15-1347

IN THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
KENNETH L. SMITH,
[DRAFT - NOT YET FILED]
Plaintiff-Appellant,
v.
HON. ELENA G. KAGAN, et al.,
Defendants-Appellees.
__________________________________________________________________
On appeal from the United States District Court
for the Northern District of Virginia
The Honorable Claude M. Hilton, District Judge
No. 1:14-cv-01242-CMH-TCB
_________________________________________________________________
PLAINTIFF-APPELLANTS PETITION FOR REHEARING
AND/OR EN BANC REVIEW
____________________________________________________________________________________________

Respectfully submitted,
KENNETH L. SMITH,
In Propria Persona
23636 Genesee Village Rd.
Golden, Colorado, 80401
(303) 526-5451
Oral argument is DEMANDED.

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

REQUIRED STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

I.

As a Matter Of Law and Logic, There Can Be No Right

Without a Corresponding Remedy For Its Breach . . . . . . . . . . . . . . . .

II. A Cosmic Irony: Has Harvie Wilkinson Become the Jimmy

Swaggart Of Constitutional Law? . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

III. Both Courts Used the Wrong Legal Standard In Their Review . . . . . .

14

IV. The Cosmic Constitutional Question I Want Answered . . . . . . . . . . . .

18

CONCLUSION (Due Process Is InconvenientTo Those Who

Wield Power) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

20

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

21

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

22

TABLE OF AUTHORITIES
PRIMARY AUTHORITIES
(and point of reliance)

Page

Carey v. Piphus, 435 U.S. 247 (1978)

(right to procedural due process is absolute) . . . . . . . . . . . . . . . . . . . . .

Cohens v. Virginia, 19 U.S. 264 (1821)

(failure to hear case where jurisdiction exists is treason) . . . . . . . . . . . . .

Commodity Futures Trading Commn v. Schor, 478 U.S. 833 (1986)

(right to independent and impartial adjudication) . . . . . . . . . . . . . . . . . . .

20

Ex parte Roe, 234 U.S. 70, 72 (1914)

(mandamus compels exercise of jurisdiction; does not control decision) . .

12

Lake County v. Rollins, 130 U.S. 662, 670 (1889)

(plain meaning rule: statutes mean what they say) . . . . . . . . . . . . . . . . .

12

Leeper v. Texas, 139 U.S. 462 (1891)

(citizens have a RIGHT to equal justice under law) . . . . . . . . . . . . . 6, 7, 19
Marbury v. Madison, 5 U.S. 137 (1803)
(constitutional rights give rise to governmental duties) . . . . . . . . . . . . .

6, 7

Poindexter v. Greenhow, 114 U.S. 270 (1884)

(a right cannot exist without an effective remedy for its breach) . . . . . .

United States v. Turner, 389 F.3d 111 (4th Cir. 2004)

(right to de novo review of questions of statutory interpretation) . . . . .

6, 17

United States v. Wiltberger, 18 U.S. 76 (1820)

(strong case required to override plain meaning rule) . . . . . . . . . . .

12

Wolff v. McDonnell, 418 U.S. 539 (1974)

(Due Process Clause protects individuals from arbitrary official action) . 9, 15
2

OTHER CASES

Page

Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986) . . . . . . . . . . . . . . . . . .

