Ken Smith: Rogue Judges Invite Their Own Demise

[Joey Smith]

Why is it that white supremacists are always a bunch of losers like Bob Hurt that are obviously not superior to anybody and are arguably much inferior to most other people of all races and colors.

Inferiority complex, that's what it is, and quite justified in Bob Hurt's case.

[Judge Roy Bean]

Why is it that white supremacists are always a bunch of losers like Bob Hurt that are obviously not superior to anybody and are arguably much inferior to most other people of all races and colors.

Inferiority complex, that's what it is, and quite justified in Bob Hurt's case.

I would suggest it's a dangerous over-simplification to paint 'white supremacists' as 'arguably inferior' to most other people.

That provides a convenient sort of camouflage and I doubt some of them have an inferiority complex.

[JamesVincent]

No but I do recall listening to a lot of "You aint as much fun since I quit drinking" at about that time period.

[KSmith]

Operative:

Even though the judicial system is working exactly as it was intended to, it doesn't fit in with Bob's and Ken's delusions so they will b**ch and moan like little children.

Exactly how is the judicial system supposed to work, Operative? Professor (Justice) Joseph Story would certainly admonish you for reaching a conclusion without bothering to evaluate the evidence:

It is on this account [the principle of stare decisis], that our law is justly deemed certain, and founded in permanent principles, and not dependent upon the caprice or will of judges. A more alarming doctrine could not be promulgated by any American court, than that it was at liberty to disregard all former rules and decisions, and to decide for itself, without reference to the settled course of antecedent principles.

This known course of proceeding, this settled habit of thinking, this conclusive effect of judicial adjudications, was in the full view of the framers of the constitution. It was
required, and enforced in every state in the Union; and a departure from it would have been justly deemed an approach to tyranny and arbitrary power, to the exercise of mere discretion, and to the abandonment of all the just checks upon judicial authority.

Joseph Story, Commentaries on the Constitution of the United States §§ 377-78 (1833) (emphasis added).

When a judge goes catty-wompus to the world, it's usually pretty easy to spot, especially if you know the facts of the case. As Professor Monroe Freedman, one of the nation’s leading scholars on judicial ethics, observes:

Frankly, I have had more than enough of judicial opinions that bear no relationship whatsoever to the cases that have been filed and argued before the judges. I am talking about judicial opinions that falsify the facts of the cases that have been argued, judicial opinions that make disingenuous use or omission of material authorities, judicial opinions that cover up these things with no-publication and no-citation rules.

Monroe Freedman, Speech to The Seventh Annual Judicial Conference of the United States Court of Appeals for the Federal Circuit (May 24, 1989), reprinted in 128 F.R.D. 409, 439 (1989). Posner's book merely confirms the obvious.

I don't want to get into your personal squabbles with Bob Hurt; his views regarding the races are anathema, and I strongly abjure them. That having been said, you shouldn't let your view of Bob color your assessment of my work. As you can see if you even bothered to look, it is painstakingly documented, and I challenge any one of you to discuss the matter strictly on the merits.

[KSmith]

whether a citizen and co-sovereign has a right pursuant
to the Tenth Amendment to seek relief in the nature of a writ of scire facias and to
initiate criminal prosecution of public officials, in the way that the English subject
was permitted to act at common law on behalf of the Crown.

No. Another case of "The judge didn't find in my favor; ergo, the judge is corrupt." Otherwise, the legal basis for this is about as poorly researched and ill-grounded as somebody would expect from somebody involved with Bob Hurt, i.e., good ole' fashioned strung-together gibberish attempting to masquerade as a legal argument.

