From: jim bell <jimbell@pacifier.com>
Date: Tue, 16 Apr 1996 15:04:05 +0800
To: Black Unicorn <unicorn@schloss.li>
Subject: Re: What can the judge do to me?
Message-ID: <m0u90Yb-00090RC@pacifier.com>
MIME-Version: 1.0
Content-Type: text/plain


At 07:51 PM 4/15/96 -0400, Black Unicorn wrote:
>On Mon, 15 Apr 1996, jim bell wrote:
>
>> At 10:21 AM 4/15/96 -0700, Hal wrote:
>> >From: Black Unicorn <unicorn@schloss.li>
>
>[...]
>
>> >I didn't understand what distinguishes civil and criminal sanctions.  Is
>> >it the nature of the proceedings, whether it is a civil or criminal case
>> >that is before the judge?  Or is it the nature of the contempt charge
>> >itself, where not doing what the judge wants, in broad terms, is civil
>> >contempt?  And in that case, what would be criminal contempt?
>> 
>> He may answer those questions, but I don't think he'll dare answer the 
>> question about if there is a constituional justification for a difference 
>> between "civil" and "criminal" in most things the government's courts do.
>
>Mr. Bell amuses me because he can never decide if he's a constitutional 
>formalist, as above (all things the government does must be explicitly 
>justified in the constitution) or a pragmatist,

Above, I merely asked a question that you still can't answer.  The fact that 
courts claim that there is a difference between "civil" and "criminal" does 
not mean that any such difference is constitutionally mandated, or for that 
matter even allowed.  Nothing in your response showed otherwise.


>(a) A criminal contempt fine is punitive and can be imposed only through
>criminal proceedings, including the right to jury trial. 

Does that mean that it would have been constitutionally impermissible to 
take the different position that ALL fines are ultimately "punitive"?  That 
position is apparently not _excluded_ by the constituion, which means that 
at best, you might try to argue that your position is _allowed_ by the 
constitution.  But since the Constitution is, indeed, the statement of the 
government's authority, not its limits, that would be a contradiction.  

The obvious conclusion is that your sentence above is simply unsupported by 
the Constitution, as are many of your statements below.  I'm not claiming 
that you are, necessarily, the source of the contradiction:  Obviously, most 
of it is simply governmental misbehavior that you are reporting.

>A contempt fine is

>considered civil and remedial if it either coerces a defendant into 
>compliance with a court order 

You do love those circular arguments, don't you!  Maybe it's pointless to 
ask you why anybody has to "comply with a court order."   I've already asked 
this before:  What, in the Constitution, gives judges authority over 
non-defendant citizens?

>(b) Most contempt sanctions share punitive and coercive characteristics, and
>the fundamental question underlying the distinction between civil and
>criminal contempts is what process is due for the imposition of any 
>particular contempt sanction.  Direct contempts can be penalized summarily 
>in light of the court's substantial interest in maintaining order and 
>because the need for extensive factfinding and the likelihood of an 
>erroneous deprivation are reduced.  Greater procedural protections are 
>afforded for sanctions of indirect contempts.  Certain indirect contempts 
>are particularly appropriate for imposition through civil proceedings, 
>including contempts impeding the court's ability to adjudicate the 
>proceedings before it and those contempts involving discrete, readily 
>ascertainable acts.  For contempts of more complex injunctions,
>however, criminal procedures may be required. Id.

A paragraph which is delightfully free of constitutional justification.  It 
apparently merely parrots the decisions of courts, it doesn't explain them.  
Typical Unicorn behavior.

>Because civil contempt sanctions are viewed as nonpunitive and avoidable, 
>fewer procedural protections for such sanctions have been required.

Hmmm...  I wonder why? I mean, would it have been impossible for the SC to 
have declared that regardless of those assertions, ALL such sanctions 
require those "procedural protections."  Unicorn has no answer, as usual.
Hint:  If the position you support is true, then you should be able to show 
me evidence that no other alternative position is consistent with the 
Constitution.   As long as you cannot show that one PARTICULAR 
interpretation is uniquely supported,  you haven't supported this particular 
claim. 

>To the extent that such contempts take on a punitive character, however, 
>and are not justified by other considerations central to the contempt 
>power, criminal procedural protections may be in order.  International Union.

No constitutional justification, again.  Ho hum.


>The justification for the contempt charges are on the 
>proper administration of justice, to which every citizen is entitled. 

Unicorn fails to show that "Proper administration of justice" requires 
contempt charges.  And the most obvious problem with the "to which every 
citizen is entitled" argument is that it is vastly overbroad:  If it could 
be used in this instance, it could be used to justify beating confessions 
out of prisoners, shooting unarmed suspects, and practically every other act 
that somebody claimed was necessary for "the proper administration of justice."

After all, consider how "justice" was administered 300 years ago.  I'm sure 
those people did a lot of things, based on a claim that it was necessary for 
"the proper administration of justice."  Was it really?

What, BTW, is "proper"?
 
>While I'm sure Mr. Bell would like it if he could just flip off a court, 
>as with most self centered types, I don't think he has considered the 
>ramifications of this kind of impunity in the aggregatre.