8
19
Alden v. Maine, 527 U.S. 706 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Anderson v. Wilson, 289 U.S. 20 (1933) . . . . . . . . . . . . . . . . . . . . . . . . . . .
12
Ashby v. White [1703] 92 Eng. Rep. 126 (H.C.) . . . . . . . . . . . . . . . . . . . .
8
19
Bradley v. Fisher, 80 U.S. 335 (1872) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009) . . . . . . . . . . . . . .
8
Chambers v. NASCO, Inc., 501 U.S. 32 (1991) . . . . . . . . . . . . . . . . . . . . . .
14
Dr. Bonhams Case [1610] 8 Co. Rep. 107a (Ct. Common Pleas) . . . . . . . .
8
Driskell v. Homosexuals, No. 8:15-cv-158 (D.Nebr. May 6, 2015) . . . . . . .
12
Griffin v. Illinois, 351 U.S. 12, 19 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . .
17
Hans v. Louisiana, 134 U.S. 1 (1890) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
19
Hyde v. Stone, 61 U.S. 170 (1857) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
13
In re Murchison, 349 U.S. 133 (1955) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8
Johnson v. Mississippi, 403 U.S. 212 (1971) (per curiam) . . . . . . . . . . . . . .
8
Lanzetta v. New Jersey, 306 U.S. 451 (1939) . . . . . . . . . . . . . . . . . . . . . . . . .
15
Michigan v. Bryant, 562 U.S. ___, 131 S.Ct. 1143 (2011) . . . . . . . . . . . . . .
18
Mondou v. New York, N.H. & H.R. Co., 223 U.S. 1 (1912) . . . . . . . . . . . . . . .
13
Obergefell v. Hodges, No. 14-556, 576 U.S. __ (2015) . . . . . . . . . . . . . . . . .
15
th
Panko v. Rodak, 606 F.2d 168 (7 Cir. 1979) . . . . . . . . . . . . . . . . . . . . . . . . .
11
Pierson v. Ray, 386 U.S. 547 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
19
th
Smith v. Bender, 350 F. Appx 190 (10 Cir. Sept. 11, 2009). . . . . . . . . . . . . .
9
Smith v. Mullarkey, 121 P.3d 890 (Colo. 2005) (per curiam) . . . . . . . . . . . . . 8, 9
Smith v. Thomas, No. 10-395 (Mar. 7, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . 19
State Oil Co. v. Khan, 522 U.S. 3 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Stump v. Sparkman, 435 U.S. 349 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . .
19
Sturges v. Crowninshield, 17 U.S. 122 (1819) . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Tumey v. Ohio, 273 U.S. 510 (1927) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8
United States v. Callender, 25 F.Cas. 239 (D.Va. 1800) . . . . . . . . . . . . . . . . . . 19
United States v. Fisher, 6 U.S. 358 (1805) . . . . . . . . . . . . . . . . . . . . . . . . . . . .
12
United States v. Hudson, 11 U.S. 32 (1812) . . . . . . . . . . . . . . . . . . . . . . . . . . .
14
United States ex rel. Mayo v. Satan and His Staff,
54 F.R.D. 282 (W.D.Pa. 1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9

OTHER CASES

Page

Ward v. Monroeville, 409 U.S. 57 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Wilson v. Layne, 141 F.3d 111 (4th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . .
Wisconsin v. Allen, 778 N.W.2d 863 (2010) (per curiam) . . . . . . . . . . . . . . . . .

8
17
19

STATUTORY PROVISIONS
28 U.S.C. 1915(e)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
28 U.S.C. 1254(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 10
28 U.S.C. 1257(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 10
28 U.S.C. 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
28 U.S.C. 1294 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
28 U.S.C. 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
28 U.S.C. 1361 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13
28 U.S.C. 1391(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
28 U.S.C. 2071(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
28 U.S.C. 2072(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
28 U.S.C. 2072(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Fed. R. App. R. 35(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Fed. R. App. R. 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
N.H. Const. art. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Prisoner Litigation Reform Act of 1996,
Pub. L. No. 104-134, 110 Stat. 1321-71 (1996) . . . . . . . . . . . . . . . . . . . . . . . 17

OTHER AUTHORITIES
A Nation Mesmerized and Seduced, UVA Lawyer (Fall, 2012) . . . . . . . . . . various
Annual Report, Dir. of the Admin. Off. of U.S. Cts. (1945) . . . . . . . . . . . . . .
16
Bacon, Francis, Essays LVI (Of Judicature) (1620) . . . . . . . . . . . . . . . . . . . . .
20
Blackstone, William, Commentaries on the Laws of England (1765). . . . . .
11
Breyer, Stephen, et al., Implementation of the Judicial Conduct and
Disability Act of 1980: A Report to the Chief Justice (Sept. 2006) . . . . . .
19
Breyer, Stephen, Making Our Democracy Work: A Judges View (2010). . . .
9
4

OTHER AUTHORITIES (cont.)