You claim that the brief is "poorly researched." On what basis do you make this claim. Can you find even a single Ward Churchill Moment? Can you find even one statement from any of the Founding Fathers that indicates that they intended to replace one tyrant (King George III) with ~1,000 (the current number of federal judges) judocrats? The Framers originally intended that the civil jury would be the ultimate arbiter of what the Constitution said, a fact that even Chief Justice Jay openly acknowledged:

"It may not be amiss, here, Gentlemen, to remind you of the good old rule that on questions of fact, it is the province of the jury; on questions of law it is the province of the court to decide. But it must be observed that by the same law which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this and on every other occasion, however, we have no doubt you will pay that respect which is due to the opinion of the court: for, as on the one hand, it is presumed, that juries are the best judges of facts, it is, on the other hand, presumable that the court is the best judge of law. But still both objects are lawfully, within your power of decision."

Georgia v. Brailsford, 3 U.S. 1, 4 (1794).

Your problem with Bob Hurt is yours; leave me out of it. Don't start dissing people unless you can back it up.

[Nikki]

You claim that the brief is "poorly researched." On what basis do you make this claim. Can you find even a single Ward Churchill Moment? Can you find even one statement from any of the Founding Fathers that indicates that they intended to replace one tyrant (King George III) with ~1,000 (the current number of federal judges) judocrats? The Framers originally intended that the civil jury would be the ultimate arbiter of what the Constitution said

That might have been their intention (are you now channeling them?) but it's not what they wrote in the Constitution. Or are you working from the Constitution of Planet Smith?

[KSmith]

As the citizen has an absolute right to assassinate a tyrant, any public official who exercises tyrannical power over him ¬¬including judges ¬¬may lawfully be assassinated. And as assassination of a public official is undesirable, the law must be read as not bestowing tyrannical powers, providing remedies when an official abuses his or her lawful authority. Ergo, certiorari is unconstitutional.

Ahhh, the old "Agree, or I will shoot"-defense. A classic.

Indeed. It was used by Patrick Henry:

Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined.

3 Elliot, Debates at 45 (Speech of Patrick Henry; Virginia Convention, Jun. 5, 1788) (emphasis added).

I am genuinely intrigued by the position you stake out, Thule. Do you honestly believe that the Article III judicial power gives judges have right to play God? Justice Richard Sanders of the Washington Supreme Court would respectfully disagree:

In a society of equals there is simply no room for those who under color of law, but without the legitimate authority of the law, wrongfully impose themselves as superiors upon those who are really their equals. This is just another form of slavery—it differs in degree, but not in kind. It is domination without consent.

Richard B. Sanders (Justice, Washington Supreme Court), Original Consent (Speech to the Tacoma-Pierce County Bar Assn.), Feb. 13, 1997.

That our judiciary has wrongfully usurped despotic and tyrannical power over the citizenry is established beyond cavil. It is no mere petty crime but rather, "treason to the Constitution," Cohens v. Virginia, 16 U.S. 264, 404 (1821), as none "may set that law at defiance with impunity," United States v. Lee, 106 U.S. 196, 220 (1882), and no "judicial officer can war against the Constitution without violating his undertaking to support it." Cooper v. Aaron, 358 U.S. 1, 18 (1958). Indeed, federal judicial intransigence is a mortal threat to the rule of law: “Lawless judicial conduct -- the administration, in disregard of the law, of a personal brand of justice in which the judge becomes a law unto himself -- is as threatening to the concept of government under law as is the loss of judicial independence.” In re Ross, 428 A.2d 858, 861 (Me. 1981).

I have yet to see any of you quote even Colonel Sanders in support of your position. Chicken?

[KSmith]

You claim that the brief is "poorly researched." On what basis do you make this claim. Can you find even a single Ward Churchill Moment? Can you find even one statement from any of the Founding Fathers that indicates that they intended to replace one tyrant (King George III) with ~1,000 (the current number of federal judges) judocrats? The Framers originally intended that the civil jury would be the ultimate arbiter of what the Constitution said

That might have been their intention (are you now channeling them?) but it's not what they wrote in the Constitution. Or are you working from the Constitution of Planet Smith?

It is implicit in the Constitution, by virtue of the Good Behavior Clause. It defines the scope of the Article III power, by identifying grounds for removal from the bench.

