Thursday, December 13, 2007

Secret Conference, Arbitrary Denial, and the Great Writ

Ohio attorneys Ralph C. Buss and David E. Koerner have recently filed for a rehearing on behalf of Petitioners in this extraordinary case. They are challenging the arbitrary denial of the petition for writs of habeas corpus by persons unknown at a secret, private conference. Petitioners brought claims that Title 18 – the current federal criminal code – failed to become law. Under Petitioners’ allegations, the federal courts have no jurisdiction or legal authority to try or imprison citizens for any criminal violations, leaving only the state courts with authority to do so.

Habeas corpus is the historical vehicle to challenge an illegal imprisonment, under which traditional[1] and statutory[2] procedures mandate prompt determination of the issues raised. The statutory law governing habeas corpus[3] gives the Supreme Court discretion to choose one of two options.[4] One option is to hold a hearing on the merits of the petition. The second option is to decline to hear the petition and to send the case back to the district court with authority to hear it. This insures that one of the two courts will make a judgment on the merits of the petition.[5] Obeying the federal habeas statute also insures that the privilege of the writ of habeas corpus is not suspended in any case, as mandated by the U.S. Constitution.[6]

The Court applied an illegal third option.

By a secret, private, conference the application was arbitrarily denied. There is no statute authorizing secret, private conferences.[7] The constitutional mandate, statutory law, the traditional procedure governing writs of habeas corpus was (and presently is) completely circumvented and suspended in this case.[8]

How could this happen?

The founding fathers never meant habeas corpus to be subjected to any such practice. Congress intended to spare the Great Writ from this abuse of the justice system by passing statutory law that specifically mandates a different procedure for habeas corpus.

The Supreme Court, however, has chosen to violate the congressionally enacted law, in this case, and treat the Great Writ as just another of the vast numbers of certiorari applications. Thus, allowing habeas relief to be drawn outside constitutional and statutory pro- and prescriptions and into the wholly discretionary vortex of certiorari review.[9]

A controversial practice evolved since 1925 to deal with the vast numbers of discretionary review appeals (writs of certiorari) coming up from the lower courts. Commenting on these private conferences, former Justice Clark states:

This long-established practice is based in reason. The Court must carry on these Friday conferences in absolute secrecy, otherwise its judgments might become prematurely known and the whole process of decision destroyed. We therefore guard its secrets closely. There must be no leak.[10]

“Reason” is, of course, not law. Concededly, some degree of secrecy may be necessary to prevent premature leaks, however, there is no reasonable justification in a democratic society to maintain such secrecy after an announcement and publication of the Court’s decision. Knowledge of the means, mode and method used is essential to the maintenance of the judicial process.

The actual procedure of review at secret conferences appears to be relegated largely to the Court’s or Justices’ clerks. The clerks prepare a “memorandum of not more than a page or two in each case” from which the Justices “then begin their study of the case…, and they often end it there if the memorandum (also called a ‘flimsy’) leaves no doubt in the Justices mind as to what the Court should do in the case.”[11] Purportedly, the only cases actually voted on at the secret conferences are those – an overwhelmingly small number – that are placed on what the Court calls a “discuss list” and those “that do not appear on the list by the day of the conference are automatically denied without even being mentioned at the conference.”[12] If a petition is to “have any chance” it must “make the discuss list,” which “is never made public.”[13]

American judicial rhetoric has long denounced secret proceedings and especially secret judicial proceedings. Supreme Court Justices have said:

“Secret hearings – though they be scrupulously fair in reality – are suspect by nature. Public confidence cannot long be maintained where important judicial decisions are made behind closed doors and then announced in conclusive terms to the public, with the record sealed from public view.”[14]

The “’privilege and access of the public to the courts stand in reason upon common ground …,… because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.’”[15]

The number of petitions submitted to the Court continues to increase. As of 1976, the estimate was that the average time spent was “at most five minutes per case.”[16] Thirty years later, it is doubtful if a majority of cases obtain any judicial consideration by the Court or any of its Justices.

However perverted the process for certiorari or discretionary writs review has become, the fact remains that in habeas cases, submitted upon proof of unlawful imprisonment, such private, secret procedures and decisions based upon a memorandum of a clerk (if even that) satisfies neither justice nor law.


[1] E.g., Fay v. Noia, 372 U.S. 391, 401-402 (1963) (“prompt and efficacious remedy” for unlawful imprisonment); Smith v. Bennett, 365 U.S. 708, 712 (1961) (“Ever since Magna Charta, man’s greatest right – personal liberty – has been guaranteed, and the procedures of the Habeas Corpus Act of 1679 [31 Car. II, c. 2] gave to every Englishman a prompt and effective remedy for testing the legality of his imprisonment.”); Secretary of State for Home Affairs v. O’Brien, 1923 WL, p. 4, [1923] A.C. 603, 609 (House of Lords) (the writ affords “a swift and imperative remedy in all cases of illegal restraint or confinement.”).
[2] 28 U.S.C. § 2243 ¶ 1 (Court, Justice, or judge entertaining application shall “forthwith” award the writ or order the custodian to show cause why it should not issue, unless it appears the detainee is not entitled thereto).
[3] 28 U.S.C. § 2241(a).
[4] 28 U.S.C. § 2242(b). See e.g., Ex parte Hayes, 414 U.S. 1327, 1327-28 (1973).
[5] 28 U.S.C. § 2243 ¶ 8.
[6] “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public safety may require it.” Art. I, § 9, Cl. 2, U.S. Constitution.
[7] The only conferences of judges apparently authorized by Congress are the judicial conferences (and councils) authorized, defined and limited at 28 U.S.C. §§ 331-335, which have no relation to the secret, private conferences in question.
[8] Neither rebellion nor invasion in the constitutional sense is present and Congress has not so declared.
[9] The Judiciary Act of 1925, 43 Stat. 936, enlarged the Supreme Court’s discretionary jurisdiction formerly established predominantly as a matter of judicial practice. During its sojourn through Congress, the act was known as the “Judges’ Bill,” because it was written by judges.
[10] The Supreme Court Conference, 19 F.R.D. 303, 305 (1956).
[11] Supreme Court Practice, Stern, Gressman, Shapire & Geller, 7th Ed., p. 226 (quoting Brennan, The National Court of Appeals; Another Dissent, 40 Univ. Chi. L. Rev. 473, 439 (1982)). Does indeed sound “flimsy,” doesn’t it?
[12] Ibid., p. 227 (BNA 1993).
[13] Ibid., p. 227.
[14] Former Justices Blackman, Brennan, White and Marshall dissenting in Gannet Co. v. DePasquale, 443 U.S. 368, 429 (1979) (quoting United States v. Cianfrani, 573 F.2d 835, 851 (3rd Cir. 1978)).
[15] Ibid., (quoting Justice Holmes in Crowley v. Pulsifer, 137 Mass. 392, 394 (1884)).
[16] Supreme Court Practice, supra, p. 20 (citing commentators).