Issue XCVI

21 OCT 2016

Today in History

03/28/1978

Judicial immunity dodged a bullet in the 1978 lawsuit Stump v. Sparkman, 435 U.S. 349.

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Absolute judicial immunity is not a forgone conclusion!

Here’s what happened:  The mother of Linda Kay Spitler Sparkman filed a petition to have her minor daughter sterilized.  The judge, Judge Harold D. Stump, signed Ms. Sparkman’s sterilization petition in a flawed legal process (without due process) and without legal authority.  A lawsuit later came to pass after Ms. Sparkman came of age and couldn’t have children.  Ms. Sparkman subsequently sued Judge Harold Stump for damages.

Unfortunately, Ms. Sparkman did not also challenge the constitutionality of judicial immunity in her lawsuit.  Therefore, the US Supreme Court had no other choice but to apply the judicial immunity doctrine as it had been thus far defined: Judges have absolute immunity when performing judicial acts.

Ms. Sparkman’s attorneys argued that Judge Stump was personally liable because he was operating outside his judicial authority: Judge Stump didn’t provide Ms. Sparkman due process and that he had no statutory authority to perform such an act.  The Supreme Court concluded that although the Judge behaved badly, he was nevertheless performing a judicial act and was therefore operating in his judicial capacity.  Judge Stump had immunity.

There was significant disagreement in the ruling however.  In the dissent, United States Supreme Court Justice Powell stated:

But where a judicial officer acts in a manner that precludes all resort to appellate or other judicial remedies that otherwise would be available, the underlying assumption of the Bradley doctrine is inoperative. See Pierson v. Ray, supra, at 554.

In this case, as MR. JUSTICE STEWART points out, ante, at 369, Judge Stump’s unjudicial conduct insured that “[t]here was and could be no appeal.” The complete absence of normal judicial process foreclosed resort to any of the “numerous remedies” that “the law has provided for private parties.” Bradley, supra,at 354.

Central to the judiciary’s rationale for judicial immunity is the presumption that an aggrieved person may seek redress at appeal when they feel that a judge has made a bad decision.  Again, Justice Powell in the Stump dissent:

Underlying the Bradley immunity, then, is the notion that private rights can be sacrificed in some degree to the achievement of the greater public good deriving from a...


The Tyranny of the Bench

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First published as “The Plumb Line: So What Else is New?” in Libertarian Review, April, 1978

One of the fatal flaws in the concept of "limited" government is the judiciary. Endowed with the compulsory monopoly of the vital power of deciding disputes, of ultimately deciding who can wield force and how much can be wielded, the government judiciary sits as an unchecked and unlimited tyrant.

Pledged to preside over the rule of law, law that is supposed to apply to everyman, the judges themselves are yet above the law and free from its sanctions and limitations. When clothed in the robes of his office, the judge can do no legal wrong and is therefore immune from the law itself.

There is a crucial catch-22 in this grisly situation. For if anyone would like to argue against this arrangement, he can do so – in our archist system – only before judges who themselves are part of the problem rather than part of the solution. It is up to government judges to rule on whether government judges are immune from the law. How do you think they would decide? Well, how do you think a group of economists would decide on the question of whether economists should be immune? Or any other group or profession?

Not surprisingly, the United States Supreme Court ruled, in 1872, that judges were immune from any damage suits for any "judicial acts" that they had performed – regardless of how wrong, evil, or unconstitutional those acts may have been. When clothed in judicial authority, judges can do no wrong. Period. Recently a case of an errant judge has come up again – because his action as a judge was considered generally to be monstrous and illegal. In 1971, Mrs. Ora Spitler McFarlin petitioned Judge Harold D. Stump of the DeKalb County, Indiana, Circuit Court to engage in a covert, compulsory sterilization of her 15-year-old daughter, Linda Kay Spitler. Although Linda was promoted each year with her class, Mrs. McFarlin opined that she was "somewhat retarded" and had begun to stay out overnight with older youths. And we all know what that can lead to.

Judge Stump quickly signed the order, and the judge and mamma hustled Linda into a hospital, telling her it was for an appendicitis operation. Linda was then sterilized without her knowledge. Two years later, Linda married a Leo Sparkman and discovered that she had been sterilized without her...



