First, moral or legal concepts are not born in full bloom.
They emerge, are examined and refined, and take on a gloss
defining the limits of application in various contexts. Ideas in
law or ethics are like ideas in science: only a few are really
basic and the rest give way to competing ideas that make more
sense in the changing world that measures their worth.
An interesting thing about ideas: wrong ideas imposed by
law prevent development of better ideas necessary to evolving
culture. So, for example, wrong ideas of governmental immunity
carried into an age of constitutional democracy stagnate
development of democratic relationships and prevent the new
institutions necessary to the changing times.
Appellant's Opening Brief: Page 8 of 35
When dogmatic institutions are enforced beyond their time,
pressure builds for democratic replacements, without which civil
strife and war fill the void. An example of judicial support of a
coercive institution beyond its time was Scott v Sanford, 60 US
393 (1857). The moral foundations of slavery had already
crumbled, but seven Justices found the institution was written
into our Constitution, and thrust the Nation into civil war.
As we will see, judicial immunity, which comes from the same
intellectual era as Dred Scott, prevents development of ideas and
institutions for government accountability to the People under
the Constitution for its wrongs to them. It is an anti-democratic
institution in a democratic age.
2. JUDICIAL IMMUNITY UNDERMINES JUDICIAL CREDIBILITY
Second is the context of intellectual evolution in which
ideas are examined. The moral, legal and scientific world into
which ideas are born changes over time. Judicial ideas, developed
when governments ruled through alliances with the Church and
under authority of the "Divine Right of Kings," are not in the
same moral, legal or scientific world in which they originated.
The result is, justifications that once seemed irrefutable
are now obviously false or irrational. So, for example, once it
was acceptable to argue "Judicial Immunity is justified by Divine
Right of Kings because the King appointed the Judge who acts in
the King's place." But today, such arguments are absurd and, to
reasonable minds, they are arguments against immunity, not for
it.
In context, judicial concepts must keep pace with the
intellectual and theoretical basis of culture to be meaningfully
understood by the People. Justifications of privileges and
immunities not otherwise allowed to anyone, from common law
doctrines of the Divine Right of Kings to a People who reject
both Divine Right and Kings, undermine judicial credibility.
Appellant's Opening Brief: Page 9 of 35
The Principle: If the Judiciary is not reasonable in terms
the People understand, it is seen as an irrational dogmatic
belief system the People will progressively reject.
3. JUDICIAL IMMUNITY VIOLATES TWO AMERICAN REVOLUTIONS
Third are the Revolutionary Changes in accepted legal
theory. America has had two revolutions separating it from the
British.
The first was the Revolution of 1776. It freed the Nation
from British Rule. Thereafter, the law of England had no legal
force in America. We set up our own laws and institutions and
were free to accept or reject any basis for law, until the next
revolution, only fourteen years later.
We sometimes fail to appreciate the significance of adopting
the Constitution. Unlike any other in history, it revolutionized
the relationship between the government and the governed into one
now accepted as the basis for governmental legitimacy around the
world.
British Common Law inconsistent with our Constitution is
legally incompetent, regardless of the supporting justifications
for it. There could be no more complete a break in the legal
bonds of two nations than a war to separate them, and a
constitution from which to go their separate ways. There is no
more compelling a legal reason to adopt English Common Law, than
the ancient law of Rome or of Greece.
Appellant's Opening Brief: Page 10 of 35
Neither the fact (if it is a fact) that Judicial Immunity
was found in English Common Law, nor that judicially created
rules of stare decisis allow courts to refer to Common Law,
allows let alone compels us to adopt particular bodies of that
law.
Ultimately, it is consistency with the Constitution, both in
process and substance, not a rule purporting to authorize
adoption, that determines whether rules of antiquity can become
the law in these United States.
"Laws" inconsistent with the Constitution are not the law of
the United States. For government to coercively insist that it
is, is to court civil war. In this age of science, it is only a
matter of time until the People see it and call it for what it
is: Open Rebellion by Government Against the Constitution.
CONCLUSION OF THIS PART
Reason places constitutional limits on judicial doctrine.
When examined, immunity is an irrational policy of government
coercively taking rights and property, without due process; it
is a systemic injustice by government upon the governed.
The evaluation herein undertakes a three-step process:
First, to define the doctrine to see exactly what Judge
Shubb says is barred from redress.
Second, what is the historic justification for immunity and
what does it mean to Americans of the twenty-first century? If
the doctrine is not justified by today's standards of reason, it
is exposed as a holdover from legal theory long past its time.
Third, is the immunity Judge Shubb applied Constitutional?
Each of these issues will now be examined in turn.
Appellant's Opening Brief: Page 11 of 35
I
THE SCOPE OF THE JUDICIAL IMMUNITY APPLIED
Judge Shubb found Hawks "alleges that the judges violated
her civil rights under Bivens v Six Unknown Named Agents, 403 US
388, and engaged in conspiracy to deprive her of her federally
protected rights. She seeks damages as well as injunctive and
declaratory relief." Memorandum and Order (M&O) 2:5-11.
He ruled that "judges are absolutely immune from civil
liability for damages for their judicial acts," citing Mullis v
US Bankruptcy Court, 828 F2d 1385, 1388, and he found that all
the actions of the judges "occurred within the course of their
judicial duties." (M&O 2:12-17). He went on at M&O 2:17:
"In this circuit, federal judges also have judicial
immunity against claims seeking injunctive or
declaratory relief to the same extent that they are
immune from damages. See Mullis, 828 F2d 1385, and to
actions brought under 42 USC 1985. See O'Conner v State
of Nevada, 686 F. 2d 749, 750. The only exception to
this rule is where a judge acts in the clear absence of
all jurisdiction. Stump v Sparkman, 435 US 348, 356-
357. Here, all four judges acted well within their
jurisdiction, See Mullis, 828 F2d at 1389."
Basically, Judge Shubb relies upon the Mullis case. But, in
point of fact, Hawks did not seek damages and her "injunctive and
declaratory relief" is predicated upon a trial by jury and does
not fall within the ambit of the Mullis holding on that issue. In
fact, one may say Hawks' case is pleaded under Pulliam v Allen
and around Mullis to obtain jury findings of rights violations.
But Judge Shubb's holding ignores those differences and
finds that it doesn't matter what rights the judges violated, nor
how clear they are, nor the malice with which a judge acts, nor
the relief sought. Federal Judges cannot be sued as long as their
acts are within an undefined "subject matter jurisdiction." That
no judge has "jurisdiction" to violate constitutional rights is
immaterial. For the purposes of this appeal, Hawks seeks
Remedies and the Right to sue for damages, notwithstanding that
the constitutional violators are Federal Judges.
Appellant's Opening Brief: Page 12 of 35
Initially, within a week of filing a complaint intended to
be amended before service, Judge Garcia dismissed without notice
or hearing and with prejudice, based on IFP status. In addition
to the lack of due process, the complaint was against local
government for its political persecution of Hawks; it was (and
is) a Petition to the Federal Government to Redress Grievances of
a Constitutional Magnitude with local government, under an act of
Congress specifically authorizing it (42 USC 1983). Given those
facts, it is hard to conceive of anything more constitutionally
protected. (The Court may take judicial notice of facts from
Hawks v Butte Co., 9th Cir. No. 93-15346.)
Judge Garcia had no subject matter jurisdiction. According
to Judge Shubb, the hypothetical fact that Judge Garcia conspired
with Butte County D.A. Defendant Ramsey to dismiss, and that
Ramsey paid him $10,000 to do just that and promised to exercise
his official state power to get Judge Garcia's son out of state
prison in exchange for the dismissal, doesn't matter. But, under
the Mullis rationale, what could matter is that summons wasn't
returned; no defendant appeared and no motion to dismiss was
made; for those reasons, no subject matter was before Judge
Garcia as a judge, but only as an administrator, for which he has
no judicial immunity, even under Mullis.
Further, after the appeal was assigned in this court, Judge
Garcia hypothetically may have met with Judges Canby, Schroeder
and Wiggins in a smoke-filled room behind a San Francisco bar,
split the $10,000 four ways, and negotiated favors that Ramsey
would do for them, in exchange for upholding his dismissal; which
initially they did. (Reversal occurred on reconsideration.)
Appellant's Opening Brief: Page 13 of 35
The point is not that this happened, but that it is possible
under the pleadings. Under Judge Shubb's ruling, it doesn't
matter as to the appeals court judges. But, as to Judge Garcia,
he is again outside his subject matter jurisdiction, and the fact
that he conspired with other judges does not protect him. See
Dennis v Sparks, 449 US 24, 28-29.
That such important constitutional issues should turn on
whether he had, in some undefinable sense, "subject matter"
jurisdiction blatantly to violate First Amendment Rights as he
undeniably did, is an absurdity in its own right.
"Absolute judicial immunity" protects not only "judicial
acts" with subject matter jurisdiction, but the conspiracy and
conspirators that surround those acts. Given what immunity
means, its implication being that if you can't sue, you have no
discovery vehicles of truth determination, few can ever know the
effect of judicial corruption on their Petitions for Redress. The
basis for determining a rights violation in a case like this is
not to see first a conspiracy ... but to see first a "judicial
order" that is so incredible on its face as to imply judicial
arrogance to the constitution and some unknown irregularity
behind the scenes (not apparent on its face) to account for a
"motive" that is necessary to explain why the order issued.
What does "Jurisdiction" mean in this context? Judge Garcia
dismissed with prejudice, without a motion before him; without
notice or hearing; and he assumed this "right" because of Hawks'
IFP status? If that is "jurisdiction" on which to predicate
immunity, then he has "jurisdiction" to shred the files assigned
to him in his office; and to execute those he finds guilty,
without trial, on the spot, in his own courtroom. (Reductio ad
absurdum)
Appellant's Opening Brief: Page 14 of 35
Take the hypothetical of defendants' selling judicial orders
for $10,000. Taking bribes, obtaining favors, conspiring in back
rooms + these are all part of the one indivisible transaction and
not within judicial jurisdiction. But because the "favor" they
trade, the order they sold, is "subject to their jurisdiction,"
immunity attaches to violate constitutional rights of the persons
whose cause is assigned in form only, to a constitutionally
corrupt judge? In that context, "jurisdiction" takes on a very
onerous meaning. It means a judge can do as he pleases with the
matters that are before him in form only.
This is not Lewis Carroll's Wonderland. Judges are not free,
in a constitutional context, to twist words to mean what they
want them to mean. The Mullis treatment of "jurisdiction" is not
jurisdiction but ownership. That's what it means to be free to do
as you want with a matter under your control, and not according
to the trust of the Constitution.1
In the sense by which immunity attaches, "jurisdiction"
means the "personal right of the judge to do as he pleases" with
____________________
1If any person, whether he be judge or Ku Klux Klansman, can take
rights or property under color of law, but without due process
and without a right to redress in them whose other rights or
property are taken, is not the institution that compels such a
result an institution of slavery forbidden by the Thirteenth
Amendment? "Section 1. Neither slavery nor involuntary
servitude, except as a punishment for crime whereof the party
shall have been duly convicted, shall exist within the United
States, or any place subject to their jurisdiction." Thirteenth
Amendment
Appellant's Opening Brief: Page 15 of 35
the subject matter, whether it regularly came before him or not.
As so used, it is an arbitrary and capricious designation that
violates Due Process of Law. A "Jurisdiction" arising under the
Constitution that violates due process is a contradiction and can
hardly be the basis for a legitimate judicial doctrine.
In Mullis, this court quotes the distinction drawn by the
Supreme Court in Stump, at 828 F2d 1389:
"If a probate judge, with jurisdiction over only wills
and estates, should try a criminal case, he would be
acting in the clear absence of jurisdiction and would
not be immune from liability for his action; on the
other hand, if a judge of a criminal court should
convict a defendant of a nonexistent crime, he would be
merely acting in excess of his jurisdiction and would
be immune."
This is an interesting standard when applied to federal
judges. More like state probate courts than criminal courts,
federal courts have limited jurisdiction in "all Cases in Law or
Equity, arising under this Constitution" (Art. III) which they
are sworn to support. (Art. VI) When a case "arising under this
Constitution" is brought to a federal judge and he decides it,
not according to the Constitution, but according to his own
personal prejudice against poverty, that is much more akin to a
probate court deciding a criminal case than a court of general
jurisdiction making a mistake about law or fact.
With respect to a criminal court convicting on a non-
existent crime, there are tremendously different levels of wrong,
from simple error to constitutional outrage, and the Court gives
no guidance. It is one thing for a judge to convict on mistake
of fact or law diligently entertained and otherwise having
jurisdiction and protecting rights of due process, counsel,
confrontation and jury. But it is another thing to convict in
absentia without notice or hearing in a private "trial" in
chambers without a reporter.
Appellant's Opening Brief: Page 16 of 35
The Quality of Judicial Conduct is not changed with the more
likely scenario that the conspiracy is not for money, but to
maintain an illegal policy of clearing cases from the docket. IFP
Pro Per's are an opportunity like little old ladies carrying
purses in dark parks. They are easy pickings for judges to get
rid of cases without getting to the merits, and the Court of
Appeals conspired with Judge Garcia to maintain that policy.
Creating or maintaining illegal policy is no more within the
jurisdiction of judges than conspiring to sell their orders. But
if they do it on cases assigned to them, "jurisdiction" for
immunity attaches? That is form over Constitutional substance.
That, by analogy to the Mullis case, is what these federal
judges did. If these differences don't make a difference as to
application of Judicial Immunity, then Appellant concedes that
this case is under Mullis; but in no way does she concede that
Mullis represents the Supreme Law of this Land.
The Constitution either sets the limits of "Jurisdiction" or
it does not. If it does, then a judge has no jurisdiction to do
what it forbids, nor to do what it commands or allows in ways it
forbids; nor can he change that legal reality by redefining
words. "Subject matter jurisdiction" means the jurisdiction to
do what the supreme law of the land commands, and no other.
But if it does not set those limits, then wherefrom does
such authority come to "courts of limited jurisdiction?" The
Constitutional Authority to Violate the Constitution is a
contradiction in terms denying its own legal supremacy. Unless
we think the Framers were fools, we ought not thrust such a
bizarre result upon them; but we should look for other causes.
Appellant's Opening Brief: Page 17 of 35
THE MULLIS DISTINCTION FROM PULLIAM v ALLEN
As mentioned in the factual statement, and contrary to what
Judge Shubb "found," Appellant did not seek damages from the
judges, except for attorney fees and costs. The major
distinction between this case and Mullis is that she seeks trial
by jury to decide if the defendants violated her rights, and that
her declaratory and injunctive relief be based on the jury's
findings. (Pursuant to this Court's decision in Gobel v Maricopa
County, 867 F2d 1201, fn 6 at 1203, Appellant also demands a
public apology. As will be apparent infra, even if a court cannot
order an apology, she is in a position to demand it.)
Thus, the case should come under Pulliam v Allen, 466 US
522, with a twist: whether or not the Judges violated her civil
rights is to be determined by a jury, just like any other
defendant who is accused of violating her rights. The orders that
issue, if any, are those required by jury findings.
Why is this distinction important? It is important on this
appeal because it distinguishes Mullis from Pulliam, beginning at
828 F2d 1391. But it is important in the underlying case
because, in actual reality, Hawks has no other remedy.
What the Defendants did (FAC Fifth Cause) violated her
Constitutional Rights. She is a victim of civil rights torts, and
crimes under 18 USC 241/242. Because of Judicial Immunity, she
has no civil damage remedy. Because of interpretations like
Mullis, she has no injunctive relief by which to stop them from
violating her rights and to render to her the human respect she
is due under the Constitution.
Appellant's Opening Brief: Page 18 of 35
Just as judicial immunity determined by courts have cut off
her civil remedies, they have cut off her criminal remedies. So,
for example, 42 USC 1987 commands the U.S. Attorney to prosecute
for crimes all persons who violate (now) 18 USC 241/242. But
judicial decisions have left such prosecutions up to the
discretion of the U.S. Attorney. (See Attica Cor. Fac. v
Rockefeller, 477 F2d 375 and Peek v Mitchell, 419 F2d 575.) And
what U.S. attorney is going to exercise his discretion to
prosecute federal judges, let alone Appeals Judges?
Thus, because of judicial immunity and holdings like Mullis,
Appellant is exercising the furthermost reaches of her remedies
to get a jury trial and jury finding of rights violations from
which she can compel an apology from the Defendants, and a
criminal prosecution by U.S. Attorneys who may be less reluctant
to prosecute a judge after a civil jury finding of civil rights
violations.
If this seems as if Appellant is going to extremes to be
treated as a human being, it is because of the constitutionally
contradictory demands of Judicial Immunity. As we have seen,
that immunity is an immensely effective device for depreciating
human dignity. As we shall see in the next part, that immunity
is also not lawful.
Appellant's Opening Brief: Page 19 of 35
II
THE HISTORICAL BASIS FOR JUDICIAL IMMUNITY
Judge Shubb based his dismissal on Mullis v Bankruptcy
Court, 828 F2d 1385. The Judicial Immunity holdings of Mullis
are, in turn, based in Stump v Sparkman, 435 US 349 (1978); and
Bradley v Fisher, 80 US (13 Wall) 335 (1872). The history of
Judicial Immunity in the United States begins with Bradley, a
lawyer who in 1867 defended John Suratt on the charge of
murdering President Lincoln and obtained a hung jury. Fisher was
the trial judge. During a recess, Bradley confronted Judge
Fisher in an allegedly rude and insulting manner, accusing him of
insulting and demeaning Bradley from the beginning of trial.
After trial, Judge Fisher disbarred Bradley from practice in his
court because of the aforesaid. Bradley sued Fisher.
(Note: The verbal conduct Fisher punished Bradley for would
be protected speech today. (Court was in recess.) See Bridges v
California, 314 US 252 (1941); and In Re Hallinan, 71 C2d 1179.
Under the Mullis standard, the recessed court would not have
subject matter jurisdiction over Bradley's speech under Bridges,
and therefore, Judicial Immunity would not attach today.)
A reading of Bradley demonstrates that issues of
Constitutional rights either didn't arise, or weren't addressed.
The issue that is the foundation of Judicial Immunity begins at
80 US 649:
"For it is a general principle of the highest
importance to the proper administration of justice that
a judicial officer, in exercising the authority vested
in him, shall be free to act upon his own convictions,
without apprehension of personal consequence to him-
self."
CHECK THE PREMISE: Is the same not true of at least every
professional person, without the conclusion of immunity
following? You hire an attorney so that, in exercising his
professional competence, he will do so according to his own good
judgment; but if he fails to meet the standard, he is liable. Is
the same not true of a doctor, an engineer, an electrician, and
so on?
Appellant's Opening Brief: Page 20 of 35
Next, Bradley says:
"Liability to answer to everyone who might feel himself
aggrieved by the action of the judge would be
inconsistent with the possession of this freedom and
would destroy that independence without which no
judiciary can be either respectable or useful."
CHECK THE PREMISE: "Subject to liability for violation of
Constitutional Rights" is not "liability to answer everyone who
might feel himself aggrieved by the action of the judge." There
are many reasonable differences, i.e. the grievance must be of
constitutional significance; it must be well enough founded to
survive summary judgment; it must be of a "known" constitutional
right. Moreover, while, in a sense, everyone is accountable under
the law for just grievances of others against him, there are
tools to weed out the just from the unjust. So, for example, in
California, a medically injured person needs a written opinion of
professional negligence before suing.
