Sereno 4
Sereno 4
x--------------------------------------------~~~~-!~1_?9~~---
SEPARATE OPINION
JARDELEZA, J.:
Last May 11, 2018, a Majority of this Court relied on the special civil
action for quo warranto to oust a sitting member of the Court, for her failure
to meet a constitutional qualification. Lest there be misunderstanding, I
emphasize that Our holding was neither an invention nor improvisation of
existing remedies cut by this Court out of whole cloth.
5
U.S. CONSTITUTION, Article I, Section b; see The Ineligibility Clause's lost History: Presidential
Patronage and Congress, 1787-1850, Harv. L. Rev., Vol. 123, No. 7, May 2010; Paul R. Lieggi, The
Ineligibility Clause; An Historical Approach to Its Interpretation and Application, 14 J. Marshall L. Rev.
p. 819 (1981 ); Richard David Hofstetter, Survey of Constitutional law, Part I: Special Legislation of
Ineligibility Clause, 31 Rutgers L. Rev. p. 388 (1978).
6
302 U.S. 633 (1937).
7
Bergv. Obama, 555 U.S. 1126 (2009); Bergv. Obama, 555 U.S. 1134 (2009).
8
Berg v. Obama, 586 F.3d 234, 242 (2009).
9
1935 CONSTITUTION, Article IX, Section I.
10
G.R. No. L-25716, July 28, 1966, 17 SCRA 756.
11
1987 CONSTITUTION, Article VII, Section 5.
12
U.S. CONSTITUTION, Article I, Section 5.
13
1935 CONSTITUTION, Article VI, Section 11.
14
A.M. No. I 0-7-17-SC, February 8, 2011, 642 SCRA 11, 76 (Concurring Opinion of J. Abad).
Separate Opinion 3 G.R. No. 237428
I find that the raison d'etre for the removal (with the sole or
substantial participation of this Court) of the President, the Vice-President,
and Members of Congress, all duly-elected high-ranking officials of the two
other separate and co-equal Branches of Government, applies with equal, if
not more, cogency to the case of a member of the Court whose constitutional
qualification has been similarly put in issue. Since judicial power is defined
to include the exclusive authority of the judicial department to judge contests
relating to the qualifications of any public officer, to which class a Member
of this Court undeniably belongs, perforce the Court has the authority to oust
one of its Own when the Court finds that he/she lacks the qualifications
required of him/her by the Constitution.
It is in these lights that I cast my lot with the Majority. For me, it is
unnatural, even aberrant, of any Member of this Court to prefer that a case
(where his or her legal qualification to the office of Justice of this Court is in
issue) be decided by way of a political, rather than judicial, process.
15
Alexander Hamilton, The Federalist No. 65.
16
Bernas, S.J., The Constitution of the Republic of the Philippines-A Commentary (1996), p. 989.
17
Laurence Tribe and Joshua Matz, To End A Presidency (2018), p. 25.
18
Id. at 25-26.
19
A more detailed discussion on impeachment i~ed as Appendix A.
"' Alexander Hamilton, The Fed.,a/;,t No. 65.~
Separate Opinion 4 G.R. No. 237428
the state's protection of its high-level public officers. 21 From the face of
Sections 1 to 3 of Article XI of the 1987 Constitution, it further discernibly
appears that the main purpose of the institution of an impeachment
proceeding is to exact accountability in the enumerated impeachable public
officers.
21
This power was given to the most political of the branches of government because of sound and
practical considerations on the nature of impeachment. Originally, the Framers of the American Federal
Constitution considered placing the impeachment power with the Federal Judiciary. However, this plan
was discarded because the Constitutional Framers felt that the Legislature was the most "fit depositary of
this important trust" and it was doubted if the members of the Supreme Court "would possess the degree
of credit and authority" to carry out its judgment if it conflicted with Congress' authority.
22
In the U.S., federal judges are also impeachable officers.
23
Emily Field Van Tassel and Paul Finkelman, Impeachable Offenses-A Documentary History from 1787
to Present, Congressional Quarterly Inc., 1999, pp. 2-3.
24
The Federalist Nos. 78 and 79.
25
J. Story, Commentaries on the Constitution,§§ 1599-1635 (1833).
26
J. Kent, Commentaries on American Law, XIV ( 1826).
27
St. G. Tucker, w. Blackstone, Commentaries, 353, 359-60 (App.) (Tuckerrr. 1803).
28
I
See Irving R. Kaufman, Chilling Judicial Independence, in BenjamN. Cardozo Memorial Lectures
Delivornd •tthe A"od•tion of the Bornf the City of New Yo•k ( 1996
Separate Opinion 5 G.R. No. 237428
ol
33
Id. at 1191.
34 Id.
35
Peter M. Shane, Who May Discipline or Remove Federal Judges? A Constitutional Analysis, 209 U. Pa.
