A NEW EXPRESSION FOR AVOIDING THE THIRD RAIL- IN COURT
Touch the third rail of a rapid transit system, which
conducts six hundred volts or more to the subway or
elevated trains, and you are instantly dead.
In recent years "avoiding the third rail" has become
the expression for politicians’ ducking issues that
could easily result in political suicide. Political
candidates, in office or not, can and do duck issues
they do not care to address, as long as they answer to
the electorate.
In court, however, it is a different story. What if
courts avoided issues the way politicians do? What if
courts ignored precedents or even constitutional
questions?
In theory, at least, courts of law have nowhere the
sort of discretion that politicians do. What kind of
law would we have if courts ducked issues?
Going back to Blackstone, at least, they are bound by
precedents, by the doctrine of "stare decisis," so
that judges do not make new law every time a case is
decided. Going back to Marbury v. Madison (1803)
American courts are obligated to rule on
constitutional issues when necessary to decide a case,
or else there is no constitution. The whole idea of
due process is to prevent arbitrary action. Judicial
acts are immune from lawsuit so that judges can be
free to address controversial issues. If judges could
"avoid the third rail," would there be any rule of
law? Is there any rule of law when they do, at least
in my recent cases?
In 1995 I sued the University of Illinois over its
appropriation to wipe out Maxwell St., on grounds it
was passed at a legislative hearing without the
opposition being notified. Although I plainly cited
sections of the Illinois constitution, requiring
notification of legislative hearings and protecting
the right to petition for redress of grievances, the
state courts denied there was a constitutional issue.
My last motion in the state supreme court cited
Marbury and threatened a federal lawsuit if there were
no constitutional ruling.
In 1998 I filed a federal lawsuit under the Civil
Rights Acts of 1866 and 1871, for deprivation of my
right to sue and conspiracy to block the course of
justice in state court. The first is Reconstruction
legislation to eliminate the "badges and incidents" of
slavery (slaves were not allowed to sue, own property,
make contracts, etc.), the second the "Ku Klux Klan
Act" to restore civil order in the South, among other
things, to keep the state courts open.
The suit was thrown out on "Rooker Feldman doctrine"
that state court judgments cannot be appealed to a
federal trial court. Quite lost in the "doctrine,"
however, named after U.S. Supreme Court decisions, is
language in both distinguishing valid from invalid
decisions. Rooker v. Fidelity Trust (1923) described a
decision in which there was an exercise of
jurisdiction, a full and fair hearing, and a ruling
responsive to the issues. District of Columbia Court
of Appeals v. Feldman (1983) defined the judicial
process as application of law to fact. That none of
this happened in my state case was ignored completely.
Likewise, my strenuous objection that ignoring this
argument is beyond court authority, in legal language,
an hypothetical jurisdictional bar.
In 2000 I sued to stop federal funding of local
public transportation projects, on grounds the federal
government has no authority to fund local projects
under a 1935 U.S. Supreme Court decision, U.S. v.
Butler. Also, that existing systems were being rebuilt
without considering new technologies. Although I cited
the government's own motion describing a federal
program to fund local projects, the trial court ruled
the matter a "political question." On appeal, after I
filed a brief again citing the government's own
description, the government moved to summarily affirm
the trial court on technical grounds. Even though the
trial court order itself said that my record was
complete for appeal and that it did not have time to
address my issues, the 7th Circuit affirmed on grounds
it did not desire further briefing. My strenuous
objections about ignoring constitutional issues were
denied without explanation.
"Avoiding the third rail" in court deserves a new
expression, which the 7th Circuit also ignored. Part
of Chicago legal lore is the lawsuit against the
Chicago Transit Authority over a drunk who established
electrical contact with the third rail and died by
urinating on it. And that is exactly what the 7th
Circuit did to the Constitution.