Justice Field would have us believe that judges would be
terrified of their financial liability. But, the point of fact is
that, absent punitive damages, tradition and the "Tort Claims
Act" have established that, if an official is sued, the Attorney
General Appears for him and the government indemnifies him.
In other words, the "terrifying financial implications" of
judicial liability are simply false; unlike doctors or lawyers,
judges would not even carry the burden of insurance.
Appellant's Opening Brief: Page 21 of 35
With respect to the impairment of judicial function, the day
of judicial mystique is past. A People whose basic lifestyle is
based upon science must question the foundations of judicial
decisions; and more and more the respectability and usefulness of
the judiciary depends upon the soundness of judicial principle
and reasoning, not immunity from accountability. Conversely,
today, in the "heyday of immunity," the judiciary is at its
lowest ebb of respectability.
Next, Justice Field cites an unnamed "distinguished English
Judge" from Taaffe v Downes, 3 Moore P.C. 41, n., to wit:
"The principle therefore, which exempts judges of
courts of superior or general authority from liability
in a civil action for acts done by them in the exercise
of their judicial functions, obtains in all countries
where there is any well ordered system of
jurisprudence. It has been the settled doctrine of the
English Courts for many centuries and has never been
denied, that we are aware of, in the courts of this
country.
"It has, as Chancellor Kent observes, 'a deep root in
the common law.'" Bradley v Fisher, 80 US at 649.
CHECK THE PREMISE: It is not true. What was, in fact,
happening was that the Commonwealth was developing a more
civilized law as they came to recognize the "Unalienable Rights"
of man that gave birth to the United States. The major premise of
Bradley was factually incorrect when made. English common law had
grown to permit judicial liability claims. In Kendillon v Maltby,
174 Eng. Rep. 562,566 (N.P. 1842) (see the Excerpts), Chief
Justice Lord Denman stated the law in l842:
"I have no doubt on my mind, that a magistrate, be hethe highest judge in the land, is answerable in damages
for slanderous language, either not relevant to the
cause before him or uttered after the cause is at an
end; but for words uttered in the course of his duty,
no magistrate is answerable, either civilly or
criminally, unless express malice and the absence of
reasonable or probable cause be established."
Appellant's Opening Brief: Page 22 of 35
Kendillion is a suit for slander by a policeman against a
judge for statements from the bench. Under First Amendment
standards, without judicial immunity, but according the judge the
same immunities due every American, both the same Rule of Law,
and the same result, would obtain. That is, the officer would be
treated as a public figure for which rules of "conscious
disregard of truth" or malice would apply. It is noteworthy that
the reason Lord Denman finds a duty of the judge to speak his
opinion, is basically the same "public interest" upon which
Americans are privileged under the First Amendment.
Next, note, in context with Lord Denman's statement of
English law in 1842, re malice, what Justice Field quotes in
l872:
"Nor can this exemption of the judges from civil
liability be affected by the motives with which their
judicial acts are performed. The purity of their
motives cannot in this way be the subject of judicialinquiry. This was adjudged in the case of Floyd and
Barker, reported by Coke, in 1608, (12 Coke 25) where
it was laid down that the judges of the realm could not
be drawn in question for any supposed corruption
impeaching the verity of their records, except before
the King himself ...."
That ancient England in 1608 had developed systems of
immunities to insulate its nobility from accountability to those
they wrongly injured does not highly recommend that system to
Post Revolutionary America; it merely threatens to recreate the
causes of the Revolution.
Realizing that the right to petition government for redress
of grievances underlies all other rights, including speech and
press, the United States Supreme Court in Bridges v California,
314 US at 263-264, made short work of the argument that such
ancient doctrines of "common law" have any impact on our law:
Appellant's Opening Brief: Page 23 of 35
"For, the argument runs, the power of judges to punish
by contempt out of court publications tending to
obstruct the orderly and fair administration of justice
in a pending case was deeply rooted in English common
law at the time the Constitution was adopted. That this
historical contention is dubious has been persuasively
argued elsewhere. (Cites Omitted, but see Kendillion
supra) In any event, it not detain us, for to assume
that English common law in this field became ours is to
deny the generally accepted historical belief that 'one
of the objects of the Revolution was to get rid of theEnglish common law on liberty of speech, and of the
press in the United States.' 9 Publications American
Sociological Society 67,76."
WHO IS OUR KING: Notice that Justice Field does not quote
Coke as saying Judges are not accountable for malice. Rather, the
exception to question motives of judges was "Before the King,
himself." How do you transpose that to America? Is the
Constitution not clear on who is "King" in our constitutional
democracy?
It is so clearly the right of the jury to determine the
motives of judges, that unless it be so, our own history has
taught us, there be no accountability of government at all.
In the evolution of "well ordered systems of jurisprudence"
the limiting function of constitutions creates systems different
in kind from those that pre-existed. When Bradley refers to "any
well ordered system of jurisprudence," there simply was not the
time in world history necessary to compare to constitutionally
based systems; AND BRADLEY ITSELF prevented development of
concepts of judicial accountability in America and in countries
that looked to us for leadership in developing such concepts.
Does the Bradley rationale still obtain after Commonwealth
Countries had time to develop the Constitutional Limits of
Government which America had begun in l789? Modern cases suggest
that it does not. But, of primary importance is the effect the
Bradley doctrine has had in stagnating the development of
constitutional law throughout the world.
Appellant's Opening Brief: Page 24 of 35
WE ARE THREE WORLDS AWAY FROM ANCIENT ENGLISH LAW.
To be sure, the Revolution and Constitution each created
such legal change so as to separate us legally from England, as
if into separate worlds. But today a third worldwide development
in law is occurring, even as we address this issue. The United
States is not an island, or even a continent. It is a leader,
perhaps THE ONLY leader, of the civilized world. As that leader,
it set treaties into motion by which nations become more
civilized with respect to each other, and in respect to their own
People.
Today the United States is bound by Treaties, entered in
good faith with the United Nations, requiring that it provide
effective remedies and redress for violations of Constitutional
Rights, "notwithstanding that the violation has been committed by
persons acting in an official capacity" and to "develop the
possibilities of judicial remedy." See The International Covenant
on Civil and Political Rights; U.N. Gen. Assem. Res. 2200 A(XXI)
of 16 Dec. l966; Ratified by the U.S. Senate in June l992. See
Article 2. See also the Universal Declaration of Human Rights,
U.N. Gen. Assem. Res. 217-A(III) of 10Dec48; Art. 8. It states:
"Everyone has the right to an EFFECTIVE REMEDY by the
competent national tribunals for acts violating the
fundamental rights granted him by the constitution or
by law." [emphasis added]
It is long overdue for the Supreme Court to revisit Bradley
in light of the impact of Constitutions on the evolution of "well
ordered systems of jurisprudence." Bradley was eighty years out-
of-date when it was written. Its teachings are now two centuries
past their prime and cannot survive in a world of limited
government and constitutional rights. The Treaties mentioned are
the "handwriting on the wall" before the entire world: "Judicial
Immunity" is an embarrassing, and dying institution.
Appellant's Opening Brief: Page 25 of 35
Plaintiff draws the Court's Attention to Three Points:
First, Plaintiff does not contend that there is no "judicial
immunity." She contends that, under the Constitution, it is the
same for judges as for everyone else. As we understand the
Constitution today, privileges from liability for speech are so
substantial that much of the judicial immunity doctrine is
redundant, unnecessary, and unconstitutional.
Second, Kendillion should be examined in conjunction with
Note 3641 from The Digest of Annotated British, Commonwealth and
European Cases which states: "No Liability for acts done in
Judicial Capacity -- UNLESS interference with rights or freedoms
under Constitution -- Award of Damages." Common law countries
now award damages when judges violate constitutional rights.
Note 3641 is in the Excerpts.
When examined together, we see that constitutions develop
clear lines of demarcation between what is and what is not
"duty." By adopting such guidelines, judges know both the limits
of authority and of duty. Those limits today are generally well
settled constitutional doctrines that achieve much of the purpose
of judicially created immunities and simplify constitutional law
immensely.
As for judicial liability, existing doctrines that apply to
everyone equally, incidentally benefit judges specially. For
example, if a judge is not sure whether a particular right exists
or an interest is protected, he can ask for more argument,
certify questions, and take reasonable steps to protect
interests. Constitutional Rights have never been interpreted to
imply strict liability to those who violate them without fault.
They would not be now.
Appellant's Opening Brief: Page 26 of 35
Third, treaties with the U.N. require the U.S. to provide
effective remedies for violations of rights, "notwithstanding
that the violation has been committed by persons acting in an
official capacity" and to "develop the possibilities of judicial
remedy." See The International Covenant on Civil and Political
Rights; U.N. Gen. Assem. Res. 2200 A(XXI) of 16 Dec. l966;
Article 2 and Universal Declaration of Human Rights, U.N. Gen.
Assem. Res. 217 A(III) of 10 Dec 48; Art. 8)
But whether this court agrees with the above or not, the
fact is, as we shall see in Part III, judicial immunity violates
the Constitution. As such, it is a "nullum pactum."
III
JUDICIAL IMMUNITY VIOLATES THE CONSTITUTION
Is a suit against judges for violating constitutional rights
a Petition to Government for Redress of Grievances within the
meaning of the Petition Clause of the First Amendment?
The affirmative answer seems self-evident. It is self-
evident. But, given its prominent position in the Constitution,
few cases have addressed the issue, especially in the context of
distinguishing, as we do here, "the right to sue," on the one
hand, from The Right to Sue Government for Redress of its
Constitutional Wrongs, on the other.
Appellant's Opening Brief: Page 27 of 35
The Supreme Court has declared, "Certainly the right to
petition extends to all departments of the Government. The right
of access to the courts is but one aspect of the right of
petition." California Transport v Trucking Unlimited, 404 US 508,
510 (1972).
The California Supreme Court, based on an analysis of U.S.
Supreme Court holdings, found that:
"The authorities make it clear that the right of
petition protects attempts to obtain redress through
the institution of judicial proceedings as well as
through importuning executive officials and the
Legislature. It is equally apparent that the right
encompasses the act of filing a lawsuit solely to
obtain monetary compensation for individualized wrongs,
as well as filing suit to draw attention to issues ofbroader public interest or political significance. As
the Supreme Court declared in Mine Workers v Illinois
Bar Assn., supra, 318 US 217, 223, 'The First Amendment
does not protect speech and assembly only to the extent
it can be characterized as political.' (see also
Thomas v Collins, supra, 323 US 516, 531) Hence, the
act of filing suit against a governmental entity
represents an exercise of the right of petition and
thus invokes constitutional protection." City of Long
Beach v Bozek, 31 Cal.3d 527, at 533-534 (1982).
The court went on at page 535 to address the issue:
"The right of petition is of parallel importance to the
right of free speech and the other overlapping, cognate
rights contained in the First Amendment and in
equivalent provisions of the California Constitution.
Although it has seldom been independently analyzed, it
does contain an inherent meaning and scope distinct
from the right of free speech. It is essential to
protect the ability of those who perceive themselves to
be aggrieved by the activities of governmental
authorities to seek redress through all the channels of
government. A tort action against a municipality is
but one of the available means of seeking redress."
City of Long Beach v Bozek, 31 Cal.3d 527, at 535.
In U.S. v Hylton the Fifth Circuit held that filing a
complaint against federal officers with state agencies is a
petition for redress protected by the Petition Clause, at 710 F2d
1111:
Appellant's Opening Brief: Page 28 of 35
"As the U.S. Supreme Court has held, the right to
petition for redress of grievances is 'among the most
precious of the liberties safeguarded in the bill of
rights'. (Cites) Inseparable from the guaranteed rightsentrenched in the First Amendment, the right to
petition for redress of grievances occupies a
'preferred place' in our system of representative
government and enjoys a 'sanctity and a sanction not
permitting dubious intrusions.' Thomas v Collins, 323
US 516; 65 S.Ct 315, 322. Indeed, 'It was not by
accident or coincidence that the rights to freedom in
speech and press were coupled in a single guarantee
with the rights of the people peaceably to assemble and
to petition for redress of grievances.' Id. at 323."
It seems to reason that if the filing is protected, then
surely the object of the protected right -- of obtaining a due
process guaranteed fair hearing of the grievance and redress
thereon -- is the very essence of the Petition Clause.
In fact, the characteristic which distinguishes petitioning
through courts from other forms of petition is the access to
compulsory process of law, wherein the parties are equal before
the law. Without ultimate recourse to that compulsory process,
there is no reason for government to listen to grievances at all,
let alone to redress them fairly.
It is therefore axiomatic that, underlying all civil
relations between government and the governed is the right of the
governed to compel government's obedience to law through the
compulsory process of the law. If that is not so, we can end
this discussion now, for you will say that our only rights to
redress are really gifts of government, and we will not accept
your substitution of "gifts" for rights, for then we will
threaten war. And you will not accept our threat of war as a
substitute for the real thing; and that war will come about, even
though neither of us wants it. Those are the battle lines for
civil war.
Appellant's Opening Brief: Page 29 of 35
Now, let us talk peace based on the mutual respect each has
due. The Government and the Governed are Partners. We go nowhere
without each other. Is not that lesson of history so complete
that it need never be tested again? Now, therefore:
Given judicial, quasi-judicial, prosecutorial, and limited
immunities that apply to major portions of federal and state
government functionaries, as determined by courts over the last
123 years; and,
Given the l988 amendments to 28 USC 2674 that "the United
States shall be entitled to assert any defense based upon
judicial or legislative immunity which would otherwise be
available to the employee of the United States whose act or
omission gave rise to the claim (for redress of grievances)";
and,
Given that such immunity applies to violations of
Constitutional Rights;
Then, is there any question but that Congress and the
Judiciary have combined to make "law ... abridging ... the right
of the people ... to petition the Government for a redress of
grievances," in direct violation of the Petition Clause?
When judges conspire to maintain a policy to deprive persons
of "life, liberty, or property, without due process of law" under
a claim of right due to IFP status, do we really have any dispute
as to whether that violates the Fifth Amendment?
Appellant's Opening Brief: Page 30 of 35
When the judiciary creates an institution to deprive injured
persons of redress based upon twists in the meaning of
"jurisdiction," and when it creates case law (with roots in
"Floyd and Barker, reported by Coke, in 1608, (12 Coke 25)") to
deprive injured persons of remedies for violating Our
Constitution, why is that not an institution of involuntary
servitude prohibited by the Thirteenth Amendment? The Supreme
Court in Yick Wo v Hopkins, 118 US 356, 370 (1886) found that:
"Sovereignty itself is, of course, not subject to law,
for it is the author and source of law; but in oursystem, while sovereign powers are delegated to the
agencies of government, sovereignty itself remains with
the people, by whom and for whom all government exists
and acts. And the law is the definition and limitation
of power. ... But the fundamental rights to life,
liberty, and the pursuit of happiness, considered as
individual possessions, are secured by those maxims of
constitutional law which are the monuments showing the
victorious progress of the race in securing to men the
blessings of civilization under the reign of just and
equal laws, so that, in the famous language of the
Massachusetts Bill of Rights, the government of the
commonwealth "may be a government of laws and not of
men." For, the very idea that one man may be compelled
to hold his life, or the means of living, or any
material right essential to the enjoyment of life, at
the mere will of another, seems to be intolerable in
any country where freedom prevails, as being the
essence of slavery itself."
Here, the Supreme Court declared that the essence of slavery
is the holding of any material right essential to the enjoyment
of life at the mere will of another. How much worse a betrayal
of the human spirit that such rights be lost at the whim of the
judicial branch of one's own government to whom he turns for
protection of those rights!
This is not a dispute. There is not a Judge in this Circuit
who does not KNOW that Judicial Immunity, without question,
violates Our Constitution. The problem is that your judicial
ancestors rebelled against Our Constitution, and now you don't
know how to get back to a state of judicial constitutionality.
Appellant's Opening Brief: Page 31 of 35
THE JOURNEY BACK TO JUDICIAL CONSTITUTIONALITY
Justice Brennan faced this question, thirteen years ago in
Briscoe v Lahue, 460 US 325, at 346 in his dissent. It is short
enough to be quoted in the entirety:
"Justice Marshall's Dissenting opinion, post, presents
an eloquent argument that Congress, in enacting Section
1983, did not intend to create any absolute immunity
from civil liability for 'government officials involved
in the judicial process ...' (post, 346-347) Whatever
the correctness of his historical argument, I fear that
this court has already crossed that bridge in Pierson v
Ray, 386 US 547, and Imbler v Pachtman, 424 US 409.
"I entirely agree with Justice Marshall, however, that
the policies of section 1983 and of common-law witness
immunity, as they apply to witnesses who are police
officers, do not justify any absolute immunity for
perjurious testimony. I therefore dissent for the
reasons stated in Part IV of Justice Marshall's
Opinion." (In Part IV, Justice Marshall argues that
absolute police immunity for perjury is not a
compelling, or even rational state policy.)
We, the People, must live with and under the policy
decisions of our government, whether it be the judicial,
executive or legislative branch. But, whether right or wrong in
some remote esoteric sense we cannot understand, the Constitution
entrusts such policy-making into the hands of the Legislature. If
the Judiciary is effectively to balance that policy-making power,
it cannot do so by legislation disguised as "case law" in
usurpation of power reserved to Congress; it must instead
relinquish that illegitimate power back to the People, through
the jury trial process.
Just as the majority policy made in Briscoe v Lahue has
given us the likes of Mark Fuhrman to police our streets and
testify falsely with impunity, the judicial policy to cover-up
the constitutional violations of "Brothers of the Robe" has
created and maintains a "good ol' boy" network of Mark Fuhrmans
within its own ranks.
Appellant's Opening Brief: Page 32 of 35
The problem is that "Mark Fuhrman" is US. Judges Garcia,
Wiggins, Canby and Schroeder are US. To "weed them out" in a
system that corrupts is to replace them with US, and then we too
will become corrupt in that system. The only solution is to fix
the system. It is broken, and it needs fixing desperately.
How to Fix It: The problem is unaccountability to those it
injures in violation of Constitutional Rights. The solution is
accountability to those it injures in violation of Constitutional
Rights. The idea of accountability to those you injure is that
the injured party, through the process of law seeking redress,
polices the system. Immunity blocks that policing of their
government by the People.
It is written that the longest journey begins with but one
step in the right direction. When, as Brennan, Marshall and
Blackmun found in l982, we "fear that the Court has already
crossed that bridge," if it is a bridge in the wrong direction
and you cannot go back, then you must, at least, not continue on
to cross more bridges in the same wrong direction.
All is not lost. The Nation's future can still be enriched
by the lessons learned, and a price too horrible to contemplate
can still be avoided.
Each case of Judicial Immunity presents to each judge a
moral decision: "Shall I obey my oath and support the
Constitution? Or, shall I ignore my oath in support of the more
temporal interests that surround us all?"
In this case, there are three choices:
Appellant's Opening Brief: Page 33 of 35
1. You can violate your oath and advance anti-
constitutional forces by extending the doctrine of Mullis v US
Bankruptcy Court to cover the facts and pleading of this case,
and deny the right to a trial by jury to determine any
constitutional violations, notwithstanding that damages are not
sought.
2. You can expressly limit the Mullis Doctrine to its
facts, bring this case under Pulliam v Allen "with a twist,"
allowing this suit to go forward as pleaded, and begin to
question the whole concept of "Judicially Created Immunities."
That will give the Judiciary the notice necessary to adjust to,
and adopt, its own rules of accountability, designed to prevent
the need for people to sue judges for violations of
Constitutional Rights.