L. Rev. 142, 209 (1993), citing Bowsher v. Synar, 478 U.S. 714, 722-23 (1986) (finding that officers
the United States can be removed "only upon impeachment by the House of Representatives and
conviction by the Senate"); Myers v. United States, 272 U.S. 52, 114-15, 170 (1926) (quoting with
Separate Opinion 6 G.R. No. 237428
On the contrapositive side of the argument are those who contend that
impeachment is not the exclusive mode of removing a federal judge,
keeping open the legal defensibility and compelling logic of judicial modes
of removal.
approval President Coolidge's statement that "[t]he dismissal of an officer of the Government ... other
than by impeachment, is exclusively an executive function").
36
Preble Stolz, Disciplining Federal Judges: Is Impeachment Hopeless, 57 Cal. L. Rev. 659, p. 660
(1969).
37
Supra note 35.
38
Preble Stolz, Disciplining Federal Judges: Is Impeachment Hopeless, supra at 661.
Separate Opinion 7 G.R. No. 237428
The argument that the impeachment provisions bar the way [to other
modes of removal] sacrifices a necessary power to a canon of
construction. With Chief Justice Marshall, I should want nothing less than
an express prohibition to preclude beneficial exercise of an implied means.
Those who would deny to Congress the right to select the means for the
termination implicit in the constitutional text - "during good behavior" -
have the burden of establishing the preclusion.
To object to the trial of a judge for misconduct, by his judicial peers drawn
from the entire United States is to cast doubt on the fairness of the judicial
process. If such a panel cannot be trusted to fairly try a "dissenter" for
alleged judicial misconduct, no more can a district judge be trusted to try
social rebels. If the process is good enough for the common man in
matters of life or death, it is good enough for the trial of a judge's fitness
to try others.
39
Irving R. Kaufman, Chilling Judicial Independence, in Benjamin N. Cardozo Memorial Lectures
Delivered at the Association of the Bar of the City of New York, p. 1183.
40
Raoul Berger, Chilling Judicial Independence: A Scarecrow, 64 Cornell L. Rev. 822, 825 (1979).
41
Id., citing Nomination of Warren E. Burger, of Virginia, to be Chief Justice of the United States:
Hearings Before the Senate Comm. On the Judiciary, 91 st Cong., 1st Sess. 11 ( 1969).
42
Id., citing Nomination of Harry A. Blackmun, of Minnesota, to be Associate Justice of the Supreme
Court of the United States: Hearings Before the Senate Comm. On the Judiciary, 9pt Cong., 2d Sess. 52
(1970).
43
Id., citing The Independence of Federal Judges: Herrin Before the Subcomm. On Separation of
Powers of the Senate Comm. On the Judiciary, 915t o g., 2d Sess. 330 (1970) (statement of W.
Rehnquist, Asst. Attorney General of the United States).
Separate Opinion 8 G.R. No. 237428
While these debates have been ongoing since the time American
founding fathers decided (in the Philadelphia Convention of 1759) to subject
federal judges to removal by impeachment, state courts would in the
meantime continue to turn to other devices (specifically, quo warranto) to
oust erring judges. State legal history and jurisprudence present us with
cases, dating back as early as the 1800's, where the fitness of a sitting judge
was challenged through the application for a writ of quo warranto on
allegations of constitutional disqualifications. 45
Seven years later, the same issue was brought before the same State
Supreme Court, in the case of State ex. rel. Attorney Gen. v. Porter. 49
Although the case became moot due to the resignation of the judge so
challenged upon commencement of the proceedings, the court in Porter
nevertheless took the opportunity to overrule its 183 3 decision by upholding
its competency to decide the constitutionality of such an appointment. It
announced further that "the powers of this court not only authorize, but
require it, in a proper case, to determine whether an individual, elected to the
bench by the two houses of the General Assembly, possesses the
44
Id., citing Clark, Judicial Self Regulation - Its Potential, 35 L. & Contemp. Probs. 37, 40-41 ( 1970).
45
Ernest E. Jr. Clulow; Lester M. Ponder; Harry C. Nail; Garfield 0. Anderson, Constitutional Objections
to the Appointment of a Member of a Legislature to Judicial Office: Remedies: Interest of Parties:
i'
Authority to Determine the Issue, 6 Geo. Wash. L. Rev. 46 (1937). A more detailed discussion on quo
warranto is attached as Appendix B.
46
Id., citing State Ex. Rel. Attorney Gen. v. Paul, 5 Stew. & P. 40 (1833).
:: ~~:'citing the Constitution of Alabama, Article 3, Section 25.
49
Ernest E. Jr. Clulow, et al., Constitutional Objections to the Appointment of a Member of a Legislature
to Judicial Office: Remedies: Interest of Parties: Authority to Determine the Issue, supra; 1 Ala. 68
(1840).
Separate Opinion 9 G.R. No. 237428
At the next crucial point, the case of Ex Parte Levitt5 1 became most
instructive. In October 1937, the appointment of Hugo L. Black to the office
of Associate Justice of the United States Supreme Court was similarly
challenged, through a direct action to show cause, 52 filed by one Albert
Levitt, a citizen and member of the bar. Prior to his appointment, Justice
Black served as Senator from Alabama for over a decade, ending in his
recommendation and appointment to a seat in the U.S. Supreme Court
(succeeding retired Justice Willis Van Devanter) by President Franklin D.
