My Comments on Justice Pitman‘s Order
Recently there have been a couple of outrageous uses of a Private Prosecution in the USA. In a previous Blog entry I mentioned that the US States had inherited them as a part of English Common Law. Upon independence, States had the option of picking or choosing existing Law as they saw fit. It was called a “Repugnancy Test”. Most States accepted them, leaving it up their Legislature to define how they developed. Most Lawyers rejected their use, instead opting for Public Prosecution, even so only a handful of States legislated for an outright ban. They have been lurking, though seldom used, ever since.
An outrageous use of Private Prosecution threatens to destroy much of the post reconstruction Constitution. The US Constitution is quite a small document as legal documents go, deliberately so as they wanted ratification to be on as large a scale as possible – by the People. To make it work the Supreme Court have the exclusive right to interpret it. Supreme Court decisions were treated as though they were a part of the Constitution. Some famous cases e.g. Roe v Wade and Miranda v Arizona give Americans important personal Rights, often called Constitutional Rights, that have no equal in the West. When you look at the Constitution you will see no mention of these cases however they are treated as though they were a part of the Constitution.
I am still looking for words to describe how unique these “Constitutional Rights” are. In England, the Judiciary and Counsel, will often refer to existing cases as “Authorities”. A written Judgement will often enumerate and describe the Authorities that were used (relied upon). Herein lies a paradox, they are both using stare decisis and yet individual Rights seem to flow from the US Supreme Court in a way that simply does not happen in England. Decisions based upon the Fourteenth Amendment go a good way to explaining this and yet it is still difficult to explain the difference. For example the suspect is read his ‘Miranda Rights’. Americans know what that is but it is incomprehensible to most British people. I can’t think of a single Rule in the English CJS that is named so directly after a case.
Another concept that is difficult for British people to grasp is that the US is a Union. The US is similar to the EU. The British will often counter that the UK is also a Union (England, Scotland, Wales and Northern Ireland) and they are technically correct however England so dominates the Union that the interests of the smaller areas are mostly ignored. Boris Johnson simply treats them as an annoyance rather than as equal partners. Americans speak of ‘Dual Sovereignty’, each State has its own legal system. You might argue that Scotland has its own legal system but in the USA some States really believe their own Laws are the equivalent to the US Laws. Article 6 of the US Constitution contains what is known as the “Supremacy Clause”, also the States are to pass no Laws that abridge the rights and privileges of citizens of other States. The Supreme Court has made numerous decisions that guarantee the Rights of individual citizens but all that may come to an end.
The US Civil War was said to have been fought over the issue of Slavery, perhaps that is partly true, however it was really fought over the issue of Dual Sovereignty. The South, the Confederacy, lost that War but many of the other Issues are unresolved. You might say the Civil War is ongoing. We often refer to the South as the “Bible Belt” and one issue that often occurs is that of women’s Right to Abortion. It was thought that this was a settled issue by virtue of the famous Roe v Wade decision of the Supreme Court in 1973. It did not give the Right to an Abortion to women directly, rather that women had a right to privacy. Some States believe that Healthcare Rights should be their domain. Texas is the latest State to take up the challenge of making its own Law to regulate Abortion.
The US District Court struck down the new Texas Laws as being in violation of the existing Roe v Wade decision. This case concerns State legislature’s passage of Senate Bill 8 (“S.B. 8”). Texas is fighting back with a vengeance. They have opted to make it legal for citizens to commence a Private Prosecution against Healthcare providers [technically a private cause of action]. Further those litigants do not have to have Standing in the case, they are likened to ‘Bounty Hunters’. In effect Texas is doing an ‘end around run’ of the existing decision. This trick might be viewed as venomous or clever depending upon you point of view. The idea is that the US has no jurisdiction over Texas citizens Private Prosecutions or Private Cause of Actions.
Should Texas succeed in protecting their new Laws, what other Laws would be challenged? Would they bring back slavery? end voter Rights? segregation in schools? A whole raft of federal law might be struck down.
To the British this sounds strange, they are used to the government just legislating away any resistance from the Courts. They are currently trying to reduce the ability citizens to request Judicial Review over their decisions. The idea that the American government needs to establish whether they even have jurisdiction sounds very strange. Nevertheless battle lines have been drawn. The Federal government has been joined by several States Attorneys, noticeably those States who were first to sign up for the Civil War in the 1860’s. Many of those States have filed Amicus Briefs. The American Bar Association has filed a Brief. Those supporting Texas have joined the case as ‘Intervenors’. An Intervenor is supposed to be someone who is affected by a case, they are not quite a Party. An Amicus is someone who feels they have knowledge to better influence a case. Either way we can expect a veritable ‘Battle Royal’ if and when this gets to the Supreme Court.
The Private Prosecution is a technique used to deny justice to Litigants, particularly those without the funds to fully participate in their case. Private Prosecutions were used in what has been known as the greatest miscarriage of justice in English legal history, i.e. the Sub-Postmaster cases.
Notes:
The Amici States are Massachusetts, California, Colorado, Connecticut, Delaware, the District of Columbia, Hawai’i, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, Wisconsin, and the Attorney General of North Carolina Joshua H. Stein.
In this Blog I am using the term a “Private Prosecution” as being equivalent to a “Private Cause of Action”.