3. For those whose courage and integrity are of the heart
of the lion, you can refuse to honor the disgraceful doctrine in
any form. From you, Appellant seeks the right to amend her
complaint to seek damages as a jury may find "just and proper."
This Court should also consider the long-range national
interests of the Judiciary in a world progressively tending
toward democracy.
On the one hand, it can fight to stagnate the inevitable,
but then it will be confronted with the "future shock" of a
People refusing to listen to Government as the Judiciary has
obstructed the processes by which Government must listen to the
People.
Alternatively, it can and should prepare itself for
inevitable democratic changes and, in its own embrace of those
changes, assist and guide them in coming into being.
Appellant's Opening Brief: Page 34 of 35
The Judiciary will become "democratized." The question is
whether it will embrace, assist, and guide that process. In this
case, what it should do, whether by way of Points Two or Three
above, is to deny any judicial immunity at this stage and to
allow all questions of defense to go to the jury.
The Principle: The policy of judicial immunity is wrong and
that wrong principle was created by the Judiciary. It is a maxim
of jurisprudence: "No one may benefit from their own wrong."
"Democratizing the Judiciary" means in this case: "Let the Jury
decide the constitutional credibility of the defense." If they
reject it, let that be your guide, for the Constitution is theirs
no less than yours. If they accept it, the Mullis doctrine is
vindicated and extended in this case, without the need for
government coercion.
In either case, government and governed shall have given
each his due recognition, and have crossed a bridge into a new
democratic partnership in judicial democracy under a Constitution
that embraces interpretation by the governed, no less than by
those who are chosen to govern.
The Jury is the Great Equalizer of disputes between
government and governed.
Let it do its work.
Dated: December 11, l995
___________________________________
Dixianne Hawks by J.E.W.
Appellant's Opening Brief: Page 35 of 35
bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb
Topic:
ATTORNEYS; CONSTITUTIONAL LAW; DISCRIMINATION; FREEDOM OF SPEECH; LITIGATION; RELIGIOUS GROUPS; SEARCH AND SEIZURE;
Location:
CONSTITUTIONAL LAW; LITIGATION;
September 18, 2006 2006-R-0569
CONSTITUTIONAL VIOLATIONS AND ATTORNEYS' FEES
By: Christopher Reinhart, Senior Attorney
You asked about federal legislation regarding attorneys' fees awards in claims for violations of the constitution's provisions on religion. You also asked about provisions in Connecticut law on attorneys' fees in cases claiming constitutional violations.
SUMMARY
We found two bills in Congress on this topic. Both limit remedies and prohibit awarding attorney's fees in claims against the government for violating the U. S. Constitution's provision on establishment of religion brought under 42 USC §§ 1983 (the main statute for alleging violation's of an individual's federal civil rights). The Senate bill also includes a general provision limiting remedies and prohibiting attorney's fees for any claim for an injury from a violation of the establishment clause brought against the United States or a federal agency or official acting in an official capacity not brought under 42 USC §§ 1983. Both bills are still in committee.
We found a number of Connecticut statutes authorizing civil actions that involve constitutional violations. These include statutes regarding a person's exercise of religion; freedom of speech; deprivation of rights, privileges, or immunities; and certain criminal acts that involve constitutional violations. Anti-discrimination statutes also cover some conduct that would also be considered a constitutional violation. These statutes provide a procedure for filing complaints with the Commission on Human Rights and Opportunities (CHRO) but also include provisions on filing lawsuits. Of these statutes, some explicitly authorize the court to award attorneys' fees. Others authorize the court to award appropriate or equitable relief, and it is unclear whether this could include an award of attorneys' fees. Almost all of these statutes apply to the private as well as the public sector.
In addition, we found one case where the Connecticut Supreme Court recognized a cause of action for damages for a constitutional violation. This case authorized a claim against municipal police officers for violating the state constitution's provisions on unreasonable search and seizure and wrongful arrest. The case does not indicate whether the court could award a prevailing party attorneys' fees.
We did not research whether lawsuits alleging constitutional violations that are not brought under a specific statute could lead to an award of attorneys' fees.
PROPOSED FEDERAL LEGISLATION
The House bill affects claims against the government for violating the U. S. Constitution's provision on establishment of religion (claims brought under 42 USC §§ 1983, the main statute for alleging violation's of an individual's federal civil rights). The bill would (1) limit the remedies in such a case to an injunction and (2) prohibit the court from awarding attorneys' fees to a prevailing plaintiff (H. R. 2679).
The Senate bill amends the same civil rights statute. It limits remedies to injunctions and declaratory relief and prohibits awarding attorneys' fees to a prevailing plaintiff for claims involving the establishment of religion. It states that these claims include those involving a (1) veterans' memorial with religious words or images, (2) public building containing religious words or images, (3) state or political subdivision official seal that has religious words or images, and (4) state or political subdivision chartering a Boy Scout unit or Boy Scouts using state or subdivision public buildings.
The Senate bill also includes a general provision on any claim for an injury from a violation of the establishment clause brought against the United States or a federal agency or official acting in an official capacity. For these cases, it (1) limits remedies to an injunction and declaratory relief and (2) prohibits a court from awarding reasonable attorney fees and expenses to the prevailing party. The bill states that these claims specifically include violations involving (1) a veterans' memorial with religious words or images; (2) a federal building containing religious words or images; (3) religious words or images in the U. S. official seal, currency, or pledge; and (4) chartering Boy Scout units by components of the U. S. armed forces or public entities and Boy Scouts using Department of Defense and other public installations (S. 3696).
CONNECTICUT CONSTITUTION
We found a number of Connecticut statutes authorizing civil actions based on constitutional violations.
Religion
The Connecticut Constitution provides a right of religious liberty (Art 1, §§ 3). It also prohibits compelling someone to join or support a church, prohibits giving legal preference to any religious society or denomination, and provides equal rights for all religious denominations (Art. 7).
A statute prohibits the state or a political subdivision from burdening a person's constitutional exercise of religion (under Art. 1, §§ 3) even with a rule of general applicability unless the burden (1) furthers a compelling government interest and (2) is the least restrictive means to further that interest. The statute provides that it does not authorize the state or a political subdivision to burden any religious belief. And it provides that (1) it cannot be construed to affect, interpret, or address the state constitutional provision prohibiting laws giving preference to any religious society or denomination (under Art. 7) and (2) government funding, benefits, or exemptions that are constitutional do not violate the statute (CGS §§ 52-571b).
This statute addresses actions by any agency, board, commission, department, officer, or employee of the state or a political subdivision.
A person can sue for a violation of these provisions or claim it as a defense and obtain ““appropriate relief”” from the state or political subdivision. The statute does not specify what ““appropriate relief”” is and it is possible that a judge might determine that it includes attorneys' fees.
First Amendment and Similar State Constitutional Rights
The law authorizes an employee to sue his employer, including the state or an instrumentality or political subdivision, if the employee is disciplined or discharged for exercising his rights under the First Amendment of the U. S. Constitution (freedom of speech, press, religion, and assembly) or the provisions of the Connecticut Constitution regarding freedom of religion, speech, press, and right to assemble for redress of grievances and other proper purposes (Art. I, §§§§ 3, 4, 14). This does not apply if the employee's exercise of his rights interferes with the his job performance or his working relationship with his employer. The law allows the employee to recover damages, including punitive damages, and reasonable attorney's fees. The court can award reasonable attorney's fees to the employer if the lawsuit was filed without substantial justification (CGS §§ 31-51q).
Deprivation of Rights, Privileges, or Immunities
The law provides a civil action for damages for personal injury or property damage, and allows the court to award the prevailing party his costs including reasonable attorney's fee, for depriving a person of his rights, privileges, or immunities under state or federal laws or constitutions on account of religion, national origin, alienage, color, race, sex, blindness, or physical disability. This includes intentionally desecrating public property, monuments, structures, religious objects or places of worship, cemeteries, or private structures; placing burning crosses or simulated ones on public property or private property without written consent. The statute provides that it does not create a new cause of action or confer new jurisdiction on the courts (CGS §§ 52-251b).
ANOTHER CASE TO START: Civil Actions For Violations That Are Criminal Acts
A person can sue for injunctive relief, damages, and other relief the court deems just and equitable when someone uses force or threats (2nd degree threatening) with the intent to deprive him or a class of people of the equal protection or privileges and immunities of the laws of this state or the United States. The prohibition applies to individuals acting alone and to those acting in conspiracy with others (CGS §§ 52-571a).
A person injured by conduct that falls under the intimidation based on bigotry or bias crimes can sue for damages for his injury. The court must award triple damages if the injured person prevails and may award other relief and reasonable attorney's fees (CGS §§ 52-571c).
Anti-Discrimination Statutes
Anti-discrimination statutes cover some conduct that would also be considered a constitutional violation. These laws generally prohibit discrimination in employment, housing, credit practices, public accommodation, and government programs and services on the basis of
such things as race, color, sex, national origin, and ancestry. The statutes provide a procedure for filing complaints with CHRO but also include provisions on filing lawsuits.
A person who timely files a complaint with CHRO regarding discriminatory practices can obtain a release from CHRO to bring an action in court under certain circumstances (CGS §§§§ 46a-83a, -101). A court in one of these actions is authorized to grant legal and equitable relief that it deems appropriate and this includes attorneys' fees (CGS §§ 46a-104).
A person can file a claim in court for discriminatory housing practices or breach of a conciliation agreement. A court can grant relief, by injunction or otherwise, as it deems just and suitable. In addition to certain penalties, the statute authorizes the court to grant relief that a presiding officer can grant in a CHRO complaint, which includes allowing a reasonable attorney's fee (CGS §§ 46a-98a, see CGS §§ 46a-86(c)).
A person can sue for violations by state agencies including violations regarding equal employment, discriminatory practices, discrimination in licensing, and discrimination in allocating state benefits. The court can award appropriate relief and the power to grant relief, by injunction or otherwise, as just and suitable (CGS §§ 46a-99).
Search and Seizure and Wrongful Arrest
The Connecticut Supreme Court created a cause of action for damages against municipal police for violations of the state constitution's provisions on unreasonable search and seizure and wrongful arrest (Article I, §§§§ 7 and 9; see Binette v. Sabo, 244 Conn. 23 (1999), summarized in OLR Report 99-R-0078). In the opinion recognizing a cause of action, the state Supreme Court does not discuss the issue of attorney's fees. The court bases its analysis on the U. S. Supreme Court's Bivens line of cases (which deal with a cause of action under the federal constitution). Under the Bivens federal case law, courts do not award attorney's fees to a prevailing party.
Connecticut courts after the Binette ruling have rejected other attempts to create constitutional causes of action for damages based on other constitutional provisions.
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September 2006
FEDERAL COURTS
New Rules Mean Shift Toward Accountability for FEDERAL Judiciary
Chief justice holds rare press conference to applaud both of Tuesday's actions
Tony Mauro, Legal Times
9-20-06 -- Responding to complaints about judicial junkets and conflicts of interest, the Judicial Conference on Tuesday enacted new rules to force judges to use conflict-checking software and to promptly disclose their participation in privately sponsored seminars for which they are reimbursed. . . . Separately, a committee headed by Supreme Court Justice Stephen Breyer issued a report recommending modest changes in how federal courts handle ethical complaints that members of the public file against judges. Among the recommendations is what Breyer described as a "Dutch uncle approach," whereby judges would seek advice on handling certain complaints from judges of another circuit to avoid "home court" bias. . . . Together, Tuesday's actions represent a major shift toward accountability -- or at least transparency -- from segments of a branch of government that has often resisted both. . . . Judges also hoped to defuse pressure from Congress, primarily in the person of House Judiciary Committee Chairman James Sensenbrenner, R-Wis., who has proposed creating an inspector general's office to oversee the judiciary's handling of ethical complaints. The late Chief Justice William Rehnquist appointed the Breyer Committee in 2004, mainly in response to congressional complaints. . . . "Issuance of the two policies and the Breyer Committee report are responsive to these concerns," says University of Richmond law professor Carl Tobias. "If the judiciary does not police itself, Congress may well attempt to do so in ways that judges may find troubling." . . . Tuesday's focus on judicial ethics comes on the eve of the Sept. 21 hearings by the House Judiciary Committee that could lead to the impeachment of California federal trial Judge Manuel Real, which would be the first judicial impeachment since 1989.
Sensenbrenner Statement on
Judicial Conference's Report on Implementation of the Judicial Conduct and Disability Act of 1980
Contact: Jeff Lungren or Terry Shawn, 202-225-2492;
9-20-06 -- House Judiciary Committee Chairman F. James Sensenbrenner, Jr. (R-Wis.) released the following statement today: . . . "I commend the Judicial Conduct and Disability Act Study Committee, headed by Justice Stephen Breyer, for its dedicated work investigating the enforcement of the Judicial Conduct and Discipline Act of 1980, which established a process where federal judges largely self-police their own behavior. The late Chief Justice William Rehnquist also should be commended for taking this issue seriously and establishing this committee in response to my concerns about a number of incidents where the judicial discipline construct had broken down in recent years. . . . "I have not yet had an opportunity to fully review the committee's report having just received it this afternoon. Nonetheless, I am encouraged the committee acknowledges there have been problems with the enforcement of the judicial discipline construct in recent years, particularly in high- profile cases. As the committee states, 'Because the matters at issue have received publicity, the public is particularly likely to form a view of the judiciary's handling of all cases upon the basis of these few. And the mishandling of these cases may discourage those with legitimate complaints from using the Act. We consider the mishandling of five such cases out of 17 - an error rate of close to 30 percent - far too high.' . . . "Today's report finds the Judicial Branch bungled all of the matters in which the House Judiciary Committee conducted extensive oversight. Today's report finds the dismissal of the complaint filed by Rep. Howard Coble and I regarding Judge Cudahy was handled incorrectly. Today's report also finds a complaint filed about procedural shenanigans in the Sixth Circuit Court of Appeals involving the University of Michigan's affirmative action admissions program was handled incorrectly. Likewise, the Judicial Branch's investigation into Judge Real's actions was also handled 'inconsistent with our standards.' Finally, today's report finds the issue related to the truthfulness of Judge Rosenbaum's testimony before the Judiciary Committee was handled improperly. . . . "On a more positive note, the Judicial Conference has adopted two new policies to reduce the likelihood of ethical misconduct issues arising in the future. I look forward to working with the Judicial Branch to curtail mishandling of complaints about judicial misconduct to ensure judges exhibit the highest standards of integrity and conduct."
Judicial Conduct and Disability Act Study Committee
Organizational Meeting
June 10, 2004
The Judicial Conduct and Disability Act Study Committee held its initial organizational meeting today at the Supreme Court. The Chief Justice established the Committee, chaired by Justice Stephen Breyer, to evaluate how the federal judicial system has implemented the Judicial Conduct and Disability Act of 1980. (See 28 U.S.C. §§§§ 351-364.) That Act authorizes "any person" to file a complaint alleging that a federal circuit judge, district judge, bankruptcy judge, or magistrate judge has "engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts," or is physically or mentally unable to perform his or her duties. The Act does not itself prescribe ethical standards; nor does it apply to the Supreme Court.
At today's meeting, the Committee decided that it will initially examine as many non-frivolous Act-related complaints as can be identified, along with a statistical sample of all complaints, filed in the last several years. The Committee will use this information to help shape a further course of examination and analysis, eventually leading to Committee recommendations to the Chief Justice.
"The Committee's task is narrow, but important," Justice Breyer said. "The 1980 Act put a system in place so that action can be taken when judges engage in misconduct or are physically or mentally unable to carry out their duties. We need to see how the system is working. The public's confidence in the integrity of the judicial branch depends not only upon the Constitution's assurance of judicial independence. It also depends upon the public's understanding that effective complaint procedures, and remedies, are available in instances of misconduct or disability."
In addition to Justice Breyer, the Committee members are: Judge J. Harvie Wilkinson (U.S. Court of Appeals for the Fourth Circuit); Judge Pasco M. Bowman (U.S. Court of Appeals for the Eighth Circuit); Judge D. Brock Hornby (U.S. District Court for the District of Maine); Judge Sarah Evans Barker (U.S. District Court for the Southern District of Indiana); and Sally M. Rider (administrative assistant to the Chief Justice).
The Committee will use staff drawn from the Administrative Office of the United States Courts and the Federal Judicial Center. The staff will develop a research plan based both on statistical sampling and interviews, including interviews of judges, administrators, and practicing lawyers, such as prosecutors and defense attorneys. It will examine complaints submitted by members of the public to other institutions, including Congress, and will develop methods for obtaining information from members of the public. Although the Committee will proceed publicly where useful and appropriate, it recognizes the statutory requirement to maintain confidentiality of records and complaints. (See 28 U.S.C. §§ 360.) It will likely take eighteen months to two years for the Committee to complete its work. The Committee will meet again in the fall.
Contempt of Court is quasi-criminal, merits all constitutional protections:
EX PARTE DAVIS, 344 SW 2d 925 (1976)
Pro Se (Without a Lawyer, representing self) pleadings are to be considered without technicality; pro se litigants pleadings are not to be held to the same high standards of perfection as lawyers.
HAINES V. KERNER, 92 S.Ct. 594;
JENKINS V. MCKEITHEN, 395 US 411, 421 (1969);
PICKING V. PENNA. RWY. CO. 151 F.2d 240;
PUCKETT V. COX, 456 F.2d 233.
Quite apart from the guarantee of equal protection, if a law impinges on a fundamental right explicitly or implicitly secured by the Constitution it is presumptively unconstitutional.
If a law has no other purpose that to chill assertion of constitutional rights by penalizing those who choose to exercise them, it is patently unconstitutional.
HARRIS V. McRAE, 100 S.Ct. 2671, 448 U.S. 297, 65 L.Ed.2d 784,rehearing denied 101 S.Ct. 39, 448 U.S. 917, 65 L.Ed.2d 1180 (1980)
In pursuing substantial state interest, state cannot choose means which unnecessarily burden or restrict constitutionally protected activity.
DUNN V. BLUMSTEIN, 92 S.Ct. 995, 405 U.S. 330 (1972)
Only where state action impinges on exercise of fundamental constitutional right or liberties must it be found to have chosen the least restrictive alternative.
SAN ANTONIO INDEPENDENT SCHOOL DIST. V. RODRIGUEZ, 93 S.Ct. 1278, 411 U.S. 1 (1973)
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However, since Ex parte Young, 209 U.S. 123
it has been settled that the Eleventh Amendment provides no shield for a
state official confronted by a claim that he had deprived another of a
federal right under the color of state law. Ex parte Young teaches that
when a state officer acts under a state law in a manner violative of the
Federal Constitution, he
"comes into conflict with the superior authority of that Constitution,
and he is in that case stripped of his official or representative
character and is subjected in his person to the consequences of his
individual conduct. The State has no power to impart to him any immunity
from responsibility to the supreme authority of the United States." Id.,
at 159-160. (Emphasis supplied.)
