DueProcess FourthAmendment JusticiabilityDoctri
Do debtors have a right to jury trial in Chapter 13 bankruptcy disputes over primary residence claims?
QUESTIONS PRESENTED Since the founding of this Nation, and throughtout this Nation's history, juries have been regarded as, and have been, the guaradian of the citizens from opressive laws and juges. A jury is freedom, prosonified. In England, the Jury is seen as "little Parliment" and a civil liberty without equal. ("Each jury is a little parliament...No tyrant could afford to leave a subject's freedom in the hands of tweleve of his countrymen. So that a trial by jury is more than an instrument of justice and more than one one whell of the consistution: it is the lamp that shows that freedom lives." Sir Patrick Delvin, Trial By Jury 164 [1956]) In The Federalist Papers : No. 78: The Judiciary Department Hamilton, writing under the name of PUBLIUS, Wrote: “There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No... act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. .It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. .Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; the judges ought to be governed by the latter [the Constitution] rather than the former[acts of congress]. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental... Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts: as no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day. And every man must now feel, that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress... That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission.” When Hamilton wrote of “That inflexible and uniform adherence to the rights of the Constitution, and of individuals’, Hamilton was speaking about the command within the Constitution, directed to the Judges of the new nation: “every judge in every state shall be bound”. This is an explicit limitation on the power of judges, with lifetime tenure and who, because of that lifetime tenure, cannot face reelection by the people, to be bound by the limits of our charter. Hamilton’s statement “There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No... act, therefore, contrary to the Constitution, can be valid.” make this clear. QUESTION: DO DEBTORS IN THIS NATION HAVE A RIGHT TO JURY TRIAL, WITHIN THE CHAPTER 13 CONTEXT, WHEN DISPUTING ISSUES WITH RESPECT TO A CLAIM ON A PRIMARY RESIDENCE? QUESTION 2: ARE DEBTORS' RIGHTS TO DUE PROCESS, UNDER THE 5TH AND 14TH AMENDMENTS, WITHIIN THE FEDERAL CONSITUTION, DENIED WITHIN THE CHAPTER 13 BANKR. CONTEXT, WHEN A BANKR. COURT DECIDE THAT SECTION 1322(B)(2) PROTECTS A CLAIM AGAINST THE DEBTOR'S HOME WITHOUT A FULL HEARING, ALLOWING THE DEBTOR TO PRESENT EVIDENCE, OR SPEEK, TO CHELLANGE THAT CLAIM