what they are doing.
It’s all for the kids, right? They have society
believing that so they just go along with that lie because they are so angry at their ex spouse. It’s a rather disgusting deplorable system we have set up here. And to know its in place because the people running it make too much money off of it to change it is the worst part of the whole story.
So yeah, I agree with you, as I always do. Much respect for you here Mr Koziol.
Within moments of parental advocate Leon Koziol, J.D., releasing an alarming 28 Page report which predicted an increase in violence arising from litigant abuses in our courts, we were made aware of this tragic story from the Chicago Tribune. (Read Story Here). We are not suggesting the family court or litigant abuse was the cause of these senseless killings nor are we condoning these random acts of violence.
However, as previously expressed here at LeonKoziol.com, we continue to believe that a strong correlation undoubtedly exists between ongoing custody battles and the violence arising from litigant abuses which can be found in a variety of mainstream news media reports. Mr. Koziol’s recent report to the Judicial Conduct Commission was intended to further serve as a wake up call in hopes that both corrective action and reform can take place in an effort to prevent similar future tragedies from…
Evidence both from psychological research and clinical intervention studies suggests that there are bidirectional influences between overt child behavior problems and parent-child relations. Very little research however, has considered the pattern of relations that exists between Attention Deficit Hyperactivity Disorder (ADHD) and the parent-child relationship within a longitudinal context. Using a longitudinal community sample from the United Kingdom which included 194 school aged children (46% male and 54% female) and both parents, this study examined the relationship between child ADHD symptoms and displays of rejection in the parent-child relationship.
These relationships were investigated separately for mothers and fathers using cross-lagged panel correlation and reciprocal effects analysis. Mothers and fathers reported on ADHD symptoms and children reported on their feelings of rejection in the mother-child and father-child relationships. Results suggested differences in the direction of effects linking mother- and father-child rejection and child ADHD symptoms; with ADHD symptoms affecting the mother-child relationship and the converse pattern of effects noted for fathers. Implications for future research focusing on the link between ADHD symptoms and parent-child relationships are discussed.
“The effect on parents and children seeking social support within this coalescing “family law” forum has not been as advertised by courts and professionals—a new healing—but instead a new affliction: an ‘imposed disability’ of de rigueur deprivation of fundamental rights in the name of ‘therapeutic jurisprudence’ funded by converting college funds into a bloated ministry of the bar leaving families and their children with mere crumbs of their own success.”
Shrink4Men,AVoiceForMen and DAHMW (the Domestic Abuse Hotline for Men and Women) would like to shine a spotlight on a group of individuals who comprise approximately half the victims of domestic violence. A group who is afforded very few resources and are typically ignored and/or ridiculed when they speak out about their victimization — often by the very individuals seeking to raise public awareness about the insidious social malady of domestic violence.
Who is this invisible and marginalized group of domestic violence victims pushed to the periphery of public awareness?
[*If you are already aware about the difficulties male victims of domestic violence face, please scroll to the end of this article to find out how you can help.]
Men are turned away from most domestic violence shelters. Men do not meet eligibility to receive aid from most domestic violence support organizations by virtue of being men, which is nothing short of overt discrimination, sexism and bigotry.
To the best of our knowledge, there are no court advocacy programs for male victims of domestic violence. Men (and their children) are not eligible for state and federal stipends for safe housing from their female abusers. There are no free or subsidized counseling programs nor are there free legal services/legal aid for male victims of domestic violence.
In the United States, there is only one shelter for male victims of domestic violence (the Valley Oasis Shelter in Antelope, CA) out of the approximately 1,800 shelters available to women and their children nationwide. Canada also used to have a domestic violence shelter for men that was run by the late Earl Silverman.
Mr. Silverman committed suicide this past spring after succumbing to a state of learned helplessness and hopelessness after years of begging for funding and assistance for his much needed shelter. Essentially, Canadian women’s domestic violence organizations locked arms and blocked Mr. Silverman from the funding trough. The same thing happens to organizations like DAHMW in the United States.