There is a general rule that a ministerial officer who acts wrongfully, although in good faith, is nevertheless liable in a civil action and cannot claim the immunity of the sovereign. Cooper v. O'Conner, 99 F.2d 133
When a judicial officer acts entirely without jurisdiction or without compliance with jurisdiction requisites CONDITIONS he may be held civilly liable for abuse of process even though his act involved a decision made in good faith, that he had jurisdiction. State use of Little v. U.S. Fidelity & Guaranty Co., 217 Miss. 576, 64 So. 2d 697. Mlml
MR 3.3(a)(2) requires disclosure of material facts to a tribunal "when such disclosure is necessary to avoid assisting a criminal or fraudulent act by the client." The California provisions do not contain such a duty of disclosure. [See 3.3:300 Disclosure to Avoid Assisting Client Crime or Fraud, infra, for further discussion].
prohibits lawyers from knowingly offering false evidence and requires that lawyers who learn that they have offered false material evidence must take "reasonable remedial measures." Further MR 3.3(c) permits a lawyer to refuse to offer evidence that he or she reasonably believes is false, with MR Comment [14] allowing that in criminal cases "a lawyer may, in some jurisdictions, be denied this authority by constitutional requirements governing the right to counsel." By way of comparison, a California lawyer must employ such means "only as are consistent with truth," see CRPC 5-200(A) and must not "seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law," see CRPC 5-200(B); see also, B&PC ¤¤ 6068(d). [See 3.3:600 Remedial Measures Necessary to Correct False Evidence, infra, for further discussion].
which states that a lawyer may not "counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent" is absent from the California corollary. CRPC 5-200(A) contains a more ambiguous and generalized mandate that a lawyer "[s]hall employ, for the purpose of maintaining the causes confided to the member such means only as are consistent with the truth."
Corpus Juris Secundum (CJS), Volume 7, Section 4, Attorney & client: The attorney's first duty is to the courts and the public, not to the client, and wherever the duties to his client conflict with those he owes as an officer of the court in the administration of justice, the former must yield to the latter. Clients are also called "wards" of the court in regard to their relationship with their attorneys. After you have read the foregoing, ask your attorney to see a copy of "regarding Lawyer Discipline & other rules"
provides that "a lawyer shall not obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value." CRPC 5-220 is analogous to MR 3.4(a) in that it prohibits the suppression of evidence that the attorney or client has a legal obligation to reveal or produce. B&PC ¤¤ 6068(d) imposes a general duty to be truthful, including "refrain[ing] from acts which mislead or tend to mislead."
It is improper for the Court to dismiss the attorneys’ fees allegations in the complaint unless it
appears certain that the Third-Party Plaintiffs could prove no set of facts in support of their
claims which would entitle them to relief. Moyo v. Gomez, 40 F.3d 982, 984 (9th Cir. 1994);
Baker v. McNeil Island Corrections Center, 859 F.2d 124, 127 (9th Cir. 1988). Finally, dismissal
without leave to amend is improper unless it is clear that the complaint could not be saved by any
amendment. Daou, 397 F.3d at 710; Gommper, 298 F.3d at 895.
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NATURE AND SOURCES OF OPPOSITION:
Attorney Leonard McDermott: The Claims Commissioner's ruling should be overturned. The Claims Commissioner granted a motion to dismiss on the grounds that he lacked subject matter jurisdiction, citing Belanger as supporting case law. In Belanger, the Court relied on Hultman, which held that government officials who issue statements to the public are protected by the doctrine of severing immunity; however, Hultman did not involve negligence like this claim and instead involved malicious or willful standard.
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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
COMMONWEALTH OF MASSACHUSETTS,
Plaintiff,
v.
PHILIP MORRIS INC., R.J. REYNOLDS TOBACCO COMPANY, BROWN & WILLIAMSON TOBACCO CORPORATION, B.A.T. INDUSTRIES P.L.C., LORILLARD TOBACCO COMPANY, LIGGETT GROUP, INC., NEW ENGLAND WHOLESALE TOBACCO CO., INC., THE COUNCIL FOR TOBACCO RESEARCH - U.S.A., INC., and THE TOBACCO INSTITUTE, INC.,
Defendants.
Case No. 96-10014 (GAO)
January 2, 1996
NOTICE OF REMOVAL
TO: THE HONORABLE JUDGES OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
Petitioners Philip Morris Incorporated, R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation, B.A.T. Industries plc, Lorillard Tobacco Company, Liggett Group, Inc., New England Wholesale Tobacco Co., Inc., Albert H. Notini & Sons, Inc., The Council for Tobacco Research - U.S.A., Inc. and The Tobacco Institute, Inc., who are each and all of the defendants in the above-entitled action, [ Each of the petitioners has decided to join in this single notice of removal in order to avoid a multiplicity of notices of removal. Each petitioner is represented by a separate counsel and preserves its right to assert its independent interests as to any issue or matter, including with respect to any issues or matters relating to the above-titled action. By joining in this single notice of removal, no petitioner authorizes any other party to act on its behalf as to any matter or any issue relating to the above-titled action. Each of the petitioners reserves all rights including defenses and objections as to venue, personal jurisdiction, and service, and the filing of this notice of removal is subject to, and without waiver of, any such defenses and objections.] state:
1. Petitioners desire to exercise their rights under the provisions of Title 28 U.S.C. §§ 1441, et seq., to remove this action from the Superior Court Department of the Trial Court of Middlesex County, Massachusetts, in which said action is now pending under the above-captioned title. [ It would appear that, as of the date of the filing of this notice of removal, none of the defendants has been served in this action.]
2. This is an action in which the District Courts of the United States have been given original jurisdiction upon each of the following bases:
(a) Plaintiff seeks in this action (inter alia) to recover from defendants payments made by Massachusetts pursuant to the federal Medicaid program. As more fully described below, plaintiff's claim is founded in federal law and arises under the laws of the United States within the meaning of 28 U.S.C. §§ 1331.
(b) Plaintiff seeks in this action to recover from defendants payments made pursuant to the federal Medicaid program. As more fully described below, the relevant federal Medicaid statute and regulations issued pursuant thereto both authorize and require the designated Medicaid agency of each participating State such as Massachusetts to bring suit to recover, inter alia, on behalf of the United States government, reimbursement of Medicaid payments from third parties who may be liable for such reimbursement. Accordingly, this action is within the original jurisdiction of this Court under 28 U.S.C. §§§§ 1331 and 1345 in that: (i) it is in the nature of an action by the United States, or by an officer or agency acting on behalf of the United States pursuant to an express authorization in an Act of Congress; and (ii) this action is de facto brought by and on behalf of the United States in that the plaintiff is acting, and is required by federal law to act, as a conduit for the United States in obtaining reimbursement for those Medicaid payments originally wade by the United States via the Commonwealth of Massachusetts .
3. As further described below, the claims alleged in the complaint in principal part fall within the original jurisdiction of this Court. Under the provisions of 28 U.S.C. §§ 1441, et seq., the right exists to remove this action from the Superior Court Department of the Trial Court of Middlesex County, Massachusetts, to the United States District Court for the District of Massachusetts, which embraces the place where this action is pending. Under 28 U.S.C. §§ 1441 and principles of supplemental jurisdiction under 28 U.S.C. §§ 1367, the right exists to remove the entire case to this Court.
4. This action is related to a previously commenced action that is currently pending in the United States District Court for the District of Massachusetts (before the Honorable George A. O'Toole) brought by petitioners Philip Morris Incorporated, R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation, Lorillard Tobacco Company and Liggett Group, Inc., against Scott Harshbarger. the Attorney General of Massachusetts, Civil Action No. 95-12574-GAO, which seeks certain declaratory and injunctive relief. (The Complaint in that related action is annexed hereto as Exhibit A.)
A. This Action Is Founded In Federal Law And Arises Under The Laws Of The United States
5. In this action, the Commonwealth seeks to recover from defendants payments made by Massachusetts under the program established under Title X1X of the Social Security Act, commonly known as the Medicaid Act, 42 U.S.C. §§ 1396 et seq. (see State Court Complaint, annexed hereto as Ex. B, at ¶¶ 6). Under the Medicaid Act, participating states receive federal financial assistance for administering a medical treatment program in accordance with the requirements of the comprehensive federal scheme set forth in the Medicaid Act and regulations promulgated thereunder.
6. The United States government provides the major source of funding for the Medicaid programs throughout the country, and in particular provides 50% of the funds attributable to Massachusetts' participation in Medicaid. In light of this fact, the Medicaid Act and the regulations thereunder create a detailed and comprehensive system governing the recovery by states of monies paid out under the Medicaid program where third parties may be liable for the payment of services provided under the Medicaid program. Accordingly, the federal Medicaid Act requires that each Medicaid recipient assign to the state his or her rights to payment for medical care from any third party, see 42 U.S.C. §§ 1396a(45), 1396k; 42 C.F.R. §§§§ 433.145-148, and that the state Medicaid agency must, as assignee of those rights, follow federally-mandated procedures to determine the least liability of third parties and seek recovery of Medicaid payments from any third parties who may be liable. See 47 U.S.C. §§ 1396a(25), 42 C.F.R. §§§§ 443.135-148. In addition, the federal Medicaid Act and regulations require that if a state receives recovery of Medicaid payments from any liable third party, the state must repay the federal government the applicable federal share of any such recovery. See 42 U.S.C. §§ 1396b(d); 42 C.F.R. §§§§ 433.140(c) & 433.154. bhbh
7. Accordingly, the Supreme Judicial Court of Massachusetts has held that an action by the plaintiff in this action, the Commonwealth of Massachusetts, seeking to recover Medicaid payments from third parties is "based in Federal law." In Harlow v. Chin, 545 N.E.2d 602., 610 (Mass. 1989), the Massachusetts Supreme Judicial Court stated:
A Federal statute requires that States receiving Federal [Medicaid] funds must pursue recovery of the funds from legally liable third parties. 42 U.S.C. §§ 1396a(25). A Federal regulation requires the State to reimburse the Federal government a proportion of such recovery. A state statute duly provides for recovery from third parties and subrogation of the plaintiff's claim.... The Federal statute implementing partial reimbursement of State Medicaid programs mandates that any State receiving these funds must pursue reimbursement from legally liable third parties. The fact that technically a state statute provides for the subrogation is irrelevant. Because the Commonwealth's pursuit of reimbursement is required by Federal law, the right of subrogation is "based in'' Federal law.
8. By virtue of the operation of 28 U.S.C. §§§§ 1441 and 1331, "If the basic right asserted by plaintiff is one based on federal law, then the case is properly [removable], whether or not the complaint expressly states that the right sought to be enforced is a federal one. It is the real nature of the claim and not the characterization given it by plaintiff which must govern," E.g., Produce Terminal Realty Corp. v. New York N.H. & H.R. Co., 116 F. Supp. 451, 453 (D. Mass. 1953) (quoted in lA Moore's Federal Practice, ¶¶ .160[3.3], at p. 233 (1995)). See also Maine Association of Independent Neighborhoods v. Commissioner, Maine Department of Human Services, 876 F.2d 1051, 1052-53 (1st Cir. 1989). Since the plaintiff in this action seeks to recover from defendants payments made by the Commonwealth pursuant to the federal Medicaid program and such a claim is necessarily "based in federal law," this action is properly removable to this Court irrespective of the manner in which plaintiff seeks to characterize the claims in its complaint.
B. This Action Is In The Nature Of An Action Brought By Or On Behalf Of The United States Pursuant To An Express Authorization By An Act Of Congress
9. This action is removable to this Court on the alternative (and independently sufficient) grounds (a) that it is in the nature of an action by the United States, or by an officer or agency acting on behalf of the United States pursuant to an express authorization in an Act of Congress; and (b) that the action in principal part is de facto one brought by and on behalf of the United States in that 50% of any proceeds of the action are required to flow to the United States via the conduit of the named plaintiff, the Commonwealth of Massachusetts.
10. As described above, the federal Medicaid Act and regulations issued pursuant thereto both authorize and require the designated Medicaid agency of each participating state such as Massachusetts to bring suit to recover, inter alia on behalf of the United States government reimbursement of Medicaid payments from third parties who may be liable for such reimbursement. For purposes of determining whether federal jurisdiction exists in an action, state officials in parallel situations have been deemed to be acting as agents or officers of the federal government. See e.g., Kuehner v. Schweiker, 717 F.2d 813, 826 (3d Cir 1983) (Becker, J., concurring) (state officials responsible for administering social security disability procedures "are essentially the alter egos of their [federal] counterparts and effectively are officers, employees, or agents of an agency of the United States"), vacated and remanded on other grounds, 469 U.S. 977 (1984) And, of course, in the converse situation -- where fends being paid our by the state agency are provided in part by the United States Government -- it is well settled that this fact of dollars flowing indirectly out of the Federal Government suffices to invoke the jurisdiction of the federal courts to prosecute as a federal crime false statements made to the state agency. See e.g., United States v. Goldstein, 695 F.2d 1228, 1236 (10th Cir. 1981), cert. denied 462 U.S. 1132 (1983); United States v. Baker, 626 F.2d 512, 514 (5th Cir. 1980). Bhbh
11. In addition, as described above, the federal Medicaid Act (and the regulations thereunder) expressly authorizes and requires the state Medicaid agency of the Commonwealth of Massachusetts to seek recovery of Medicaid payments from liable third parties, and mandates that the applicable "federal share" of any monies recovered be returned to the United States government. Thus, since the above-entitled action seeks to recover Medicaid payments (See Complaint ¶¶ 6), it is an action that is de facto brought by and on behalf of the United States in that the plaintiff is acting, and is required by federal law to act, as a conduit for the United States in obtaining reimbursement for those Medicaid payments originally made by the United States via the Commonwealth of Massachusetts.
* * *
12. Plaintiff here has sought to include as defendants two cigarette distributors -- defendants New England Wholesale Tobacco Co., Inc. and Albert H. Notini & Sons, Inc. -- that are citizens of The Commonwealth of Massachusetts. Such joinder, even if proper, is irrelevant to the first ground of removal set forth herein (¶¶¶¶ 5-8), which rests upon federal question jurisdiction under 78 U.S.C. §§ 1331. See 28 U.S.C. §§ 1441(b). The joinder of these distributors likewise should not operate to bar removal under the second ground for removal set forth herein (¶¶¶¶ 9-11). Properly viewed, this second ground for removal likewise rests upon 28 U.S.C. §§ 1331 as well as 28 U.S.C. §§ 1345 and, thus, joinder of these distributors, even if proper, is irrelevant to this second ground as well. Alternatively, as To this second ground, these two distributor defendants are nor properly joined herein and plaintiff cannot be permitted to utilize such improper joinder to attempt to defeat removal: (i) the Massachusetts statute upon which plaintiff purports to rest its right to bring this action by its terms refers only to suits brought by the Attorney General against ''manufacturers of cigarettes" (see 1994 Mass. Acts 60, §§ 276, annexed hereto as Exhibit C); defendants New England Wholesale Tobacco Co., Inc. and Albert H. Notini & Sons, Inc. are distributors of cigarettes manufactured by others and are not and have not been themselves manufacturers of cigarettes; (ii) the claims purported to be stated against these two distributor defendants do not state valid claims; and (iii) the claims purported to be stated against the two distributor defendants are not properly joined with the claims against the remaining defendants, none of whom are citizens of the Commonwealth of Massachusetts. Moreover, the two distributor defendants do not remotely have the financial wherewithal to answer to the monetary claims of the magnitude publicly asserted by the Attorney General and he non-monetary relief sought by plaintiff would appear to be directed at the defendants who are manufacturers, not the two distributor defendants who are not manufacturers of cigarettes; the two distributor defendants are "straw man" defendants whose joinder in this action by plaintiff is not in good faith and has been done solely for purposes of seeking to manipulate jurisdiction.
13. Pursuant to 28 U.S.C. §§ 1446, a copy of this Notice of Removal is being filed with the Superior Court Department of the Trial Court of Middlesex County, Massachusetts.
14. Pursuant to Rule 81.1 of the Local Rules of the United States District Court for he District of Massachusetts, within thirty days of the filing of this Notice of Removal, defendants will file in this Court certified or attested copies of the summons and complaint and docket entries in the Superior Court Department of the Trial Court of Middlesex County, Massachusetts.
15. Petitioners reserve the right to amend or supplement this Notice of Removal.
WHEREFORE, petitioners hereby remove the action now pending against them in the Superior Court Department of the Trial Court of Middlesex County, Massachusetts, at Docket No. 95-7378, to this Court.
Respectfully submitted,
Marshall Simonds, P.C. (BBO #463980)
Thomas J. Griffin, Jr. (BBO #211400)
GOODWIN, PROCTER & HOAR
Exchange Place
Boston, Massachusetts 02109-2881
(617) 570-1000
Herbert M. Wachtell
WACHTELL, LIPTON, ROSEN & KATZ
51 West 52nd Street
New York, New York 10019
(212) 403-1000
Attorneys for Defendant Philip Morris Incorporated
By filing a complaint under authority of a federal statute, known as federal question jurisdiction, the complainant has stated a claim upon which relief can be granted. In spite of the clear face of the federal question, (statutory authority), implicit within which is the statement of the claim, judges have dismissed millions of complaints for breach of F.R.Civ.P. r 12(b)(6), a legal and logical impossibility. Any judge who has dismissed a complaint for breach under 12(b)(6) where the complainant has cited a federal statute, has violated 18 U.S.C. § 1961 -- obtaining money by artifice, 18 U.S.C. § 241 -- conspiracy against rights and 18 U.S.C § 1001 -- false statement,
JUDICIAL IMMUNITY
Judges have given themselves judicial immunity for their judicial functions. Judges have no judicial immunity for criminal acts, aiding, assisting, or conniving with others who perform a criminal act, or for their administrative/ministerial duties. When a judge has a duty to act, he does not have discretion - he is then not performing a judicial act, he is performing a ministerial act.
Judicial immunity does not exist for judges who engage in criminal activity, for judges who connive with, aid and abet the criminal activity of another judge, or to a judge for damages sustained by a person who has been harmed by the judge's connivance with, aiding and abeting, another judge's criminal activity.
TRESPASSERS OF THE LAW
The Illinois Supreme Court has held that "if the magistrate has not such jurisdiction, then he and those who advise and act with him, or execute his process, are trespassers." Von Kettler et.al. v. Johnson, 57 Ill. 109 (1870)
Under Federal law which is applicable to all states, the U.S. Supreme Court stated that if a court is "without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void; and form no bar to a recovery sought, even prior to a reversal in opposition to them. They constitute no justification; and all persons concerned in executing such judgments or sentences, are considered, in law, as trespassers." Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828)
The Illinois Supreme Court held that if a court "could not hear the matter upon the jurisdictional paper presented, its finding that it had the power can add nothing to its authority, - it had no authority to make that finding." The People v. Brewer, 128 Ill. 472, 483 (1928). The judges listed below had no legal authority (jurisdiction) to hear or rule on certain matters before them. They acted without any jurisdiction.
When judges act when they do not have jurisdiction to act, or they enforce a void order (an order issued by a judge without jurisdiction), they become trespassers of the law,and are engaged in treason (see below).
The Court in Yates v. Village of Hoffman Estates, Illinois, 209 F.Supp. 757 (N.D. Ill. 1962) held that "not every action by a judge is in exercise of his judicial function. ... it is not a judicial function for a judge to commit an intentional tort even though the tort occurs in the courthouse."
When a judge acts as a trespasser of the law, when a judge does not follow the law, the judge loses subject-matter jurisdiction and the judges orders are void, of no legal force or effect.
The U.S. Supreme Court, in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 1687 (1974) stated that "when a state officer acts under a state law in a manner violative of the Federal Constitution, he "comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States." [Emphasis supplied in original].
By law, a judge is a state officer.
The judge then acts not as a judge, but as a private individual (in his person).
VIOLATION OF OATH OF OFFICE
In Illinois, 705 ILCS 205/4 states "Every person admitted to practice as an attorney and counselor at law shall, before his name is entered upon the roll to be kept as hereinafter provided, take and subscribe an oath, substantially in the following form:
'I do solemnly swear (or affirm, as the case may be), that I will support the constitution of the United States and the constitution of the state of Illinois, and that I will faithfully discharge the duties of the office of attorney and counselor at law to the best of my ability.'"
