A true copy of all the preceding Motion has been delivered to Christine O’Sullivan, attorney (Juris No.100234), for the plaintiff, on July 4, 2006, at her home in Westport on 13 Hermit Lane (06880; tel. 203 227-0897).
Francis C. P. Knize
Plaintiff 203 544 9603
Bbbbbbbbbbbbbbbbbbbbbbb JUST NOTES; DONOT PRINT
3. Jurisdiction of this court is invoked under the provisions of Title 42,CHAPTER 136 , SUBCHAPTER IX,PART B, Sec. 14141.- Cause of Action (a) Unlawful conduct) of the United States Code Collection.
"Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipotent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious, If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means ... would bring terrible retribution. Against that pernicious doctrine, this Court should resolutely set its face." Olmstead v. United States, 277 U.S. 438, 485 (1928)(dissenting opinion).' (page 479)
No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives. United States v. Lee 106 U.S. 196, 220
CLAIM 7: Proceeding without jurisdiction, particularly after a formal notice and demand for proof of jurisdiction have been completely ignored, is a criminal denial of due process of law, in violation of the Fifth Amendment, and 18 U.S.C. 242." See App 14.
“Once challenged, jurisdiction cannot be ‘assumed’ it must be proved to exist”.
Stuck v Medical Eaminers, 94 Ca.2d 751, 211 P. 2s 389 “Jurisdiction once challenged cannot be assumed and must be decided”.
Main v. Thiboutot, 100 S.Ct. 2502 “...federal jurisdiction cannot be assumed, but must be clearly shown”. Brooks v. Yawkey, 200 F. 2d 633
“Every person born or naturalized in the United States and subject to its jurisdiction is a citizen”.
Title 26, CFR §1.1-1(c)
"A court cannot confer jurisdiction where none existed and cannot make a void proceeding valid. It is clear and well established law that a void order can be challenged in any court", OLD WAYNE MUT. L. ASSOC. v. McDONOUGH, 204 U. S. 8, 27 S. Ct. 236 (1907).
"There is no discretion to ignore lack of jurisdiction." Joyce v. U.S. 474 2D 215.
"The burden shifts to the court to prove jurisdiction." Rosemond v. Lambert, 469 F 2d 416
"Court must prove on the record, all jurisdiction facts related to the jurisdiction asserted." Latana v. Hopper, 102 F. 2d 188; Chicago v. New York 37 F Supp. 150
"The law provides that once State and Federal Jurisdiction has been challenged, it must be proven." 100 S. Ct. 2502 (1980)
"Jurisdiction can be challenged at any time." Basso v. Utah Power & Light Co. 495 F 2d 906, 910.
"Defense of lack of jurisdiction over the subject matter may be raised at any time, even on appeal." Hill Top Developers v. Holiday Pines Service Corp. 478 So. 2d. 368 (Fla 2nd DCA 1985)
"Court must prove on the record, all jurisdiction facts related to the jurisdiction asserted." Lantana v. Hopper, 102 F. 2d 188; Chicago v. New York, 37 F. Supp. 150.
"Once challenged, jurisdiction cannot be assumed, it must be proved to exist." Stuck v. Medical Examiners 94 Ca 2d 751. 211 P2d 389.
"Jurisdiction, once challenged, cannot be assumed and must be decided." Maine v Thiboutot 100 S. Ct. 250.
"The burden shifts to the court to prove jurisdiction."
Rosemond v. Lambert, 469 F2d 416.
"Court must prove on the record, all jurisdiction facts related to the jurisdiction asserted." Lantana v. Hopper, 102 F2d 188; Chicago v. New York, 37 F Supp 150.
"A universal principle as old as the law is that a proceedings of a court without jurisdiction are a nullity and its judgment therein without effect either on person or property."
Norwood v. Renfield, 34 C 329; Ex parte Giambonini, 49 P. 732.
"Jurisdiction is fundamental and a judgment rendered by a court that does not have jurisdiction to hear is void ab initio."