The repeated message to organizations that want to help male domestic violence victims seems to be, “Be grateful for the few scraps of government funding that drop from the table and if you complain about the disparity, you won’t even get that.” The reality is that most governments are willfully blind to and/or profit from the suffering and victimization of their male citizens. Since men are currently the most underserved group of domestic violence victims, one would think funding the few organizations that help this population would receive priority from state and federal programs. Instead, male abuse victims are begrudgingly acknowledged, that is if they are acknowledged at all.
According to RADAR (Respecting Accuracy in Domestic Abuse Reporting), less than 10% of the United States OVW’s (Office of Violence Against Women) funding is used to help male victims. A big part of the problem lies in the very names of the OVW and the VAWA (Violence Against Women Act). “Violence against women” is exclusionary and ignores half of all domestic violence victims. Even worse, it demonizes men as perpetrators and women as victims in the majority of domestic violence cases, which simply is not true.
It also doesn’t help that the U.S. Department of Justicerefuses to fund research about male victims of domestic violence. On page 6 of the DOJ’s solicitation for proposals on intimate partner violence and stalking, they have a section that explicitly states what kind of projects they will not fund, including:
Proposals for research on intimate partner violence against, or stalking of, males of any age.
Despite the abundance of peer-reviewed research on male domestic violence victims and female perpetrators, most domestic violence awareness campaigns focus exclusively on female victims as if our society isn’t already well aware that women can be victims of domestic violence. Many domestic violence organizations persist in publishing long ago debunked statistics that portray women as the victim and men as the primary aggressors in the majority of domestic violence cases.
One of the huge problems we have in our fight for Family Law Reform is the problem of “enablers”.
We’ve got so many people enabling and empowering the horrific behavior going in within Family Law.
We’ve got lawyers counseling clients that it’s right and good for them to limit or eliminate the relationships between children and NCP’s to gain freedom and child support. We even have lawyers who will subtly coach clients on how to make false allegations to gain an advantage.
We’ve got judges who absolutely detest hearing custody disputes, so they use a variety of direct and indirect methods to make the cost of enforcing visitation prohibitively expensive (child support, litigation, procedure, unequal enforcement of family court orders)
We’ve got court-appointed social workers who are making a killing by mining data the necessary data to support a decision they already know the Court wants to make.
“I don’t know if any of you have experienced this, but for every petition I’ve signed or letter written to members of our government, I get back a generic email stating this is not an issue for that specific branch to deal with. I am then resending the petitions and asking “why not?” As long as they keep saying “not me or my problem” they continue to push our children aside. Our children should be cared for at a local, state, and federal level. If gov’t officials aren’t worried about it, they should be. After all, who’s going to be making the laws and caring for them when they’re retired and need care? I don’t want my kids being that callous. We take care of them now, they learn to care for others later.”
Michael: “I’m not a big fan of these petitions; at least not yet. I probably get asked to sign 10 of these a day, from groups splintered all over the place, and I’ve gotten to the point where I don’t even bother, because they can’t generate enough political weight to be taken seriously – The conditions and the timing aren’t right.”
KP: “I agree to a point. Right now, everyone’s wondering about the upcoming election and they’re treading lightly. I also agree these petitions don’t carry much weight. We are inundated with so much every day, we’re blocking a great deal of it out. But, I also know there will never be a “right time” in someone’s eyes. So, I keep bugging until someone listens. Someone, somewhere will say “now it’s time” if we keep asking.”
Michael: “Well, in my opinion here’s the deal. And I say this, because professionally, I deal with this a lot.
Politicians aren’t going to start taking us seriously until the Media starts taking us seriously. And one of the first things the Media does when it wants to assess the newsworthiness of a cause is check FB, Twitter, etc. to see what kind of following the cause has. Hey, Media people are busy, and that’s a quick and dirty way for them to evaluate the potential public interest in a story, and these protests, petitions, etc. don’t have the physical weight to work well yet.