In Illinois, a judge must take a second oath of office. Under 705 ILCS 35/2 states, in part, that "The several judges of the circuit courts of this State, before entering upon the duties of their office, shall take and subscribe the following oath or affirmation, which shall be filed in the office of the Secretary of State:
'I do solemnly swear (or affirm, as the case may be) that I will support the constitution of the United States, and the constitution of the State of Illinois, and that I will faithfully discharge the duties of judge of ______ court, according to the best of my ability.'"
Further, if the judge had enlisted in the U.S. military, then he has taken a third oath. Under Title 10 U.S.C. Section 502 the judge had subscribed to a lifetime oath, in pertinent part, as follows: "I, __________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign or domestic; that I will bear true faith and allegiance to the same; ...".
The U.S. Supreme Court has stated that "No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.". Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401 (1958).
Any judge who does not comply with his oath to the Constitution of the United States wars against that Constitution and engages in acts in violation of the Supreme Law of the Land. The judge is engaged in acts of treason.
Having taken at least two, if not three, oaths of office to support the Constitution of the United States, and the Constitution of the State of Illinois, any judge who has acted in violation of the Constitution is engaged in an act or acts of treason (see below).
If a judge does not fully comply with the Constitution, then his orders are void, In re Sawyer, 124 U.S. 200 (1888), he/she is without jurisdiction, and he/she has engaged in an act or acts of treason.
TREASON
Whenever a judge acts where he/she does not have jurisdiction to act, the judge is engaged in an act or acts of treason. U.S. v. Will, 449 U.S. 200, 216, 101 S.Ct. 471, 66 L.Ed.2d 392, 406 (1980); Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404, 5 L.Ed 257 (1821)
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Title 18, U.S.C., Section 1001
Fraud and False Statements
United States Code
TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 47 - FRAUD AND FALSE STATEMENTS
U.S. Code as of: 01/02/01
Judges have given themselves judicial immunity for their judicial functions. Judges have no judicial immunity for criminal acts, aiding, assisting, or conniving with others who perform a criminal act, or for their administrative/
ministerial duties. When a judge has a duty to act, he does not have discretion - he is then not performing a judicial act, he is performing a ministerial act.
Judicial immunity does not exist for judges who engage in criminal activity, for judges who connive with, aid and abet the criminal activity of another judge, or to a judge for damages sustained by a person who has been harmed by the judge's connivance with, aiding and abeting, another judge's criminal activity.
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EX PARTE VIRGINIA, 100 U.S. 339:
MR. JUSTICE STRONG delivered the opinion of the court.
It was insisted during the argument on behalf of the petitioner that Congress cannot punish a State judge for his official acts; and it was assumed that Judge Cole, in selecting the jury as he did, was performing a judicial act. This assumption cannot be admitted. Whether the act done by him was judicial or not is to be determined by its character, and not by the character of the agent. Whether he was a county judge or not is of no importance. The duty of selecting jurors might as well have been committed to a private person as to one holding the office of a judge. It often is given to county commissioners, or supervisors, or assessors. In former times, the selection was made by the sheriff. In such cases, it surely is not a judicial act, in any such sense as is contended for here. It is merely a ministerial act, as much so as the act of a sheriff holding an execution, in determining upon what piece of property he will make a levy, or the act of a roadmaster in selecting laborers to work upon the roads. That the jurors are selected for a court makes no difference. So are court-criers, tipstaves, sheriffs, &c. Is their election or their appointment a judicial act?
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South Dakota Supreme Court
Hansen v. State Dept. of Transportation, 1998 SD 109
Opinion Filed On Wednesday, September 30, 1998
Formatting provided courtesy of State Bar of South Dakota
and South Dakota Continuing Legal Education, Inc.
222 East Capitol Ave.
Pierre, SD 57501-2596
South Dakota Supreme Court
Appeal from the First Judicial Circuit, Union County, SD
Hon. Richard Bogue, Judge
#20326--Affirmed
Michael D. Stevens, Blackburn, Stevens & Fox, Yankton, SD
Attorneys for Plaintiff and Appellant.
Craig A. Kennedy, Doyle & Kennedy, Yankton, SD
Attorneys for Defendants and Appellees.
Considered on Briefs Jun 2, 1998; Reassigned Aug 18, 1998
Opinion Filed Sep 30, 1998
GILBERTSON, Justice (on reassignment).
[¶¶1] Lisa Hansen (Hansen) was injured after driving her car into an unmarked construction hole on an Interstate 29 bridge. She sued the South Dakota Department of Transportation (DOT), DOT Secretary Richard Howard (Howard), and members of the Transportation Commission (Commission) for negligence in leaving the hole unmarked and unguarded. The trial court granted the defendants' motion to dismiss on the basis that sovereign immunity barred the action. We affirm.
FACTS
[¶¶2] At approximately 7:20 a.m. on October 15, 1993, Hansen was traveling in the southbound lane on Interstate 29 enroute to her teaching job in Jefferson. As she crossed a bridge just south of Exit 18, near Elk Point, her right front wheel suddenly dropped into a hole in the bridge. The impact threw her into the steering wheel, causing serious injuries to her neck, shoulders, and back.
[¶¶3] According to Hansen, a construction crew created the hole by cutting completely through the bridge to remove concrete and rebar. Only the rebar was replaced and the hole was left unmarked and unguarded.
[¶¶4] Hansen sued DOT, Howard, and Commission. She also sued Howard in his official capacity as Director of Highways.(fn1) In her complaint, Hansen alleged the defendants breached a statutory duty to protect motorists from accident and injury by failing to erect signs and guards to warn of the defect in the road. She also alleged a cause of action based on theories of negligence, negligence per se, and res ipsa loquitur.
[¶¶5] Defendants moved to dismiss on the basis that Hansen failed to state a claim upon which relief could be granted and that sovereign immunity barred her claims. The trial court granted DOT's motion to dismiss on the basis that "sovereign immunity is waived only to the extent of coverage afforded by the Public Entity Pool for Liability (PEPL) and that PEPL does not cover public entities, but only their employees." This ruling was not appealed. The court granted Howard and Commission's motion to dismiss on the basis that all of their duties are discretionary and therefore protected by sovereign immunity. Hansen appeals. We affirm.
STANDARD OF REVIEW
[¶¶6] This case was dismissed pursuant to SDCL 15-6-12(b)(5) [hereinafter Rule 12(b)(5)]:
Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:
...
(5) Failure to state a claim upon which relief can be granted[.]
"A motion to dismiss under Rule 12(b)(5) tests the law of a plaintiff's claim, not the facts which support it." Thompson v. Summers, 1997 SD 103, ¶¶5, 567 NW2d 387, 390 (citing Stumes v. Bloomberg, 1996 SD 93, ¶¶6, 551 NW2d 590, 592; Schlosser v. Norwest Bank South Dakota, 506 NW2d 416, 418 (SD 1993)). Schlosser directs the trial court to consider
the complaint's allegations and any exhibits which are attached. The court accepts the pleader's description of what happened along with any conclusions reasonably drawn therefrom. The motion may be directed to the whole complaint or only specified counts contained in it ... . In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. The question is whether in the light most favorable to the plaintiff, and with doubt resolved in his or her behalf, the complaint states any valid claim of relief. The court must go beyond the allegations for relief and examine the complaint to determine if the allegations provide for relief on any possible theory.
506 NW2d at 418 (citations & internal quotations omitted).
[¶¶7] Whether the defendants are protected by sovereign immunity is a question of law, reviewed de novo, with no deference given to the trial court's legal conclusions. Wilson v. Hogan, 473 NW2d 492, 493 (SD 1991) (citations omitted).
[¶¶8] Whether The Doctrine Of Sovereign Immunity Bars Hansen's Claims.
[¶¶9] Generally, the doctrine of sovereign immunity as found in the common law and in the South Dakota Constitution provides that the governing acts of the state, its agencies, other public entities, and their employees cannot be attacked in court without the state's consent. Wilson, 473 NW2d at 494 (citing SDConst art. III, §§27; Blue Fox Bar, Inc. v. City of Yankton, 424 NW2d 915, 917 (SD 1988)).
[¶¶10] In 1986, the Legislature enacted SDCL 21-32A-1, -2, and -3, establishing the procedure for bringing claims against public entities and their employees, other than the state, and waiving sovereign immunity to the extent of participation in a risk-sharing pool or the purchase of liability insurance.
[¶¶11] Also in 1986, the Legislature enacted SDCL ch 3-22, which established PEPL:
There is hereby established the South Dakota public entity pool for liability effective March 1, 1987. The purpose of this program is to provide a fund as the sole source for payment of valid tort claims against all member public entities of the state and their officers and employees for all liability they may incur based upon negligence in the operation of motor vehicles or negligence in performing other acts within an employee's scope of employment ... . Nothing in this chapter shall be determined to be an abrogation, change or modification of the doctrine of governmental or sovereign immunity created by any statute, judicial opinion, ordinance, resolution or tort claims act nor shall this chapter create any cause of action in federal court or under federal law. (emphasis added).
SDCL 3-22-1.
[¶¶12] In 1991, SDCL 21-32A-2 was amended to include the state, and its "employees, officers, or agents," in this waiver of sovereign immunity:
Except insofar as a public entity, including the state, participates in a risk sharing pool or insurance is purchased pursuant to §§21-32A-1, any employee, officer or agent of the public entity, including the state, while acting within the scope of his employment or agency, whether such acts are ministerial or discretionary, is immune from suit or liability for damages brought against him in either his individual or official capacity. The immunity recognized herein may be raised by way of affirmative defense.
See also SDCL 21-32-16:
To the extent such liability insurance is purchased pursuant to §§21-32-15 and to the extent coverage is afforded thereunder, the state shall be deemed to have waived the common law doctrine of sovereign immunity and consented to suit in the same manner that any other party may be sued.
[¶¶13] Before the state waived sovereign immunity to the extent of participation in a risk-sharing pool or the purchase of liability insurance via SDCL ch 21-32A, suit could only be brought against a state employee if a three-step test was met:
(1) The state could not be the real party in interest;
(2) the employee could not be sued in an official capacity; and
(3) the plaintiff had to allege personal negligence on the part of an employee exercising a ministerial function.
Reiman v. Solem, 337 NW2d 804, 805 (SD 1983); see also Gasper v. Freidel, 450 NW2d 226, 230 (SD 1990); Bego v. Gordon, 407 NW2d 801, 806 (SD 1987); National Bank of South Dakota v. Leir, 325 NW2d 845, 847-48 (SD 1982); High Grade Oil Co., Inc. v. Sommer, 295 NW2d 736, 737 (SD 1980).
[¶¶14] Prior to the state's waiver of immunity, a state employee could not be sued in an official capacity because, in that capacity, he or she necessarily shared whatever immunities were retained by the state:
Personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law. Official-capacity suits, in contrast, generally represent only another way of pleading an action against an entity of which an officer is an agent. As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. It is not a suit against the official personally, for the real party in interest is the entity. Thus, while an award of damages against an official in his personal capacity can be executed only against the official's personal assets, a plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the government entity itself.
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The only immunities that can be claimed in an official-capacity action are forms of sovereign immunity that the entity, [as an] entity, may possess, such as the Eleventh Amendment.
Kentucky v. Graham, 473 US 159, 165-67, 105 SCt 3099, 3105-06, 87 LEd2d 114, 121-22 (1985) (citations & internal quotations omitted).
[¶¶15] When the state has waived sovereign immunity to the extent of participation in a risk-sharing pool or the purchase of liability insurance, a state employee sued in his official capacity can no longer avail himself of the defense of sovereign immunity except in defense of alleged negligence arising from the performance of a discretionary act.
[¶¶16] The PEPL, Memorandum of Liability Coverage to the Employees of the State of South Dakota, Endorsement No. 2 (Issue Date May 1, 1996, Effective Date July 1, 1993), provides for damages resulting from negligently performed ministerial acts or tasks.
Ministerial act or task means an act or task that involves obedience to instructions, but demands no special discretion, judgment or skill.
Id. (italics in original, underlining added).(fn2)
[¶¶17] This endorsement is a departure from the exclusion it replaced, which did not make an exception for damages resulting from ministerial acts or tasks. The amendment may have resulted from this court's holding in Kyllo v. Panzer, 535 NW2d 896 (SD 1995), that SDCL 21-32-17 and 21-32A-2 were unconstitutional so far as they extended sovereign immunity to state employees performing ministerial functions.(fn3) "This rule of law that a public employee is liable for negligently performed ministerial acts was first recognized by this court in State v. Ruth, 9 SD 84, 90, 68 NW 189, 190 (1896), seven years after the adoption of the South Dakota Constitution." Kyllo, 535 NW2d at 899 (tracing the common law history of sovereign immunity); see also Wilson, 473 NW2d at 494 ("[T]he negligent acts of public employees are not shielded by sovereign immunity when the employees are acting in a merely ministerial, rather than discretionary capacity.") (collecting cases).
[¶¶18] Hansen states that her allegations of breach of statutory and common-law duties pertain to ministerial acts or omissions by Howard and Commission and thus are not barred by sovereign immunity.(fn4) Therefore, we must examine her claims to determine if she is correct, and if so, whether they survive a motion to dismiss under Rule 12(b)(5). Whether a particular function is discretionary or ministerial is a question of law. Gasper, 450 NW2d at 231-32; Bego, 407 NW2d at 810.
15. We note that PEPL's definition of "ministerial act or task" (supra ¶¶16) comports with that set forth in Kyllo.
Discretionary acts are defined as "those acts wherein there is no hard and fast rule as to course of conduct that one must or must not take and, if there is [a] clearly defined rule, such would eliminate discretion." Black's Law Dictionary 467 (1990). The Restatement Second of Torts §§895D provides that discretionary functions involve the process of administering government, which requires that officers and employees determine a course of action to carry out the purpose for which they are charged. "The basis of the immunity [for discretionary functions] has been not so much a desire to protect an erring officer as it has been a recognition of the need of preserving independence of action without deterrence or intimidation by the fear of personal liability and vexatious suits." Id.
Ministerial acts, on the other hand, are defined as "that which involves obedience to instructions, but demands no special discretion, judgment, or skill." Black's Law Dictionary 996 (1990). In discussing ministerial functions, the Restatement Second provides: "If an act of the official involves less in the way of personal decision or judgment or the matter for which judgment is required has little bearing of importance upon the validity of the act ... Ministerial acts are those done by officers and employees who are required to carry out the orders of others or to administer the law with little choice as to when, where, how or under what circumstances their acts are to be done." Id.
[¶¶52] Violation of the statute "alone is not sufficient to render [defendant] liable to the plaintiff. Before [defendant] may be held to respond in damages it must further appear that [his] violation of the duty placed on [him] by this rule was the proximate cause of plaintiff's injury. The burden of establishing this is on the plaintiff." Blakey v. Boos, 83 SD 1, 8, 153 NW2d 305, 309 (1967) (citation omitted); accord Musch v. H-D Coop., Inc., 487 NW2d 623, 625-26 (SD 1992):
With regard to the proximate cause issue, this court has recognized that the mere violation of a statute is insufficient to support an action for damages. Rather, a plaintiff must show that the violation of a statutory duty was the proximate cause of his injury to support a recovery in negligence. Serles v. Braun, 79 SD 456, 113 NW2d 216 (1962); Zeller v. Pikovsky, 66 SD 71, 278 NW 174 (1938). In Leslie v. City of Bonesteel, 303 NW2d 117, 119 (SD 1981), we stated: "For proximate cause to exist, 'the harm suffered must be found to be a foreseeable consequence of the act complained of ... . The negligent act must be a substantial factor in bringing about the harm.' Williams v. United States, 450 FSupp 1040, 1046 (DSD 1978)."
[¶¶45] An action may be brought against a governmental entity under a theory of "respondeat superior"(fn16) liability.
In the absence of sovereign immunity from tort liability or suit in tort, and with appropriate reservations depending on the effect that the nature of a particular act or function may have on the issue of immunity [i.e., whether the function is discretionary or ministerial], a state government or its agencies or instrumentalities is subject to liability under the doctrine of respondeat superior for the torts of its agents, officers, and employees while acting in the course and scope of their employment or authority[.]
[¶¶33] In Kyllo, 535 NW2d at 901-902 n9, we held that ministerial acts are those "which [involve] obedience to instructions, but [demand] no special discretion, judgment or skill." Under present circumstances, we hold Howard's role in Hansen's accident does not qualify as ministerial and therefore the motion to dismiss was properly granted in his favor.
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QUESTION PRESENTED. 1
Is a state court judge, who has been individually divested of all jurisdiction over a case by virtue of being affirmatively disqualified, who refuses to acknowledge his own divestment, and thereafter commits unconstitutional torts solely under color of the case in which he knows, or should know, that he has lost all jurisdiction, subject to 42 U.S.C. §§1981-88 liability?
1. If certiorari is granted, Petitioner would also seek to determine a subsidiary question regarding Respondent Fields:
Is a state court presiding judge, who commits unconstitutional torts solely in his administrative capacity, furthering the misconduct of another non-immune judge and both a judgment and an arrest warrant entered without jurisdiction by that other judge, subject to 42 U.S.C. §§1981-88 liability?
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The federal Civil Rights case was brought under 42 U.S.C. §§§§ 1981-88. None of the statutory language is at issue; rather the judge-made policy of judicial immunity is sought to be shown inapplicable to circumstances where a judge is affirmatively divested of all jurisdiction in a state case, and thereafter without authority commits 42 U.S.C. §§§§ 1981-88 cognizable acts.
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SEEWHAT GOES WRONG FOR IMMUNITY
Sue conn. Civil process directed against the state shall be served as provided by section 52-64.
(b) In any claim alleging malpractice against the state, a state hospital or a sanitorium or against a physician, surgeon, dentist, podiatrist, chiropractor or other licensed health care provider employed by the state, the attorney or party filing the claim may submit a certificate of good faith to the Claims Commissioner in accordance with section 52-190a. If such a certificate is submitted, the Claims Commissioner shall authorize suit against the state on such claim.
(c) In each action authorized by the Claims Commissioner pursuant to subsection (a) or (b) of this section or by the General Assembly pursuant to section 4-159 or 4-159a, the claimant shall allege such authorization and the date on which it was granted, except that evidence of such authorization shall not be admissible in such action as evidence of the state's liability. The state waives its immunity from liability and from suit in each such action and waives all defenses which might arise from the eleemosynary or governmental nature of the activity complained of. The rights and liability of the state in each such action shall be coextensive with and shall equal the rights and liability of private persons in like circumstances.
(d) No such action shall be brought but within one year from the date such authorization to sue is granted. With respect to any claim pending before the Claims Commissioner on October 1, 1992, or presented to the Claims Commissioner on or after said date for which authorization to sue is granted, any statute of limitation applicable to such action shall be tolled until the date such authorization to sue is granted. Action shall be brought against the state as party defendant in the judicial district in which the claimant resides or, if the claimant is not a resident of this state, in the judicial district of Hartford or in the judicial district in which the claim arose.
TITLE 11 App. > FEDERAL > PART IX > Rule 9027 Prev | Next
Rule 9027. Removal
(a) Notice of Removal (1) Where Filed; Form and Content. A notice of removal shall be filed with the clerk for the district and division within which is located the state or federal court where the civil action is pending. The notice shall be signed pursuant to Rule 9011 and contain a short and plain statement of the facts which entitle the party filing the notice to remove, contain a statement that upon removal of the claim or cause of action the proceeding is core or non-core and, if non-core, that the party filing the notice does or does not consent to entry of final orders or judgment by the bankruptcy judge, and be accompanied by a copy of all process and pleadings.