Roosevelt. The petition centered on Justice Black's alleged ineligibility due
to the prohibition in the Constitution under the emoluments clause. 53 On
October 11, 1937, the U.S. Supreme Court dismissed Levitt's action on the
ground of lack of sufficient interest in the contested office. Chief Justice
Hughes, departing from familiar practice, announced from the Bench the
Court's reasons for its action:
The motion papers disclose no interest upon the part of the petitioner
other than that of a citizen and a member of the bar of this court. That is
insufficient. It is an established principle that to entitle a private
individual to invoke the judicial power to determine the validity of
executive or legislative action, he must show that he has sustained or is
immediately in danger of sustaining a direct injury as the result of that
action and it is not sufficient that he has merely a general interest
common to all members of the public. 54
It bears stressing what the U.S. Supreme Court did not do in Levitt.
Despite the received tradition that justices of the American Supreme Court
can be removed from office exclusively by impeachment, 55 it did not dismiss
Levitt's motion on the ground that impeachment is the exclusive mode of
removing a sitting Justice of the Court. This, to me, signified that the U.S.
High Court deemed itself proper to entertain a petition to remove a sitting
Justice from its very own bench.
#
55
U.S. CONSTITUTION, Article II, Section 4. /
56
Ernest E. Jr. Clulow, et al., Constitutional Objections to the Appointment of a Member of a f;;;t'ture
to Jud;cial Office: Remed;"; lntmst of Part;": Authodty to Det"m;ne the Issue, '"P'" note
Separate Opinion 10 G.R. No. 237428
As earlier stated, the U.S. Supreme Court, in the 2009 case of Berg v.
Obama, denied certiorari and allowed to stand a United States Court of
Appeals decision dismissing a declaratory judgment finding then-
Presidential Candidate Obama ineligible under the natural-born clause
requirement of the U.S. Constitution. 59 The Court of Appeals held that
plaintiff Berg, a lawyer, lacked sufficient standing, holding the door open to
a list of parties " ... who could have challenged, or could still challenge,
Obama's eligibility through various means ... " 60
II
" Id. 0
Separate Opinion 11 G.R. No. 237428
The 1973 Constitution would later give the Supreme Court not only
original jurisdiction over petitions for quo warranto, 68 a grant which the
Legislature cannot remove, but also the express power to discipline (and, by
a vote of at least eight members, dismiss) judges of inferior courts. 69 The
1986 Constitution would contain a further provision "constitutionalizing"
R.A. No. 1793 (and Lopez) by expressly empowering the Supreme Court,
sitting en bane, to be the sole judge of all contests relating to the election,
returns, and qualifications of the President or Vice President. 70
63
Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary (2003), p. 725.
64 Id.
65
Six of the other Members were to be chosen by the National Assembly, three of whom shall be
nominated by the party having the largest number of votes, and three by the party having the second
largest number of votes therein (1935 CONSTITUTION, Article VI, Section 4).
66
63 Phil. 170 (1936).
67
See Bernas, S.J ., The 1987 Constitution of the Republic of the Philippines: A Commentary (2003 ), p.
726, citing 63 Phil. 170 (1936).
68
1973 CONSTITUTION, Article X, Section 5(1). A more detailed discussion on Quo Warranto is attached
as Appendix B.
69
1973 CONSTITUTION, Article x, Section 7.
70
1986 CONSTITUTION, Article V)l, Section 4.
71
Article VIII, Section 7.
72
Article VII, Section 8(1)
73
Article XI, Section 17.
Separate Opinion 12 G.R. No. 237428
review, which is the duty to determine whether there has been a grave abuse
of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government. 74
III
74
Article VIII, Section 1.
75
Irving R. Kaufman, Chilling Judicial Independence, in Benjamin N. Cardozo Memorial Lectures
Delivered at the Association of the Bar of the City of New York (1996), p. 1209.
76
Id. at 121 I.
77
It is recognized that a number of commentators have asserted arguments demonstrating the exclusivity
of impeachment as a political device for judicial discipline, with three factors supposedly mandating that
conclusion: (I) the Constitution's failure to authorize expressly any disciplinary procedure other than
removal, (2) the ideal of judicial independence embodied in Article III, and (3) the contemporary
statements such as the above quoted passages from The Federalist and the Letters of Brutus regarding the
exclusivity of impeachment as a removal device.
If followed categorically, however, such an analysis would leave the government with no procedural
avenue other than impeachment for disciplining sitting judges guilty of misconduct, and no disciplinary
sanctions other than removal and disqualification for punishing such judges. The net effect of this line of
thought, among others, is a scenario wherein the Supreme Court's hands are tied, and it relegated to
"watch helplessly-for the reason that the power to act is granted solely to Congress under the express
terms of the Constitution-as its own Members prostitute its integrity as an institution." (Separate
Concurring Opinion of Justice Brion, In re Del Castillo, supra note 14 at 64-65).