SURE, they do generate publicity, but not a significant amount, because the reality is the Media simply sees 20 or 30 people jumping up and down outside the Court house, who they perceive are merely pissed-off about having to pay child support, and they just don’t think this is newsworthy. Of course we know this perception is wrong, but, this is the majority one today- rightly or wrongly, it is what it is.
Now, the reason why that Bank of America petition earlier this year worked so damn well is because nearly everyone LOATHES banks, especially big banks. They nickel and dime us, they hide fees, the charge interest, they sue us, foreclose on us – whatever; they tend to frequently piss EVERYONE off. So, a petition like that already has the base and the energy, and that’s why, especially in today’s economy, it flew off the radar. We’re not there yet. Truthfully, there are millions of us who’re angry about that injuries that have been done to us and our children, but most aren’t seriously activated, and many are simply too afraid to speak out for fear of reprisal from a justice system relies heavily on secrecy and draconian measures to enforce its will.
But even more important, there are also one hell of a lot of folks who have a LOT to lose if reforms are actually made, and they ARE activated.
The National Organization for Women (NOW) has just under 40,000 Facebook followers. Our two primary Lobby/Activist groups: Fathers and Families (just under 4,000 followers) and The American Coalition for Fathers and Children (just under 1,500) are not even close in terms of political capital. And nothing significant is going to happen to accomplish our goals until these numbers come up.
So first, we have to continue to work on coming together. And as we do this, we have to realize that it’s unrealistic to believe we will ever persuade those who don’t agree with us. But we can influence the middle, and they too, will begin to listen once we can show social proof in the form of numbers.”
Do I think petitions and protests are valuable tactics in affecting strategies for Family Law Reform? Yup. However, times change, and what worked yesterday, may not work as well today. Petitions and protests certainly have their place, and as I mentioned above, they do generate publicity. However, we must ADAPT to the conditions of today.
So, let me try putting it this way: If NOW started sponsoring rallies against Family Law Reform, and The American Coalition For Fathers and Children started sponsoring rallies for Family Law Reform; which group do you think will be awarded greater credibility by the Media and the Public at large?
Effective strategy means adapting and exploiting current conditions to your advantage. Petitions and protests appear to offer that quick fix we so desperately want, but the problem is, the conditions aren’t optimal for those tactics to work well yet.
Social networking platforms like Facebook give each one of us the power and the ability to publicize the truth without having to depend on the Media to do it. And interestingly enough, it’s that very power that, these days, will actually work to attract the attention of the Media in the first place.
Statistically, each one of us knows at least two or three people within our group of Facebook friends who’ve been screwed over by the Family Court.
Have you reached out to them? Have you pointed them toward a group, page, or cause that can offer them love, support, and an opportunity to get involved?
The lesson here is a simple one: work on setting up and building the right conditions, then any number of tactics will have great power.
Earlier in the week, I had an experience with a recently added member to one of our closed Facebook groups where he offered some criticism about our strategy of publicizing the need for Family Law Reform with Facebook, Twitter, Pinterest, and within the blogosphere.
Basically, I get the sense he’s an old school guy who has spent years busting his tail to actively and publically protest against the corruption within our Family Court system, and I more or less got the feeling that he thinks what we’re doing isn’t bold or dangerous enough to attract any significant attention.
And then this morning, I was having another conversation with a friend of mine about signing a petition. Here’s how it went:
“I don’t know if any of you have experienced this, but for every petition I’ve signed or letter written to members of our government, I get back a generic email stating this is not an…
So, I want to ask where you stand on an important political issue: Family Law Reform.
As you may or may not be aware, our current system of Family Law has devolved into one in which a whole host of Family Court Industry players are profiteering from the minimization or elimination of parenting time and rights for non-custodial parents.
