Seriously Inferior Courts

Are magistrates and bankruptcy judges unconstitutional?

Fans of semantics and strict reading of the Constitution may want to take a long look at a U.S. Supreme Court ruling handed down last week called Wellness International Network, Ltd. v. Sharif, in which we learn that magistrate and bankruptcy judges are less than inferior.

Since the whole ruling - in which the court is seriously divided - is based on semantics, you can have some fun playing with plausible alternative outcomes.

The central issue in the case was whether a bankruptcy judge could rule on something if the parties agreed he could do it.

You wouldn't think that would be an issue that made its way up to the Supreme Court. But nobody likes to lose - agreement doesn't stop disagreement.

So even though the allegedly bankrupt party agreed to being judged by a bankruptcy judge, he appealed when things didn't go his way by claiming the judge didn't have the power to issue the ruling.

Heads I win, tails I claim that coin tosses are unconstitutional.

Normally, you'd think someone who said that would just get a bloody nose, but this, as noted, made it to a divided Supreme Court.

You can enjoy all 64 pages of the rulings - the majority, the dissent and the concurring opinions - on your own, but allow me to point out a few highlights.

Sentence that should have been the entire opinion: "Adjudication by consent is nothing new."

I would have dropped the mike at that point.

Fun with logic: What are you if you're less than inferior? Are you nothing?

The ruling points out that Article III of the Constitution says that Congress can establish "inferior courts" that it "may from time to time ordain and establish."

Whenever it feels like it.

So you'd think it would happen more often. And it does, sort of, except that all those magistrate and bankruptcy judge positions that it's created aren't considered Article III courts - they're just there to assist the real judges.

So does Congress really have the power to do this (assuming anyone tried to stop it)? The Constitution says Congress can appoint (and then not fire or cut the pay of) "inferior" judges. It doesn't say anything about less than inferior judges.

Couldn't you argue that courts that do judgelike things but have less power than the Supreme Court are the very definition of "inferior?"

Why hasn't a magistrate sued for lifetime tenure and a secure paycheck?

Or if those guys aren't inferior, why hasn't some disgruntled sort sued to do away with the entire magistrate/bankruptcy unconstitutional cabal?

I love stirring up trouble.

By the way, the Literary Award or the Drama Queen Award (depending on your point of view) for this ruling goes to Chief Justice John Roberts' closing paragraph his dissent, where he writes that opposing parties agreeing on something may "assign away our hard-won constitutional birthright."

Then he paraphrases a line from "A Man for All Seasons."

You've got to love a literary justice.

Passing thought: Why do we put anything on the Internet?

This question came to my mind after spotting a report last week that hackers got access to tax returns of more than 100,000 people via an IRS website.

Haven't we learned anything from the Cylon crisis? Computer systems that allow communication with the outside world are vulnerable to attack.

If you feel you must file your tax return, fill out the forms in pencil and put them in the nonelectronic mail.

You'll feel safer.

Weird case and lesson of the week: It's not necessarily legal malpractice to advise a client to commit forgery.

Take a moment to consider whether you believe the previous sentence.

Now check out a ruling from California's Second Appellate District called Kumaperu v. Feldsted, in which the court ruled exactly that.

It was kind of no-harm, no-foul advice from the lawyer - the client needed access to money that belonged to her in an account that accepted only her late husband's signature so the lawyer told her to forge the signature.

It was her money, after all.

Normally, this would be no big deal.

Here's the kicker: For some unexplained and seemingly inexplicable reason, the district attorney decided to prosecute the client for forgery.

This got laughed out of court and the client then sued her lawyer for malpractice.

So here's your law practice lesson: You can't be held accountable for the actions of crazed prosecutors - but expect something weird to happen no matter what you do.

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