Such an interpretation would also be inconsistent with the accepted standards for removal of a judge,
and the fact that removal is not the only price exacted for every incident of judicial misconduct. This
contrary understanding eliminates the demonstrated spectrum of possible misconduct, as well as the
gradations of sanctions that correspond to them, and further implies that the justice is only either
perfect/incapable of misstep or that the Court has to wait for the gravest of transgressions before an erring
Separate Opinion 13 G.R. No. 237428
J)lstice can be subject to discipline. This would, in turn, inarguably mean that the Framers of the
Gonstitution have conceded the condonation and tolerance of misdemeanors and misconduct of judicial
1fficers that do not tilt the scales in equal weight as those offenses of impeachable gravity.
1
Viewed from the lens of the doctrine of separation of powers among the three equal branches of
government, a state's highest court must necessarily possess the inherent power to all its judges, including
t~ose of them on the highest court, for to deny a state's highest court the power to discipline all its
members would be to deny such a court equality with the other two branches. These conclusions are
likewise buttressed by the argument that forms of discipline that depend on the judiciary for their
~ffectuation do not threaten the separation of powers. The basic idea behind separation of powers is that
the three great branches of government must be separate, coordinate and equal, (Id., citing Humphrey's
lfx 'r v. United States, 295 U.S. 602, 629-30 (1934), with each branch free to function without restriction,
s)lpervision or interference by the other two branches. (Id., citing Carrigan, Inherent Powers and Finance,
7: TRIAL 22 (Nov./Dec. 1971). The separation of powers doctrine implies that each branch of government
has inherent power to "keep its own house in order," absent a specific grant of power to another branch,
sµch as the power to impeach. (Id, citing Comment, The Limitations of Article Ill on the Proposed
Judicial Removal Machinery: S. 1506, 118 PA. L. REV. l 064, l 067-68 (1970) [hereinafter cited as
IJ.IMITATIONS OF ARTICLE III].) It recognizes that each branch of government must have sufficient
power to carry out its assigned tasks and that these constitutionally assigned tasks will be performed
properly within the governmental branch itself. (Id., citing Traynor, Who Can Best Judge the Judges, 53
VA. L. REV. 1266 (1967) [hereinafter cited as Traynor].
78
Separate Concurring Opinion of Justice Brion, Jn re Del Castillo, supra note 14 at 62.
79
Lisa L. Lewis, Judicial Discipline, Removal and Retirement, 1976 Wis. L. Rev. 563, 563 (1976).
8
° Cynthia Gray, A Study of State Judicial Discipline Sanctions, Am. Jud. Soc. (2002). See also Robin
Cooke, Empowerment and Accountability: The Quest for Administrative Justice (1992) 18
Commonwealth Law Bulletin 1326; Lisa L. Lewis, Judicial Discipline, Removal and Retirement, Wis. L.
Rev. p. 563 (1976), citing Courts-Judicial Removal-Establishment of Judicial Commission/or Removal of
Judges Precludes Legislative Investigation of Judicial Misconduct, 84 Harv. L. Rev. pp. 1002-1005
(1971); Judicial Integrity, 44 J. Am. Jud. Soc. P. 165 (1961). (
81
This inherent power in administrative discipline is elucidated b Justice Brion in his Separate
Concurring Opinion, In re Del Castillo, supra note 14 at 65 to wit:
Separate Opinion 14 G.R. No. 237428
the Court to "keep its own house in order," and thereby preserve the
integrity of the judicial system, namely: (1) admission and discipline of
members of the Bar, 82 (2) contempt powers, 83 (3) discipline and removal of
judges of lower courts, 84 and (4) the general power of administrative
supervision over all courts and the personnel thereof. 85 Moreover, the
Internal Rules of the Supreme Court (2010) 86 expressly included, for the first
time, "cases involving the discipline of a Member of the Court" 87 as among
those matters and cases falling within the purview of the Court en banc. 88
Independent of the grant of supervisory authority and at a more basic level, the Supreme
Court cannot be expected to play its role in the constitutional democratic scheme solely on the
basis of the Constitution's express grant of powers. Implied in these grants are the inherent
powers that every entity endowed with life (even artificial life) and burdened with
responsibilities can and must exercise if it is to survive. The Court cannot but have the right to
defend itself to ensure that its integrity and that of the Judiciary it oversees are kept intact. This
is particularly true when its integrity is attacked or placed at risk by its very own Members - a
situation that is not unknown in the history of the Court.
82
CONSTITUTION, Article VIII, Section 5(5); RULES OF COURT, Rules 138 and 139-8.
83
RULES OF COURT, Rule 71.
84
CONSTITUTION, Article VIII, Section 11; RULES OF COURT, Rule 140.
85
Cynthia Gray, A Study of State Judicial Discipline Sanctions, American Judicature Society (2002);
available at www.ajs.org/ethics/pdfs/Sanctions.pdf.