Many custodial parents, lawyers, parenting plan evaluators, supervised parenting services, States, friends of the Court social workers, many Courts, and others; are making money by using children as an excuse to exploit non-custodial parents, causing irreparable harm to both children and their parents in the process. I, and a rapidly growing base of many others, would like this to stop. More specifically, we are asking for five primary reforms to Family Law:
The presumption of 50/50 custody and parenting rights during and after divorce. We are NOT asking for a REQUIREMENT of 50/50, because we still want parents to be able to decide for themselves what works best for them. However, in the event that case goes to trial, instead of having the NCP being forced to rise to a high standard to show why they should have time with their children, I believe it’s far healthier (for both parents and children) for the parent contesting this time to be required to rise to a high standard to show why the NCP should NOT have equal time with their
And while this may dramatically hit the financial accounts of those who are using children for profit by creating or aggravating conditions of conflict, this reform will affect far healthier outcomes for families.
I would like reforms to child support calculations. More specifically, an elimination of financial incentives for minimizing or eliminating a non-custodial parent’s time with their little ones. As it sits now, there are basically two pieces to the child support calculation: (1) An actual physical needs worksheet, and (2) A tax-free income redistribution; with the Court establishing the higher of the two as the child support order. I recognize that custodial parents may need some time to adjust after divorce, and I have no problems with alimony/maintenance. However, I would like the alimony portion of child support to be eliminated. If a CP wants to better their lifestyle, they can put the work into bettering themselves just like NCP’S are often admonished to do. Children are NOT tax-free income producing assets, and NCP’s are NOT indentured servants.
Reforms to child support enforcement: If one wants to accomplish a goal, it helps establish good or helpful conditions to achieve that goal. Unfortunately, the Family Court has become accustomed to pathological and often draconian measures for enforcement in which the civil rights of NCP’s are systematically ignored or eliminated through administrative court procedures. If a person loses their job, or becomes ill or disabled, it makes no sense what so ever, to take away their driver’s license, vocational license, destroy their credit, throw them in jail, or force them into homelessness. How does this help to ensure the support gets caught-up? It doesn’t. It simply makes the problem worse and sets the non-custodial parent up for future, life-destroying failures. Truthfully, current regimes for enforcement that treat “deadbroke” parents as common criminals are completely inappropriate.
Social Security Act, Title IV, Part D, Section 458 “Incentive Payments To States”: I have no problem, in theory, with states being rewarded for child support enforcement. However, I have a big problem with States profiting from it, and a REALLY big problem with the lack of resources available to NCP’s for visitation enforcement. For little or no cost, a CP can have the state pursue civil or criminal remedies for delinquent child support.
However, an NCP in reality, must hire an attorney if his or her visitation orders are being ignored, and often, these orders are not enforced with anywhere near the same severity by the Court as they are with child support orders. And I’m confident this is happening in large part, due to the financial interests of those parties noted in paragraph four. Therefore, if there is going to be Federal incentives for the enforcement of Family Court orders, I want equal weighting and importance put the enforcement of visitation orders. Honestly, the message that money is more important than a parent’s relationship and the emotional well-being of children is remarkably disgusting. I simply can’t tolerate that kind of worldview.
VAWA reform. I agree that victims of abuse and violence need the ability to feel safe in swiftly seeking the protection of the Justice system. However, fraudulent allegations of abuse made during Family Court are getting out of control. This is a gender-neutral problem, and it seems it now boils down to which party can launch this nuclear attack first. There are no remedies available to the victims of fraudulent allegations – none, and the damage these allegations cause to both children and parents is catastrophic.
The American Bar Association loves to fall back on VAWA as its reasoning for opposing any kind of Family Law reform. However, I can’t help but wonder how much money attorneys and investigators are making from a law that allows someone to be accused of such a serious crime and presumed guilty of it with no credible evidence what-so-ever. Something needs to be done about this, right now.
In short, much of the current political and judicial rationalizing for the current structure of Family Law centers on the concept of what’s “in the best interests of the children”. However, what is becoming increasingly clear is that children are simply being used as a seemingly noble excuse to mask a greedier underlying motive that is causing significant and irreparable harm to parents and children alike.