In the course of debate at the Virginia Ratification Convention, James Madison observed that whenever “a technical word is used, all the incidents belonging to it necessarily attended it.” 3 Elliot, Debates on the Federal Constitution 531 (1836). This common understanding was invoked by Judge Pendleton, John Marshall, and Edmund Randolph in subsequent debate. Id. at 546, 558-59, 573. If it was unnecessary for the Framers to re-define words like “pardon,” United States v. Wilson, 32 U.S. 150, 160 (1833) (scope of pardon power determined by reference to English law, as the concept was taken from England), it follows that “good behavior” is also defined by the same English law. And more to the point, “it cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it.” Marbury v. Madison, 5 U.S. 137, 174 (1803).

Although most agents of the Crown served "at the pleasure of the King," public officials in England were frequently given a freehold in their offices, conditioned on "good behavior." See e.g., 4 Coke, Inst. of the Laws of England 117 (Baron of the Exchequer). Lesser lords were also granted the authority to bestow freeholds, creating an effective multi-tiered political patronage system, where everyone from paymasters to parish clerks enjoyed job security. See e.g., Harcourt v. Fox [1692] 1 Show. 426 (K.B.) (clerk of the peace).

At common law, good behavior tenure was originally enforced by the sovereign through the writ of scire facias. But as this power concerned only the interests of his subjects, and the King exercised it only in parens patriae, he was bound by law to allow the use of it to any subject interested. Blackstone explains:

WHERE the crown hath unadvisedly granted any thing by letters patent, which ought not to be granted, or where the patentee hath done an act that amounts to a forfeiture of the grant, the remedy to repeal the patent is by writ of scire facias in chancery. This may be brought either on the part of the king, in order to resume the thing granted; or, if the grant be injurious to a subject, the king is bound of right to permit him (upon his petition) to use his royal name for repealing the patent in a scire facias.

3 Wm. Blackstone, Commentaries on the Laws of England 260-61 (1765); see, United States v. American Bell Tel. Co., 28 U.S. 315, 360 (1888) (explaining the process).

By making an official subject to removal for violating it, the condition of good behavior defined the powers of a given office. Lord Coke listed three grounds for forfeiture of good behavior tenure: abuse of office, nonuse of office, and a willful refusal to exercise an office. Prakash, How to Remove a Federal Judge at 90 (citing Coke’s Institutes). Blackstone adds that "the oppression and tyrannical partiality of judges, justices, and other magistrates, in the administration and under the colour of their office [can be prosecuted] either by impeachment in parliament, or by information in the court of king's bench." 4 Blackstone, Commentaries at 140-41. As such, the duty to be fair and impartial was an integral part of an 18th- century English judge’s job description, as was a duty to hear every case properly brought before his court.

More importantly, the “abuse of office” condition curtails the judge’s freedom of action. The Framers envisioned judges as interpreters of the law, as opposed to its authors. Alexander Hamilton explained that, to “avoid an arbitrary discretion in the courts, it is indispensable that [our judges] should be bound by strict rules and precedents, which serve to define and point out their duty in every particular case before them.” The Federalist No. 78, at 470 (A. Hamilton). Blackstone wrote that the judge’s duty to follow precedent derived from the nature of the judicial power itself: the judge is “sworn to determine, not according to his own judgments, but according to the known laws.” 1 Blackstone, Commentaries at 69. A century earlier, Coke wrote, “it is the function of a judge not to make, but to declare the law, according to the golden mete-wand of the law and not by the crooked cord of discretion.” 1 Coke, Institutes at 51 (1642). Jefferson captures the concept with his usual brilliance: "Let the judge be a mere machine." Thomas Jefferson, Letter (to Edmund Pendleton), Aug. 26, 1776.

If a judge places his fingers on the scale of justice to benefit himself or his friends, he would have been liable for removal from the bench pursuant to a writ of scire facias. This was the standard for all servants of the Crown who enjoyed good behavior tenure. If English common law is to be the guide for good behavior (quamdiu se bene gesserint) tenure, this is how our law must be read.