86
A.M. No. I 0-4-20-SC, May 4, 20 I 0.
87
Rule 2, Sec. 3, par. (h), A.M. No. 10-4-20-SC, May 4, 20 I 0.
88
Elucidating on the procedure, Section 13, Rule 2 of the Court's Internal Rules provides:
Sec. 13. Ethics Committee. - In addition to the above, a permanent Committee on Ethics and Ethical
Standards shall be established and chaired by the Chief Justice, with following membership:
a) a working Vice-Chair appointed by the Chief Justice;
b) three (3) members chosen among themselves by the en bane by secret vote; and
c) a retired Supreme Court Justice chosen by the Chief Justice as a non-voting observer-
consultant.
The Vice-Chair, the Members and the Retired Supreme Court Justice shall serve for a term of one ( 1)
year, with the election in the case of elected Members to be held at the call of the Chief Justice.
The Committee shall have the task of preliminarily investigating all complaints involving graft and
corruption and violations of ethical standards, including anonymous complaints, filed against Members of
the Court, and of submitting findings and recommendations to the en bane. All proceedings shall be
completely confidential. The Committee shall also monitor and report to the Court the progress of the
investigation of similar complaints against Supreme Court official$"'and employees, and handle the annual
update of the Court's ethical rules and standards for?ub fssion to the en bane. (Emphasis and
underscoring supplied).
89
A.M. No.10-7-17-SC, October 12, 2010, 632 SCRA 607
Separate Opinion 15 G.R. No. 237428
inquire into (and decide) issues of its own members with respect to
constitutionally-set qualifications.
In converse truth, the very existence of the elbow room for dissent
owes itself in large measure to judicial accountability, inasmuch as dissents
continuously ensure that no one sitting magistrate may stifle the voice of
another who is moved to "show why the judgment of his fellows are worthy
of contradiction."90 Disabusing the Court from the notion that judicial
unanimity was required for legitimacy, the subsequent and prevailing
tradition has since been to allow dissenting opinions to serve many utilities,
including: (1) leading the majority opinion to sharpen and polish its initial
draft; (2) attracting public attention for legislative change; and (3) giving the
Court the farsighted contingency to correct its mistake in case of a future
opportunity. 91
90
Dissenting Opinions, University of Pennsylvania Law Review and American Law Register, Volume 1,
No. 3, March 1923, p. 206. See also Evan A. Evans, Dissenting Opinion-Its Use and Abuse, 3 Mo. L.
Rev. (1938), citing Georgia v. Brailsford, 2 U.S. 2 Dall. 415, 415 (1793).
91
Ruth Bader Ginsburg, The Role of Dissenting Opinions, Presentation to the Harvard Club of
Washington, D.C., on December 17, 2009, pp. 3, 4, 6.
92
Bernice B. Donald, The Intrajudicial Factor in Judicial Independence: Reflections on Collegiality and
Dissent in Multi-Member Courts, available at www.memphis.edu/law/documents/donald/pdf, last
accessed on June 6, 2018, citing Benjamin Cordozo, Law & Literature, p. 36 ( 1931 ).
93
Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 528 (1957).
94
Randall T. Shepard, Perspectives: Notable Dissents in State Constitutional Cases-What Can Disseyts
Teach Us, 68 Alb. L. Rev. 337 (2005), citing C. Hughes, The Supreme Court of the Unites States, 68
(1921).
Separate Opinion 16 G.R. No. 237428
Conclusion
95
Dred Scott v. Sandford, 60 U.S. 393, 564-633, (1857), Curtis, J. dissenting.
96
Plessyv. Ferguson, 163 U.S. 537, 552-62 (1896), Harlan, J. dissenting.
97
Korematsu v. United States, 323 U.S. 214, 242-48 (1944), Jackson, J. dissenting.
98
There appears to be neither historical evidence nor contemporary commentary offered to show any
single instance of judicial removal founded on the concerned judge's propensity to jissent.
99
Saikrishna Prakash and Steven D. Smith, How to Remove a Federal JudJ£e/l 16 Yale L.J. 72, 135
(2006). Available at: http://digitalcommons .law.yale.edu/ylj/vol 116/iss 1/2.
100
Id at 136.
Separate Opinion 17 G.R. No. 237428
/! ' t ~ ,,
• •c ~
I•)
101
Concerned Taxpayer v. Dob/ada, Jr., A.M. No. P-99-1342, September 20, 2005, 470 SCRA 218.
102
Meinhardv. Salmon, 249 NY 458 (1928).
Appendix A
xx xx
1
Antonio R. Tupa'izn·Edsel C.F. Tupaz, Fundamentals on Impeachment, (2001), pp. 6-8.
2 lsagani Cruz, Phili rpine Political Law, (1989 ed.), pp. 313-314.
3
Section 7, Arti<A I, 1987 Constitution.
4
Supra note 2.
Appendix A 2 G.R. No. 237428
J. Jardeleza Separate Opinion
5
Record of the Constitutional Commission: Proceedings and Debates, Vol. II, p. 272.
