Benson, Paul

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North Dakota Law Review Volume 60 Number 4 Article 1 1984 Due Process: Has the Time Come to Draw Back from Judicial Activism Paul Benson Follow this and additional works at: https://commons.und.edu/ndlr  Part of the Law Commons Recommended Citation Benson, Paul (1984) "Due Process: Has the Time Come to Draw Back from Judicial Activism," North Dakota Law Review: Vol. 60 : No. 4 , Article 1. Available at: https://commons.und.edu/ndlr/vol60/iss4/1 This Comment is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact und.commons@library.und.edu. DUE PROCESS: HAS THE TIME COME TO DRAWBACK FROMJUDICIAL ACTIVISM?PAUL BENSON*Thefollowing is the manuscript of a speech given by Chief Judge PaulBenson to the Fargo-Moorhead Legal Secretaries Association. The speech waspresented May 1, 1984, in commemoration of Law Day. Judge Bensongraduated from the University of North Dakota in 1942 and earned his lawdegree from George Washington University in 1949. He is a former attorneygeneralfor the State of North Dakota. He has been afederal district court judgesince A ugust of 1971.In observance of Law Day, I am going to talk about oursystem and the administration of that system. In doing so, I will bemaking comments which some may interpret as being critical. I amobviously expressing my own philosophy. I have great respect forall of my colleagues on the district and appellate benches. Anydisagreement I have is strictly professional and well intended. Itarises out of my respect for the system and those who must makethe difficult decisions.The theme for Law Day this year is "Law makes freedomwork." Does it? Not always. How many countries can you namewherein law at one time made freedom work, and then laws wereimposed that destroyed those freedoms; lost freedoms that have notbeen regained in our lifetime. I think we should give some thoughtas to how we can keep that from happening here.But first we should ask, what do we mean when we speak of*ChiefJudge, United States District Court, District of North Dakota.NORTH DAKOTA LAW REVIEWfreedom? Is it working? If it is, what is it that makes it work? If it isnot, why is it not?You might say that freedom is personal liberty. If freedom ispersonal liberty, what is anarchy? Anarchy is a society where thereis no law, and isn't that then the ultimate freedom? It, of course, isnot, because in an anarchy only the strongest survive, and theweaker are subjugated or destroyed. Freedom then is somethingmore and something less than personal liberty. It is more thanpersonal liberty, in that it is the right of each of us to enjoy thecollective protection provided by all of us. It is less than personalliberty, because each of us must subject areas of our personalliberty to the common good of all. Freedom then is the right of eachof us and all of us to participate in the making and administrationof the laws necessary to create an orderly society that will preservethose facets of liberty that we have come to regard as basic to life,human dignity, and the pursuit of happiness.Our founding ancestors, drawing on the experience of ourmother country, England, implanted those facets of liberty in ourConstitution where today we refer to them proudly as the first ten,and fourteenth amendments.They departed somewhat from the English concept anddevised a system of government wherein the powers were separatedinto three co-equal branches in such a way that any one branchwould find it very difficult to trample those basic freedoms. Thesystem has worked for nearly two hundred years, but as ourpopulation has increased, along with a phenomenal growth ofscience and technology, society has become more complex andproblems have arisen which assault the system. Each year thatpasses requires from each of us more of that eternal vigilance whichhas been described as being the price of liberty. Unless werecognize the problems and take steps to correct them, the systemwill begin to erode and crumble, and we may also lose those basicfreedoms that have now been lost to much of the world. Today Iwant to mention a few of the problems that exist in each of the threeseparate branches of the government. However, I will touch butlightly on the legislative and executive branches, and direct mycomments for the most part to the judicial branch.The Congress is having difficulty enacting legislation. Yearsgo by without regular departmental appropriation bills beingagreed upon. Appropriations are provided through continuingresolutions and supplemented by deficiency appropriations to meetparticularized needs. New programs are enacted under broad596 [VOL. 60:595JUDICIAL ACTIVISMgeneral plans that leave the interpretation and implementation toexecutive regulations and judicial interpretations. This in turncreates uncertainty in the law and disagreements that at times riseto a point of chaos. It delegates the legislative process to theexecutive and judicial branches. Today the legislative andexecutive branches have great difficulty in reaching agreement ongoals in both domestic and foreign affairs. Leadership is lacking inCongress because individual members take pride in loudlyproclaiming they didn't come into government to be led bysomeone else. Single issues and partisan advantage predominateover general welfare.The lack of direction and agreement in the political arena isreflected in the judiciary. Chief Judge Frank J. McGarr of theNorthern District of Illinois, speaking on the subject of frivolouslaw suits, made some pertinent comments which seem to me meritrepeating here:We live in an era of great emphasis on rights.Americans have not quite gotten up the speed in therecognition of their duties, but they yield to no one in theworld in the assertion of their rights; and we also live inan era which has seen the demise on a broad scale of whatI used to call common sense of reasonableness.Reasonableness in