In Re Application of Wyatt, 300 P. 132; Re Cavitt, 118 P2d 846.
"Thus, where a judicial tribunal has no jurisdiction of the subject matter on which it assumes to act, its proceedings are absolutely void in the fullest sense of the term." Dillon v. Dillon, 187 P 27.
"A court has no jurisdiction to determine its own jurisdiction, for a basic issue in any case before a tribunal is its power to act, and a court must have the authority to decide that question in the first instance."
Rescue Army v. Municipal Court of Los Angeles, 171 P2d 8; 331 US 549, 91 L. ed. 1666, 67 S.Ct. 1409.
"A departure by a court from those recognized and established requirements of law, however close apparent adherence to mere form in method of procedure, which has the effect of depriving one of a constitutional right, is an excess of jurisdiction."
Wuest v. Wuest, 127 P2d 934, 937.
"Where a court failed to observe safeguards, it amounts to denial of due process of law, court is deprived of juris."
Merritt v. Hunter, C.A. Kansas 170 F2d 739.
"the fact that the petitioner was released on a promise to appear before a magistrate for an arraignment, that fact is circumstance to be considered in determining whether in first instance there was a probable cause for the arrest."
Monroe v.Papa, DC, Ill. 1963, 221 F Supp 685.
"No sanction can be imposed absent proof of jurisdiction"
[Stanard v. Olesen, 74 S. Ct.768]
"Once challenged, jurisdiction cannot be ‘assumed’, it must be proved to exist."
[Stuck v. Medical Examiners, 94 Ca2d 751.211 P2s 389]
"Jurisdiction, once challenged, cannot be assumed and must be decided."
[Maine v. Thiboutot, 100 S. Ct. 250]
"... Federal jurisdiction cannot be assumed, but must be clearly shown."
[Brooks v. Yawkey, 200 F. 2d 633]
set aside a judgment as void for lack of jurisdiction is not subject to the time limitations of Rule 60(b). See Garcia v. Garcia, 712 P.2d 288 (Utah 1986). There is only an immaterial procedural difference between the relief sought pursuant to Rule 60(b) and the relief sought in an independent action. Hadden v. Rumsey Prods., 196 F.2d 92 (2d Cir. 1952); 7 Moore's Federal Practice, § 60.38(3) (2d ed. 1971)) A judgment is void, and therefore subject to relief under Rule 60(b)(4), only if the court that rendered judgment lacked jurisdiction or in circumstances in which the court's action amounts to a plain usurpation of power constituting a violation of due process. usurpation n : seizing and holding (an office or powers) by force
United States v. Boch Oldsmobile, Inc., 909 F.2d 657, 661 (1st Cir. 1990) Where Rule 60(b)(4) is properly invoked on the basis that the underlying judgment is void, "'relief is not a discretionary matter; it is mandatory.'" Orner v. Shalala, 30 F.3d 1307, 1310 (10th Cir. 1994) (quoting V.T.A., Inc. v. Airco, Inc., 597 F.2d 220, 224 n.8 (10th Cir. 1979)). In order for a judgment to be void, there must be some jurisdictional defect in the court's authority to enter the judgment, either because the court lacks personal jurisdiction or because it lacks jurisdiction over the subject matter of the suit. Puphal v. Puphal, 105 Idaho 302, 306, 669 P.2d 191, 195 (1983); Dragotoiu, 133 Idaho at 647, 991 P.2d at 379. A void judgment is one that has been procured by extrinsic or collateral fraud or entered by a court that did not have jurisdiction over the subject matter or the parties. Rook v. Rook, 233 Va. 92, 95, 353 S.E.2d 756, 758 (1987)