Page

Considering the Role of Judges Under the Constitution

of the United States: Hearing Before the S. Comm.
on the Judiciary, 112th Cong. (Oct. 5, 2011) . . . . . . . . . . . . . . . . . . . . . .
13
Kozinski, Alex, Letter (to Samuel A. Alito, Jr.), Jan. 16, 2004 . . . . . . . . . . . .
16
Lincoln, Abraham, Speech, Oct. 16, 1854 . . . . . . . . . . . . . . . . . . . . . . . . . . .
15
Mauro, Tony, Difference of Opinion, Legal Times (Apr. 12, 2004) . . . . . . . .
16
Perfunctory Justice: Overloaded Federal Judges Increasingly Are
Resorting to One-Word Rulings, Des Moines Register, Mar. 26, 1999 . . . . 16
Posner, Richard, No Thanks, We Already Have Our Own Laws,
Legal Affairs (Jul./Aug. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
17
Ricks, Sarah, The Perils of Unpublished Non-Precedential Federal
Appellate Opinions: A Case Study of the Substantive Due
Process State-Created Danger Doctrine in One Circuit,
81 Wash. L. Rev. 217 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
U.S. Courts of AppealsDecisions in Cases Terminated on the
Merits, by Nature of ProceedingDuring the 12-Month Period
Ending September 30, 2013 tbl. B-5 (2013) . . . . . . . . . . . . . . . . . . . . . .
16
Tribe, Laurence, American Constitutional Law (2d ed. 1988) . . . . . . . . . . . .
9
Wilkinson, J. Harvie III, Of Guns, Abortions, and the Unraveling
Rule of Law, 95 Va. L. Rev. 253 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . .
9
Wilkinson, J. Harvie III, Cosmic Constitutional Theory (Oxford Pr. 2012) .
9

STATEMENT OF JURISDICTION
Plaintiff-Appellant Kenneth Smith, in propria persona and first-person, submits this Petition for Rehearing and/or En Banc Review pursuant to Fed. R. App.
P. 35(a)(1) and (c) and 40 (invoking the 45-day rule), stating as follows:
REQUIRED STATEMENT
The Panels conclusory decree conflicts with a prior decision of this Court, as
the instant appeal presents a question of statutory interpretation, a question of law
this Court reviews de novo. United States v. Turner, 389 F.3d 111, 119 (4th Cir.
2004). Furthermore, it raises a question of exceptional importance, for if judges
are allowed to dismiss challenges to the constitutionality of statutory provisions
sua sponte without even one word of analysis, it makes a mockery of the rule of
law. See Marbury v. Madison, 5 U.S. 137, 163 (1803). And if this Court doesnt
have jurisdiction to decide the simple question of law presented, who does?

ARGUMENT
On its face, the Panel opinion is a deliberate and conscious effort by this Court
to conceal the nature of this case, in a transparent effort to evade public scrutiny. I
defy anyone to read their facially arbitrary decree and tell me what was at issue.

Lets keep it simple. As I have the right to equal and impartial justice under
the law, Leeper v. Texas, 139 U.S. 462, 468 (1891), I have a right to the reversal
of an indisputably erroneous lower court decision. Ergo, 28 U.S.C. 1254(a)(1)
and 1257(a) (permitting discretionary certiorari review) are unconstitutional.

I. AS A MATTER OF LAW AND LOGIC, THERE CAN BE NO RIGHT

WITHOUT A CORRESPONDING REMEDY FOR ITS BREACH.
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.
One of the first duties of government is to afford that protection.
The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high
appellation, if the laws furnish no remedy for the violation of a vested legal
right.
Marbury v. Madison, 5 U.S. at 163.
Where rights begin, discretion ends. When a plaintiff with standing presents
a justiciable question to a federal court, it is NOT a polite request. The plaintiff has
an absolute right to have the question decided and that court, the duty to decide it.
Id. This Circuit has no more right to decline the exercise of jurisdiction which is
given, than to usurp that which is not given. The one or the other would be treason
to the constitution." Cohens v. Virginia, 19 U.S. 264, 387 (1821).
Every citizen has a right to equal and impartial justice under the law. Leeper

