Our Constitution Envisioned Fights between Our Branches of Government

13599885_1072898166135714_3569619781931316198_nOur constitution envisioned that fights between our branches of government would promote the liberty of the people as well as good government.

This is why it is too some extent surprising the Democrats are treating the legitimate issues the executive branch has raised about the Ninth Circuit exceeding its powers as a basis for a dump on Trump (whose specific policies I nether support or oppose for the purpose of this article.) The deeper issue is whether we should put out faith in the judicial branch, especially the Ninth Circuit, to achieve the correct result in this case given that court’s clear break form those norms imposed by the Constitution on the exercise of judicial power.

The question to me is whether as a country to continue to give the judicial department an upper hand is making these decisions when recent history poses the issue of whether they have subverted the nature of judicial power into a corrupt oligarchy.

So who do I support in 2017: The Executive Branch or the Judicial Branch??? without doubt the Executive Branch because at this point I believe we have less to fear from Trump than from an entrenched judicial system composed of judicial fiefdoms overseen by judges who too often appear to assume they have God-like powers. 

Now I know some view the cat-fight between President Trump and the Ninth Circuit regarding the validity of his executive orders as a chance to “dump on Trump”. But the important constitutional issues involved in this legal battle should not turn on everyday politics inflamed by a biased media. We should look at the constitutional issues involved, one of which I believe is the ability and willingness of the Ninth Circuit and the district courts within it, to follow those restraints which are necessary for the exercise of judicial power. 

Sure I get it. This isn’t an issue democrats want to think about. They want to use this circus to rile their base and score a lot of political  donations. So they make it seem like they are asking the courts to oversee  a “wannabe dictator”. But in doing so they ignore the United States judicial department from which the seek relief is an entrenched group of judges who have corrupted their power in order to put them in the position of frequently exercising irresponsible judicial review, without any democratic check on their frequently bizarre judgments.

Quite frankly after practicing law for 40 years, I am a much more afraid of this nation’s judicial branch than either the legislative branch or the executive branch or the executive and legislative branches working together. 

My forty plus years of working in federal courts convinces me we have much more to fear from judicial tyranny at this time than Trump. This is because we the people do not understand how corrupted our courts have become with respect to those structural components our founders envisioned would check the now unbridled power of the judicial branch.

For example, did you know that over half of our federal judges still deciding cases are retired and over over 75. Indeed, in the federal district court for the Western District of Washington there are only four judges who are not retired deciding cases, but nine retired judges working for free when they want who are making decisions for people in cases, where many of the people do not want to be in a federal court because of its “judge-centric” arbitrary judicial fiefdom nature.

The fact that federal courts routinely expose people to judges well over 80, who are statistically likely to have Alzheimers, dementia, or cognitive defects, must be troubling to the young and middle aged people because it is to me and I am 68. Anyone with a working brain must understand how courts packed with judges “some of whom are not likely to be all there” is scary for those who are looking for justice from those Courts. If I were in Generation X or Y or a Millennial I would be incensed to know these old folks have the destiny of much younger generations in their hands.

I recently challenged an old judge who was purporting to act as an Article III judge in a case I was handling for myself because the judge was making obvious mistakes with regard to his handling of subject matter jurisdiction issues, which require a judge to substantiate that he has jurisdiction before he can move on to decide merits issues.

You can read a copy of my challenge to the Constitutional appropriateness of this over 80 judge, who is part of the generation which prededed the Baby-boomers, known as the “Silent Generation”.)

My motion to disqualify Silent Generation Judge Zilly from my case is only 13 pages long. It argues that a judge who has chosen to retire and not get paid for working cannot be an Article III judge presiding over the resolution of judicial issues in an Article III court. My motion also points that the judge has committed some pretty bizarre judicial behavior which I content would cause a reasonable person to question his competence and/or bias.

You can check out my arguments in this regard by clicking here on this link to read my 12 page motion for recusal. The declaration I filed in support of this motion to disqualify Judge Zilly can be accessed by clicking here: Declaration and its exhibits (the exhibits are 360 pages long, so you might now want to read them).

