by Montgomery Blair Sibley, ©2020, blogging at Amo Probos
(Nov. 20, 2020) — As I have documented in prior posts, I have been challenging New York’s Handgun licensing scheme in both State and Federal Courts for the last eight hundred and fifty six (856) days. That effort continues at the speed of treacle: New York has been directed to file its Answer Briefs in the State cases in early January 2021. The Federal case is still in the motion to dismiss phase which will linger on into 2021 as well.
What I have not made public is that I found myself faced with a choice back in May of this year whether to sue the federal judge handling my federal Second Amendment case ‒ the Honorable Frank Geraci ‒ to remove him for “misbehaviour” in office. Family and friends will tell you I never shied away from filing a lawsuit when I believe the cause was just, so you can imagine my choice. What was the “misbehaviour” of a federal judge which might authorize removal from office? That is a complicated question requiring context of a completely un-illuminated clause in the Federal Constitution. So let me start there:
It was the common law of the United States that existed before the federal Constitution was ratified in June 1788 – and subsequently and expressly reserved to the People by the Ninth Amendment in 1791 – that there were three grounds for forfeiture of a judicial office: (i) abuse of office, (ii) non-use of office, and (iii) refusal to exercise an office.
The U.S. Constitution at Article III, §1 states in pertinent part: “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour . . .”. Ergo, an inferior District Court Judge ‒ such as the Honorable Frank Geraci ‒ may be removed from office for the antithesis of “good behavior”, i.e., “misbehavior”.
Importantly, the Ninth Amendment states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” I maintained in my Complaint against the Honorable Frank Geraci that among those rights “retained by the people” was the right in a judicial proceeding to remove judicial actors for “misbehaviour”.
Clearly, the Constitution delegates to the Legislative Branch only the right to remove “civil officers” – which necessarily includes District Court Judges – in only very limited circumstances. Article I, §2 states: “The House of Representatives . . . shall have the sole power of impeachment.” Article I, §4 states: “The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” Ergo, Congress can only remove a civil officer ‒ such as the Honorable Frank Geraci ‒ upon an impeachment and conviction in only three instances: (i) “treason”, (ii) “bribery”, or (iii) other “high crimes and misdemeanors”. A priori, Congress cannot remove a civil officer for “misbehavior” that does not rise to the level of: ((i) “treason”, (ii) “bribery”, or (iii) other “high crimes and misdemeanors” as such power was never granted – and indeed was expressly prohibited – to Congress.
A fortiori, there must exist a range of judicial behavior which is not: (i) “treason”, (ii) “bribery”, or (iii) other “high crime and misdemeanor” but that does constitution “misbehavior” sufficient to breach the “good behavior” requirement of Article III, §1 for holding judicial office.
Let me put this proposition graphically:
On July 9, 2019, I filed my Second Amendment lawsuit challenging New York’s Handgun licencing scheme in federal court in Rochester, New York. At the same time, I also filed a Motion for Leave to proceed in forma pauperis. The Motion for Leave to proceed in forma pauperis asked the Court to waive the $400 filing fee which is required to file a federal lawsuit. The Honorable Frank Geraci was assigned the case.
After waiting for seventy-nine (79) days, on September 26, 2019, as it was apparent to me that the Honorable Frank Geraci was not going to rule upon my Motion for Leave to proceed in forma pauperis, I, as my work had picked up, was able to tender the filing fee of $400.00 which finally allowed the case to move forward.
The U.S. Supreme Court has left no doubt that access to court is a fundamental right and is also guaranteed by the U.S. Constitution in five different areas: (i) The Article IV Privileges and Immunities Clause, (ii) The First Amendment Petition Clause, (iii) The Fifth Amendment Due Process Clause, (iv) The Fourteenth Amendment Equal Protection Clause, (v) The Fourteenth Amendment Due Process Clause.
In my lawsuit against the Honorable Frank Geraci, I maintained that his refusal to rule upon my Motion to Proceed in forma pauperis for seventy-nine (79) days denied to me my absolute right to access court for redress of his grievances and to seek protection of my fundamental, constitutional and statutory rights.
What, you may ask, is wrong with ignoring my Motion to Proceed in forma pauperis for seventy-nine (79) days? The problem is this: To those with money, the Honorable Frank Geraci granted immediate access to his Court but made impoverished litigants stand outside the Courthouse waiting his grace to enter thus denying equal protection of the laws between rich and poor. Such denial by the Honorable Frank Geraci I maintained was evidence of abuse, non-use and/or refusal to exercise his office warranting a finding of “misbehavior” in that office by the Honorable Frank Geraci. As such, I requested a judgment rendered after ‒ and only upon a jury verdict ‒ directing the forfeiture of the Honorable Frank Geraci’s office as a United States District Court Judge.
Now as you might imagine, when I filed this suit against the Honorable Frank Geraci on May 13, 2020, in federal court in Rochester, N.Y., the result was preordained. Without allowing me to be heard, the Honorable Catherine O’Hagan Wolfe immediately dismissed the suit and deemed it frivolous. How dare I raise a “first impression” Constitutional issue which created an existential threat to the Article III hegemony of federal judges?
Needless to say, I don’t take “no” for an answer lightly and so this matter now pends at the federal Court of Appeals for the Second Circuit in New York City. My Initial Brief details all this in greater detail.
More to follow when the Second Circuit makes its decision.