11/11/2004

Yasser Arafat Poisoned? Swiss Scientists Say They Found Lethal Level Of Polonium In Palestinian Leader's Body

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PARIS, Nov 6 (Reuters) - Palestinian leader Yasser Arafat was poisoned to death in 2004 with radioactive polonium, his widow Suha said on Wednesday after receiving the results of Swiss forensic tests on her husband's corpse.

"We are revealing a real crime, a political assassination," she told Reuters in Paris.

A team of experts, including from Lausanne University Hospital's Institute of Radiation Physics, opened Arafat's grave in the West Bank city of Ramallah last November, and took samples from his body to seek evidence of alleged poisoning.

"This has confirmed all our doubts," said Suha Arafat, who met members of the Swiss forensic team in Geneva on Tuesday. "It is scientifically proved that he didn't die a natural death and we have scientific proof that this man was killed."

She did not accuse any country or person, and acknowledged that the historic leader of the Palestine Liberation Organization had many enemies.

Arafat signed the 1993 Oslo interim peace accords with Israel and led a subsequent uprising after the failure of talks in 2000 on a comprehensive agreement.

Allegations of foul play surfaced immediately. Arafat had foes among his own people, but many Palestinians pointed the finger at Israel, which had besieged him in his Ramallah headquarters for the final two and a half years of his life.

The Israeli government has denied any role in his death, noting that he was 75 years old and had an unhealthy lifestyle.

An investigation by the Qatar-based Al Jazeera television news channel first reported last year that traces of polonium-210 were found on personal effects of Arafat given to his widow by the French military hospital where he died.

That led French prosecutors to open an investigation for suspected murder in August 2012 at the request of Suha Arafat. Forensic experts from Switzerland, Russia and France all took samples from his corpse for testing after the Palestinian Authority agreed to open his mausoleum.

"SMOKING GUN"

The head of the Russian forensics institute, Vladimir Uiba, was quoted by the Interfax news agency last month as saying no trace of polonium had been found on the body specimens examined in Moscow, but his Federal Medico-Biological Agency later denied he had made any official comment on its findings.

The French pathologists have not reported their conclusions publicly, nor have their findings been shared with Suha Arafat's legal team. A spokeswoman...


Yasser Arafat died of natural causes, French investigators say

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Scientific and medical experts rule out possibility that Palestinian leader was poisoned amid reports of high levels of polonium-210

The Palestinian leader Yasser Arafat died of natural causes, French investigators have concluded. The team of scientific and medical experts found his death in 2004 was due to "old age following a generalised infection", ruling out allegations he was poisoned, it was reported on Tuesday.

Swiss scientists had previously reported "unexpectedly high activity" of radioactive polonium-210 in Arafat's body and personal effects, including his clothing, leading to accusations that he was assassinated.

On Tuesday, it was reported that the French investigators had ruled out poisoning in their report but that traces of polonium had been found.

A source told Reuters: "The results of the analyses allow us to conclude that the death was not the result of poisoning."

The information contradicts reports last month that the Swiss team thought it was likely Arafat had been poisoned after finding polonium levels up to 18 times higher than expected. However, the Swiss stopped short of categorically stating the radioactive substance had killed him.

Arafat's widow, Suha, said on Tuesday night that she was shocked by the contradictory conclusions of the Swiss and French teams who had examined the same samples from the body.

However, she insisted that both teams had reported higher than normal levels of polonium-210 and lead-210 in the samples.

"There is a doubt and that doubt is, did the poison in the body contaminate the outside environment, which is the conclusion of the French team? Or did something in the outside environment contaminate the body?" she told a press conference in Paris.

"Now I have to trust in justice and science and hope the experts manage to reach some conclusion."

She added: "I am shocked by the contradictions from the most celebrated experts in Europe."

Her lawyer, Pierre Oliver Sur, told journalists he and his team had examined both Swiss and French reports and compared the figures they contained. In some samples, the Swiss found more radioactive contamination than the French and in others the French found more contamination.

"Faced with experts with divergent conclusions ... we will continue the debate. It's like two sides of the same coin," he said.

"What we are looking for is a scientific certainty and that is what we will keep looking for."