6
Alexander Hamilton, The Federalist No. 65.
7
Fr. Joaquin Bernas, S.J., The Constitution of the Republic of the Philippines -A Commentary,
(1986 ed.), p. 989.
8
This power was given to the most political of the branches of government because of sound
and practical considerations on the nature of impeachment. Originally, the Framers of the
American Federal Constitution considered placing the impeachment power with the Federal
Judiciary. However, this plan was discarded because the Constitutional Framers felt that the
Legislature was the most "fit depositary of this important trust' and it was doubted if the
members of the Supreme Court "would possess the degree of credit and authority" to carry out
its judgment if it conflicted with Congress' authority.
9
Supra note I at 4.
10
Raoul Berger, Impeachment: The Constitutional Problems, Harvard University Press, 1973,
citing Joseph Borkin, The Corrupt Judge, New York, ( 1962).
11
The House of Commons did not exercise the right to impeach sparingly. For instance, during
the reign of James I
( 1603-1625) and Charles I ( 1628-1649), over I 00 im~achments were voted by it.
12
Supra note 1 at 4, citing Plucknett, President#aress reproduced in 3 Transactions, Royal
Historical Society, 5'" Series, ( J952), p. 14 5.
1
Appendix A 3 G.R. No. 237428
J. Jardeleza Separate Opinion
13
Supra note 1 at 4, citing John Hatsell's Precedents of Proceedings in the House of Commons,
(1956), p. 63.
14
Saikrishna Prakash and Steven D. Smith, How to Remove a Federal Judge, (2006), 116 Yale
L.J. 72, 110 & 136.
15
Irving Kaufman, Chilling Judicial Independence, in Benjamin N. Cardozo Memorial Lecture,
p. 1200.
16
Arthur Bestor, Impeachment, (1973), 49 Wash. L. Rev. 255, 258.
17
Id., citing V.iscount James Bryce, The American Commonwealth, ( 1908), p. 233.
l8 Supr,no /14 at 135.
19 J. Ha aen Dougherty, Inherent Limitations upon Impeachment, (1913-14), 23 Yale L.J. 60,
70.
Appendix A 4 G.R. No. 237428
J. Jardeleza Separate Opinion
20
Supra note 6 at 423-424.
21
Justice Joseph Story, Commentaries on the Constitution, (1905, 5 111 ed.), §764, p. 559.
22
Jerome S. Sloan; Ira E. Garr, Treason, Bribery, or Other High Crimes and Misdemeanors - A
Study of Impeach ent, (1974), 47 Temp. L.Q. 413, 414 (citing Lawrence, The law of
Impeachment, (I o7), 6 Am L. Register (N.S.) 641 ).
2
' Id. at 455.
Appendix A 5 G.R. No. 237428
J. Jardeleza Separate Opinion
grants, public and private, imported an office or estate, for the life of the grantee, determinable
only by his death, or breach of good behavior". In the Pennsylvania Ratification Convention,
Chief Justice McKean explained that "the judges may continue for life, if they shall so long
behave themselves well."
32
Supra note 14 at 116 & 123.
33
/d.at127.
34
Burke Shartel, Federal Judges-Appointmen Supervision, and Removal-Some Possibilities
Under the Constitution, (1930), 28 Mich. L. Rev. 870, 891-98 (citing Baron John Comyns, A
Digest of the laws of England, 1766).
35
Id. (arguing for judicial self-discipline and removal power).
36
Id. This procedure found employment with lesser officials - rising no higher than a Recorder, a
lesser judge - and
that there is no English case wherein a judge comparable to a federal judge was removed in a
judicial proceeding.
37
Raoul Berger, Chilling Judicial Independence: A Scarecrow, (1979), 64 Cornell L. Rev. 822,
831.
38 Id. ,
" Id.. dHng Me llwo;n, me Tenu" ofEngh<hJudge.<. (1913). Am. Pol. Se\. Rov. pp. 217-2211
Appendix A 7 G.R. No. 237428
J. Jardeleza Separate Opinion
decided ... upon a scire facias to repeal the patent by which he held
his office?" 40
{ . ; ,~ I J . ~ : . : ) .r i : ~ 1 ' ~ ·~,
~ ,, . -~ ~
i ~ ;. I
Quo Warranto
1
Floyd R. Mechem. Treatise on the Law of Public Offices and Officers, (1890), p. 304.
2
Forrest G. Ferris & Forrest Ferris, Jr., The Law on Extraordinary Legal Remedies, (1926), p.
126. Citations omitted.
Arthur J. Eddy, Law of Combinations Embracing Monopolies, Trusts, and Combinations of
Labor and Capital; Conspiracy, and Contracts in Restraint of Trade, (1901), p. 1221.
4
Supra note 1 at 304, citing High Ex. Leg. Rem. § 592.
5
Supra note 2 at 126. Citations omitted.
6
Supra note 3 at 1223.
7
Supra note 2 at 127. Citations omitted.
