Henry Nicolle California state Citizen for Congress

Abuse of Judicial Discretion
Jon Roland
Constitution Society
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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 discretion can 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 exercising undue 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 sortition, 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 nonlegal 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

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.

Jury Selection

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.

Prosecutor selection

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.

Disbarment

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.

Lawyer protection

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.

Absolute immunity

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.

Affirmative defense

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.