82 or 83 year old Judge Zilly apparently did not want to even consider any issues related to his possible lack of constitutional attributes to be an Article III judge, and/or his possible incompetence and/or bias because Judge Zilly simply refused to disqualify himself in a one page order, stating “The Court declines to voluntarily recuse.” You can read read Judge Zilly’s order here: Judge Zilly’s order. (It is only a page.)

The next day, on Friday, June 2, 2017, Chief Judge, Ricardo S. Martinez  of the Western District of Washington federal court entered a four page order which argued that federal judges really don’t retire, but cited no supporting factual or legal authority for this position. Judge Martinez’ order can accessed by clicking here: Order on Request to Recuse.

Following the weekend on Monday morning, June 5, 2017, I filed a motion to reconsider, pointing out to the Court judges have a judicial duty to decide say what the law is under a long line of precedent dating back to Marbury v Madison, at 177. This abundant precedent establishing a federal court’s duty “to say what the law” is can be accessed here in my motion to reconsider.

Shortly thereafter, on the same day, Chief Judge, Ricardo S. Martinez (of the mostly retired federal district court of the Western District Washington) denied the motion saying I had not presented that judges were not just semi-retired and weren’t getting paid. But if you read my brief you will certainly see that I did.

Judge Martinez’ feigned rationale that I presented no evidence regarding the federal court’s retirement system rings hollow given my evidence came directly form the US court website. Further, becauseI had challenged Judge Zilly’s was not an Article III judge, this created a presumption of lack of jurisdiction in the federal court. See  See Kokkonen v. Guardian Life Ins. Co. of America, 511 US 375, at 377. This precedent required both Judge Zilly and Chief Judge Ricardo Martinez to do their own sua sponte investigation regarding the facts of whether Judge Zilly was a retired judge who was “essentially working for free” as the US Court’s web system so proudly declares.

Kokkomen states:

Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, see Willy v. Coastal Corp., 503 U. S. 131, 136-137 (1992); Bender v. Williamsport Area School Dist. , 475 U. S. 534, 541 (1986), which is not to be expanded by judicial decree, American Fire & Casualty Co. v. Finn, 341 U. S. 6 (1951). It is to be presumed that a cause lies outside this limited jurisdiction, Turner v. Bank of North-America, 4 Dall. 8, 11 (1799), and the burden of establishing the contrary rests upon the party asserting jurisdiction, McNutt v.General Motors Acceptance Corp., 298 U. S. 178, 182-183 (1936).

So what do you think? Should federal judges who ignore the law be impeached by the House of Representatives and Convicted by the Senate?

Are the people being adequately represented by only 435 representatives in the House of Representatives, who have the responsibility to make sure the federal judicial department has not become or does not become corrupt?? I don’t think we are getting such representation because very few judges are being impeached or even being considered for impeachment.

We the people need sufficient representation to protect us from our government, which no longer acts in our behalf.

The Constitution envisioned fights between our branches of government to promote the liberties of the people and good government.

 

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About Scott . Stafne

Mr. Stafne is very experienced in property rights, including banking wrongs and foreclosure prevention; Constitutional Law (under the United States and Washington State Constitution); Appellate law; land use law; personal injury law. Scott has recently become a media focal point as his win record of foreclosure defense cases against the largest financial institutions, servicers, trustees as well as MERS have blazed the trail toward ending the foreclosure crisis and representing the rights of the homeowner above the profits and secret dealings of corporations.   Scott sees law as a foundation for establishing a system of twenty first century liberties for the people; and for removing that corruption of power within our government which makes the achievement of real purpose beholden to only money.   Scott Stafne has been an attorney since graduating from the University of Iowa in 1974. He worked for a large law firm in Indianapolis (Baker & Daniels) for two years. Thereafter, he moved to Seattle Washington in order to obtain a Masters of Law degree from the University of Washington, which he obtained in 1977. Scott practiced law while going to graduate school and has practiced ever since.   This is a personal blog, and does not constitute legal advice in any form, and is not necessarily reflective of the policies or opinions of Stafne Law Firm. Visit the Law Firm: http://stafnetrumbull.com Visit the Google+ Page: https://plus.google.com/+ScottStafne Visit the Facebook Page: https://www.facebook.com/scott.stafne.75   *Web Developer: David J. Posel
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