Is Psychiatry a New Weapon in an Old Attack on Independent Federal Judges?
“Psychiatry is the only medical specialty that must arrange for police protection against demonstrations by ex-patients when they hold national conferences.” — Al Siebert, PhD [Schizophrenia Breakthrough (Practical PsychologyPress 2003, p. 163]
INDEPENDENT FEDERAL JUDGES? THE JUDICIAL-PSYCHIATRIC COMPLEX – HOW DID WE GET HERE?
What appears to be politically motivated retaliation against judicial whistle blowing and/or independence is nothing new in U.S. history. What is new is the use of an old weapon – psychiatry- against an Article III federal district judge: Judge John R. Adams of Ohio’s Northern District.
I. THE HISTORY OF JUDICIAL REMOVAL EFFORTS WITHOUT IMPEACHMENT
When the Founding Fathers wrote the Constitution, they clearly intended Article III federal judges to be independent of outside forces, especially political ones, whether friendly or hostile. It seems that the thinking even then was that there had to be strong voices in the federal judiciary to overcome what would otherwise have been the majority’s abuse of the individual. The sheep after all must have some protections when she and the two wolves vote on what is for dinner. Legal scholars for more than a century have believed the Constitution authorizes removal of these federal judges only by Congress and then only for impeachable offenses. However, following a good deal of political wrangling, politicians agreed to enact a statute of questionable constitutionality in 1980 for the stated purposes of “reform”, “judicial centralization” and to foster “cohesive judicial identity”. [Source] Critics say the real goal was uniformity of judicial thought. There is also now a Federal Code of Conduct prescribing “appropriate conduct” for all federal judges instead of sanctions for misconduct. New Judicial Councils have started to inquire into whether judges might be disabled in some way. [Id. p. 34]. While the 1980 Act authorizes anyone to file a complaint against a federal judge, only other judges will consider the merits of it. For the public good, of course.
Several efforts to make an end-run around the Constitution in this area have been ongoing for about a half century now. In 1969, the Nixon administration began calling for the impeachment of U.S. Supreme Court Justice Abe Fortas, one of the stars of the human rights-defending Warren court (the U.S. Supreme Court of the 1960s and 1970s). Fortas had allegedly received a $20,000 consulting fee from the family foundation of a former client who was then being investigated for securities violations. [Robert A. Ainsworth, Jr., Judicial Ethics-The Federal Judiciary Seeks Modern Standards of Conduct, 45 Notre Dame L. Rev. 470(1970).]
Widget not in any sidebars
A similar attack, minus the psychiatric angle being used against Judge Adams or the financial improprieties alleged against Fortas, was launched around the same time as the Fortas attack, against a federal district judge in Oklahoma. A slim majority in the US Supreme Court struck what may have been a mortal blow against judicial independence in Chandler v. Judicial Council, 398 U.S. 74(1970) by allowing his fellow judges to take away his caseload, claiming administrative convenience because the judges could not agree on who would be assigned which cases. The Oklahoma federal judges who attacked Judge Chandler had a similar plan as Boggs’ “special committee” in Ohio – to remove the challenged judge’s caseload. Such a move effectively impeaches a judge without going through Constitutional procedures requiring Congress to do so. Dissenting U.S. Supreme Court Justices Douglas and Black wrote opinions predicting that condoning the actions of the “special committee” judges who had been targeting Judge Chandler would cause grave consequences for the integrity of the Constitution. Justice Douglas wrote:
“there is no power under our Constitution for one group of federal judges to censor or discipline any federal judge and no power to declare him inefficient and strip him of his power to act as a judge. The mood of some federal judges is opposed to this view and they are active in attempting to make all federal judges walk in some uniform step.” [p. 137]
In concluding that the Constitution does not allow groups of federal judges to exert “any power of surveillance” over other presidentially appointed-for-life federal judges, Justice Douglas continued:
“It is time that an end be put to these efforts of federal judges to ride herd on other federal judges. This is a form of ‘hazing’ having no place under the Constitution. Federal judges are entitled, like other people, to the full freedom of the First Amendment. If they break a law, they can be prosecuted. If they become corrupt or sit in cases in which they have a personal or family stake, they can be impeached by Congress.” [p. 140]
Justice Black, writing his separate dissent, warned us that
“the Court today, in my judgment, breaks faith with this grand constitutional principle [judicial independence]. Judge Chandler, duly appointed, duly confirmed, and never impeached by the Congress, has been barred from doing his work by other judges. . . This case must be viewed for what it is — a long history of harassment of Judge Chandler by other judges who somehow feel he is “unfit” to hold office. Their efforts have been going on for at least five years, and still Judge Chandler finds no relief. What is involved here is simply a blatant effort on the part of the Council, through concerted action, to make Judge Chandler a “second-class judge,” depriving him of the full power of his office and the right to share equally with all other federal judges in the privileges and responsibilities of the Federal Judiciary. I am unable to find in our Constitution or in any statute any authority whatever for judges to arrogate to themselves and to exercise such powers. Judge Chandler, like every other federal judge, including the Justices of this Court, is subject to removal from office only by the constitutionally prescribed mode of impeachment.”