A recent discussion of the Rule 60(b)(4) grounds for attack on a void judgment may be found in Fisher v. Amaraneni, 565 So. 2d 84 (Ala. 1990). The judgment was set aside for lack of personal jurisdiction based on improper service by publication. The court defined a judgment as void "only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or if it acted in a manner inconsistent with due process." Id. at 86 (citing Wonder v. Southbound Records, Inc., 364 So. 2d 1173 (Ala. 1978)). It should be noted here that a Rule 60(b)(4) motion involves a different standard of review than the other Rule 60(b) subsections since the court held "[w]hen the grant or denial turns on the validity of the judgment, discretion has no place for operation. If the judgment is void it must be set aside ...." Fisher, 565 So. 2d at 87. "The consequences of an act beyond the court's jurisdiction in the fundamental sense differ from the consequences of an act in excess of jurisdiction. An act beyond a court's jurisdiction in the fundamental sense is void; it may be set aside at any time and no valid rights can accrue thereunder. In contrast, an act in excess of jurisdiction is valid until set aside, and parties may be precluded from setting it aside by such things as waiver, estoppel, or the passage of time." People v. Ruiz (1990) 217 Cal. App. 3d 574, 265 Cal. Rptr. 886
In a long and venerable line of cases, the Supreme Court has held that, without proper jurisdiction, a court cannot proceed at all, but can only note the jurisdictional defect and dismiss the suit. See, e.g., Capron v. Van Noorden, 2 Cranch 126; Arizonans for Official English v. Arizona, 520 U.S. 43. Bell v. Hood, supra; National Railroad Passenger Corp. v. National Assn. of Railroad Passengers, 414 U.S. 453, 465, n. 13; Norton v. Mathews, 427 U.S. 524, 531; Secretary of Navy v. Avrech, 418 U.S. 676 , 678 (per curiam); United States v. Augenblick, 393 U.S. 348 ; Philbrook v. Glodgett, 421 U.S. 707, 721; and Chandler v. Judicial Council of Tenth Circuit, 398 U.S. 74, 86—88, distinguished. For a court to pronounce upon a law’s meaning or constitutionality when it has no jurisdiction to do so is, by very definition, an ultra vires act. Pp. 8—17.
"Doubt relative to statutory construction should be resolved in favor of the individual, not the government"
Greyhound Corp. v. United States, 495 F2d 863
"Courts have no power to rewrite legislative enactments to give effect to their ideas of policy and fitness or the desirability of symmetry in statutes."
Busse v. Commissioner of Internal Revenue, 479 F2d 1143
"It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege. 6 American [374 U.S. 398, 405] Communications Assn. v. Douds, 339 U.S. 382, 390; Wieman v. Updegraff, 344 U.S. 183,191-192; Hannegan v. Esquire, Inc., 327 U.S. 146, 155-156. For example, in Flemming v. Nestor, 363 U.S. 603, 611, the Court recognized with respect to Federal Social Security benefits that "[t]he interest of a covered employee under the Act is of sufficient substance to fall within the protection from arbitrary governmental action afforded by the Due Process Clause." In Speiser v. Randall, 357 U.S. 513, we emphasized that conditions upon public benefits cannot be sustained if they so operate, whatever their purpose, as to inhibit or deter the exercise of First Amendment freedoms."
Sherbert v. Verner, 374 U.S. 398
"We conclude then that government regulation that indirectly and incidentally calls for a choice between securing a governmental benefit and adherence to religious beliefs is wholly different from governmental action or legislation that criminalizes religiously inspired activity or inescapably compels conduct that some find objectionable for religious reasons. Although the denial of government benefits over religious objection can raise serious Free Exercise problems, these two very different forms of government action are not governed by the same constitutional standard. A governmental burden on religious liberty is not insulated from review simply because it is indirect, Thomas v. Review Board of Indiana Employment Security Div., 450 U.S. 707, 717-718 (1981) (citing Sherbert v. Verner, 374 U.S. 398, at 404); [476 U.S. 693, 707] but the nature of the burden is relevant to the standard the government must meet to justify the burden."