expectation; reasonableness inassertion. We have a lot of intelligent people in theUnited States, and we provide an awful lot of educationfor everybody who wants it, and yet we see an alarmingpaucity in modern science of common sense ofreasonableness.Perhaps a word for it is wisdom. And this lack ofwisdom regrettably seems to be very prevalent at thehighest levels of intellectual and political leadership, andin the media, and in the opinion formers of the UnitedStates, and you add that to the instant and almostuniversal communication we have, and we find that ourability to communicate has outstripped the supply ofthings worth communicating. So we are inundated dailywith nonsense passing for wisdom, and the intellectualflotsam and jetsam that flow about us is finding its wayinto our courts. Another side of the same phenomenon isthat we live and work in a society that is laboring under,what I think at least, is the misguided notion that we are19841NORTH DAKOTA LAW REVIEWdoing something noble about tailoring society to itsmisfits. As an example, and you need only one althoughyou could think of others, we have lifted to the eminenceof a recognized and constitutionally protected minority,the gay community, whose only claim to legal status as aconstitutional class is their perverse desire to live assexual deviates and go public on that subject. And finally,the abundance, of frivolous litigation has been madepossible by long-term developments in the law. Over thelast many decades, the courts have been activist. Nodoubt our motives were good, and the results achievedundoubtedly justified the means we used, but the changeswrought in the law by activist adjudication has opened thedoor to unanticipated varieties of litigation. There wereonce several very real barriers to the exercise of ourjurisdiction, but we have pretty well distinguished themaway. The definition of case or controversy has beenstretched beyond any logical limit. The concept ofstanding to sue has been watered down to the point whereit is virtually nonexistent, and another question almostfrivolous in itself is, whatever happened to the de minimisdoctrine? Whatever happened to the notion that therewere some things that were beneath judicial notice? Isthere any assertion of right today so trivial that we canignore it? I suppose not.What has really happened is that we must recognizethat we may have opened the courtroom doors too wide,and that has created a public perception of us which is oneof the causes of worthless litigtion, if you want to call itthat. What does the public read about us in the paper?What does the public hear about us in the news? Howdoes the public see us as the federal judiciary? Well, theysee us dispatching fleets of school buses; overseeingfaculty promotions and tenure; redistricting cities andstates; overseeing the administration of prisons; settingpersonnel policies for police and fire departments; we arecharging in to keep the Christmas creche out of publicplaces; we have kept the moonies safe and warm in theairports: arranged for universal availability of porno-graphy; and we've even, with Godlike detachment,determined - give or take a week or two - when lifebegins; let a teacher swat a rebellious pupil or a principal598 [VOL. 60:595JUDICIAL ACTIVISMsearch lockers for guns or pot; a girl be refused the lefttackle position on the varsity team; a minority member begiven a "C" when he expected an "A"; a teacher firedfor alleged incompetence; a student sent home because ofan obscenity on his T-shirt; a fire woman disciplined fornursing her baby at the firehouse; a secretary censuredfor refusing to make coffee; a male pilot fired forbecoming a female pilot; an anchor woman replaced by amore charming one; whatever the problem the federalcourts have been there. The list is endless. You couldeach add a dozen more cases. The point is that we tookthem all. We opened the courthouse door wide - weinvited the public in. We waived their fees if they couldn'tpay. We gave them lawyers, or let them handle their owncases if they wanted to. We encouraged them all, and wecreated the public perception by which society sees thecourts today. And society has responded to this with thenotion that there is virtually nothing that the federalcourts won't tackle, and people have come to look at us asthe arbitror [sic] of all their controversies, and resolvers ofall their conflicts, the grantors of all their claims.Many years ago, U.S. Attorneys and othergovernment lawyers were plagued by the borderlinepsychopaths who, with shopping bags of notes anddocuments, used to go from lawyer to lawyer, from barassociation to bar association, and finally to theprosecutors' offices, with tales of imagined grievances,the search for redress of which consumed all of theirwaking hours. These people are no longer to be found inthe waiting rooms of the profession. They are now pro selitigants enjoying the wonderful world of discovery. So, ifwe wonder now why we are besieged with frivolouslitigation, we must recognize in seeking a solution to theproblem, part of the problem and part of the answer mustrecognize that we asked for it. Our motives have beennoble, activist judges have done what had to be done,usually what Congress should have done, but didn't. 1Substantial power has been vested in federal judges. We areseperated and insulated from the political arena through our1. Address by FrankJ. McGarr, ChiefJudge, U.S. District Court, Northern District of Illinois,Combined Workshop for the judges of the 8th and 10th Circuits, in Phoenix, Ariz. (Jan. 19, 1984).19841NORTH DAKOTA LAW REVIEWlifetime tenure. The Supreme Court has the final jurisdiction tooverturn the decision of the supreme court of a state. The powerover the state judiciary is grounded primarily on those basic rightsfound in the first ten, and the fourteenth amendments. In the fieldof criminal law, a federal district judge has the power to second-guess the state