While the attacks on Oklahoma federal Judge Chandler may have involved very similar group dynamics, he was not attacked using psychiatry as a weapon, as Judge Adams now is. Perhaps if Chief Justice Burger, who wrote for the majority in Chandler, had been able to anticipate that the take-down of the independence of an Article III federal judge would later be out-sourced to psychiatry, his decision could well have been different. Nine years before writing the majority opinion in Chandler, and while still a federal circuit court judge, Justice Burger expressed his basic mistrust of the accuracy of psychiatric diagnosis in another case, explaining:
“psychiatrists are in disagreement on what is a ‘mental disease’ and even whether there exists such definable and classifiable condition.” Blocker v. U. S. 288 F. 2d 853 (D.C. Ct.App. 1961) [p. 859].
Following a detailed review of selected writings from prominent psychiatrists, who sound very similar to the ones of today, Judge Burger concluded that
“no rule of law can possibly be sound or workable which is dependent upon the terms of another discipline whose members are in profound disagreement about what those terms mean. How can lay jurors possibly understand and apply terms whose meaning is unclear to acknowledged experts? This is not simply a matter of experts disagreeing on opinions or on diagnosis, which often occurs, but disagreement at the threshold on what their own critical terms mean. [Blocker, p. 860]
Yet it is this very “discipline” – psychiatry – that is being unleashed against Ohio’s Judge Adams. The Boggs’ committee’s refusal to accept the opinions of two other board certified psychiatrists, in addition to what this says about the integrity of its “investigation”, can also be understood as an admission that psychiatric “diagnosis” is unreliable – that is, incapable of being replicated. If the “special committee” believed in the reliability of psychiatric “diagnosis”, i.e. that it is replicable, why would it matter to them so much that they be allowed to force their choice of psychiatrist on Judge Adams? Obviously their psychiatrist could be counted on to give a conflicting opinion to the two opinions already giving Judge Adams a clean bill of mental health. No doubt for Justice Burger, the very idea that psychiatry would ever be used to conduct a hazing of an Article III federal judge would have been inconceivable. Others might consider it Orwellian.
II. POLITICAL PRESSURES: ARE THE MEDIA SABOTAGING JUDICIAL INDEPENDENCE WHILE REMAINING MUTE ABOUT THE ACCUSERS’ MOTIVES?
The attacks on Judge Adams, which seem even less factually supported than the ones against Judges Chandler and Fortas from the past, are not occurring in a vacuum. The corporate media in the run-up to the formation of Judge Danny Boggs’ “special committee” in 2013, had rarely been friendly to Judge Adams. Once the complaint against Judge Adams was actually filed, they seemed to pull out all the stops. Cleveland’s The Plain Dealer referred to Judge Adams as “defiant” for challenging what appear to be illegal sanctions and the admittedly unprecedented order of a psychiatric evaluation.