(2) Time for Filing; Civil Action Initiated Before Commencement of the Case Under the Code. If the claim or cause of action in a civil action is pending when a case under the Code is commenced, a notice of removal may be filed only within the longest of (A) 90 days after the order for relief in the case under the Code,
(B) 30 days after entry of an order terminating a stay, if the claim or cause of action in a civil action has been stayed under § 362 of the Code, or
(C) 30 days after a trustee qualifies in a chapter 11 reorganization case but not later than 180 days after the order for relief.
(3) Time for filing; civil action initiated after commencement of the case under the Code. If a claim or cause of action is asserted in another court after the commencement of a case under the Code, a notice of removal may be filed with the clerk only within the shorter of (A) 30 days after receipt, through service or otherwise, of a copy of the initial pleading setting forth the claim or cause of action sought to be removed, or
(B) 30 days after receipt of the summons if the initial pleading has been filed with the court but not served with the summons.
(b) Notice Promptly after filing the notice of removal, the party filing the notice shall serve a copy of it on all parties to the removed claim or cause of action.
(c) Filing in Non-Bankruptcy Court Promptly after filing the notice of removal, the party filing the notice shall file a copy of it with the clerk of the court from which the claim or cause of action is removed. Removal of the claim or cause of action is effected on such filing of a copy of the notice of removal. The parties shall proceed no further in that court unless and until the claim or cause of action is remanded.
(d) Remand A motion for remand of the removed claim or cause of action shall be governed by Rule 9014 and served on the parties to the removed claim or cause of action.
(e) Procedure After Removal (1) After removal of a claim or cause of action to a district court the district court or, if the case under the Code has been referred to a bankruptcy judge of the district, the bankruptcy judge, may issue all necessary orders and process to bring before it all proper parties whether served by process issued by the court from which the claim or cause of action was removed or otherwise.
(2) The district court or, if the case under the Code has been referred to a bankruptcy judge of the district, the bankruptcy judge may require the party filing the notice of removal to file with the clerk copies of all records and proceedings relating to the claim or cause of action in the court from which the claim or cause of action was removed.
(3) Any party who has filed a pleading in connection with the removed claim or cause of action, other than the party filing the notice of removal, shall file a statement admitting or denying any allegation in the notice of removal that upon removal of the claim or cause of action the proceeding is core or non-core. If the statement alleges that the proceeding is non-core, it shall state that the party does or does not consent to entry of final orders or judgment by the bankruptcy judge. A statement required by this paragraph shall be signed pursuant to Rule 9011 and shall be filed not later than 10 days after the filing of the notice of removal. Any party who files a statement pursuant to this paragraph shall mail a copy to every other party to the removed claim or cause of action.
(f) Process After Removal If one or more of the defendants has not been served with process, the service has not been perfected prior to removal, or the process served proves to be defective, such process or service may be completed or new process issued pursuant to Part VII of these rules. This subdivision shall not deprive any defendant on whom process is served after removal of the defendant’s right to move to remand the case.
(g) Applicability of Part VII The rules of Part VII apply to a claim or cause of action removed to a district court from a federal or state court and govern procedure after removal. Repleading is not necessary unless the court so orders. In a removed action in which the defendant has not answered, the defendant shall answer or present the other defenses or objections available under the rules of Part VII within 20 days following the receipt through service or otherwise of a copy of the initial pleading setting forth the claim for relief on which the action or proceeding is based, or within 20 days following the service of summons on such initial pleading, or within five days following the filing of the notice of removal, whichever period is longest.
(h) Record Supplied When a party is entitled to copies of the records and proceedings in any civil action or proceeding in a federal or a state court, to be used in the removed civil action or proceeding, and the clerk of the federal or state court, on demand accompanied by payment or tender of the lawful fees, fails to deliver certified copies, the court may, on affidavit reciting the facts, direct such record to be supplied by affidavit or otherwise. Thereupon the proceedings, trial and judgment may be had in the court, and all process awarded, as if certified copies had been filed.
(i) Attachment or Sequestration; Securities When a claim or cause of action is removed to a district court, any attachment or sequestration of property in the court from which the claim or cause of action was removed shall hold the property to answer the final judgment or decree in the same manner as the property would have been held to answer final judgment or decree had it been rendered by the court from which the claim or cause of action was removed. All bonds, undertakings, or security given by either party to the claim or cause of action prior to its removal shall remain valid and effectual notwithstanding such removal. All injunctions issued, orders entered and other proceedings had prior to removal shall remain in full force and effect until dissolved or modified by the court.
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Sec. 34-168. Transfer of property. (a) Except as provided in subsection (e) of this section, property of the limited liability company that is held in the name of the limited liability company may be transferred by an instrument of transfer executed by any member in the name of the limited liability company.
(e) If the articles of organization provide that management of the limited liability company is vested in a manager or managers: (1) Title to property of the limited liability company that is held in the name of the limited liability company may be transferred by an instrument of transfer executed by any manager in the name of the limited liability company; and (2) a member, acting solely in his capacity as a member, shall not have such authority.
607.0627 Restriction on transfer of shares and other securities.--
MOST IMPORTANT: (1) The articles of incorporation, the bylaws, an agreement among shareholders, or an agreement between shareholders and the corporation may impose restrictions on the transfer or registration of transfer of shares of the corporation. A restriction does not affect shares issued before the restriction was adopted unless the holders of such shares are parties to the restriction agreement or voted in favor of the restriction.
History.--s. 44, ch. 89-154.
607.1324 Shareholder's acceptance of corporation's offer.--
(1) If the shareholder states on the form provided in s. 607.1322(1) that the shareholder accepts the offer of the corporation to pay the corporation's estimated fair value for the shares, the corporation shall make such payment to the shareholder within 90 days after the corporation's receipt of the form from the shareholder.
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(2) Upon payment of the agreed value, the shareholder shall cease to have any interest in the shares.
History.--s. 28, ch. 2003-283.
Title 36 608.425
(1) All property originally contributed to the limited liability company or subsequently acquired by a limited liability company by purchase or otherwise is limited liability company property. (2) Unless otherwise provided in the articles of organization or the operating agreement, property acquired with limited liability company funds is limited liability company property. (3) Instruments and documents providing for the acquisition, mortgage, or disposition of property of the limited liability company shall be valid and binding upon the limited liability company, if they are executed in accordance with this chapter.
608.426 f.s.
Abstract: (1) The limited liability company may make distributions to its members in accordance with the provisions contained in the operating agreement, except that no distribution may be made if after the distribution the limited liability company would be insolvent. In the case of any distribution based upon such financial statement or such a valuation, each such distribution shall be identified as a distribution based upon such financial statements or a fair valuation of assets,
History.--s. 2, ch. 82-177; s. 40, ch. 83-215; s. 29, ch. 93-284; s. 52, ch. 97-102; s. 1, ch. 99-315.
608.427 Withdrawal of member and distribution upon withdrawal.--
MOST IMPORTANT: (1) A member may withdraw from a limited liability company only at the time or upon the occurrence of an event specified in the articles of organization or operating agreement and in accordance with the articles of organization or operating agreement. Notwithstanding anything to the contrary under applicable law, unless the articles of organization or operating agreement provides otherwise, a member may not resign from a limited liability company prior to the dissolution and winding up of the limited liability company. Notwithstanding anything to the contrary under applicable law, the articles of organization or operating agreement may provide that a limited liability company interest may not be assigned prior to the dissolution and winding up of the limited liability company.
(2) Upon withdrawal, a withdrawing member is entitled to receive any distribution to which the withdrawing member is entitled under the articles of organization or operating agreement, and, if not otherwise provided in the articles of organization and operating agreement, the withdrawing member is entitled to receive, within a reasonable time after withdrawal, the fair value of the withdrawing member's interest in the limited liability company as of the date of resignation based upon the withdrawing member's right to share in distributions from the limited liability company.
History.--s. 2, ch. 82-177; s. 31, ch. 93-284; s. 53, ch. 97-102; s. 1, ch. 99-315.
Limited Liability Companies
Florida Statutes provide for the formation of limited liability companies
(“LLCs”). LLCs provide members the same limited liability that shareholders of a corporation
enjoy, but are taxed as partnerships. Also, Florida imposes an annual intangibles tax on membership interests in LLCs under certain circumstances. The Florida Limited Liability Company Act contains very few mandatory provisions regarding management operations. The principal organizing document is the operating agreement. Most statutory provisions are subject to the operating agreement, and the LLC members are free to a substantial extent to create their own organizational provisions.
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Rev. Rul. 77-287 Section 2031. - Definition of Gross Estate 26 CFR 20.2031-2: Valuation of stocks and bonds. (Also Sections 170, 2032, 2512; 1.170A-1, 20.2032-1, 25.2512-2.) July, 1977 [*1] Valuation of securities restricted from immediate resale. Guidelines are set forth for the valuation, for Federal tax purposes, of securities that cannot be immediately resold because they are restricted from resale pursuant to Federal securities laws; Rev. Rul. 59- 60 amplified. SECTION 1. PURPOSE. The purpose of this Revenue Ruling is to amplify Rev. Rul. 59-60, 1959-1 C.B. 237, as modified by Rev. Rul. 65-193, 1965-2 C.B. 370, and to provide information and guidance to taxpayers, Internal Revenue Service personnel, and others concerned with the valuation, for Federal tax purposes, of securities that cannot be immediately resold because they are restricted from resale pursuant to Federal securities laws. This guidance is applicable only in cases where it is not inconsistent with valuation requirements of the Internal Revenue Code of 1954 or the regulations thereunder. Further, this ruling does not establish the time at which property shall be valued. SEC. 2. NATURE OF THE PROBLEM. It frequently becomes necessary to establish the fair market value of stock that has not been registered for public trading when the issuing company has stock of the same class that is actively [*2] traded in one or more securities markets. The problem is to determine the difference in fair market value between the registered shares that are actively traded and the unregistered shares. This problem is often encountered in estate and gift tax cases. However, it is sometimes encountered when unregistered shares are issued in exchange for assets or the stock of an acquired company. SEC. 3. BACKGROUND AND DEFINITIONS. .01 The Service outlined and reviewed in general the approach, methods, and factors to be considered in valuing shares of closely held corporate stock for estate and gift tax purposes in Rev. Rul. 59-60, as modified by Rev. Rul. 65-193. The provisions of Rev. When Results Count Consulting Valuations Expert Testimony www.fvginternational.com
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REV. Rul. 59-60, as modified, were extended to the valuation of corporate securities for income and other tax purposes by Rev. Rul. 68-609, 1968-2 C.B. 327. .02 There are several terms currently in use in the securities industry that denote restrictions imposed on the resale and transfer of certain securities. The term frequently used to describe these securities is "restricted securities," but they are sometimes referred to as "unregistered securities," "investment letter stock," "control stock," or "private [*3] placement stock." Frequently these terms are used interchangeably. They all indicate that these particular securities cannot lawfully be distributed to the general public until a registration statement relating to the corporation underlying the securities has been filed, and has also become effective under the rules promulgated and enforced by the United States Securities & Exchange Commission (SEC) pursuant to the Federal securities laws. The following represents a more refined definition of each of the following terms along with two other terms - "exempted securities" and "exempted transactions." (a) The term "restricted securities" is defined in Rule 144 adopted by the SEC as "securities acquired directly or indirectly from the issuer thereof, or from an affiliate of such issuer, in a transaction or chain of transactions not involving any public offering." (b) The term "unregistered securities" refers to those securities with respect to which a registration statement, providing full disclosure by the issuing corporation, has not been filed with the SEC pursuant to the Securities Act of 1933. The registration statement is a condition precedent to a public distribution of securities [*4] in interstate commerce and is aimed at providing the prospective investor with a factual basis for sound judgment in making investment decisions. () The terms "investment letter stock" and "letter stock" denote shares of stock that have been issued by a corporation without the benefit of filing a registration statement with the SEC. Such stock is subject to resale and transfer restrictions set forth in a letter agreement requested by the issuer and signed by the buyer of the stock when the stock is delivered. Such stock may be found in the hands of either individual investors or institutional investors. (d) The term "control stock" indicates that the shares of stock have been held or are being held by an officer, director, or other person close to the management of the corporation. These persons are subject to certain requirements pursuant to SEC rules upon resale of shares they own in such corporations. (e) The term "private placement stock" indicates that the stock has been placed with an institution or other investor who will presumably hold it for a long period and ultimately arrange to have the stock registered if it is to be offered to the general public. Such stock [*5] may or may not be subject to a letter agreement. Private placements of stock are exempted from the registration and prospectus provisions of the Securities Act of 1933.
SEC. 5. FACTS AND CIRCUMSTANCES MATERIAL TO VALUATION OF RESTRICTED SECURITIES. .01 Frequently, a company has a class of stock that cannot be traded publicly. The reason such stock cannot be traded may arise from the securities statutes, as in the case of an "investment letter" restriction; it may arise from a corporate charter restriction, or perhaps from a trust agreement restriction. In such cases, certain documents
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82000 Conn. Super. LEXIS 2987, at **21-22 (Conn. Super. Ct. Nov. 15, 2000). In Stone, the court held that there being presented no history of oppressive or unfair dealing with the petitioner, nor any evidence that her reasonable expectations were suppressed by the corporation's conduct, it was not inequitable or unfair to give effect to the shareholders' agreement for determining the fair value of the plaintiff's stock. See id. at *37.
STONE v. R.E.A.L. HEALTH, P.C., No. CV98-41 49 72 (Nov. 15, 2000)
ELSA L. STONE, M.D. v. R.E.A.L. HEALTH, P.C., ET AL.
2000 Ct. Sup. 14157, 29 CLR 219
No. CV98-41 49 72
Superior Court
Judicial District of New Haven at New Haven.
November 15, 2000
MEMORANDUM OF DECISION
RULING: “If the parties have previously entered into a shareholders agreement that defines or provides a method for determining the fair value of shares to be sold, the court should look to such definition or method unless the court decides it would be unjust or inequitable to do so in light of the facts and circumstances of the particular case.[emphasis added.]" Model Business Corporation Act Official Comment to General Statutes §§ 33-900.”
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The plaintiff argues that the court's rulings must take into consideration what she describes as the oppressive conduct of the other directors. There is no developed case law in Connecticut as to the meaning of `oppression' in this context. The legislative history of the law in Connecticut demonstrates a desire to consider the Model Business Corporation Act and its commentary as expressive of the intent of the legislature in passage of the act. In proceedings on the floor of the state House discussing the passage of the Connecticut version of the Model Business Corporation Act, which includes the sections at issue in this litigation, Representative Richard D. Tulisano stated: "I also wanted to put on the record that there are in fact commentaries that have (CT Page 14166) been established which help one interpret this act, both at the Connecticut commentary and there is commentary to the model act that people should look to for reference and understanding of the intent of the drafters of the legislation. I also ought to be very honest that I have not read all of those, nor do I necessarily agree with all of those commentaries and for whatever that means for legislative purposes, certainly the proponents of the bill would like that to be looked at. It is probably the normal way (CT Model Buss. Act) of interpreting the legislation. In the future, it's the way the UCC was done and it's probably the way it should be done here." 3, 7 H.R. Proc., Pt. 18, 1994 Sess. p. 6446. The commentary instructs the court to consider the provisions of the shareholder agreement for the determination of fair value, unless to do so would be unjust or inequitable. CUT TO LEGISLATORS:
In proceedings on the floor of the state House discussing the passage of the Connecticut version of the Model Business Corporation Act, which includes the sections at issue in this litigation, Representative Richard D. Tulisano stated: "I also wanted to put on the record that there are in fact commentaries that have (CT Page 14166) been established which help one interpret this act, :
THE CONNECTICUT GENERAL ASSEMBLY HOUSE OF REPRESENTATIVES MAY 2, 1994
Through you, Mr. Speaker, as I understand it, the bylaws would prevail. There's another section in here that makes it clear that you might amend the bylaws, as I recall. REP. RADCLIFFE: (123rd) Through you, Mr. Speaker, I'm referring to section 109 in the change of the law. The current law allows the corporation or gives the corporation, as I understand it, the ability to indemnify officers, directors, shareholders, but does not require that. So, through you, Mr. Speaker, I would assume that if the bylaws or articles of incorporation were silent, they would now have that duty. What I'm asking is, can a corporation through its bylaws or through its articles of organization, eliminate the duty to indemnify, notwithstanding what would be section 109 of this act. Through you, Mr. Speaker. REP. TULISANO: (29th) Through you, Mr. Speaker, if it's included in the articles of incorporation, section 109 makes reference to the articles of incorporation, as I recall, so that you may reverse the statutory obligation {valuation Method, and divorce court equity rulings not only Sec 33} if you put it in your certificate of incorporation.
ACTING SPEAKER REP. COURTNEY: (56th)
Representative Radcliffe. REP. TULISANO: (29th) Thank you. So I understand this, for purposes of legislative intent, the mandatory provision applies only if the bylaws and the articles of incorporation are silent. Through you, Mr. Speaker. REP. TULISANO: (29th) Through you, Mr. Speaker, that's correct, but I think this points out why we gave it even a longer effective date, because those kinds of shifts are occurring throughout this legislation which we want to make sure everybody is aware of and comfortable before they go into effect. ACTING SPEAKER REP. COURTNEY: (56th) Representative Radcliffe. REP. RADCLIFFE: (123rd) Thank you, and through you, Mr. Speaker, one final question regarding the rights of shareholders and directors that I was a little bit uncomfortable with. A derivative action, are we making it easier for shareholders to institute a derivative action against a corporation than under current law? Through you, Mr. Speaker. ACTING SPEAKER REP. COURTNEY: (56th) Representative Tulisano. REP. TULISANO: (29th)
Through you, Mr. Speaker, honestly, I'm not sure. REP. RADCLIFFE: (123rd) Okay, that's a very honest answer. It seems here in this section that we're giving shareholders some additional rights that they didn't have under current law in order to initiate these actions and perhaps before the effective date of this act in 1997, this is another one of the areas that people are going to take a look at. I would rise in support of the bill to the extent that this bill could be examined thoroughly. I think it has. I assume that after passage it will be examined and reexamined by those who operate in this area, and if there are changes that ought to be made or omissions, that are in the current bill, that we would have ample opportunity to correct those. I'm glad to see the amendment clarify the effective date. I think that was important for this particular bill.
1994 GENERAL ASSEMBLY SENATE WEDNESDAY May 4, 1994 The Senate
Concerning Substitute for Senate Bill No. 230, AN ACT CONCERNING DISCLOSURE OF POINTS ON SECONDARY MORTGAGE LOANS.
If the parties are unable to reach agreement, any or all terms of the purchase may be set by the court . . ., and the court may find it useful to consider valuation methods that would be relevant to a judicial appraisal of shares under [ ]. . . . If the court finds that the value of the corporation has been diminished by the wrongful conduct of controlling shareholders, it would be appropriate to include as an element of fair value the petitioner's proportional claim for any compensable corporate injury. In cases where there is dissension but no evidence of wrongful conduct, "fair value" should be determined with reference to what the petitioner would likely receive in a voluntary sale of shares to a third party, taking into account his minority status. If the parties have previously entered into a shareholders agreement that defines or provides a method for determining the fair value of shares to be sold, the court should look to such definition or method unless the court decides it would be unjust or inequitable to do so in light of the facts and circumstances of the particular case.[emphasis added.]" Model Business Corporation Act Official Comment to General Statutes §§ 33-900.
