Karl H. Timmerman M.A.J.D. © 2002
All Rights Reserved
A MISSOURI LAWYER'S
FRIDAY NIGHT RAMBLINGS
MoBar Solo and Small Firm Internet Group
MAY 31, 2002
Greets and Huggers. As a member of this gathering of "Sharks" ... I would like to thank all of you, (and dip my FIN), for your prayers, kind thoughts and "huggles" of support for Susan and I. She is cancer free!! ( Thank You God!!!)... and Thank You, my extended family!!
Some thoughts: Can a State Court find that a Federal law violates the Federal Constitution? Interesting question. (BTW: 42 USC 1983 does not apply to fed folks ... the "under color of State Law" verbiage ... seems to limit that a tad). Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 US 388, (1971), itself, (not 42 USC 1983), creates a cause of action against a federal employee who violates a Contitutionally protected right: in Bivens, it was the 4th Amendment and the "right" was "privacy". Justice Brennan writing for the majority wrote:
"The question is merely whether petitioner, if he can demonstrate an injury consequent upon the violation by federal agents of his Fourth Amendment rights, is entitled to redress his injury through a particular remedial mechanism normally available in the federal courts."
"The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury." , 1 Cranch 137, 163 (1803). Having concluded that petitioner's complaint states a cause of action under the Fourth Amendment, we hold that petitioner is entitled to recover money damages for any injuries he has suffered as a result of the agents' violation of the Amendment. "
Of interest to me in re-reading this opinion was the statement by Justice Harlan in his concurring opinion:
"..But it must also be recognized that the Bill of Rights is particularly intended to vindicate the interests of the individual in the face of the popular will as expressed in legislative majorities... "
"On the other hand, the limitations on state remedies for violation of common law rights by private citizens argue in favor of a federal damages remedy. The injuries inflicted by officials acting under color of law, while no less compensable in damages than those inflicted by private parties, are substantially different in kind, as the Court's opinion today discusses in detail. It seems to me entirely proper that these injuries be compensable according to uniform rules of federal law, especially in light of the very large element of federal law which must, in any event, control the scope of official defenses to liability."
Ok ... so Judge Noseinbutt of Jackson County finds that 42 USC XXXX is unconstitutional because it violates the 5th Amendment. What is the effect? hmmm ... better hope that the Jackson County Sheriffs Department is better armed than the US AirForce, Navy, Army and Marine Corps ... no waterways to deal with ... so the Coast Guard is not a threat). Seem to remember this issue coming up in the 60's during the civil rights movement ... Federal Marshals in Arkansas? Remember that?
Was invited to be the "Keynote" speaker for the combined Minnesota, Indiana and Illinois, Solo and Small Firm Conference ... for some strange reason, they thought I might make a contribution to their conference. Must report that I made every bit as much of a fool of myself as I did at our family reunion last year at the Lodge. Had a chance to visit with a bunch of folks who are also wondering where our America is heading on the issue ...the trend ... of establishing a separate judicial system in the executive branch: the trend to have things done "Administratively". They are also "concerned". They are envious of our "Family". Didn't have the heart to tell them that Momma O, Poppa Dave, (Browning), Uncle "Rusty", Cousin "Sig", "Ransin Rule" Dave, the "Bradley Dream Team", the "Gonzo Law" folk, the raw wit of Bollinger, the soul of Zina, the tenacity of the other "Karl", , the "devil's Advocate" role of Dan, the soul searching of Quick, the indignation of Bishop and Hansin, the motherly love of an
Owens, the wanting to make the system work of a Bob Moss , the "Yorkieness" of Pat ..... the ... the ... geez ... I could go on and on!! ... were not available to them. Sucks to be them.
All kidding aside: having had a chance to see what other Bar Associations, other lawyers in other States have available to them ... what they as Solo's have to work with ... and deal with..... I feel sorry for them. They do not even come close to what we have. I am so happy to be home with my Susan. I am so thankful that she is
cancer free .. I thank you endlessly for your prayers. Prayer works. And I thank you for letting me be a part of a family of "Sharks" ... that tolerates my ramblings.
As always ... I apologize if my ramblings offend.
Having seen what is out there ... I am so grateful to give a warm brotherly hug ...
Karl (the dumb ole country lawyer from Holden,. Missouri)