My first question to you, Nikki, is how you would read the Good Behavior Clause and why, given the admonition in Marbury v. Madison that "it cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it." 5 U.S. at 174.

My second is how you come to the conclusion that the Constitution invested the judiciary with plenary and unchallengeable power to interpret it, in light of Justice Jay's admonition to the jury to the contrary in a matter before the United States Supreme Court.

[KSmith]

Ken Smith's apparent problem is that he applied to practice law in the State of Colorado and the licensing entity there thought better of it and denied his application, when he refused to take a mental evaluation-and one can only wonder what brought that on, and has since been suing everyone in sight, unsuccessfully it would seem, and would appear to have worn out his welcome at the Federal level as well.

Objection: abusive ad hominem; assuming facts not in evidence. Essentially, the Bar went after me for exposing a televangelist -- classic Soviet-style harassment, which they do to everyone they want to harass. E.g., http://www.knowyourcourts.com/CARC/Brennan/08PDJ052.htm. But more to the point, they demanded that I pay for the evaluation and insisted that their hand-picked shrinks (who are known to trade Board-friendly opinions for lucrative referral fees) do the evaluation. This was, of course, a patent violation of both the Americans With Disabilities Act and their own enabling act; I objected on the grounds that they did not have a legal right to make such a demand.

If you are brain-dead law students who have never spent five minutes in the real world, it may come as a shock to you that judges routinely take indecent liberties with the facts and the law in many cases. But those are the facts.

The controlling fact in my case was admitted by Defendant Stephen Anderson, in an opinion written in 2003:

[Smith] filed a complaint in federal district court setting forth twenty claims for relief for alleged violations of federal law and of plaintiff’s constitutional rights. Plaintiff sought declarations that the Colorado bar admission process and certain admissions rules were unconstitutional…

Smith v. Mullarkey, 67 F.App’x. 535 (10th Cir. Jun. 11, 2003), slip op. at 4 (emphasis added). As any competent judge should know, the italicized text was Smith’s non-refundable ticket to federal court. District of Columbia Ct. of Appeals v. Feldman, 460 U.S. 462, 482-83 (1983). As such, the Tenth Circuit wrote “designer law,” applicable to me and only to me, thereby depriving me of rights available to every other citizen.

When a judge rapes you in your biblical transport with a baseball bat (proverbially speaking, of course) do you counsel that you should smile like a good Alpha Beta pledge (surely, you have all seen Animal House) and say, "Please, Sir, may I have another?"

[KSmith]

Anyone who would voluntary read more than a couple of paragraphs into that nonsense has too much time on their hands... either than or a morbid sense of humor.

It would have helped a lot if Hurt had taken the time to properly format it, but it appears that your quarrel is with him and therefore, anything that he brings to your attention must be by definition ridiculous, because he endorses it. Sounds like USENET 2.0 to me. Grow up.

[ArthurWankspittle]

.... But more to the point, they demanded that I pay for the evaluation and insisted that their hand-picked shrinks (who are known to trade Board-friendly opinions for lucrative referral fees) do the evaluation.

Objection: abusive ad hominem; assuming facts not in evidence.

This was, of course, a patent violation of both the Americans With Disabilities Act and their own enabling act;....

Which disability are you claiming to have? I don't think inability to make a cogent argument or inability to win a case in court are recognised disabilities.

I objected on the grounds that they did not have a legal right to make such a demand....

And?

[wserra]

For those of you who are unaware of who Ken Smith is: he's been flogging the horse of his denial of admission to the Colorado bar for years, back to the Usenet days of misc.legal. He will happily continue this conversation into the next millenium. He may have a point, or may not; my recollection was that among the reasons for that denial was his publication of an alteration of the infamous Hustler Jerry Falwell cartoon, with Rehnquist's face photoshopped over Falwell's.

Dan and I (and perhaps others here) both went 'round with him on misc.legal, not entirely unsympathetically, a decade or so ago. He's obviously still at it.

