third rail in court

A NEW EXPRESSION FOR AVOIDING THE THIRD RAIL- IN
> COURT
> Touch the third rail of a rapid transit system,
> which conducts six hundred volts or more to the subway or
> elevated trains, and you are instantly dead.
> In recent years "avoiding the third rail" has
> become the expression for politicians’ ducking issues that
> could easily result in political suicide. Political
> candidates, in office or not, can and do duck issues
> they do not care to address, as long as they answer
> to the electorate.
> In court, however, it is a different story. What if
> courts avoided issues the way politicians do? What
> if courts ignored precedents or even constitutional
> questions?
> In theory, at least, courts of law have nowhere the
> sort of discretion that politicians do.
What kind of law would we have if courts ducked issues?
> Going back to Blackstone, at least, they are bound
> by precedents, by the doctrine of "stare decisis," so
> that judges do not make new law every time a case is
> decided. Going back to Marbury v. Madison (1803)
> American courts are obligated to rule on
> constitutional issues when necessary to decide a
> case, or else there is no constitution. The whole idea of
> due process is to prevent arbitrary action. Judicial
> acts are immune from lawsuit so that judges can be
> free to address controversial issues. If judges
> could "avoid the third rail," would there be any rule of
> law? Is there any rule of law when they do, at least
> in my recent cases?
> In 1995 I sued the University of Illinois over its
> appropriation to wipe out Maxwell St., on grounds it
> was passed at a legislative hearing without the
> opposition being notified. Although I plainly cited
> sections of the Illinois constitution, requiring
> notification of legislative hearings and protecting
> the right to petition for redress of grievances, the
> state courts denied there was a constitutional
> issue. My last motion in the state supreme court cited
> Marbury and threatened a federal lawsuit if there
> were no constitutional ruling.
> In 1998 I filed a federal lawsuit under the Civil
> Rights Acts of 1866 and 1871, for deprivation of my
> right to sue and conspiracy to block the course of
> justice in state court. The first is Reconstruction
> legislation to eliminate the "badges and incidents"
> of slavery (slaves were not allowed to sue, own
> property, make contracts, etc.), the second the "Ku Klux Klan
> Act" to restore civil order in the South, among
> other things, to keep the state courts open.
> The suit was thrown out on "Rooker Feldman
> doctrine" that state court judgments cannot be appealed to a
> federal trial court. Quite lost in the "doctrine,"
> however, named after U.S. Supreme Court decisions,
> is language in both distinguishing valid from invalid
> decisions. Rooker v. Fidelity Trust (1923) described
> a decision in which there was an exercise of
> jurisdiction, a full and fair hearing, and a ruling
> responsive to the issues. District of Columbia Court
> of Appeals v. Feldman (1983) defined the judicial
> process as application of law to fact. That none of
> this happened in my state case was ignored
> completely. Likewise, my strenuous objection that ignoring this
> argument is beyond court authority, in legal language,
> an hypothetical jurisdictional bar.
> In 2000 I sued to stop federal funding of local
> public transportation projects, on grounds the
> federal government has no authority to fund local projects
> under a 1935 U.S. Supreme Court decision, U.S. v.
> Butler. Also, that existing systems were being
> rebuilt without considering new technologies. Although I
> cited the government's own motion describing a federal
> program to fund local projects, the trial court
> ruled the matter a "political question." On appeal, after
> I filed a brief again citing the government's own
> description, the government moved to summarily
> affirm the trial court on technical grounds. Even though
> the trial court order itself said that my record was
> complete for appeal and that it did not have time to
> address my issues, the 7th Circuit affirmed on
> grounds it did not desire further briefing. My strenuous
> objections about ignoring constitutional issues were
> denied without explanation.
> "Avoiding the third rail" in court deserves a new
> expression, which the 7th Circuit also ignored. Part
> of Chicago legal lore is the lawsuit against the Chicago
Transit Authority over a drunk who established
> electrical contact with the third rail and died by
> urinating on it. And that is exactly what the 7th
> Circuit did to the Constitution.
> William F. Wendt, Jr.