The shareholders' agreement between the parties provides a method for the determination of the fair value of the shares of the plaintiff. The agreement was signed by the plaintiff as well as the individual defendants. It provided a formula which determined the amount to be paid to a departing shareholder for her shares of stock in the corporation, in the event of, inter alia, the termination of that physician's employment with the corporation.
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12. ---- Continuing duty, time of accrual
Under contract providing for continuing, indivisible responsibility for attainment of an end result as distinguished from contract for performing of specific definable act, statute of limitations does not begin to run until continuing course of conduct is completed. Skidmore, Owings and Merrill v. Connecticut General Life Ins. Co. (1963) 197 A.2d 83, 25 Conn.Supp. 76. Limitation Of Actions 50(1)
complaint counter claim or third party claim
stay 2 weeks
summons form civil sup ct jd-cv-1-revised 1-2000 notice of removal
removal form ori
pleading pending- no pending motions
state courts notice of removal state form complaint attached pleading motion DEFENDANT’’S MOTION TO REMOVE TO FEDERAL DISTRICT COURT.
Three elements of fraud
Incentive: I want to, or have a need to, commit fraud.
Opportunity: There is a weakness in the system that the right person could exploit. Fraud is possible.
Rationalization: I have convinced myself that this fraudulent behavior is worth the risks.
Capability: I have the necessary traits and abilities to be the right person to pull it off. I have recognized this particular fraud opportunity and can turn it into reality.
In order to prevail in a common law fraud lawsuit each of the following must be present and you must be able to prove that in court. Here they are:
1. Someone said something or represented something to you.
2. The statement or the representation was false.
3. The statement or the representation was material (important)
4. At they time they made the statement they knew it was false or misleading.
5. They meant for you to rely on the statement.
6. You did not know the statement was misleading or false
7. You relied on the statement.
8. Your reliance was justified.
9. You suffered damages as a result of your reliance.
The crime of fraud/deceit has three key elements: (1) a statement by the perpetrator which has a false implication, (2) the listener’’s reliance upon that which appears to be the truth and takes action based upon this reliance, and (3) the listener’’s action causes harm to the listener, or harm to others, when the listener takes the action expected of him. An outright false statement has a false implication, but so does the more deceitful ““half-truth,”” ““technical truth,”” or ““literal truth.”” To be fair, frauds are also unfortunately common, and usually, only the most egregious frauds are prosecuted.
125 Sample Jury Instructions -- Food Fraud -- Additional Instructions
Conspiracy To Commit An Offense
Conspiracy To Defraud The United States
Basic Elements
(1) Count One of the Indictment accuses the defendants of conspiring to violate the federal mail fraud statute and to violate the Federal Food, Drug, and Cosmetic Act. Count One also accuses the defendants of conspiring to defraud the United States. It is a crime for two or more persons to conspire, or agree, to commit a criminal act even if they never actually achieve their goal.
(2) A conspiracy is a kind of criminal partnership. For you to find any one of the defendants guilty of the conspiracy charge, the United States must prove each and every one of the following elements beyond a reasonable doubt:
(A) First, that two or more persons conspired, or agreed, to commit the crimes described above.
(B) Second, that the defendant you are considering knowingly and voluntarily joined the conspiracy.
(C) And third, that a member of the conspiracy did one of the overt acts described in the Indictment for the purpose of advancing or helping the conspiracy.
(3) You must be convinced that the United States has proved all of these elements beyond a reasonable doubt in order to find any one of the defendants guilty of the conspiracy charge.
(4) In the context of a conspiracy to defraud the United States, the word "defraud" is not limited to its ordinary meaning of cheating the government out of money or property. "Defraud" also means impairing, obstructing, or defeating the lawful function of any government agency or department by dishonest means. In this case, the Indictment alleges that the defendants and their co-conspirators sought to impair, impede and defeat the United States' efforts to regulate and control the manufacture and distribution of orange concentrate products by attempting to cover up the addition of sugar and other substances in products sold as unsweetened orange juice products, and to prevent government personnel from uncovering those activities.
Pattern Criminal Jury Instructions of the District Judge Association of the Sixth Circuit, Instruction No. 2.08 (modified).
"Intent to Defraud and Mislead": Ninth Circuit Model Jury Instruction No. 3.15 [Intent to Defraud -- Defined] (modified).
Elements of "Conspiracy"
The elements of a conspiracy offense under 18 U.S.C. §§ 371 are:
(1) that two ore more persons conspired, or agreed, to commit the crimes described in the indictment;
(2) that the defendants knowingly and voluntarily joined the conspiracy; and
(3) that a member of the conspiracy did one of overt acts for the purpose of advancing or helping the conspiracy.
The 9 elements of Oregon fraud are: 1) A representation; 2) Its falsity; 3) Its materiality; 4) The speaker's knowledge of the representation's falsity or ignorance of its truth; 5) Intent that the representation be acted on in a manner reasonably contemplated; 6) The hearer's ignorance of the falsity of the representation; 7) The hearer's reliance on its truth; 8) The hearer's right to rely on the representation; and 9) Damage caused by the representation. Musgrave v. Lucas, 193 Or 401, 410, 238 P2d 780 (1951); Webb v Clark, 274 Or 387, 391, 546 P2d 1078 (1976).
The 9 elements of fraud as they apply to Judicial fraud are: 1) A representation of law by the judge 2) Its falsity of law application; 3) Its materiality as to the legal effect forcing a party to act; 4) The judge’s knowledge of the representation's falsity or ignorance of its truth; a higher standard is put upon judges to know the law 5) Intent that the representation of law be acted on in a manner reasonably contemplated; 6) The hearer's ignorance and helplessness to challenge a ruling containing a falsity of law representation, becoming victim of law and rulings; 7) The hearer's reliance on its truth as portrayed by an authority; through ruling is in clear violation of the law 8) The hearer's right to rely on the representation, judge’s proclamation of law; and 9) Damage caused by the representation. Loss of property and livelihood. See Musgrave v. Lucas, 193 Or 401, 410, 238 P2d 780 (1951); Webb v Clark, 274 Or 387, 391, 546 P2d 1078 (1976).
Washington also has identified 9 almost identical elements of the cause of action for fraud. As the court in Pedersen v. Bibioff, 64 Wn. App. 710, 828 P.2d 1113 (1992) wrote at page 723,
To sustain a finding of common law fraud, the trial court in most cases must make findings of fact as to each of the nine elements of fraud. Howell v. Kraft, 10 Wash. App. 266, 517 P.2d 203 (1973). Those elements generally are: (1) a representation of an existing fact, (2) its materiality, (3) its falsity, (4) the speaker's knowledge of its falsity or ignorance of its truth, (5) his intent that it should be acted on by the person to whom it is made, (6) ignorance of its falsity on the part of the person to whom it is made, (7) the latter's reliance on the truth of the representation, (8) his right to rely upon it, and (9) his consequent damage. See Turner v. Enders, 15 Wash .App. 875, 878, 552 P.2d 694 (1976).To: FA-02-0190291-S
WAVERLY KNIZE : JUDICIAL DISTRICT OF STAMFORD/NORWALK
VS. : AT STAMFORD
FRANCIS C. P. KNIZE : Nov.19, 2006
REPLY TO Plaintiff’s Objection To Motion To Open Judgment and MOTION FOR STAY PENDING JUDGMENT OF THE GRIEVANCE COMMITTEE ACCOMPANIED BY A MOTION FOR LEAVE TO FILE AND FOR LEAVE PENDING APPEALS JUDGMENT
Att'y O'Sullivan once again shows either complete ignorance or defiance of Due Process by stating falsely that the defendant has no recourse left to defend his right to contracts, it is she who is now repetitious with her unfounded claim that no remedy can exist for the defendant. I object to that and have pain and suffering, actual damages from excess litigation. A Motion To Reopen is the correct forum to challenge the past rulings of J. Winslow, as any good lawyer should know. The primary purpose of a Motion to Reopen is precisely to reopen a judgment based on Fraud of the Court and the original court's lack of Jurisdiction and other legal facts. None of these points were addressed by her Objection and therefore her Objection is legally bankrupt. She has not approached the pivotal concept of Fair Value, raised by opposition and therefore continues to show incompetence to CGS Titles 33 and 34 especially 33-900 and P.A. 94-217 which provided that a dissociating member's right to receive the fair value of his interest in the limited liability company also occurs if the operating agreement does not provide "the manner of payment of the distribution". Sec. 34-167. Ownership of limited liability company property. (a) Property transferred to or otherwise acquired by a limited liability company is property of the limited liability company and not of the members individually. A member has no interest in specific limited liability company property.
(b) Property may be acquired, held and conveyed in the name of the limited liability company. OK Art Exhibitions, LTD is a Limited Company and the defendant is not responsible for the underlying assets value but only the chose in action value he holds.
Sec. 34-168. Transfer of property. (a) Except as provided in subsection (e) of this section, property of the limited liability company that is held in the name of the limited liability company may be transferred by an instrument of transfer executed by any member in the name of the limited liability company.(b) Property of the limited liability company held in the name of one or more members or managers with an indication in the instrument transferring the property to them of their capacity as members or managers of a limited liability company, ... may be transferred by an instrument of transfer executed by the persons in whose name title is held. Reading the OK agreement, the Corporation has first right of refusal to purchase at the nominal ($11,500) value, then Peter and Lili Knize can purchase shares of other members. A willing buyer would never buy the shares after that for even $11,500 because there is no assurance there would be value in the shares when there would come the time he could cash in the shares, which might be a lifetime away, it’s a bad investment. I add that RUBIN 7 Conn. App. 735, 510 A.2d 1000 (1986), reversed, 204 Conn. 224, 527 A.2d 1184 (1987) instructs that the company falls as a “mere expectancy” as even J. Winslow noted, and therefore is not subject to marital distribution. TRANSCRIPTS: Jan 21 04 Pg 28: COURT: ... I understand that the valuation is speculative at best.”
O’Sullivan evades responsibility and professional conduct, through HER LACK OF DUTY to respect CGS Title 34 law, as she deliberately disregards the material facts of a case, failing to "conform to the requirements of law". .
Had the disputes involved her own personal contracts, one could bet that O’Sullivan would be fighting for them as valid. It is interesting to note that nowhere in her objection does she actually address the Conn. Common Law (STONE, JOHNSON) brought forth by the defendant concerning the legal fact that our Connecticut Legislators have commented on record that a Shareholders Agreement's construction supersedes Statute. Legislators MAKE the law and Judges ENFORCE the law. But even Statute Title 33-900 and various in 34 sets the rule of law that the court must seek the FAIR VALUE of a shareholders Agreement (J. Winslow FAILED to address the question in her reply to articulation) and in violation of Rule 4.4 she ignores the rights of the other Shareholders in the Knize family, KNOWING THAT THEY ARE INDISPENSABLE PARTIES TO THE CONTRACT. The Agreement was placed into Evidence so she had every opportunity to read it. See the defendant's Motion To Reopen for the legal facts.
Why does Christine O'Sullivan continue TO AVOID the true nature of the argument? First, O'Sullivan deceives the court by saying she was not served with the Motion, when indeed she was; an unconscionable act by any lawyer. Then J. Tierney tells her that the defendant didn’t place a Motion To Reopen before, but there is something wrong with O'Sullivan's hearing ability. She ignores even the Judges’ observation and continues to argue that the defendant is being repetitious. Doesn't she know that she is breaking the lawyer's code of conduct at every turn? She violates THE PREAMBLE of the Code implying she need not have a "special responsibility for the quality of justice" need not "be consistent with honest dealing with others" need not be "competent and diligent,” need not "conform to the requirements of law"
She ignores that the fact that the defendant runs the risk of being jailed for contempt for not meeting post Judgment, and ignores that it is her duty under Rule 3.4 (7) to guard against unjust imprisonment and she violates “fairness to opposing party”. Under Rule 1.16 a (2) Att'y OSullivan violates ethics of her services to “perpetrate a crime or fraud” against the defendant's Shareholders Agreement, and does so again concerning the couple's mutual House Agreement of 1991 by having not pleaded against it (by not writing in a motion that it was not binding, not pleading a special defense against the defendant's written claim that the contract was BREACHED, and then saying in court that Waverly need not worry about that contract).
The Preface also mandates that O'Sullivan "attain the highest level of skill to improve the law and the legal profession and to exemplify the legal profession's ideals of public service..and remaining {in} an UPRIGHT POSITION" as a lawyer, who gages between service to a client and her "moral judgment guided by the basic principles underlying the rules." "Neglect of these responsibilities compromises the independence of the profession and public interest which it serves" By lying to the court (Nov 9) that she wasn't served with a motion, that there was no longer any recourse for the defendant, that she need not examine the written laws (Titles 33-34) or interpret contracts to evaluate the parties rights; is in direct violation of all the principles mentioned above, she is rapidly heading for an inquiry with the Statewide Grievance Committee for damages.
‘‘The maker of a fraudulent misrepresentation is subject to liability for pecuniary loss to another who acts in justifiable reliance upon it if the misrepresentation, although not made directly to the other, is made to a third person and the maker intends or has reason to expect that its terms will be repeated or its substance communicated to the other, and that it will influence his conduct in the transaction or type of transaction involved.’’ 3 Restatement (Second), Torts § 533 (1977)
Concerning facts of law and J. Winslow/Att'y O'Sullivan's fraud upon the court: “Whenever any officer of the court commits fraud during a proceeding in the court, he/she is engaged in "fraud upon the court". In Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985), the court stated "Fraud upon the court is fraud which is directed to the judicial machinery itself and is not fraud between the parties or fraudulent documents, false statements or perjury. ... It is where the court or a member is corrupted or influenced or influence is attempted or where the judge has not performed his judicial function --- thus where the impartial functions of the court have been directly corrupted." "Fraud upon the court" has been defined by the 7th Circuit Court of Appeals to "embrace that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication." Kenner v. C.I.R., 387 F.3d 689 (1968); 7 Moore's Federal Practice, 2d ed., p. 512, ¶¶ 60.23. The 7th Circuit further stated "a decision produced by fraud upon the court is not in essence a decision at all, and never becomes final." What effect does an act of "fraud upon the court" have upon the court proceeding? "Fraud upon the court" makes void the orders and judgments of that court. It is also clear and well-settled {Conn.} law that any attempt to commit "fraud upon the court" vitiates the entire proceeding. The People of the State of Illinois v. Fred E. Sterling, 357 Ill. 354; 192 N.E. 229 (1934) ("The maxim that fraud vitiates every transaction into which it enters applies to judgments as well as to contracts and other transactions."); Allen F. Moore v. Stanley F. Sievers, 336 Ill. 316; 168 N.E. 259 (1929) ("The maxim that fraud vitiates every transaction into which it enters ..."); In re Village of Willowbrook, 37 Ill.App.2d 393 (1962) ("It is axiomatic that fraud vitiates everything."); Dunham v. Dunham, 57 Ill.App. 475 (1894), affirmed 162 Ill. 589 (1896); Skelly Oil Co. v. Universal Oil Products Co., 338 Ill.App. 79, 86 N.E.2d 875, 883-4 (1949); Thomas Stasel v. The American Home Security Corporation, 362 Ill. 350; 199 N.E. 798 (1935). Under Conn. and Federal law, when any officer of the court has committed "fraud upon the court", the orders and judgment of that court are void, of no legal force or effect.
Against the constitutional right to property; Winslow (rights dictated by contract): “By law, a judge (and Bar member) is a state officer. The judge then acts not as a judge, but as a private individual (in his person). When a judge acts as a trespasser of the law, when a judge does not follow the law, the Judge loses subject-matter jurisdiction and the judges' orders are not voidable, but VOID, and of no legal force or effect. The U.S. Supreme Court stated that "when a state officer acts under a state law in a manner violative of the Federal Constitution, he comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States."Stump v. Sparkman, id., 435 U.S. 349
Judge Winslow’s rulings and Att’y O’Sullivan’s defenses violate completely the machinery of the judiciary and therefore all they did against the contracts in KNIZE is Void. I am owed back the money awarded, plus interest. I plan to submit this premise as a complaint to the grievance committee for damages against Sullivan’s unprofessional claims for any lawyer fees she has and will further incur against the defendant and request this court to stay the action for further fees pending determination of that committee.
Oral Argument and Testimony requested
CERTIFICATION: A true Copy of this Motion has been delivered to the Plaintiff Pro Se this day; her address is 13 John Road , Brookfield, CT. 06804
AFFIDAVIT: I attest that the defendant is proceeding in good faith, that all facts are true and non-frivolous in this document, the grounds being that it is correct of the court to wait for pending judgment of the SGC and appellate court before further litigation proceeds in the trial court. Economy and court efficiency best serve the public interests; J. Tierney should avoid unnecessary added litigation and bog down the courts. Clearly, I will be appealing any further lawyer fees placed upon me or post-J rulings because a Motion To Reopen will render plaintiff’s post-Judgment request as moot. Without Prejudice U.C.C. 1-207.
Francis Knize 50 Sunset Pass/Wilton, Conn 06897/203 544 9603
ORDER: MOTION FOR LEAVE TO FILE WITH STATEWIDE GRIEVANCE COMMITTEE AND STAY PENDING THEIR JUDGMENT, ALSO LEAVE PENDING APPEALS JUDGMENT
ORDERED/DENIED__________________
‘‘The maker of a fraudulent misrepresentation is subject to liability for
pecuniary loss to another who acts in justifiable reliance upon it if the
misrepresentation, although not made directly to the other, is made to a
third person and the maker intends or has reason to expect that its terms
will be repeated or its substance communicated to the other, and that it
will influence his conduct in the transaction or type of transaction involved.’’
3 Restatement (Second), Torts § 533 (1977)
“The rights of the parties are measured by the instrument as originally intended, and the effect of the reformation, as a whole, is to give all the parties all the rights to which they are equitably entitled under the instrument which they intended to execute.’’ (Emphasis added.) 66 Am. Jur. 2d, Reformation of Instruments § 11 (1973).
Mmmmmmmmmmmmmmmmmmmm
The Connecticut trial courts have plenary authority to issue orders otherwise within their jurisdiction while appeal is pending. See > Ahneman v. Ahneman, 243 Conn. 471, 482-83, 706 A.2d 960, 965-66 (1998). Post-judgment orders can still be immediately challenged or put into immediate effect under §§§§ 61-11 to 61-14.
VILLAGER POND, INC. v. DARIEN, 54 Conn. App. 178 (1999)
734 A.2d 1031
VILLAGER POND, INC. v. TOWN OF DARIEN ET AL.
(AC 17895)
Appellate Court of Connecticut
Ridgely W. Brown, for the appellant (plaintiff).
James V. Somers, with whom, on the brief, were
John B. Farley, Kathleen St. Onge and John W.
Fox, for the appellees (defendants).
Opinion
Furthermore, "it is the law in our courts, as it is in the
federal courts, that [a] court may dismiss a complaint only if itis clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." (Internal quotation marks omitted.) Id., 309. With these legal principles
in mind, we now address the merits of the plaintiff's
claim.[fn3]
However, there may be a right to an oral hearing when an appeal is capable of raising issues of both fact and law. [Fredin v. Sweden (No. 2), (20/1993/415/494), 23 February 1994, at 6-7]
Ertel v. Demmon 93 Conn App 115 2006 and AC 26104 " a judgment improperly rendered, as a matter of law, must be set aside.” Conn. Light and Power v. St. John, 80 Conn App 767, 774, 837 A.2d 841 (2004).