He said he had not seen any report from the Russian experts, the third team to have examined...



10/23/1915

Getting and keeping the vote

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Organizing for the women’s suffrage parade planned for 23 October 1915 in New York had taken months. By this time leaders of the New York movement were practiced at arranging such popular spectacles in a state that would be a significant prize, with parades its most effective, opinion-changing tactic. Finally, nearly seventy years after the Seneca Falls Convention and its call for women’s suffrage, the momentum seemed to be shifting. After years of ridiculing the notion of women as voters, Tammany Hall, the city’s enduring political machine, had declared its neutrality on the forthcoming referendum. By 1915 thirteen states, all west of the Mississippi, had enfranchised women; surely progressive New York might lead the way in the east. Meanwhile in the two-pronged strategy of the National American Woman Suffrage Association, the federal amendment named for Susan B. Anthony had been voted out of the Senate Judiciary committee.

On that warm sunny day nearly a century ago some 20,000 women, 2,500 men, 74 women on horseback, 143 automobiles with six suffragists in each, four floats with females representing Victory, Liberty, Freedom and Democracy, along with 57 bands numbering over a thousand musicians marched up Fifth Avenue. They passed the reviewing stand in front of the New York Public Library where a new convert Mayor John Mitchell waved. They moved on, up to 59th Street, greeted along the way by mostly appreciative crowds. The New York Times declared it “the latest, biggest and most successful of all suffrage parades.”

The intention was to impress upon men the justice of their cause and to rally their own supporters in the collective effort that the suffrage movement had become. As a cautionary note, paraders were instructed to keep their eyes to the front, refrain from talking and never respond to hecklers. “Remember you are marching for a principle.” In 1915 there was no better way to publicize the cause. Americans had always cherished their parades: the stirring drumbeat of the band, the eye-catching costumes of the marchers, the picturesque thematic floats, whether for independence on the Fourth of July or the celebration of a new president. As women sought civic equality, they adopted this familiar spectacle, their parades presenting a physical embodiment of their purpose.

Women arranged in orderly lines rebutted the argument that the fairer sex did not want the vote. Women in public spaces...


THIS DAY IN HISTORY: OCTOBER 23RD- 50,000 MARCH ON NEW YORK

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At least 50,000 people took to the streets of New York City on October 23, 1915 to march in the country’s largest women’s suffrage parade up to that time.

Nearly 70 years after the founders of the women’s suffrage movement gathered in Seneca Falls, it seemed the tide was finally turning. (Interestingly, this matter was controversial even among the two main organizers of that gathering at Seneca Falls, with Elizabeth Stanton firmly for fighting for a woman’s right to vote and Lucretia Mott stating about that proposition,  “Why Lizzie, thee will make us ridiculous.” It was ultimately a former slave, the great Frederick Douglas, that swayed the crowd at that gathering to include the right to vote in the Declaration of Sentiments.)

After enduring decades of ridicule and intimidation over the matter since then, 13 states had enfranchised women, and it was hoped that the progressive state of New York would be next to fall into line.

Parades were very popular – and influential – a century ago. Before television, and even radio, became commonplace, parades were the way to get your political message across to large groups of people at one time. This parade was held ten days before the election, and the goal was to sway any undecided voters just before they cast their ballots.

The very fact that women were taking to the streets made a very strong statement. It refuted the long-held belief that a woman’s place was in the home while the men dealt with political affairs. Some suffragists claimed that they could clean up the dirty world of politics, and wore white dresses to symbolize this. They carried heavy banners to disprove any claims they were too fragile to survive away from hearth and home.

One of the largest groups marching in the parade was teachers, some wearing black with “suffrage yellow” sashes, others donning caps and gowns. They carried banners bearing messages such as: “YOU TRUST US WITH THE CHILDREN; TRUST US WITH THE VOTE”. Good one, Ladies.

But the biggest cheer of the day went to an elderly woman who carried a placard reading: “GETTING THERE AFTER TRYING FOR FORTY YEARS”.

It wasn’t just women marching that sunny day in New York City – 2,500 men marched along with them to support the cause of women’s suffrage. 250,000 mostly supportive spectators lined the parade route to enjoy the spectacle that kicked off at 3 p.m....