v. Texas, 139 U.S. at 468. Accordingly, given that no man can be a judge in his
own case, and no man is permitted to try cases where he has an interest in the outcome, In re Murchison, 349 U.S. 133, 136 (1955), it logically follows that when
an appellate panel decides a matter in which they are proper party defendantsas
is the case in Smith v. Mullarkey, 121 P.3d 890 (Colo. 2005) (per curiam)1I am
entitled to a reversal of that ersatz decision. Furthermore, if a remedy is extended
to the plaintiffs in Murchison, supra, Caperton v. A.T. Massey Coal Company, Inc.,
556 U.S. 868 (2009), Tumey v. Ohio, 273 U.S. 510 (1927), and even Dr. Bonhams
Case [1610] 8 Co. Rep. 107a (C.C.P.),2 I am entitled to relief consonant with those
precedents. See State Oil Co. v. Khan, 522 U.S. 3, 20 (1997).
As a matter of both law and logic, a right cannot exist without a remedy for its
breach. Ashby v. White [1703] 92 Eng.Rep. 126, 136 (H.C.); Poindexter v. Greenhow, 114 U.S. 270, 303 (1884) ("To take away all remedy for the enforcement of a
right is to take away the right itself."). As the only remedies for judicial miscon-

The rule of necessity does not apply here, as was pointed out to the Court in the Opening Brief at 7 &
n. 11. In short, as Colorado law authorizes judges of the states Court of Appeals to serve in the place of
conflicted Justices, there is no necessity and accordingly, the Rule does not apply.
2
It certainly violates the Fourteenth Amendment to subject [a mans] liberty or property to the judgment of a court the judge of which has a direct, personal, substantial, pecuniary interest in reaching
a conclusion against him in his case. Tumey v. Ohio, 273 U.S. at 523 (emphasis added). Accord, e.g.,
Caperton v. A.T. Massey Coal Co., supra, Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 822-825 (1986);
Ward v. Monroeville, 409 U.S. 57, 58-62 (1972); Johnson v. Mississippi, 403 U.S. 212, 215-216 (1971)
(per curiam). There is no contrary authority.
8

duct on such a colossal scale are certiorari review and an action in tort, Carey v.
Piphus, 435 U.S. 247 (1978), the Defendants had a duty to review either Smith v.
Bender, 350 F. App'x 190 (10th Cir. Sept. 11, 2009), or Smith v. Mullarkey, supra.
Not only is the claim not patently frivolous, but the 120-word3 arbitrary decree of
the Panel makes a mockery of the Due Process Clause.4

II. A COSMIC IRONY: HAS HARVIE WILKINSON BECOME THE

JIMMY SWAGGART OF CONTSITUTIONAL LAW?
It is the solemn duty of judges on the inferior federal courts to follow, both
in letter and in spirit, rules and decisions with which we may not agree.
Hon. J. Harvie Wilkinson5
In his academic endeavors, Judge Wilkinson complains that efforts to fashion a
unified field theory of constitutional law are both misguided and futile, leading to
subordination of that most basic an honorable of judicial traditions, that republican
virtue of judicial restraint.6 He laments that the history of American law is a one-

Excluding citations (which dont support the proposition), or a statement denying oral argument.
As Professor Tribe writes, due process has two elemental components: the right to be heard and the
right to hear why. L. Tribe, American Constitutional Law 744 (2d ed. 1988) (emphasis in original)."The
touchstone of due process is protection of the individual against arbitrary action of government." Wolff v.
McDonnell, 418 U.S. 539, 558 (1974). As Justice Breyer observes, judges have an obligation to provide
legally defensible reasoning in a publicly accessible format, Stephen Breyer, Making Our Democracy
Work: A Judges View 83 (2010), no matter how objectively absurd the complaint is. See United States ex
rel. Mayo v. Satan and His Staff, 54 F.R.D. 282 (W.D.Pa. 1971) (representative example).
5
J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L. Rev. 253, 255
(2009).
6
J. Harvie Wilkinson III, Cosmic Constitutional Theory 6 (Oxford Pr. 2012).
4

way march aggrandizing judicial power, arguing that theories of originalism, the
living Constitution, and Posnerian pragmatism have imparted unfettered discretion to the courts.7 But like Brother Jimmy, Judge Wilkinson has sinned.