An excerpt from what I think was my last response to him, a long time ago:

I don't think I agree on the merits. Whether you like such cases as Konigsberg and Anastaplo - and I don't - they are good law.
...
I guess that's my point, Ken. It is generally not considered a high percentage legal strategy to pin one's hopes on SCOTUS overruling itself. The state of the law now does not support you on the merits, as I see it - not the due process issue, but the merits of speech never being used as a criterion for bar admission.

The argument is that it is not the speech itself, but what the speech says about the applicant's fitness to practice law. My opinions of Cold War era SCOTUS opinions aside, I don't think that I would agree that someone who believed that the earth was flat should practice law - or Hale [White supremacist Matthew Hale, denied admission to the Illinois bar due to his racist views, now serving 40 years for trying to hire a hit man to kill USDJ Joan Lefkow - WS] either, for that matter.
...
"They have a right to hold these views" != "they have a right to be admitted to the bar", and you have not cited anything that shows otherwise. I am not in the least afraid of Hale or his views - in fact, along with Jefferson, I think that they should be thoroughly aired, as the truth will prevail over the BS in the open, and the process will be healthy. However, I do think that Hale's views will prevent him from upholding the Constitution that 99% of Americans accept. That's what makes him unfit to practice.

Do you think that anyone who wishes, whatever his/her views, should be able to become a citizen? How about someone who arrives with autographed, framed photos of Usama bin Laden? A book entitled "Fond Memories of Buchenwald"? Somone who says, "I would never advocate the overthrow of the US government by force and violence, but man, do I think that it should be"? If you do not think that such folks (at least so long as unrepentant) should be permitted to become citizens, why on God's green earth should they be permitted to become lawyers? And if you do think that they should be able to become citizens, then we have too little common ground to continue the conversation.

[fortinbras]

The link in the first message leads to a "library" of looney documents in Scribd. Apparently this collection is constantly being enlarged, even since the first message in this thread. After going through four or five very tedious pages of listed documents, I think the appeal being referenced is this:

http://www.scribd.com/doc/35428083/How- ... peal-Brief


It's 198 pages!! That sort of blows hell out of calling it a "brief".

I am not going to wade through it to find the paragraph where Kenneth Smith threatens to kill judges. But if you are a glutton for punishment at least you will have the right document.

[LPC]

The Framers originally intended that the civil jury would be the ultimate arbiter of what the Constitution said, a fact that even Chief Justice Jay openly acknowledged:

"It may not be amiss, here, Gentlemen, to remind you of the good old rule that on questions of fact, it is the province of the jury; on questions of law it is the province of the court to decide. But it must be observed that by the same law which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this and on every other occasion, however, we have no doubt you will pay that respect which is due to the opinion of the court: for, as on the one hand, it is presumed, that juries are the best judges of facts, it is, on the other hand, presumable that the court is the best judge of law. But still both objects are lawfully, within your power of decision."

Georgia v. Brailsford, 3 U.S. 1, 4 (1794).

What you have quoted says nothing about the intentions of "The Framers."

And the correctness of what you have quoted has been disputed by the Supreme Court itself. In Sparf v. United States, 156 U.S. 51, 65 (1895), the majority opinion followed that quote with the following:

Of the correctness of this report, Mr. Justice Curtis in U. S. v. Morris, 1 Curt. 23, 58, Fed. Cas. No. 15,815, expressed much doubt, for the reason that the chief justice is reported as saying that, in civil cases,-and that was a civil case,-the jury had the right to decide the law, and because, also, the different parts of the charge conflict with each other; the chief justice, according to the report, saying at the outset that it is the province of the jury to decide questions of fact, and of the court to decide questions of law, and in the succeeding sentence informing the jury that they had the right to take upon themselves the determination of both law and fact. If the chief justice said that it was the province of the court to decide questions of law, and the province of the jury to decide questions of fact, he could not have said that the jury had the right, in a civil case, to judge of and determine both law and fact. 'The whole case,' Mr. Justice Curtis said, 'was an anomaly. It purports to be a trial by jury in the supreme court of the United States of certain issues out of chancery; and the chief justice begins by telling the jury that the facts are all agreed, and the only question is a matter of law, and upon that the whole court were agreed. If it be correctly reported, I can only say it is not in accordance with the views of any other court, so far as I know, in this country or in England, and is certainly not in accordance with the course of the supreme court for many years.'