09/15/1950

Inch’ŏn landing

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Inch’ŏn landing,  [Inch’ŏn landing: American troops preparing for the assault on Inch’ŏn [Credit: Bert Harey—© Hulton Deutsch/PNI]] (September 15–26, 1950) in the Korean War, anamphibious landing by U.S. and South Korean forces at the port ofInch’ŏn, near the South Korean capital, Seoul. A daring operation planned and executed under extremely difficult conditions by U.S. Gen.Douglas MacArthur, the landing suddenly reversed the tide of the war, forcing the invading North Korean army to retreat in disorder up the Korean peninsula.

Following its powerful attack across the 38th parallel on June 25, 1950, North Korea’s Korean Peoples Army (KPA) had pushed relentlessly southward down the peninsula, driving before it the demoralizedRepublic of Korea Army (ROKA) and poorly prepared and understrength units of the U.S. 24th Division that had been hastily sent over from the Eighth Army in Japan. Not until the first weeks of August was the United Nations Command (UNC), as MacArthur’s theatre forces were redesignated, able to slow the North Koreans and finally stop them at the “Pusan Perimeter,” a line that roughly followed the Naktong River and protected the vital southern port of Pusan. Reinforcements and supplies streamed in through the port, but still it appeared to a shocked world and American public that U.S. forces were in danger of being driven into the sea.

MacArthur had started to think about a landing somewhere behind enemy lines in early July 1950, and on August 12 he ordered his staff to prepare for an amphibious landing at Inch’ŏn, the port outlet ofSeoul, located on Korea’s west coast. Planning and preparation for a major amphibious operation usually took five or six months; MacArthur was allowing only one, with a target D Day of September 15, the earliest date that tides would be suitable. In Washington, D.C., the Joint Chiefs of Staff were at first opposed to such a landing. They feared that because of the grave situation at the Pusan Perimeter, MacArthur would not be able to hold out enough units to fight elsewhere and might be defeated in both places. In addition, they did not think the plans could be ready in time, and they doubted that Inch’ŏn was the right place for a landing. The beachline there had every possible disadvantage for an amphibious operation. The tidal...


Battle of Inchon

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The Battle of Inchon (also Romanized as "Incheon;" Korean: 인천 상륙 작전 Incheon Sangryuk Jakjeon; code name: Operation Chromite) was a decisive invasion and battle during the Korean War, conceived and commanded by U.S. General of the Army Douglas MacArthur. It was deemed extremely risky, but today is considered one of the most successful military operations of modern times.

The battle began on September 15, 1950, and ended around September 28. During the amphibious operation, United Nations (UN) forces secured Inchon and broke out of theBusan region through a series of landings in enemy territory. The majority of UN ground forces participating in this assault were U.S. Marines.

The Battle of Inchon reversed the near-total occupation of the peninsula by the invading North Korean People's Army (NKPA) and began a counterattack by UN forces that led to the recapture of Seoul. The advance north ended near the Yalu River, when China's People's Volunteer Army, faced with the complete loss of Korea from the communist camp as well as a perceived threat to China's security, entered the conflict by deploying approximately 150,000 Chinese troops in support of North Korea. Chinese forces overran UN forces along the Ch'ongch'on River and forced a withdrawal after the Battle of Chosin Reservoir to South Korea. After the Chinese entered the war, a stalemate generally ensued, resulting in the permanent division of the country into North and South near the 38th parallel. It remains one of the political hot spots in the world, and a dividing line between democracy and the remnants of communism.

The idea to land UN forces at Inchon was proposed by General MacArthur after he visited the Korean battlefield on June 29, 1950, four days after the war began. MacArthur thought that the North Korean army would push the South Korean army back far past Seoul. He decided that the battered, demoralized, and under-equipped South Koreans could not hold off the NKPA's advances even with American reinforcements. MacArthur felt that he could turn the tide if he made a decisive troop movement behind enemy lines. He hoped that a landing near Inchon would allow him to cut off the NKPA and destroy that army as a useful fighting force, thus winning the war.

To accomplish such a large amphibious operation, MacArthur requested the use of United States Marine Corps expeditionary...



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