I understand you can expect to receive significant resistance to my ideas for reform because those parties noted earlier have a great deal to lose when they take place.
However, I’m not concerned about them. I’m concerned about the health and well-being children and parents, and your position on this matter will affect my voting behavior going forward.
Therefore, I will be grateful if you will tell me, in plain and simple words, where you stand on Family Law Reform.
This morning, FathersandFamilies.org put out an excellent call to action on its Facebook page.
Here it is:
“Have you ever wondered where your local State Representative or Senator stands on the presumption for equally shared parenting, or what they think about Judges using discretion to bypass equal parentage and access to children by Non-Custodial families? Well, let’s find out. Fathers and Families is asking today that you go to Google and search your State’s Legislative or General Assembly website to find your State level Representative and Senator (pick one Rep and one Senator) and email both asking where they stand on you being allowed to have equal access to your children and financially supporting them directly, as well as how to deal with Judges who prevent that.
Once both have responded, come back to this post and type the name of the State you are in, the Rep/Senators name, and…
The essence of nomocracy, the rule of law, is limitation of the discretion of officials, and providing a process by which errors or abuse of discretioncan be corrected. Some discretion is unavoidable, because law cannot anticipate every eventuality or how to decide which law may apply to a given situation. What guidance the law cannot provide is supposed to be provided by standard principles of justice and due process, reason, and the facts of each case. Ideally, officials should be mutually consistent and interchangeable, making similar decisions in similar cases, so that no one can gain an undue advantage by choosing the official or exercisingundue influence on the official or on the process he operates. We trust officials to exercise such discretion as they have with wisdom, justice, and competence, to avoid government that is arbitrary, insolent, discriminatory, prejudiced, intrusive and corrupt.
Within the public sector, discretion can be exercised by legislative, executive, or judicial officials. Within the private sector, discretion may be exercised by private officials, such as agents, trustees or corporate officers, who are in principle subject to the supervision of the courts. The focus here is on judicial discretion, and the abuse of it. It will not discuss every area of judicial discretion.
The first major check on the discretion of judges was the jury. A judge, holding office over the course of multiple cases, and selected by appointment or election, is susceptible to undue influence. A jury, chosen by sortation, or lot, for a single case, just before the case, is less likely to be corrupted, and having multiple jurors render verdicts collectively provides a check by each on the others. What they might lack in knowledge of the law is offset by their connection to the non-legal environment in which most people subject to the law must operate.
In courts that try to save time and money by not using juries, such as family courts in some states, complaints about abuse of judicial discretion have led to calls for juries to decide questions of custody, visitation, child support, and the distribution of marital property.
Judges who impose lenient sentences, to avoid prison overcrowding and the early release of violent offenders, often provoke demands for mandatory minimum sentences or sentencing guidelines that reduce their discretion to do things like impose reduced sentences on defendants thought to be remorseful or unlikely to commit another offense.
Most complaints of abuse of judicial discretion, and calls to limit it with more laws, concern questions of policy or equity. But there is another broad category, which concerns constitutional questions of due process and civil rights. This is too large a field to discuss adequately in a short article, so only a few of the more important kinds of judicial discretion that are often being abused will be presented.
Stare decisis is the doctrine according to which a judge in a current case treats decisions in past similar cases as authoritative precedents, and refuses to make the decision in a way that departs from such precedents, regarding all of them as correctly decided. There is a place for giving weight to precedents, especially in civil cases and matters of equity, and to clarify ambiguities in the black letter law, but it is an abuse of judicial discretion to treat precedents as though they are law, equal or superior to black letter law, especially when that black letter law is a written constitution. Only the edict, the finding and the order, are law in a judicial decision, and only for the parties involved. The opinion concerning how the decision was reached may be persuasive on its merits, and indicative of how the same court might decide a similar case, but it is dictum, or commentary, not law, and it is an abuse of judicial discretion to fail to exhaust textual analysis and legislative history before considering precedent, and making sure that the chain of precedents has not wandered away from the bounds of the black letter law.