courts, including the state supreme courts, andoverturn the judgment of the state courts. In most cases thejudgment of a federal district judge is reviewed, if at all, by a three-judge panel of the court of appeals, and the review usually goes nofurther. There are reasons for this vesting of power in the federaljudiciary. It is designed to protect those basic freedoms that I havebeen talking about.It seems to me, however, and I believe Judge McGarr issuggesting, that the federal courts exercise their powers with toolittle restraint. I speak of self-restraint, although Congress isbeginning to look for legal ways to restrain the court. Wesometimes appear to have the impression that we are endowed withgreater wisdom than a state judge possesses, and that we have beenmandated with some unseen power to determine that which is fairand that which is not, even though the Constitution fails to use thatword. We may slide into the habit of looking to what we perceiveshould be a fair result, rather than whether the process which hasbeen afforded was constitutionally sound, thereby meeting therequirement of due process. We thereby effectively eliminatecertainty from the law, and create the situation wherein, asexpressed by Judge McGarr, "the people have come to look to usas the arbitror [sic] of all their controversies and resolvers of alltheir conflicts, the grantors of all their claims. "2Lest the lawyers should assume they are free of criticism, Iremind you of that part of your pledge you took when you wereadmitted to practice: "I will not cousel or maintain any suit orproceeding which shall appear to me to be unjust. "3 However, howmany times have you told a prospective client, "You don't have acase," or how many times have you taken the case because youknew if you didn't take it, someone else would.Also, the appellate courts are not free from comment. Toofrequently the trial courts are guided by their reversals arising outof previous cases wherein the result produced by due process wasperceived by the appellate court to be an unfair result. A resultshould be considered unfair or unjust only if the trial court failed to2. Id.3. The Lawyer's Pledge, reprinted in NORTH DAKOTA STATE BAR BOARD, DIRECTORY: LAWYERSAN JUDGES at 77 (1984).600 [VOL. 60: 595JUDICIAL ACTIVISMafford due process, or misinterpreted or misapplied the law, ormade a factual finding which was clearly erroneous. Parties areentitled to a fair trial through due process. They are not entitled toa result different from that returned by the trier simply becausethey, or a reviewing court, subjectively view the result as beingunfair. Jurors are told by the trial court they must return a verdictbased only on the evidence and the law that is presented in thecourtroom, and that they cannot be influenced by either sympathyor prejudice; that everyone who comes before the court is entitled tojustice based on the evidence and the law. It has always been myobservation that when the lawyers and the judge do their job, thejurors almost invariably arrive at a just verdict, adhering to theadmonitions that I have just mentioned. It seems to me that judgesdo not always adhere to those admonitions.Fairness is afforded when due process is afforded, but thatdoesn't guarantee everyone a fair result. That which is perceived asbeing fair to one may be unfair to another. I will illustrate my pointby telling you about an actual case.Not long ago, an Indian defendant was convicted in federalcourt of raping a thirteen year old girl on the reservation. Theevidence presented to the jury included evidence from which thejury could have found the defendant to have been drunk at the timeof the incident. From all the evidence, it appeared that intoxicationwas an important part of the totality of the circumstances of thecase. Over the defendant's objection, the jury was instructed thatintoxication was not a defense. The reviewing panel reversed,holding that to give the instruction on a general intent offense wasprejudicial error, because it may have given the jury the image of adrunken Indian, which apparently was unfair, but which is exactlywhat he appeared to have been. On retrial, the prosecutioncarefully avoided presenting any evidence or mention of drinkingor intoxication The second jury acquitted. I made a prediction tomy staff, based on my perception of the defendant, that he wouldbe back before the court before very long. I was mistaken. Hehasn't come back. He hasn't come back because he is now serving athirty year prison term in Montana - for raping another thirteenyear old girl. What was perceived to be fair to the defendant wasgrossly unfair to two thirteen year old girls, each of whom inaddition to the assault, had to undergo the trauma of appearing incourt to testify as to the incident. In reality, the result also wasn'tfair to the defendant, it wasn't fair to the prosecution, it wasn't fairto the jury, and above all, it wasn't fair to the system. Law did not1984]602 NORTH DAKOTA LAW REVIEW [VOL. 60:595make freedom work.I have taken a long time to come to the point that I wish tomake. Aside from international treaties, the Constitution is thesupreme law of the land. Our basic freedoms are encased in theConstitution. Neither the Congress, nor the executive branch, northe judicial branch can change the Constitution, but the law of theConstitution will not make freedom work unless we who holdpublic office and are charged with the duty to administer the law,impartially refrain from the temptation to bend the law to achievewhat we may personally perceive to be a fair result. We shouldmake every effort to make the system work as it was designed towork, which is for the common good of all.

Due Process: Has the Time Come to Draw Back from Judicial Activism

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Due Process: Has the Time Come to Draw Back from Judicial Activism

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