"First they ignore you, then they ridicule you, then they fight you, then you win." -- Mahatma Gandhi

A call to action – Missouri judges must be held accountable to the law

May 1st, 2008 by mopns · No Comments

All Members of the Missouri House of Representatives,

Justice Joseph Story, the U.S. Supreme Court’s greatest scholar, said impeachment was for protecting the rights of the people “and to rescue their liberties from violation,” and a remedy for “political offenses, growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of public interests,” as well as a check upon “arbitrary power.”

I am aware and very appreciative of the legislative efforts and heavy workload of all members of the General Assembly as we approach the end of session; however, it is of equal importance to promptly confront any actions of a sitting judge that are unlawful. Overlooked demonstrations of partiality on the part of a sitting judge only serve to deteriorate the people’s confidence in the Judiciary and their elected representatives.

The House of Representatives has but one thing to consider: Did Judge Curless, by sending an e-mail attacking Rep. Emery and demonstrating partiality to several hundred recipients, violate the Canons of Judicial Ethics? These Canons are laid out in the Missouri Supreme Court Rules. Rules 2 and 4 are applicable. Missouri Supreme Court Case #SC81743, In re: The Honorable Ronald Hill was cited to provide guidance and precedent.

If Judge Curless did violate the Missouri Supreme Court Rules (laws of Missouri pursuant to Article V, Section 5 of the Missouri Constitution) the House of Representatives is left with no choice but to vote in favor of impeachment. In accordance with the Missouri Constitution, The Missouri Supreme Court is then responsible for meting out punishment.

You may find it helpful to consider issues of judicial misconduct from a rule of law perspective. The rule of law requires that all laws are administered in a manner considered to be fair, rational, predictable, consistent and impartial. Judicial misconduct and judicial incompetence are, without hesitation, contrary to each of these objectives.

The preservation of the rule of law is the basic reason for establishing mechanisms for dealing with judicial misconduct, whether it takes the form of corruption or less serious forms of misbehavior. The rule of law consists of numerous interlocking principles. One such principle is the right of a fair trial. Judicial misconduct in the context of litigation denies that right. The rule of law is best served where there is a high level of public confidence in the judiciary. Judicial misconduct, whether within or beyond the litigation context, adversely affects such public confidence.

Some members of the House have expressed concern that holding a judge accountable to the law is to be considered an attack on the Judiciary. Do any members of the House consider it to be an attack on the Legislative Branch when an Officer of the Missouri State Highway Patrol (Executive Branch) issues a citation for speeding to a Representative? I think you can see that holding someone accountable to the law is not an attack on any branch of government, but instead, is a necessary component that provides for accountability and has been historically established as an effective deterrent to future unlawful acts.

We are supposed to be a country of laws; laws that are to be applied equally to the privileged and the pauper, the doctor and the patient, the judge and the accused.

“In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed, and next oblige it to control itself.” —James Madison

Since 1825, only ten persons in Missouri have been impeached. (8-Circuit Court Judges, 1-Treasurer, and 1-Secretary of State) Only three were subsequently removed from office. Missouri has not removed a judge from the bench by impeachment since 1867. (Note: The 1945 Constitution transferred impeachment trials from the senate to the Supreme Court, except when a SC judge or Governor is impeached. Only Missouri and Nebraska permit the State Supreme Court to provide for punishment after impeachment by the House.)

The power granted to our elected representatives is indeed great, but pales in comparison to the individual power granted every judge in Missouri. It takes 99 members of the General Assembly, and 1 Governor, minimum, to create law. However, it only takes one judge to incarcerate, take a lifetime of savings, remove a child from the arms of their parents, or sentence a human being to death. Should a judge be held to the highest standards? Should a judge be held accountable under the law? They must! Only God has greater power.

“Power corrupts and absolute power corrupts absolutely”. –Lord Acton (1887)

According to the American Judicature Society: In 2006, as a result of state judicial discipline proceedings, 12 judges were removed from office; 11 judges resigned or retired in lieu of discipline pursuant to agreements with judicial commissions that were made public; 1 judge was required to retire; and 4 former judges were barred from serving in judicial office. 111 additional judges (or former judges in 9 cases) were publicly sanctioned in 2006. There were 18 suspensions without pay with the length of the suspensions ranging from 5 days to 2 years. There were 18 public censures, 30 public admonishments, 35 public reprimands, 2 public warning, 2 cease and desist orders, and 6 public informal adjustments.

That’s 139 judges –almost 3 per state! In one year! And it doesn’t include private disciplinary actions.

For comparison, let’s look at Missouri: For a period of 2001 thru 2005, 1117 complaints were filed against judges. 966 of those were dismissed without investigation. 134 complaints were dismissed after investigation. Of the remaining 17 complaints; no judge was suspended without pay, no judge was forced to retire, and no judge was removed from office- in five years.

FACT: As demonstrated by this comparison – Missouri does not hold their judges accountable. Is it that any attempt to hold judges accountable to the law is seen as an attack on the judiciary?

The lack of accountability makes possible for a judgeship to become a safe haven for wrongdoing and for judges to become a class of wrongdoers immune to the principle inscribed on the frieze below the west pediment of the U.S. Supreme Court building, “Equal Justice Under Law”. Judges are the only ones in our society that, as a matter of historic fact and established practice, are people above the law and beyond prosecution.

When police officers fail to enforce the law, they get fired. There is no other alternative. Failure to provide adequate law enforcement leaves those in harm’s way with no option but to take the law into their own hands.

“If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government,…” –Alexander Hamilton, Federalist #28

I thank you for your time, your hard work, and your devotion to the citizens of Missouri.

Respectfully submitted,
James Byrne

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  • 1 Phyllis Davis // May 8, 2008 at 4:39 pm

    Finally a judge that stands up and speaks the truth. I filed a judicial complaint regarding the estate of my brother. The complaint was investigated, but filed prior to the closing of the estate. The judge violated Supreme Court Rule 2.03B.(5)my disability and poverty to hire an attorney let my ex parte communications, Rule 2.03.Canon3(7)(a) met the exception for allowing it to be admitted as evidence as the pers. reps. gained by it’s ommission. Supreme Court Rule 2.03Canon 3.B.(7) A judge should accord every person the right to be heard was violated as the judge waived every hearing, after receiving notification that 3 sisters were not notified of the estate, nor kept informed. This was an intestate(without will) estate,wherein properly recorded documents established the family home and personal belongings of brother, predeceased Mom and Dad, left in will to all children, equally was ignored by the judge. We were denied civil rights of due process and the Right to Be Heard. No other estate have I found that this judge or any other estate had every hearing waived. The attorney fee far exceeded the amount designated by the courts, and family heirloom’s, all belongings, stolen, sold in yard sale, and the home sold to friends of the neice and sister in-law, that personally appointed themselves as representatives. This supervised estate was handled in accordance with the estate attorney’s wishes, with the assistance of the judge. Judicial assisted fraud. Again I appauld Justice Story for admitting a serious accountability issue exists in Missouri. It is easier to steal from the Kansas City probate court, than a convenice store.

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