Deference to legislature and administration
While it is appropriate to defer to the legislative and executive branches on questions peculiar to those branches and their constitutional duties, all too often judges abuse their discretion by so deferring in cases where officials of those branches have clearly exceeded their authority. This is sometimes signaled in a decision that declares the matter a “political question”. Sometimes it is, at least in part, but judges have a duty to act where constitutional bounds are clearly exceeded, and their failure to do so indicates a lack of true judicial independence of the other other branches and the pressures those branches can bring to bear. The result is the Administrative State, the result of failure to enforce the nondelegation doctrine. Part of the solution may be to select judges by sortition.
Habeas corpus and quo warranto
Any person has the right to petition for release of a prisoner if the official holding him does not prove sufficient authority to do so. A writ of habeas corpus is a subspecies of a writ of quo warranto, the right to have an official cease or refrain from some action unless he proves sufficient authority for it. Only the first is explicitly protected in the U.S. Constitution, but the latter is implied by the due process and nondelegation clauses and amendments. The principle involved is the presumption that an official lacks authority for an action unless he can prove he has it, so that a petition for either writ does not imply a right to both oyer (fair hearing) and terminer(decision on the merits) for the petitioner, but only terminer. The right of oyer belongs to the respondent for such a petition. If the response is inadequate, or the court does not have time for oyer, then its duty is to grant the writ. The problem is that judges, especially federal judges when the respondent is a federal official, are too often failing to act on habeas petitions, on various pretexts, thereby reversing the presumption in favor of the official and his actions.
Petitions for writs of quo warranto are systematically ignored or dismissed, sometimes on the grounds of lack of legislative authority, but no legislative authority is needed. There is no appeal from such inaction. Law provides petitioners only the option of trying again with another judge, thereby encouraging forum shopping. Complaints of judicial misconduct for such denial or inaction are also being systematically ignored. This should not really be called an abuse of judicial discretion because by law a judge has no discretion on terminer, but it has emerged as a practice that undermines all the other protections of the Constitution.
Both petit and grand juries are supposed to be selected at random from the community, a process called sortition, with some screening out of jurors who cannot be impartial or who have some hardships or critical duties. However, judges too often abuse their discretion to pack juries with persons who are partial in various ways. One way is to demand that jurors take an oath to “follow the law” as given by the judge. That enables the judge to misinstruct the jury as to what the law is.
Trial jury access
In the early Republic, the standard practice of due process was to argue all issues of law in the presence of the jury, which enabled them to learn what the legal issues were along with the judge, that is, the presiding magistrate, and we can presume that this practice was part of what the Founders meant by “due process” in the Constitution. However, judges have abused their discretion by adopting the practice of requiring pleadings to be submitted to them by the litigants in writing, and not allowing copies to be provided the jury, nor allowing the attorneys to make legal arguments in the presence of the jury. This has given judges control over the trial in ways that largely subverts the protections that the jury is supposed to provide, because it does not allow jurors to hear argument, in a criminal trial, that the court does not have jurisdiction, or that the charge is not authorized by a statute, or the statute by the state or federal constitution, or that the statute is misapplied to the facts of the case, or that the rights of the accused were infringed by investigatory, prosecutorial, or judicial misconduct.
Grand jury access
The problem is often revealed by the old prosecutor’s joke that he could get the grand jury to “indict a ham sandwich”. Originally, in the early Republic, there were no public prosecutors. Criminal prosecutions were conducted by private attorneys, either paid by the victims, by subscription, or appointed by the judge to serve pro bono. When public prosecutors began to be appointed, they soon assumed an undue influence over grand juries, with the support of abuse of judicial discretion by the judges. This is aided by a lack of civic education of the public concerning the duties of grand jurors, or by packing grand juries with cronies of the judicial establishment.