8 Id. at 128. Citations omitted.
9
Id.
io Id.
11
Id. at 127. C i f s omitted; see also Newman v. United States ex. Rel. Frizzell, 238 U.S. 537,
544 (1915). ( )
Appendix B 2 G.R. No. 237428
J. Jardeleza Separate Opinion
12
Newman v. United States ex. Rel. Frizzell, id. at 543.
13
Id at 544.
14 Id.
15
Supra note 3 at 1233.
16
Supra note 2 at 130, citations omitted; see supra note 3 at 1233.
17
Newman v. United States ex. Rel. Frizzell, supra note 11 at 544.
18
Supra note 2 at 131. Citations omitted.
19
Newman v. United States ex. Rel. Frizzell, supra note 11 at 544:1'\/
'" Newman v. UnUed States ex. Rel. fozzel/, .wpm note 11 at 544'l
Appendix B 3 G.R. No. 237428
J. Jardeleza Separate Opinion
Notably, the quo warranto is not the only concept that can be
traced back to English laws, but its procedure as well.
21
Newman v. United States ex. Rel. Frizzell, supra note 11 at 546.
22
Federal Judicial Center, Equity Rules, available at https://www.fjc.gov/history/timeline/equity-
rules (last accessed June 15, 2018).
23 Id.
24
James WM. Moore & Joseph Friedman, A Treatise on the Federal Rules of Civil Procedure,
(1938), pp. 7-8.
25
Id. at 9.
26
Lawrence Koenigsberger, An Introduction to the Federal Rules of Civil Procedure, (1938), p.
1, citing Rule 81
(a)(2); supra note 24 at 6.
27
Supra note 22.
28
Supra note 24 at 1.
29
Id. at 2-3.
30
Supra note 26 at 6, citing Rule 81 (a)(2)
Appendix B 4 G.R. No. 237428
J. Jardeleza Separate Opinion
xxxx. 31
31
Emphasis and underscoring supplied.
32
See Logan Scott Stafford, Judicial Coup d' Etat: Mandamus, Quo warranto and the Origin
Jurisdiction of the Supreme c;6urt of Arkansas, (1998), 20 UALR L. J. 891, 892; see also
33
Newman v. United Stat(j._s p. Rel. Frizzell, supra note 11.
Supra note 1 at 304-305.
Appendix B 5 G.R. No. 237428
J. Jardeleza Separate Opinion
34
10 Mass. 290 (1813).
35
Id. at 301-302.
36
J.F.D., The Missouri Supreme Judgeship: Conflict between Executive and Judiciary. Powers of
i'
Constitutional
Convention. Quo warranto, The American Law Register ( 1852-1891 ), Vol. 13, No. 12, New
Series Volume 4
(October,1865), p. 719, citing State v. McBride, 4 Mo. Rep. 303, 1836.
37
Alberto v. Nicolas, 279 U.S. 139 (1929).
38
Vicente J. Francisco, The Revised Rules of Court of the Philippines, Vol. V, (1970), p. 31
. ' .
Appendix B 6 G.R. No. 237428
J. Jardeleza Separate Opinion
xx xx
39
Supra note 2 at 150. Citatid'ns omitted.
40
Supra note 3 at 1277.
Appendix B 7 G.R. No. 237428
J. Jardeleza Separate Opinion
41
John F. Dillon, Commentaries on the Law of Municipal Corporations, (1911), p. 2734.
42
Library of Law and Practice, ( 1919), p. 41.
43
Supra note 2 at 150-151. Citations omitted.
44
Supra note 3 at 1277.
45
Krajicek v. Gale, 267 Neb. 623, 677 N.W.2d 488, 495 (2004);~e supra note 2 at 156,
citations omitted; see also Halbert E. Paine, Treatise on the Law of El ctions to Public Offices,
Exhibiting the Rules and Principles Applicable to Contests befo e Judicial Tribunals and
Parliamentary Bodies, (1888), p. 745.
46
People ex rel. Finnegan v. Mayworm, 5 Mich. 146, 148 (1858).
' '
47
Supra note 2 at 126. Citations omitted.
48
Supra note 38 at 357; supra note 42 at 42.
2 a·~l· . Citations omitted.
49
Supra note
so Supra note I at 22.
51
5 Mich. 14(}.(I 58).
52
Id. at 147.
Appendix B 9 G.R. No. 237428
J. Jardeleza Separate Opinion
53
Idem sonans is a Latin term meaning sounding the same or similar; having the same sound. It is
a legal doctrine in which a person's identity is presumed known despite the misspelling of his
or her name.
54
People ex rel. Finnegan, 5 Mich. at 148 ( 185 8).
55
Id., citing State v. Beecher, 15 Ohio, 723; People v. Phillips, 1 Denio, 388; State v. Harris, 3
Pike, 570.
56
677 N.Wfad 490 (2004).
s1 Id.
5s Id.
