Judges kill complaints against them by holding ‘office of trust’ in legislative branch

Tennessee Court of Criminal Appeals judges are (seated from left) Norma McGee Ogle, James Curwood Witt, Jr., Presiding Judge Thomas T. Woodall, John Everett Williams, and Alan E. Glenn; (standing from left) Timothy L. Easter, Robert L. Holloway, Jr., D. Kelly Thomas, Jr., Robert W. Wedemeyer, Camille R. McMullen, Robert H. Montgomery, Jr., and J. Ross Dyer. (Photo Tennessee court system)

Tennessee’s board of judicial conduct prevents corrupt judges from being removed from office. These would include judges such as the trio on the criminal court of appeals that ruled unjustly in the most important case in 80 years — State of Tennessee v. Arthur Jay Hirsch (No. M2016-00321-CCA-R3-CD), a petition that rightly presented the claims of the God-given right of free movement on the roads and the right of the citizen to keep and bear arms. These judges are James Curwood Witt Jr., John Everett Williams and Timothy L. Easter.

They are protected from public scrutiny because of the board of judicial conduct kills all complaints by members of the public. That panel is created illegally by the generally assembly (legislative branch). The officials on the board are members of judiciary branch and hold a position of trust.

Here, now, the definitions of position of trust. What is a position of trust, and why does the constitution ban judges from acting in any capacity other than judge.

By John Gentry

Office: A position of duty, trust, or authority, esp. one conferred by a governmental authority for a public purpose.  Blacks Law Dictionary, Tenth Edition

Office: A right, and correspondent duty, to exercise a public trust.  A public charge or employment.  An employment on behalf of the government in any station or public trust, not merely transient, occasional, or incidental. The most frequent occasions to use the word arise with reference to a duty and power conferred on an individual by the governmentand when this is the connection, “public office” is a usual and more discriminating expression.  But a power and duty may exist without immediate grant from government, and may be properly called an “office,” towards legatees in performance of a duty, and in exercise of a power not derived from their consent but devolved on him by an authority which quoad hoc (with respect to this; so far as this in particular is concerned )is superior. Blacks Law Dictionary, Fifth Edition

The Ineligibility Clause “guards against abuse by taking away the inducement to create new offices, or increase the emolument of old offices.” Elliot’s Debates at 368-75 Madison, June 14, 1788

“The Incompatibility Clause seeks to prevent corruption by ensuring that “the mere acceptance of an office, as a bribe, effectually destroys the end for which it was offered” Elliot’s Debates at 475-76 James Wilson, Penn. Ratifying Convention Dec. 4, 1787

The Incompatibility Clause was motivated by worries about British-style corruption. The Framers did not perceive it as having much to do with the separation of powers or with Presidential independence.” Steven G. Calabresi & Joan L. Larsen, One Person, One Office: Separation of Powers or Personnel?, 79 Cornell L. Rev. 1045, 1077 (1994)

The office of justice of peace in the district of Columbia is such an office; it is therefore worthy of the attention and guardianship of the laws. It has received that attention and guardianship. It has been created by special act of congress, and has been secured, so far as the laws can give security, to the person appointed to fill it, for five years.  Marbury v. Madison, 5 US 137 – Supreme Court (1803)

Office of Trust: An office whose duties and functions require the exercise of discretion, judgment, experience and skill is an office of trust, and it is not necessary that the officer should have the handling of public money or property, or the care and oversight of some pecuniary interest of the government.  A TREATISE ON THE LAW OF PUBLIC OFFICES AND OFFICERS § 16 (1890).

Commissioners on the U.S. Centennial Commission held an “office of trust” because “they are, properly speaking, officers, and . . . the places which they hold are offices”) re Corliss, 11 R.I. 638, 641 (1876)

“Offices of trust,” were offices that, because they required “the exercise of discretion, judgment, experience and skill,” Law of Public Offices § 16, were not heritable and could not be deputized or sold. See 2 Stewart Rapalje & Robert L. Lawrence, A Dictionary of American and English Law 895 (1883).

“Public offices are either offices of trust, which cannot be performed by deputy . . . , or ministerial offices, which may be performed by deputy.” 2 T. Cunningham, A New and Complete Law Dictionarytit. Office (London, 2d ed. 1771) (discussing the prohibition against selling “offices of trust”);

The English tradition of heritable offices that could be sold or executed entirely by hired deputies was rejected in this country after the Revolution. See, e.g., Vt. Const. of 1777, ch. II, § 33, reprinted in 6 Francis Newton Thorpe, The Federal and State Constitutions, Colonial Charters, and Other Organic Laws 3747 (1909; reprint 1993) (“[T]here can be no necessity for, nor use in, establishing offices of profit, the usual effect of which are dependence and servility, unbecoming freemen, in the possessor or expectants.”).

The phrase “of profit or trust”—which, given the English tradition, had greater significance at the time—was incorporated into the emoluments clause contained in the Articles of Confederation, see Articles of Confederation, art. VI, 1 Stat. 5 (1778), and, by virtue thereof, was later incorporated into the Constitution’s Emoluments Clause, among other laws.

“Interestingly, the [Incompatibility] Principle seems to have been grounded less in separation-of-powers theory than in the Framers’ vivid memory of the British Kings’ practice of ‘bribing’ Members of Parliament [] and judges with joint appointments to lucrative executive posts. This practice was repeated in the colonies, which, after independence, enacted strict constitutional bans on plural office holding.  Steven G. Calabresi & Joan L. Larsen, One Person, One Office: Separation of Powers or Personnel?, 79 Cornell L. Rev. at 1051

In 1969, previous Assistant Attorney General Rehnquist concluded that the term “office” meant:

“the right, authority, and duty, created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the Government to be exercised by him for the benefit of the public.”  Memorandum for Honorable Lamar Alexander, Staff Assistant to the President, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel at 2 (Dec. 9, 1969) (quoting 1 Asher C. Hinds, Hinds’ Precedents of the House of Representatives 604 (1907)

The most important characteristic which distinguishes an office from an employment or contract is that the creation and conferring of an office involves a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the public.  Opinion of the Justices, 3 Greenl. (Me.) 481, 482 (1822).

For more on the Tennessee petition of remonstrance

2 Comments

  1. Heather Brewer April 21, 2019 Reply
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