Logan/Todd County Circuit Judge Tyler Gill has ruled that a fellow judge went against the law by jailing 17 Hispanic immigrants without bail and without informing them of their right to counsel.

As a result Gill released the immigrants, citing Habeas Corpus and wrote an eight-page order explaining his findings for such.

The Order, which was handed down Sept. 18 by Gill, states Logan/Todd County District Judge Sue Carol Browning illegally detained 17 immigrants, having no plan to resolve the issues. He said that violates the right to a speedy trial under the Kentucky Constitution and the basic human right to liberty and due process.

Browning sent the 17 immigrants to jail, mostly on charges of traffic violations and other misdemeanors. A 17-year-old juvenile was charged with a felony offense of possession of a forged instrument (false identification papers).

Browning said she jailed the defendants because she had little information about their residency status or criminal history and in fact had seen the defendants repeatedly in court. She said some gave false names when they were arrested.

“I don't discriminate against anybody based on race, religion or national origin, but when you have no social security number or no operator's license that we can verify and none of the information you are giving is matching up, then it sends up red flags,” Browning told the N-D&L.

“When we have no social security number or a person admits they have none or admits they are not here legally. I have no way of knowing whether it's their first offense or their 15th offense. I have no way of knowing whether they are wanted for other charges or are on probation and parole or anything else that I am supposed to use in considering what bond to set. We have no way of tracking.”

According to Gill's motion, Browning entered orders regarding each of the 17 prisoners, requiring that they be held in jail without bond pending an investigation by the Immigration and Naturalization Service (INS). Gill said the record does not indicate that the Immigration and Naturalization Service had a pending investigation concerning any of the Petitioners or that they intended to initiate one.

“Judge Browning made an unsuccessful attempt from the Todd County bench via telephone to persuade a representative from the INS to begin an investigation of some of the Petitioners,” said Gill in his ruling.

Browning said she called INS and talked with Agent Mikie Massuda, who told her they didn't have time to “fool with” them that they had priorities and were too busy to to “fool with” people who are charged with minor offenses. “The thing about it is if it's a second offense driving on a DUI suspended license, and that's a felony or it would be a felony to someone who had to have a record,” said Browning.

“I have a very heavy case load, too. Wouldn't it be nice if I could just say I'm not going to ‘fool with' those speeding tickets or first offense DUIs- just ditch all those because they're not important and I have priorities? Where do you stop?” she asked.

In Gill's Conclusions of Law section of the motion, he stated the detention of the Petitioners was illegal and in violation of the Kentucky and United States Constitutions. He stated “with narrow exception” that it is illegal in Kentucky to hold any prisoner without bond. He said it was also illegal to hold a person not convicted of a crime indefinitely under any condition. It is illegal because the District denied counsel to the Petitioners, and the initiation of a deportation action against the Petitioners by the District Court violates the Constitutional doctrine of separation of powers.

“I don't think our constitution contemplates that we'll have people here and have no way of knowing who they are and what their record is and whether they are wanted,” responded Browning.

“Yes, every person has constitutional rights but when we can't figure out what person you are, then that poses a problem. If it's you and I, and we get charged with one DUI, and we go out and get a second one then it's much worse, but if we don't have a person's record to go back on it's frightening. I don't think the Constitution contemplates that Immigration won't do their job,” said Browning.

“In this case a single judge of the State judicial branch is attempting to initiate deportation proceedings against people she suspects of being illegally in the United States. Deportation is a function of the Federal Executive branch of government. The executive branch of the State government has authority to initiate actions to enforce this federal law, but the judiciary of the State of Kentucky does not,” said Gill.

“With the exception of certain powers reserved exclusively to the judiciary such as contempt powers and possibly bond modification issues, State judges have no power to initiate on their own any action against anyone.”

Gill's order said in the cases in question, “the rule of law has inexplicably been ignored or abandoned by the very institution entrusted to uphold it.”

He said even illegal acts of government are usually pursued for some logical purpose, but that this one has none that is apparent. “Innocent people have been jailed without reason, and Logan and Todd Counties have been forced to bear the cost of these incarcerations with no logical goal in sight,” said Gill, who further stated in the order that it may be because the District Court was frustrated by the problem caused by the decision by the INS not to enforce the Federal immigration laws.

Gill said his court and no doubt many other judges across the Commonwealth have experienced similar frustrations. “This is a real problem,” said Gill. “However, it is a political problem. It is not a dispute between parties to a case placed before a court for decision.”

Gill observed that though incarcerating illegal aliens may be politically popular in the community, a judge must remain neutral and uphold the law. “Judges have the ethical and legal duty to avoid using their judicial power for personal and political purposes. Judges are sworn to uphold the law, even when it becomes unpopular to do so,” said Gill.

“Whether or not legally in the United States, the Petitioners are fellow human beings and deserve to be treated as such. It is unconscionable and absurd to use the innocent and helpless as fodder in this battle.

“Judge Gill is the circuit judge and I will set bond and respect his decision,” said Browning; “however, it puts me in a very difficult situation because I am supposed to set bond based in part on a person's record whether it's their first offense, second offense, third offense or fourth offense, whether they are currently on probation or parole, whether they are currently out on bond or on other charges, and we have no way of knowing these things.”