Bowen v. Roy, 476 U.S. 693
"The primary and general rule of statutory construction is that the intent of the lawmaker is to be found in the language that he has used. He is presumed to know the meaning of the words and the rules of grammar"
United States v. Goldenberg, 168 U.S. 95
For the reasons set forth above, the plaintiffs’ application for a preliminary injunction is granted. Because I find the plaintiffs are likely to succeed on their First
Amendment claim, which fully supports the relief they request, I need not consider their equal
protection claim at this time.
... THE doctrine of unconstitutional conditions holds that government may not
grant a benefit on the condition that the beneficiary surrender a constitutional
right, even if the government may withhold that benefit altogether. ... The
"exchange" thus has two components: the conditioned government benefit on the
one hand and the affected constitutional right on the other. ... This section
will first unravel possible meanings of coercion in three seminal decisions that
extended unconstitutional conditions doctrine to speech and religious exercise:
Speiser v. Randall, Sherbert v. Verner, and Shapiro v. Thompson. ... While
unconstitutional conditions doctrine thus is hardly unique in deeming some
offers of benefit coercive, the concept of coercion will depend just as
inescapably on independent conceptions of utility, autonomy, fairness, or desert
in the unconstitutional conditions context as in other contexts. ... The other
invalidated the regulations, reasoning that whatever the government's power to
control the use of federal funds, it had here "go[ne] beyond a mere refusal to
subsidize" and had imposed an "unconstitutional penalty" on the use of
nonfederal funds to advocate, counsel, or encourage abortion. ... Second, an
unconstitutional condition can skew the distribution of constitutional rights
among rightholders because it necessarily discriminates facially between those
who do and those who do not comply with the condition. ...
HIGHLIGHT: Basic constitutional jurisprudence dictates that courts subject most
government benefit decisions to minimal scrutiny, but scrutinize government
actions that directly burden preferred liberties more closely. Unconstitutional
conditions problems arise at the boundary between these two directives: when
government conditions a benefit on the recipient's waiver of a preferred
liberty, should courts review the conditioned benefit deferentially, as a
benefit, or strictly, as a burden on a preferred liberty? See Wav const case.wpd
Dear Attorney General, Richard Blumenthal,
Please answer to each issue raised to the following documents. Please send a certification that you have received this letter and your Opinion is pending.
MAIN ISSUES CONCERNING THE COURT'S DENIALS TO BE FULLY HEARD:
!) How Fed RCP applies to this case: November 15, 2004; No. 03-30924 IVAN ECHEVERRIA v. CHEVRON USA INC., MCCALL CREWBOATS LLC, MCCALL MARINE SERVICES INC.; CHILES OFFSHORE INC., No. 03-31046 Appeals from the U.S. District Court for the Eastern District of Louisiana; Page 4: "Rule 50(a) does not explain what ""fully heard"" means. In practice, a party has been fully heard when he rests his case."
2) I need legal analysis from the Attorney General about Strict Scutiny, inaction on issues, and Fed RCP Rule 52:
"no judgment allowed until a party is fully heard." It's all about being fully heard. I've made a LANDMARK challenge on the 35 page limitation rule, claiming being fully heard is a fundamental right. The courts are simply trying to ignore it, thus breaking the law (Roth v. Weston). Meanwhile I am caught in the quagmire of Contempt and was already jailed once.