A. If the Federal Courts Dont Have Jurisdiction, Who Does?

First, Judge Wilkinson tells us that [w]hen I approach a case the first question
I ask is not what do I decide, but whether I am the one to decide it.8 As applied to
the case at bar, the question is whether the federal district court in the Eastern District of Virginia was an appropriate forum in which to bring it. Let me help him.
The district courts shall have original jurisdiction of all civil actions arising
under the Constitution, laws, or treaties of the United States. 28 U.S.C. 1331.
The questions before that court were whether a citizen has a constitutional right to
certiorari review of (1) an inferior appellate court decision in irreconcilable conflict with the binding precedent of that Circuit or (2) a matter of first impression in
any Court, and the statutes challenged were 28 U.S.C. 1254(a)(1) and 1257(a),
which render that review discretionary. As several of the Justices were alleged to
be residents of the District, the venue requirement of 28 U.S.C. 1391(e) is also

7
8

A Nation Mesmerized and Seduced, UVA Lawyer 40-1 (Fall, 2012) (interview).
Id. at 38.
10

plainly met. And as the decision being appealed was a final decision, 28 U.S.C.
1291, and all appeals from that court are heard by this Circuit, 28 U.S.C. 1294,
this was an appeal this Circuit had a duty to hear.

B. Do Federal Courts Have Authority To Issue an Appropriate Remedy?

Judge Wilkerson goes on to say that what you do when you interpret a statute
or a ruling is to ground your decision in law. What youre always doing is relying on the textual grounding, the statutory grounding, the historical grounding,
and whats the structure in terms of separation of powers or between the federal
government and the states.9
The statutory basis for my claim was 28 U.S.C. 1361, which provides: "[t]he
district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof
to perform a duty owed to the plaintiff." Read "literally, the language of 1361
would allow a district court to issue mandamus directly against the Justices of the
Supreme Court themselves." Panko v. Rodak, 606 F.2d 168, 171 & n. 6 (7th Cir.
1979). I sought relief in the nature of a writ of mandamus; it is "[t]he accustomed
office of a writ of mandamus, when directed to a judicial officer, is to compel an
9

A Nation Mesmerized, UVA Lawyer at 40 (emphasis added).

11

exercise of existing jurisdiction, but not to control his decision." Ex parte Roe,
234 U.S. 70, 72 (1914).
The "plain meaning" rule10 is that when the text of a statutory provision "is not
ambiguous, the courts, in giving construction thereto, are not at liberty to search
for its meaning beyond the instrument." Lake County v. Rollins, 130 U.S. 662, 670
(1889), and if the terms of a statute are unambiguous, judicial inquiry is presumetively complete. As Cardozo adds, courts may not "pause to consider" whether a
better statute might have been written, but are compelled to "take the statute as we
find it." Anderson v. Wilson, 289 U.S. 20, 27 (1933), and therefore, the case must
be "a strong one indeed, which would justify a court in departing from the plain
meaning of words ... in search of an intention which the words themselves did not
suggest." United States v. Wiltberger, 18 U.S. 76, 96 (1820). Ergo, it is incumbent
upon the courts to explain why Section 1361 should not be read literally, why the
conclusory declaration that my claim is frivolous without explaining what standards were used or what law was relied on does not violate my right to procedural
due process, and why I am not entitled to a transparent and coherent opinion. Cf.,
Driskell v. Homosexuals, No. 8:15-cv-158-JMG (D.Nebr. May 6, 2015).

10

1 Blackstone, Commentaries on the Laws of England 68-72 (1765); see also, e.g., United States v.
Fisher, 6 U.S. 358, 386 (1805), Sturges v. Crowninshield, 17 U.S. 122 (1819).
12

C. Application of the Absurd Results Doctrine

[I]f you think that the Bill of Rights is what sets us apart, you are crazy.
Every banana republic has a bill of rights. Every president for life has a
bill of rights. The bill of rights of [the Soviet Union] was much better
than ours. I mean that literally.
Justice (Defendant) Antonin Scalia11
Ubi jus, ibi remedium. Where there is law, there is a remedy for its wrongful
breach. Justice Scalia speaks an undeniable truism: the only rights you have are
those you can enforce. As such, they are reduced to no more than what Justice
Scalia derisively called just words on paper. Id. at 7.
Its not my question, but Justice Scalias: What good is a Bill of Rights that
cant be enforced? Courts "are bound to proceed to judgment, and to afford redress
to suitors before them, in every case to which their jurisdiction extends." Hyde
v. Stone, 61 U.S. 170, 176 (1857) (emphasis added). The existence of jurisdiction
"creates an implication of duty to exercise it, and that its exercise may be onerous
does not militate against that implication." Mondou v. New York, N.H. & H.R. Co.,
223 U.S. 1, 58 (1912). As Section 1361 ensures meaningful access to the courts
by providing a mechanism by which recalcitrant judges can be forced to discharge
their duties, this Court must enforce its dictates.