RES IPSA LOQUITUR - Lat. "the thing speaks for itself." Refers to situations when it's assumed that a person's injury was caused by the negligent action of another party because the accident was the sort that wouldn't occur unless someone was negligent.
Griswold v. Connecticut, 381 U.S. 479 (1965),[
Original Jurisdiction; Judges with Lawful oath to "said, State" of Connecticut; "Due Course" of Law Article 1, Sec. 10, as ratified "In all Cases....and those in which a State shall be a Party, the Supreme Court shall have original Jurisdiction." Art.III, Sec. 2 United States Constitution
Marbury v. Madison (1803)
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.
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. . . .
The constitution vests the whole judicial power of the United States in one Supreme Court, and such inferior courts as congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and, consequently, in some form, may be exercised over the present case; because the right claimed is given by a law of the United States.
2112. Review of claimed factual errors.
Inland Wetlands & Watercourses Agency v. Landmark Investment Group, Inc., 218 Conn. 703, 708 (1991).
A finding of fact is clearly erroneous when there is no evidence in the record to support it; or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.
A factual finding must be reversed as clearly erroneous if it was based on an incorrect rule of law. Dunnigan v. First Bank, 217 Conn. 205, 215 (1991).
2115. In order to establish harmfulness of a trial court ruling, the appellant must show that it is more probable than not that the improper action affected the result.
State v. Butler, 36 Conn. App. 525, 532 (1995)
2116. The "probable harm" necessary to obtain reversal on an evidentiary ruling means that the error would likely have effected the result.
Pelarinos v. Henderson, 34 Conn. App. 726, 731 (1994).
The trial court erroneously excluded a deposition of a party who was not available. Noting that the appellant has the burden of demonstrating that the error was probably harmful, and that this standard requires that the erroneous ruling would likely effect the result, the court reversed. Defendants, who had the deposition excluded, had the burden of proof on fraudulent misrepresentation by clear and convincing evidence, and the court held that corroborating testimony from one of only three potential sources as to the facts at issue was sufficient for a showing of harm.
2117. Evans bypass restated.
In State v. Golding, 213 Conn. 233 (1989), the Supreme Court reviewed the State v. Evans, 165 Conn. 61 (1973), standard and articulated the following guidelines (213 Conn. at 239-240):
(A) defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail. (emphasis in original, footnote omitted)2118. Evans-Golding bypass.
Evans bypass, as construed by State v. Golding, 213 Conn. 233, 239 (1989) now "Evans-Golding." A defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met:
(1) the record is adequate to review the alleged claim of error;
(2) the claim is of constitutional magnitude alleging the violation of a fundamental right;
(3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and
(4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violations beyond a reasonable doubt.
The reviewing court is free to dispose of the claim by focusing on whichever condition is most relevant.
See, State v. Watlington, 216 Conn. 188, 192-3 (1990). Prosecutorial misconduct did not rise to the level of egregious misconduct violative of the defendant's due process rights.
State v. Chicano, 216 Conn. 699, 705 (1990)(If double jeopardy claims arising in the context of a single trial are raised for the first time on appeal, these claims are reviewable under State v. Evans.)
.
2119. Standard for determining sufficiency of evidence.
(a) CIVIL: "The test for determining the validity of the jury's verdict is whether the evidence, fairly and impartially considered, would be likely to induce in the minds of six persons of ordinary intelligence, attentively considering it and using common-sense logic, a reasonable belief that it is more probable than not that the facts in issue are true." Rapuano v. Oder, 181 Conn. 515, 517 (1980); Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 529 (1989). The jury's findings of fact will not be disturbed if it is reasonably supported by the evidence or the reasonable inferences drawn from the facts proven.
2121. Standard of review: size of verdict.
The ability of a trial court to set aside a verdict is limited. In reviewing awards, the evidence must be construed in the light most favorable to sustaining the verdict. And, if the jury reasonably could have decided as it did, the Appellate Court will not set it aside. Magnon v. Glickman, 185 Conn. 234, 237-238 (1981). In reviewing a jury award Connecticut courts also have adhered to the following test:
'The only practical test to apply to this verdict is whether the award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption.'
Mather v. Griffin Hospital, 207 Conn. 125, 139 (1988), quoting McKirdy v. Cascio, 142 Conn. 80, 86 (1955). The court does not function as a seventh juror with absolute veto power. Campbell v. Gould, 194 Conn. 35, 41 (1984).
2202. The process of statutory interpretation involves a reasoned search for the intention of the legislature.
Mulligan v. F.S. Electric, 231 Conn. 529, 536 (1994)
In interpreting the workers’’ compensation statutes, the court stated that it is axiomatic that the "process of statutory interpretation involves a reasoned search for the intention of the legislature." In seeking to discern that intent, the court looks to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.
Mmmmmmmmmmmmmmmmmmmm
The story of the two lawsuits, Walker v. United States, filed in
December, 2000 and Walker v. Members of Congress, filed in September,
2004. Walker v. United States remained a federal district court case.
Walker v. Members of Congress was appealed to the Supreme Court of the United
States.
Walker v. United States was the first lawsuit in history to directly
address the question of whether Congress was required to obey the text of the
Constitution and call a convention when the states applied which the evidence in
the suit clearly showed they had, or whether, despite the language of the
Constitution which the Founders termed "peremptory" Congress could ignore, or veto, the direct text of the Constitution and refuse to call such a convention
even though the states had applied.
In Walker v. United States, an over-length brief citing over two
hundred Supreme Court rulings favoring the position of the plaintiff,
Bill Walker of Seattle, Washington, was presented in district court.
The court refused to read the document and ultimately, citing Coleman
v. Miller, 307 U.S. 433 (1939) established that under the court's
political question doctrine, Congress was empowered to ignore or veto
the direct text of the Constitution. Ed note. Yes, you read that right!
Following the court decision, an amicus brief was filed with the
Supreme Court of the United States in the cases, McConnell v Federal
Election Commission (02-1674 et al.). The purpose of the brief was
twofold: (1) To serve as a practice exercise for a new Walker case
intended to go to the Supreme Court and (2) to find out whether or not the
assertions made in Walker v. United States were in fact true. This last point
was accomplished simply by reversing the position that had been held in Walker v
United States and agreeing with the political question doctrine set forth in the
ruling in that lawsuit. Because of the Supreme Court Rules, the amicus was not
allowed to be presented to the court because no attorney licensed to practice
before the court would agree to be associated with the presentation made in the
amicus. All attorneys indicated they could not accept the conclusions as true.
The fact the amicus was never presented to the Court did not matter. Because the
attorneys had reacted so violently, it was obvious by this reaction that what
had been stated, that Congress possessed a veto and the effect of that veto was
far-reaching, so much so, as to establish the possibility of a dictatorship in
the government, that no attorney could accept it. Thus, if the conclusions of
the amicus were false, then the opposite, that which had been asserted in Walker
v. United States, must be true. It was time for a new lawsuit.
Based on new grounds of standing, Walker v Members of Congress was
filed in 2004. The suit was significant in several ways. First,
whereas Walker v. United States had sued Congress as a group, Walker
v. Members of Congress sued the members as individuals. This meant
that each member, was required under federal law, to individually
determine their opposition to the lawsuit and request the United
States represent them opposing the lawsuit. All members of Congress
opposed the lawsuit by requesting the government represent them.
Despite the language of the complaint which removed any member of
Congress from the suit if he supported obeying the Constitution, no
member of Congress chose to obey the Constitution. Thus, all members
of Congress have publicly advocated they oppose obeying the direct
text of the Constitution and support they having a veto of its text.
Secondly, it brought to the attention of the courts that such refusal
was a violation of several criminal laws among them, 18 U.S.C. 1918,
violation of oath of office by federal officials. The penalty for such violation
is one year in prison and removal from office.
Finally, Walker v. Members of Congress was significant as it was the
first lawsuit in history directly dealing with a convention call of
Article V to be presented to the Supreme Court. In October, 2006 the
court denied a writ of certiorari and thus refused to consider the
case. However, the United States, under Supreme Court Rules, had
already conceded as fact and law that it held that Congress could veto the text
of the Constitution.
What was Gained by the Lawsuits?
At first glance it would appear that the two lawsuits were complete
failures as the courts at every level denied the lawsuit and appeared
not to have ruled at all. Nothing could be farther from the truth.
Before the two lawsuits, Congress had hidden behind what are termed in the legal
world, "latches" or the right to act as if something that is there is not there.
Congress has for years simply done nothing regarding the convention call.
But the lawsuits changed that. True, they were not successful in
achieving the desired end that was sought. But what they did do was
force the courts to assign Congress a position, a stance, on the issue
that previously before it had been able to avoid. The district court,
in Walker v United States and again in Walker v. Members of Congress
extended what is known as the Coleman doctrine, based on the lawsuit,
Coleman v Miller, 307 U.S. 433 (1939) to include not only the
amendatory process previously controlled by Congress as stipulated by
Article V, but the convention method of amendment as well, thus giving
Congress "exclusive" control of the entire amendatory process.
Further, the courts (including the Supreme Court) endorsed the right
of Congress to "ignore or veto the direct text of the Constitution"
such that even if the Constitution stipulated that Congress was
required to take an action (such as a convention call or hold an
election, for example) it now possessed the power to refuse to do so
under what the court termed, "the political question doctrine."
Finally, by employing Coleman, the court allowed the Congress to take
actions against the state legislatures such as was done during the
civil war to compel the compliance in the ratification vote. The court did not
state at any time that the veto of text was limited only to Article V. Indeed,
as any such stipulation would be based on authority granted the court by the
Constitution, and the court has allowed that such authority may be vetoed, it is logical to presume such limit could not be imposed. What we have now is a runaway Congress.
The lawsuits also established that the actions of Congress are, in
fact, criminal in nature rather than simply a civil or political
action. Thus, the refusal of the members of Congress to call a
convention not only violates the Constitution, but is a criminal act
as well.
Finally, based on the actions of the government taken at the Supreme
Court, the lawsuits established that the above assertions are accepted by the
government "as fact and law." The Congress now has no place to hide. Their veto and refusal to obey the Constitution is now a matter of public record. The fact they have criminal acts is a matter of public record. The fact that every member
of Congress individually decided to oppose obeying the Constitution is now a
public fact. Congress can no longer hide behind the walls of the Capitol
Building on this issue.
NOTE MINE:
based on the actions of the government taken at the Supreme
Court, Walker v. Members of Congress, filed in September,
2004.,the lawsuit established that the contained assertions are accepted by the
government "as fact and law." In KNIZE, the denials and dismissals and refusal to obey the Constitution is now a matter of public record. The fact they may have committed criminal acts is a matter of public record.
It is for the above reasons that efforts will continue to compel
Congress to call a convention for the most important reason of
all---to preserve the Constitution itself. What value are
constitutional guarantees of rights if the government does not have to obey
them? Ed note. Check and mate!
Mmmmmmmmmmmmmmmmmmmm
http://www.ncsconline.org/D_ICM/beta/programs/cedp/papers/Research_Papers_2006/Miller-ByrnesMelissaCEDPFinal05-06.pdf
JUDICIAL INDEPENDENCE, INTERDEPENDENCE, AND
JUDICIAL ACCOUNTABILITY:
Management Of The Courts From The Judges. Perspective.
Institute for Court Management
Court Executive Development Program
Phase III Project
May 2006
A review of the separation of powers doctrine and the interbranch conflicts created will
enhance the understanding of judicial independence. Separation of powers does not
specifically mean creation of a barrier that positively prevents any connection or contact
between the branches. Preferably, it finds expression mainly in the existence of a balance
among the branches. powers, in theory and in practice that makes possible independence
in the context of specific reciprocal supervision.17 Although the judiciary is an
independent coequal branch of government, the constitutional doctrine of separation of
powers allows some overlap in the exercise of governmental functions.18 This overlap is
sometimes referred to as the .doctrine of overlapping functions. wherein a violation of
the .doctrine of separation of powers. does not occur because such action is
constitutionally permissible.
There is always a struggle to maintain a balance between the protections of
judges from the pressures generated from the public.s expectations with the desire for the
courts to be responsible to changes in public views of what is competent administration
Judicial independence and accountability are considered two different sides of
the same coin, just as the independence of an individual judge and the independence of
the court from which the judge presides, and is best described as follows:25
The capacity of the judiciary to function independently of control by
the executive and legislative branches requires the capacity of
individual judges to enjoy a measure of extra institutional independence. It also
requires that the judiciary, as a system of courts, function and be perceived to
function according to law. This in turn requires that individual judges yield
some intra institutional independence
The judiciary is not exempt from the
requirement of accountability to the people it serves for the proper performance of its
duties. Roger Warren, Judicial Accountability, Independence, and Fairness, The Court Review (Vol. 42, No. 1)
To guide their actions while
performing adjudicative and administrative duties, judges rely upon the American Bar
Association.s Model Code Of Judicial Conduct. Each state adopts its own version of the
Model Code of Judicial Conduct and these specified rules that provide guidance to judges
in the performance of their administrative and adjudicatory responsibilities. For example,
Model Canon 300 (C) (1) of the ABA.s Model Code Of Judicial Conduct provides:
.a judge shall diligently discharge the judge’s administrative responsibilities
without bias or prejudice, maintain professional competence in judicial
administration and should cooperate with other judges and court officials in the
administration of court business..32
MMMMMMMMMMMMMMMMMMMMMMMMMM
39. Proceedings In Forma Pauperis
1. A party seeking to proceed in forma pauperis shall file a motion for leave to do so, together with the party's notarized affidavit or declaration (in compliance with 28 U. S. C. §§1746 ) in the form prescribed by the Federal Rules of Appellate Procedure, Form 4. See 28 U. S. C. §§1915 . The motion shall state whether leave to proceed in forma pauperis was sought in any other court and, if so, whether leave was granted. If the United States district court or the United States court of appeals has appointed counsel under the Criminal Justice Act, see 18 U. S. C. §§3006A , or under any other applicable federal statute, no affidavit or declaration is required, but the motion shall cite the statute under which counsel was appointed.
2. If leave to proceed in forma pauperis is sought for the purpose of filing a document, the motion, and an affidavit or declaration if required, shall be filed together with that document and shall comply in every respect with Rule 21. As provided in that Rule, it suffices to file an original and 10 copies, unless the party is an inmate confined in an institution and is not represented by counsel, in which case the original, alone, suffices. A copy of the motion, and affidavit or declaration if required, shall precede and be attached to each copy of the accompanying document.
3. Except when these Rules expressly provide that a document shall be prepared as required by Rule 33.1, every document presented by a party proceeding under this Rule shall be prepared as required by Rule 33.2 (unless such preparation is impossible). Every document shall be legible. While making due allowance for any case presented under this Rule by a person appearing pro se, the Clerk will not file any document if it does not comply with the substance of these Rules or is jurisdictionally out of time.
4. When the documents required by paragraphs 1 and 2 of this Rule are presented to the Clerk, accompanied by proof of service as required by Rule 29, they will be placed on the docket without the payment of a docket fee or any other fee.
5. The respondent or appellee in a case filed in forma pauperis shall respond in the same manner and within the same time as in any other case of the same nature, except that the filing of an original and 10 copies of a response prepared as required by Rule 33.2, with proof of service as required by Rule 29, suffices. The respondent or appellee may challenge the grounds for the motion for leave to proceed in forma pauperis in a separate document or in the response itself.
6. Whenever the Court appoints counsel for an indigent party in a case set for oral argument, the briefs on the merits submitted by that counsel, unless otherwise requested, shall be prepared under the Clerk's supervision. The Clerk also will reimburse appointed counsel for any necessary travel expenses to Washington, D. C., and return in connection with the argument.
7. In a case in which certiorari has been granted, probable jurisdiction noted, or consideration of jurisdiction postponed, this Court may appoint counsel to represent a party financially unable to afford an attorney to the extent authorized by the Criminal Justice Act of 1964, 18 U. S. C. §§3006A, or by any other applicable federal statute.
8. If satisfied that a petition for a writ of certiorari, jurisdictional statement, or petition for an extraordinary writ is frivolous or malicious, the Court may deny leave to proceed in forma pauperis.
Mmmmmmmmmmmmmmmmmmmmmmmmmmm Rooker-Feldman doctrine
Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923)[1], was a case in which the United States Supreme Court enunciated a rule of civil procedure that would eventually become known as the Rooker-Feldman doctrine (also named for the later case of District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). The doctrine holds that lower United States federal courts may not sit in direct review of state court decisions.
The United States Supreme Court, in an opinion by Justice Van Devanter, affirmed the dismissal of the claim by the United States district court. The Court noted that, for the district court to have heard the case would have been an exercise of appellate jurisdiction; but the U.S. Congress has only granted the district courts original jurisdiction to hear cases arising under the Constitution and laws of the United States, meaning that they can only hear claims that were initially brought in or removed to the district court.
The Court noted that the Indiana state court had jurisdiction over the parties and the claims, provided due process, and adjudicated the issues, and that its decisions had been affirmed by the Indiana Supreme Court. Even if all of the Indiana courts came to the wrong conclusions, the only avenue of appeal left to the plaintiff was to the United States Supreme Court - for Congress had authorized no other court to hear appeals of state court decisions.
[edit] Later developments
This case laid the groundwork for the current understanding that the decisions of state courts can not be challenged in federal courts (other than the Supreme Court) unless Congress has enacted legislation that specifically authorized such relief. An example of legislation that has been interpreted to this effect is 28 U.S.C. §§ 2254, which authorizes federal courts to grant writs of habeas corpus. Another example of an explicit legislative exception to this doctrine was the statute passed by Congress to permit federal courts to review the decisions of Florida courts in the Terri Schiavo caseyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy
How many of the "Secrets" of Section 1746 can you find in that section?
1. The United States is only federal territory. 2. The United States of
America is the government of the States. 3. The law of the United States
is federal law in federal territory and Washington, D.
C. 4. Outside the United States means outside federal territory or outside
Washington, D. C. 5. Federal law applies to federal territory and
property without an oath. 6. Federal law can only apply to a human being
by an oath taken by or given by another human.
7. The law of the United States of America is government law of the States.
8. The English common law does not require an oath. 9. The English common
law is not part of the Constitution.
TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
PART V--PROCEDURE
CHAPTER 115--EVIDENCE; DOCUMENTARY
Title 28 U.S.C. Sec. 1746. Unsworn declarations under penalty of perjury
Wherever, under any law of the United States or under any rule, regulation,
order, or requirement made pursuant to law, any matter is required or
permitted to be supported, evidenced, established, or proved by the sworn
declaration, verification, certificate, statement, oath, or affidavit, in
writing of the person making the same (other than a deposition, or an oath
of office, or an oath required to be taken before a specified official other
than a notary public), such matter may, with like force and effect, be
supported, evidenced, established, or proved by the unsworn declaration,
certificate, verification, or statement, in writing of such person which is
subscribed by him, as true under penalty of perjury, and dated, in
substantially the following form:
(1) If executed without the United States: ``I declare (or certify, verify,
or state) under penalty of perjury under the laws of the United States of
America that the foregoing is true and correct.
Executed on (date).
(Signature)'
(2) If executed within the United States, its territories, possessions, or
commonwealths: ``I declare (or certify, verify, or
state) under penalty of perjury that the foregoing is true and correct.
Executed on (date).
(Signature)'
(Added Pub. L. 94-550, Sec. 1(a), Oct. 18, 1976, 90 Stat. 2534.)
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