In almost every state and in the federal courts it is within judicial discretion for the judge to grant access to the courts to any person to conduct a criminal prosecution, but except in Texas, such petitions are systematically ignored or dismissed. This is a special problem when the suspects are public officials, cronies of the prosecutor or judge. Barring private criminal prosecutions without just cause is an abuse of judicial discretion.
Private prosecution of public rights, Qui tam and ex relatione
There is a right for any person to seek declaratory or injunctive relief against any illegal action by government officials without having to have been personally injured, but since 1922 courts have been abusing their judicial discretion by denying standing to plaintiffs who cannot prove personal injury. There is a related right, qui tam, of any person to act in the place of the government, ex. rel., when the government will not do so, to protect the rights of persons and to enforce the law.
Contempt & coercive detention
There is no power delegated in the U.S. Constitution for a federal judge to prosecute anyone for contempt of court, except on federal territory, under Art. I Sec. 8 Cl. 17 or Art. IV Sec. 3 Cl. 2, or to imprison someone indefinitely to coerce him into doing something. It was anticipated by the Founders that all federal courthouses would be sited in federal enclaves, but not all of them are, and the orders and contempt actions are often extended beyond the territorial limits of such enclaves, where federal courts have no such jurisdiction.
Although the original stated purpose of licensing and delicensing lawyers was to protect the public from dishonest or incompetent ones, licensing and the influence judges have over disbarment is too often abused to suppress lawyers who might challenge their abuses.
The other side of controlling lawyers with threats of contempt or disbarment is systematic protection of them from being sued, by abusing judicial discretion to punish persons who might have the temerity to do so, and their lawyers if they can get any to represent them. Violators of this “unwritten law” find all their motions thereafter being ignored or denied, regardless of merit.
It is appropriate for judges to have a limited immunity from being sued for their judicial decisions if they are merely the result of error or incompetence. The remedy for that is appeal to a higher court. The problem is that judges abuse their judicial discretion to protect themselves and other judges from civil and criminal liability for being unduly influenced, such as by bribery, intimidation or cronyism.
Pro se litigants
Instead of accommodating to the lack of legal knowledge of lay persons who either cannot afford a lawyer, or who don’t trust lawyers who are subject to the control of the courts, judges and court personnel systematically discriminate against litigants who appear pro se or in propria persona, often dismissing their petitions or motions out of hand, regardless of their merits. That is abuse of judicial discretion.
Judges have adopted the practice in criminal trials of requiring the defense to make a motion for affirmative defense, which could be a defense like self-defense that admits to the facts and argues the actions were justified, or which seeks to prove someone else committed the crime. The original rationale for this was to provide the prosecution due notice so they can prepare their response. It is normally granted, but in the 1994 Davidian trial it was denied, much to the surprise of defense attorneys, who planned to argue self-defense. To prevent the defense from submitting an offer of proof, which would be grounds for reversal on appeal, the judge agreed, if they would refrain from doing so, to include an instruction to the jury that they could consider self-defense, but he would not allow argument and evidence of self-defense during trial. Thinking their best chance lay in agreeing to that, the defense attorneys went along with this abuse of judicial discretion. However, other instructions misled the jury into convicting some of the defendants on sentencing enhancements, even though they acquitted all of them on the base offenses, and the judge sentenced them for the enhancements as though they had been found guilty of the base offenses.
Mens rea defense
In criminal cases, by original constitutional standards, the elements of proof of a criminal charge are mens rea, actus reus, concurrence, causation, and harm. The first, mens rea, is “criminal intent”, and judges are allowing criminal prosecutions to proceed without proof of it, especially when the statutes prohibit acts that are malum prohibitum instead of malum in se. In this judges are aided by abuse of discretion by legislators, but it is still abuse of discretion.
Award-Winning and Prize-Winning Author of Access Denied, The Wretched, The Roots of Evil, The Ghost of Clothes, Omonolidee, First Words and Unzipped: The Mind of a Madman, The Deeper Roots of Evil, along with numerous short stories, poems and articles.