11

Considering the Role of Judges Under the Constitution of the United States: Hearing Before the S.
Comm. on the Judiciary, 112th Cong. 6 (Oct. 5, 2011) (statement of Defendant Scalia).
13

III. BOTH COURTS USED THE WRONG LEGAL STANDARD IN THEIR

REVIEW.
A. A Standardless Standard Is No Standard At All.
Frivolous complaints are subject to dismissal pursuant to the courts inherent
authority, even when the plaintiff has paid the filing fee. Opinion at 3. Given that
federal courts have no inherent authority to promulgate their own rules, 28 U.S.C.
2072(a), such rules shall not abridge, enlarge or modify any substantive right,
2072(b), and can only be applied after giving appropriate public notice and an
opportunity for comment, 2071(a), one is left to marvel as to where this alleged
authority came from.
The seminal case on inherent powers (Chambers v. NASCO, Inc., 501 U.S. 32
(1991)) is a classic example of judicial lawmaking. Historically, a courts inherent
powers were only those necessary to enable them to function. E.g., United States
v. Hudson, 11 U.S. 32, 34 (1812) (contempt power). By direct action and delegation, Congress has exercised [its] constitutional prerogative to provide district
courts with a comprehensive arsenal of Federal Rules and statutes to protect themselves from abuse. Chambers, 501 U.S. at 62 (Kennedy, J., dissenting). A broad,
amorphous power to dismiss a matter sua sponte without notice, a hearing, or any
elaboration as to why thwarts the first requirement of due process: that "[a]ll are
14

entitled to be informed as to what the State commands or forbids." Lanzetta v. New

Jersey, 306 U. S. 451, 453 (1939). Further, when there is bad-faith conduct in the
course of litigation that could be adequately sanctioned under the Rules, the court
ordinarily should rely on the Rules rather than the inherent power. Chambers,
501 U.S. at 50 (emphasis added). Even under the activist Chambers decision, the
Panels conduct is breathtaking in its utter contempt for the rule of law.
In Obergefell, Justice Scalia bitterly complains that "my Ruler is a majority
of the nine lawyers on the Supreme Court," who have robbed the American people
of "the freedom to govern themselves."12 Chief Justice Roberts also asked, "[j]ust
who do we think we are?"13 And who do you think you are, Judge Wilkinson?
Abraham Lincoln put it simply: "No man is good enough to govern another man,
without the others consent,"14 and the Constitution and Bill of Rights is the absolute limit of our consent. Thereunder, you are entrusted with the "judicial Power,"
understood as authority to declare the law only. Arbitrary judicial decrees offend
the Due Process Clause, Wolff v. McDonnell, supra, literally voiding the Constitution. See e.g., N.H. Const. art. 3 (summary of Lockean bargain).

12

Obergefell v. Hodges, No. 14-556, 576 U.S. __ (2015) (Scalia, J., dissenting) (slip op., at 2).
Id., Roberts, C.J., dissenting) (slip op., at 3).
14
Abraham Lincoln, Speech (on the Kansas-Nebraska Act, Springfield, IL), Oct. 16, 1854.
13

15

B. The Fourth Circuit: Nothing More Than a Rubber-Stamp

Ive tried to remember just how much every case matters to the parties before
the court. It may be one of hundreds that we hear, but to the people affected,
that one case is everything. Just like when you walk into a doctors office, you
want the physician attentive to you, not the patient before or the patient after.
Well, people have the right to expect that same attention from a judge.
Hon. J. Harvie Wilkinson15
Back in 1945, when appellate judges still followed the Learned Hand model of
adjudication (where federal judges actually read briefs, heard oral arguments, and
wrote their own opinions), there was a reversal rate of 27.9 percent in civil cases.16
But in 2013, this Circuits reversal rate was a shocking 4.0%.17 Why the dramatic
decline?
We all know the reason: Article III judges rarely bother to even read the opinions they hand down.18 As Judge Murnaghan openly admitted,
it is well known that judges may put considerably less effort into opinions

15

A Nation Mesmerized," UVA Lawyer at 41.