There is also nothing in James Madison's "Notes of Debates in the Federal Convention of 1787" to support your claim of what "the Framers" intended. The only relevant mention I have found is as follows:

Mr. GERRY doubts whether the Judiciary ought to form a part of [a "Council of Revision"], as they will have a sufficient check agst. encroachments on their own department by their exposition of the laws, which involved a power of deciding on their Constitutionality. In some States the Judges had actually set aside laws as being agst. the Constitution. This was done too with general approbation.

Madison's Notes of June 4, 1787.

Nothing about the role of juries.

[LPC]

Dan and I (and perhaps others here) both went 'round with him on misc.legal, not entirely unsympathetically, a decade or so ago.

I have no recollection of him or any discussions with him.

I'm not doubting that they happened, but just observing that they were not memorable (or at least, not to me).

[Imalawman]

Ken Smith's apparent problem is that he applied to practice law in the State of Colorado and the licensing entity there thought better of it and denied his application, when he refused to take a mental evaluation-and one can only wonder what brought that on, and has since been suing everyone in sight, unsuccessfully it would seem, and would appear to have worn out his welcome at the Federal level as well.

Objection: abusive ad hominem; assuming facts not in evidence.

I'm going to allow it. Overruled. Proceed, ND.

[bmielke]

Ken Smith's apparent problem is that he applied to practice law in the State of Colorado and the licensing entity there thought better of it and denied his application, when he refused to take a mental evaluation-and one can only wonder what brought that on, and has since been suing everyone in sight, unsuccessfully it would seem, and would appear to have worn out his welcome at the Federal level as well.

Objection: abusive ad hominem; assuming facts not in evidence.

You know this is an internet forum and not a court of law right? If not there is likely a good reason to deny admission in this case.

[bmielke]

KSmith,

Out of curiosity when you were denied admission in CO did you attempt to gain admission anywhere else? I am not sure if it's possible, but I'm not a lawyer, but if I was and I was denied admission I would likely try someplace else before going to Federal court and taking to the internet.

BM

[Joey Smith]

Ken Smith's arguments can all be condensed into this simple sentence: "You disagree with me; ergo, you are wrong."

Ken Smith claims that a Writ of Certiorari somehow violates his constitutional rights, but it does nothing of the sort.

Everybody has a right to an appeal, but they do not have a right to multiple, endless appeals. At some point, if nothing else as a practical matter, the appeals process must end and the judgment made final. Ken Smith lost his case at the trial court level, and appealed it to the Court of Appeals and they rejected it too.

Really, Ken Smith even had a second appeal -- this time to the U.S. Supreme Court -- because he effectively made his arguments in his Petition for Certiorari, but was again denied.

So, he's lost, and he's lost not because he was any victim of the system but simply because he was WRONG.

Deal with it, Ken.

[Nikki]

...
...
...
My first question to you, Nikki, is how you would read the Good Behavior Clause and why, given the admonition in Marbury v. Madison that "it cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it." 5 U.S. at 174.

My second is how you come to the conclusion that the Constitution invested the judiciary with plenary and unchallengeable power to interpret it, in light of Justice Jay's admonition to the jury to the contrary in a matter before the United States Supreme Court.

Constitution Article. III. Section 1.
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

First, my (or your) reading of the clause is irrelevant. To the extent that it must be interpreted, that (like any other interpretation of law or the Constitution)) is the sole responsibility of the Judicial branch.

Second, you, like most other law deniers, are taking Justice Jay's remarks totally out of the context of the case at hand AND you are ignoring subsequent interpretations contrary to his view. Are you alleging that anything ever said by a Supreme Court Justice is immediately immutable and sacrosanct? If so, you are investing in each of them more power than is held by the Pope.