Cuyahoga River
Judge Adams’ rulings in at least two highly publicized cases dealing with human rights violations of Northern Ohio citizens, had been ruffling the feathers of vocal critics besides his fellow judges. During one of those cases, involving the EPA and the pollution associated with the Cuyahoga River catching fire, Don Plusquellic, then Mayor of Akron, sent a letter to the Akron Beacon Journal accusing Judge Adams of being prejudiced against the mayor personally and against the entire City of Akron. It appears that the mayor, an attorney, had been furious that Judge Adams would not approve an order allowing the City of Akron another 19 years to stop polluting and start cleaning up, even without evidence it needed that much time. Judge Adams’ detailed 3/17/11 Order explained the reasons he would not adopt such an agreement, even though both parties’ attorneys approved it. Judge Adams simply found no credible evidence that it would take 19 additional years to adequately clean up water quality for the people of the Akron area. Judge Adams’ opinion specifically mentioned the City’s acquisition of an additional $82 million in debt during the litigation and its refusal to have spent basically any of it to correct the sewage runoff problem. Millions had been spent instead on a sports stadium and the remodeling of a department store. [U.S. v. City of Akron, 5:09 CV 272, p. 25] [Source] The mayor’s stated intention to not work with the EPA only added to the judge’s concerns about unnecessary delay and the workability of a clean-up plan. Judge Adams’ focus consistently appeared to be on how to get Akron and the EPA to agree to a “long-term control plan” that would quickly and efficiently “eliminate overflows to sensitive areas”. And so he appointed an environmental expert. By 1/17/14, with the expert’s input, Akron and the EPA finally managed to agree to a shorter clean-up timetable, which Judge Adams approved. By 2015 Plusquellic was involved in his own drama with the Akron Beacon Journal and with a member of City Council who the mayor was accusing of intending to shoot him.
Interestingly, Judge Boggs, a Reagan appointee and the head of the “special committee” who had a hand in engineering the “mental disability” theory being used to attack Judge Adams, has his own history with the EPA. During the 1980s Boggs and other aides under President Reagan were reportedly involved in a scandal surrounding a perceived whitewash prompted by the public perception at the time that Reagan deferred to big business over the environment. Questions about Boggs’ willingness to put the environment on a back burner in deference to corporate interests continued over the years. In 2005 Boggs and other judges resigned from the board of the Montana think tank FREE in the wake of an ethics complaint lodged by the Community Rights Council alleging that corporate interests were using FREE’s Montana-based seminars to try to influence judges who had environmental lawsuits pending in their courts and to provide corporations “unusual access to those judges”.
In another case involving the City of Akron and its citizens, Adams presided over a jury trial which found age and race discrimination against firefighters. In an appeal directed at the manner of calculating their damages, a higher court found that the attorneys for both sides had “engaged in a childish withholding game” and “petty, scorched-earth litigation tactics”, thus prolonging the litigation [Source]. Nonetheless, the appeal court laid most of the blame for the delays on Judge Adams. The appeal court took what it admitted was an “extraordinary” step by reassigning the case to a different judge when they remanded it back to district court after reversing one of Judge Adams’ rulings. The appeal court cited Judge Adams’ “favoritism or antagonism” but the opinion is far from clear which side Judge Adams supposedly favored since both parties’ attorneys appear to have been furious not only with each other, but also with Judge Adams. Some might say that was evidence of even-handedness.
The media also seems fascinated with Judge Adams’ reprimands of attorneys appearing before him, including one who hurled graphic expletives at a prosecutor in his presence. Though clearly offended, Judge Adams declined to jail him, as have other judges in such situations. In November 2013, an appeal court reversed sanctions Judge Adams had imposed on a public defender who had admitted issuing a “defective” subpoena for a witness to appear in his courtroom for a non-existent hearing [Source; Source]. It seems that Judge Adams was following one line of cases interpreting Crim. Rule 17(C) and the public defender was following another line of cases. The appeal court admitted that although the public defender “asks us to provide controlling guidance concerning Rule 17(C) procedures, we decline the invitation.” [p. 24] The appeal court never adequately explains how the maintenance of confusion in this area does anything but promote litigation. That same appeal court opinion went on to chastise Judge Adams for the reprimand of the public defender, going to great length to exclaim about the alleged tarnishing of the public defender’s reputation for which it faulted Judge Adams. Neither an examination of the “special committee” proceedings against Judge Adams nor of any of the associated corporate news articles reflect any such concerns about the damage being caused to Judge Adams’ reputation.