"* I I •
vote, received mail, stored personal items, filed tax returns, and
registered his vehicle at 4505 Jefferson St. The State, on the other
hand, presented evidence that Krajicek and his family were currently
living in 7819 South 45th Ave. Likewise, his wife's car registration as
well as the couple's tax return indicated their address as 7819 South
45th Ave. The house in 4505 Jefferson St., meanwhile, was built and
paid for Kracijek's aunt and uncle and the latter paid for the
insurance, utilities, and other related expenses for the upkeep of the
house. 59
59
Id. at 49 l.
60
ld.at495,citingStaschv. Weber, 188Neb.710,711, 199N~W.0391,393(1972).
61
Id. at 495, citing 65 Am. Jur.2d Quo warranto § 119 at 165 (2 1).
62
Catlett v. People (1894) 151 Ill 16, 37 NE 855; Comma'!. ea!th ex rel. Atty. Gen. v. Bala &
Byrn Mawr Turnpike Co. ( 1893) I 53 Pa 4 7, 25 A 1105.
Appendix B 11 G.R. No. 237428
J. Jardeleza Separate Opinion
The information sets out the charter of the defendant, and then
alleges 21 acts which are alleged to be usurpations by the defendant of
powers not conferred by its charter, and concludes with a prayer for
the forfeiture of the charter of the corporation. Some of the allegations
contained in the information of the usurpations of power on the part of
the defendant, among others, include ownership and control of a large
blocks of real property as well as businesses located therein,
defendant's receipt of a large income from the rental of such
properties with only a small portion of it occupied by the company's
employees, and defendant's alleged manipulation and control of the
affairs of the Town of Pullman. 68
The district court ruled that the corporation, at and before the
time of the filing of the information, was exercising powers and
performing acts not authorized either by the express grant of its
charter or any implication of law. Further, the corporation was
exercising powers and functions which the general law of the state
contemplates shall be possessed and exercised only by municipal
authorities of cities or towns as well as public school authorities.
Thus, its acts and doings are opposed to good public policy. 69
63
State ex rel. Security Sav. & Trust Co. v. School District No. 9 of Tillamook County (1934) 148
Or 273, 36 P2d
179.
64
McPhail v. People (1895) 160 Ill 77, 43 NE 382, 52 Am St Rep 306.
65
State ex rel. Stovaflv. Meneley, 271 Kan. 355, 22 P.3d 124 (2001).
66
64 L.R.A. 366, 1J5 Ill. 125, 51. N.E. 664 (1898).
67
Id. at 665.
68
Id. at 665-6
69
Id. at 677.
. .
Appendix B 12 G.R. No. 237428
J. Jardeleza Separate Opinion
On May 24, 1999, the Attorney General filed a petition for quo
warranto for the ouster of Meneley on behalf of the State on the
ground of willful misconduct in office. The trial judges unanimously
found, by clear and convincing evidence, that Meneley committed
willful misconduct, as contemplated in K.S.A. 60-1205(1). He
knowingly and willfully concealed evidence of Oblander' s theft of
drug evidence, he falsely testified under oath at an Attorney General's
inquisition by denying his knowledge of Oblander's illegal drug use
and treatment for drug addiction, and he falsely testified under oath in
the Shawnee County District Court by denying that he had any
knowledge regarding Oblander's illegal drug use and treatment for
drug addiction. 76
It must be pointed out that it is not only the civil law principle
on statute of limitations that does not apply in quo warranto
proceedings initiated by the State. Neither will laches, estoppel, or
waiver by inaction apply as "inaction by the State may not be subject
to waiver by inaction on the theory that the public interest is
76
Id. at 364.
77
Id. at 384, citing KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 635, 659, 941 P.2d 1321
( 1997); State ex
rel. Schneider v. McAfee, 2 Kan. App.2d 274, 275, 578 P.2d 281, rev. denied 225 Kan. 845
(1978).
78
State ex rel. Stovall, 271 Kan. 355, 22 P.3d 124 at 384, citing State ex rel. Schneider v.
McAfee, 2 Kan. App.2d
at 276; see also International Ass 'n of Firefighters v. City of Lawrence, 14 Kan. App.2d 788,
Syl. ~ 3, 798 P.2
960 rev. denieSV.248 Kan. 996 (1991).
79 Id. at 384, cjtj6.g State, ex rel., v. Showalter, 189 Kan. 562, 569, 370 P.2d 408 (1962).
80
Id. at 385.
- ....
Appendix B 14 G.R. No. 237428
J. Jardeleza Separate Opinion
81
Carleton v. Civil Service Com 'n of City of Bridgeport, 10 Conn. App. 209, 522 A.2d 825
( 1987).
82
State ex rel. Harmis v. Alexander (1906) 129 Iowa 538, 105 NW 1021; State ex rel. School
Township v. Kinkade (1922),/92 Iowa 1362, 186 NW 662; State ex rel. Crain v. Baker (1937,
Mo App) I 04 SW2d 726;faate ex rel. Madderson v. Nohle (1907) 16 ND 168, 112 NW 141,
125 Am St Rep 628.
83
Supra note 3 at 1267.
~-