Dir. of the Admin. Off. of U.S. Cts., Ann. Report 70 tbl.B1 (1945).
17
U.S. Courts of AppealsDecisions in Cases Terminated on the Merits, by Nature of Proceeding
During the 12-Month Period Ending September 30, 2013 tbl. B-5 (2013).
18
E.g., Alex Kozinski (Chief Judge, Ninth Circuit), Letter (to Samuel A. Alito, Jr.), Jan. 16, 2004 at 5
(Ninth Circuit panels routinely issue 150 rulings per three-day session); Perfunctory Justice: Overloaded
Federal Judges Increasingly Are Resorting to One-Word Rulings, Des Moines Register, Mar. 26, 1999, at
12 (fifty federal appeals decided in two hours in Eighth Circuit, per the late Judge Richard Arnold). Our
courts work product is so uniformly abysmal that Judge Alex Kozinski described it as "sausage," unfit
for human consumption. Tony Mauro, Difference of Opinion, Legal Times, Apr. 12, 2004; see also, e.g.,
Sarah Ricks, The Perils of Unpublished Non-Precedential Federal Appellate Opinions: A Case Study of
the Substantive Due Process State-Created Danger Doctrine in One Circuit, 81 Wash. L. Rev. 217, 269
(2006) (Third Circuit). Perhaps if Judge Wilkinson didnt write as many books.
16

16

that they do not intend to publish. Because these opinions will not be binding
precedent in any court, a judge may be less careful about his legal analysis,
especially when dealing with a novel issue of law.19
To reiterate: [W]hen you walk into a doctors office, you want the physician
attentive to you, not the patient before or the patient after. Well, people have the
right to expect that same attention from a judge.20 I agree with Judge Wilkinson.
So, why doesnt Judge Wilkinson agree with Judge Wilkinson?

C. The Proper Standard Of Review Of Questions Of Statutory Interpretation Is De Novo Review.

It is black-letter law in this Circuit that questions involving statutory interpretation are reviewed de novo. United States v. Turner, 389 F.3d 111, 119 (4th Cir.
2004). And according to the Supreme Court, it doesnt matter whether I am Bill
Gates, a middle-class man forced to file in propria persona, or a federal prisoner,
as [t]here can be no equal justice where the kind of trial a man gets depends on
the amount of money he has. Griffin v. Illinois, 351 U.S. 12, 19 (1965).
When one cite-checks the cases cited by the Panel, one cannot help but notice
that they are almost all brought pursuant to the Prisoner Litigation Reform Act of

Wilson v. Layne, 141 F.3d 111, 124 n. 6 (4th Cir. 1998) (Murnaghan, J., dissenting) (emphasis added);
accord, e.g., Richard Posner, No Thanks, We Already Have Our Own Laws, Legal Affairs (Jul./Aug.
2004), available at http://www.legalaffairs.org/issues/July-August-2004/feature_posner_julaug04.msp.
20
A Nation Mesmerized," UVA Lawyer at 41.
19

17

1996, Pub. L. No. 104-134, 110 Stat. 1321-71 (1996)which, by its terms, only
applies to lawsuits by prisoners filing suit in forma pauperis. Whereas 28 U.S.C.
1915(e)(2) empowers a judge to dismiss an IFP suit sua sponte at any time, as I
have never been a prisoner in a correctional institution, that statute is inapplicable.
It was plain error, both at this level and below.

IV. THE COSMIC CONSTITUTIONAL QUESTION I WANT ANSWERED

Judicial decisions, like the Constitution itself, are nothing more than
"parchment barriers." Both depend on a judicial culture that understands
its constitutionally assigned role [and] the modesty to persist when it
produces results that go against the judges' policy preferences.
Justice Antonin Scalia21
The question of whether the present regime of discretionary certiorari review is
constitutional has never been answered by any court. The District of Columbias
courts found that they did not have jurisdiction, and the Supreme Court recused en
massein an official capacity action!22which begs the obvious question:

WHO DOES HAVE JURISDICTION? JUDGE JUDY?