The corporate media appear at times to play on what may be the public’s ignorance of the general legal principle that neither being reversed on appeal, nor recusing in a case, is considered evidence that the lower court judge committed misconduct. Disagreement is not misconduct. Recognizing that one might be perceived as having a bias and then recusing, is not misconduct. Trial court judges and appeal court judges disagree all the time. There is even a federal statute – 28 U.S.C. Sec. 352 (b)(1)(A)(ii)- prohibiting the discipline of a judge due to appellate court disagreement with him about the merits of a case. Judge Scirica’s Review Committee, however, seems to have taken a novel perspective on that statute, indicating that it can be ignored in favor of another statute, a catch-all provision, prohibiting “conduct prejudicial to the effective and expeditious administration of the business of the courts.” 28 U.S.C. Sec. 351(a). Like the ethical rule for lawyers prohibiting “conduct prejudicial to the administration of justice”, such vague pronouncements are invariably used when disciplinary bodies have little in the way of specific accusations. Constitutional caselaw has long recognized that vagueness in the phrasing of statutes and rules creates a dangerous power in the government to attack the individual based on unclear, and therefore un-defendable grounds.
Former attorney and U.S. senate candidate Andy Ostrowski did a recent series on his online radio broadcast Justice Served, in which he interviewed dozens of attorneys subjected to discipline, including disbarment, for criticizing judges. Even though attorneys are ethically required to report judicial misconduct, the reality is that when they do so they will be subjected to discipline based on little but an allegation of “conduct prejudicial to the administration of justice” – Rule 8.4(D), the catch-all rule for inconvenient lawyers. On 9/19/17 Ostrowski himself was abducted from his home while broadcasting live in connection with a lawsuit he had prepared challenging the legal authority of the government to restrict the practice of law to those with a state-issued license. Wilkes-Barre, Pennsylvania police informed Ostrowski on camera that he was being forcibly removed from his home for a psychiatric evaluation.
There is no way to predict whether judges targeted due to disagreeing on points of law are now to be subjected to accusations of “mental illness” or “conduct prejudicial to the effective and expeditious administration of the business of the courts”. Judge Scirica’s August, 2017 “Review Committee” refused to dismiss the Boggs committee’s complaint about Judge Adams’ enforcement of the Social Security claim deadline. Scirica, like Boggs a Reagan appointee, basically said that complaints about the merits of the order were not merits-related because Judge Boggs said so. [p. 23] Judge Scirica’s Sixth Circuit “review committee” then decided there are essentially no limits on the powers of Boggs’ “special committee” and that, although Boggs’ committee’s efforts to take away Judge Adams’ docket were
“not supported by the record as it exists at this time given the lack of evidence” [Id. p. 37] [emphasis supplied]
Boggs’ committee would be given another two years to keep trying to gather more ammunition. Another two years to cull through all court orders Judge Adams has ever issued in search of “conduct prejudicial to the effective and expeditious administration of the business of the courts”. And another two years to drum up reasons to support a third psychiatric evaluation to contradict the two reports from board-certified psychiatrists which had already given Adams a clean bill of mental health. But wouldn’t Adams’ enforcement of court deadlines promote, rather than be prejudicial to the “effective and expeditious” court administration?
If an appointed-for-life Article III federal judge of obvious sanity can be subjected to psychiatric labeling and the career-killing stigma that is attached to it, there would now seem to be much fewer obstacles to the psychiatric labeling of any of us. In addition to the other Constitutional issues now before it, a District Court in Washington, D.C. will decide on whether Judge Adams’ due process rights were violated and, among other issues, whether to interpret 28 U.S.C. Sec. 353(c) literally as Scirica did by allowing Boggs’ “special committee” to “conduct an investigation as extensive as it considers necessary”, to mean any controversial federal judge may be subjected to an obviously rigged psychiatric evaluation. Or it will avoid so deciding.
About the author: An inactive attorney who practiced over 30 years in the courts of Oklahoma and Ohio, Katherine Hine is now with WLJA radio and Hidden Truth Revealed at BlogTalkRadio hosting bi-monthly broadcasts exposing the illegalities of forced psychiatry and the consequences of our current lack of judicial accountability. She continues to serve as executive director of the Ross County Network for Children in Ohio and chapter co-president of the Ohio branch of FCLU [Families Civil Liberties Union]. In 2008-2009 Hine was instrumental in utilizing citizen initiative to rid the City of Chillicothe, Ohio of its traffic cameras. She has authored articles critical of forced psychiatry: One Flew Out of the New Cuckoo’s Nest: Forced Psychiatry in Ohio – Instrument of Political Repression? and Forced Psychiatry in Ohio Part Two: “Treatment” or “Lifelong Punishment,” a book review: GUARDIANSHIP: How Judges and Lawyers Steal Your Money and one article addressing retaliation against mandated reporters: Expose: The Failure of Family Courts to Protect Children. She can be reached at [email protected].