Is that a satisfactory justication for your position?

>
>Mr. Bell claims this is a new tyrranical development.  Mr. Bell is incorrect.

Where, EXACTLY, did I claim that it was a "new" development?  I've carefully 
re-read my statements, and I see nothing that states or even implies this.  
Continuing to knock down that straw man, huh?


>Ex parte Robinson, 86 U.S. 505, 19 Wall. 505, 510, 22 L. Ed. 205 (1874) 
>(contempt authority is vital to the administration of justice).
>(122 years ago).

In 1860, slavery was considered vital to the running of much of the US.  So?

[a couple other old decisions excised because they are irrelevant, and they 
are irrelevant because I didn't claim this was a "new" development."]

>One might also remember where the term "pressing the defendant for a 
>plea" originated.  Contempt sanctions are nearly 500-600 years old and 
>are a response to the need to effect compliance with orders and summons.

Which simply means that what a court thinks it "needs" is frequently wrong.  
If courts "needed" pressing, why do they no longer do it?  Hmmmmm?  
Apparently, it wasn't really necessary, and thus, any justifications based 
on the claim that it was necessary were dishonest.  As are your 
justifications today, on a somewhat different issue.

I've long pointed out that your own arguments self-destruct, and perhaps 
that was the most laughable example.

>> We also won't get a straight answer about the constitutional justification 
>> for "contempt of court" penalties at all!  The Constitution defines the 
>> powers of government; it does not restrict those of the people.
>
>I suppose you don't think anyone need serve on juries? 

Generally in a non-slavery society, if you want people to do something for 
you, you hire them at a wage they will accept, and they'll happily do what 
you want.  It's called "capitalism."  Too bad courts still believe in slavery.

>Or appear before a court when summoned? 

Tell me, if _I_ "summon" somebody, do they have to show as well?  If not, 
why should a "court" have any such authority.

> Or testify if its inconvenient? 

If it's testimony in favor of the prosecution, and I don't want to give that 
testimony, I see no constitutional justification for forcing me to do so.

You'll probably try to claim that this testimony is "necessary."  Let's 
suppose I was out of the country and was unavailable for 
subpoena.  The trial would go on, anyway, so obviously my testimony was not 
"necessary" by any logical definition.  It was merely desirable, by 
somebody's opinion.  Sure, the prosecution may lose the case, but the 
prosecution doesn't have a "right" to win the trial, now does it?  At best, 
it only has the "right" (arguably; but even that "right" is conditional) to 
have a trial.  The outcome is not guaranteed!


>> The idea 
>> that a judge can punish someone, especially someone not present in court, 
is 
>> bizarre.  It is even more odd when such punishment appears to exceed what 
>> the government is allowed to do absent any kind of jury decision and 
>> conviction.
>
>Huh?  Ever hear of late filing fees?  Administrative fines?  Taxes? 

I said it was "bizarre."  I did not say it was "uncommon."

BTW, note that "late filing fees" assumes that somebody is obligated to file 
something, and likewise "Administrative fines" assumes that somebody is 
entitled to levy them, etc.  We won't get into taxes, that would take FAR 
too long.

> How 
>many examples do you want where government can impose costs on persons 
>without a fully jury trial?  Even contracts are in the end enforced by 
>government in the United States.

But they apparently don't have to be.  Arbitration is an option.

 
>> If you're willing to accept NON-Constitutional "justifications," I'm sure 
>> you'll get plenty of that.
>> 
>> The only hint of a Constitutional obligation to testify comes from an 
>> amendment which states that defendants have a right to compel testimony 
>> favorable to them; it does not say that prosecution has the right to compel 
>> testimony from a third party that incriminates a defendant.
>
>Look, Mr. Bell.  I don't know where you get this stuff,

I notice that you failed to address the point.  You're unable to find any 
Constitutional justification for compelling prosecution testimony.  There is 
no constitutionally-defined mechanism for it, either.   That's because none 
exists.


> but you really 
>need to take a few classes in jurisprudence. 

I am well aware of the misbehavior of government.  The issue is 
constitutional justifications for it.  They seem to be, well, practically 
nonexistent.

> You need to learn what life 
>would really be like if the strict reading of the constitutional you urge 
5>was followed, and you need to transcend your political Yaddaing into a set 
>of criteria which resemble something like earthbound possibilities.

I'm working on it.  But you won't like the outcome; there will be no 
"kings", either stated or implied, in the system I am crafting.  No 
centralizations of power at all.  It will be a system you can't understand.

>
>> If his 
>> response is, "Oh, but we've ALWAYS done it that way!", you need to remember 
>> that until the American Civil war, slavery was legal in southern states, 
and 
>> until 1920 women weren't allowed to vote, and until 1955 "separate but 
>> equal" was the law of the land, until 1972 or so the death penalty was 
>> constitutional...and then it wasn't...and then it was again...and so on.  
>> Government is never willing to admit it's wrong until it's good and ready.
>
>By 'wrong' you mean doesn't agree with you.  I'm sure precident and it's 
>rationale means little to you.

That's spelled "precedent."  But why am I telling you this?