I half-expected senility from Judge Hilton; if a judge can no longer tell the difference between in propria persona and in forma pauperis, he is no longer compe-

21
22

Michigan v. Bryant, 562 U.S. ___, 131 S.Ct. 1143, 1176 (2011) (Scalia, J., dissenting).
Order, Smith v. Thomas, No. 10-395 (U.S. entered Mar. 7, 2011) (mass recusal).
18

tent to sit on a federal bench, and should be encouraged to retire immediately. But
I expected a lot more game from Harvie Wilkinson. I have every right to expect
a decision grounded in law, and an opinion that proves it. Wisconsin v. Allen, 778
N.W.2d 863, 877-78 (2010) (per curiam).
Look. We get it. The typical federal judge would rather sodomize his mothers
corpse than issue a ruling yielding a scintilla of the power The Tribe has illicitly
usurped.23 One would expect that one of the nations foremost advocates of judicial restraint would practice it, but it is hard to find a more outcome-driven opinion. Is it really too much to expect you to read briefs? To write opinions?

23

I have cited at least a hundred sources for this proposition, but here, I need not go any further than the
words of one J. Harvie Wilkerson: I think its brought us away from certain fundamental aspects of the
judicial role, the most important of which is judicial restraint. You would think after more than a
century of misadventures with this kind of thing that we would have learned, but apparently not.
Here is the money shot: I dont want this to become a one-way ratchet where living constitutionalists
come up with a series of decisions not legally grounded and say, Aha, weve got you. Its now precedent
and you have to respect it. Its always a one-way ratchet and we go more and more down the road
to amplifying judicial power. "A Nation Mesmerized," UVA Lawyer at 38-41 (emphasis added).
It is not that we havent learned, so much as power is more addictive than crystal meth. Judges dont
want to learn, and as Jefferson predicted, they would eventually become dictators. Examples of judges
placing their fingers on the scales of justice to amplify the power of The Tribe include United States v.
Callender, 25 F.Cas. 239 (D.Va. 1800) (Chase, J., riding circuit) (usurping jurys constitutional authority
to decide questions of law); Bradley v. Fisher, 80 U.S. 335 (1872) (invented absolute judicial immunity);
Hans v. Louisiana, 134 U.S. 1 (1890) (rewriting the Eleventh Amendment); Pierson v. Ray, 386 U.S. 547
(1967) (rewriting the Civil Rights Act to protect colleagues on the state bench); Stump v. Sparkman, 435
U.S. 349 (1978) (expands absolute judicial immunity beyond all semblance of reason); Alden v. Maine,
527 U.S. 706 (1999) (sovereign immunity no longer waivable by implication); Sosa v. Alvarez-Machain,
542 U.S. 692 (2004) (judicial veto of human rights treaty); Chambers, supra (arbitrary expansion of the
courts inherent powers), et al., ad nauseum. The Breyer Commission calls it "undue guild favoritism,"
Stephen Breyer, et al., Implementation of the Judicial Conduct and Disability Act of 1980: A Report to
the Chief Justice (Sept. 2006) at 1, and it is ALWAYS a one-way ratchet.
19

CONCLUSION
(Due Process Is InconvenientTo Those Who Wield Power)
When the Framers entrusted the judicial Power to our courts, they actually had
something in mind. From time immemorial, it had been understood that the office
of the judge was jus dicere, Francis Bacon, Essays LVI (Of Judicature) (1620): the
power to interpret the law, as opposed to writing it. Litigants had the right to have
plainly erroneous rulings reviewed by the Supreme Court upon a writ of certiorari,
resulting in published decisions binding every court in the land. And yes, it might
create chaos to restore that essential right of citizenship. But the Constitution was
intended to be inconvenientto those who wield power.
In one fell swoop, a Panel of this Circuit has literally defenestrated the Bill of
Rights. We have a right to equal justice under law, Leeper, supra, but no way
to enforce it. We are naked and exposed in a violent hailstorm of judicial caprice,
where we dont even have an enforceable right to a fair and independent tribunal.
Cf., Commodity Futures Trading Commn v. Schor, 478 U.S. 833, 848 (1986). The
rulings below are not judicial decisions, but the ukases of black-robed Czars.
This matter must be REMANDED to the Panel or slated for en banc review.
Submitted this [to come] day of October, 2015,
_/s/__________________________________
20

Kenneth L. Smith, in propria persona

23636 Genesee Village Rd., Golden, CO 80401
Phone: (303) 526-5451
19ranger57@earthlink.net

CERTIFICATE OF SERVICE
As service of process has been illicitly denied, there is literally no one to serve.
I have, however, mailed courtesy copies to the putative Appellants at their places
of business and/or residences.

21