SEE WAV 2ND APPEAL My files for added law
We recognize the district court, in our unified court system, is a court of general jurisdiction and is constitutionally endowed with "unlimited original jurisdiction of all justiciable matters, except as otherwise provided in this Article,". Article 7, Section 7, Oklahoma Constitution. However, this "unlimited original jurisdiction of all justiciable matters" can only be exercised by the district court through the filing of pleadings which are sufficient to invoke the power of the court to act. The requirement for a verified information to confer subject matter jurisdiction on the court and empower the court to act has been applied to both courts of record and not of record. We determine that the mandatory language of 22 O.S. 1981 § 303 [22-303], requiring endorsement by the district attorney or assistant district attorney and verification of the information is more than merely a "guaranty of good faith" of the prosecution. It, in fact, is required to vest the district court with subject matter jurisdiction, which in turn empowers the court to act. Only by the filing of an information which complies with this mandatory statutory requirement can the district court obtain subject matter jurisdiction in the first instance which then empowers the court to adjudicate the matters presented to it. We therefore hold that the judgments and sentences in the District Court of Tulsa County must be REVERSED AND REMANDED without a bar to further action in the district court in that the unverified information failed to confer subject matter jurisdiction on the district court in the first instance, Chandler v. State, 96 Okl.Cr. 344, 255 P.2d 299, 301-2 (1953), Smith v. State, 152 P.2d 279, 281 (Okl.Cr. 1944); City of Tulsa, 554 P.2d at 103; Nickell v. State, 562 P.2d 151 (Okl.Cr. 1977); Short v. State, 634 P.2d 755, 757 (Okl.Cr. 1981); Byrne v. State, 620 P.2d 1328 (Okl.Cr. 1980); Laughton v. State, 558 P.2d 1171 (Okl.Cr. 1977)., and Buis v. State, 792 P.2d 427, 1990 OK CR 28 (Okla.Crim.App. 05/14/1990). To invoke the jurisdiction of the court under the declaratory judgments act there must be an actual, existing justiciable controversy between parties having opposing interests, which interests must be direct and substantial, and involve an actual, as distinguished from a possible, potential or contingent dispute. Gordon v. Followell, 1964 OK 74, 391 P.2d 242. To be "justiciable," the claim must be suitable for judicial inquiry, which requires determining whether the controversy (a) is definite and concrete, (b) concerns legal relations among parties with adverse interests and (c) is real and substantial so as to be capable of a decision granting or denying specific relief of a conclusive nature." Dank v. Benson, 2000 OK 40, 5 P.3d 1088, 1091. See also, 12 O.S. §1651. See also, Easterwood v. Choctaw County District Attorney, 45 P.3d 436, 2002 OK CIV APP 41 (Okla. App. 01/11/2002)).
Another well spoken authority: On the date specified in the notice of hearing, all parties may appear and be heard on all matters properly before the court which must be determined prior to the entry of the order of taking, including the jurisdiction of the court, the sufficiency of pleadings, whether the petitioner is properly exercising its delegated authority, and the amount to be deposited for the property sought to be appropriated. See CITY LAKELAND v. WILLIAM O. BUNCH ET AL. (04/03/74) 293 So. 2d 66.
“so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.” Connally v. General Construction Co., 269 U.S. 385 (1926)
We think this case demonstrably falls within the compass of those decisions of the Court which hold that ". . . a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law." Connally v. General Construction Co., 269 U.S. 385, 391 . "No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids." Lanzetta v. New Jersey, 306 U.S. 451, 453 . "Words which are vague and fluid . . . may be as much of a trap for the innocent as the ancient laws of Caligula." United States v. Cardiff, 344 U.S. 174, 176 . "In the light of our decisions, it appears upon a mere inspection that these general words and phrases are so vague and indefinite that any penalty prescribed for their violation constitutes a denial of due process of law. It is not the penalty itself that is invalid but the exaction of obedience to a rule or standard that is so vague and indefinite as to be really no rule or standard at all." Champlin Refining Co. v. Corporation Commission of Oklahoma, 286 U.S. 210, 243 .
The vice of unconstitutional vagueness is further aggravated where, as here, the statute in question operates to inhibit the exercise of individual freedoms affirmatively protected by the Constitution. As we said in Smith v. California, ". . . stricter standards of permissible statutory vagueness may be applied to a statute having a potentially inhibiting effect on speech; a man may the less be required to act at his peril here, because the free dissemination of ideas may be the loser." 361 U.S. 147 , at 151. "The maintenance of the opportunity for free [368 U.S. 278, 288] political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system. A statute which upon its face, and as authoritatively construed, is so vague and indefinite as to permit the punishment of the fair use of this opportunity is repugnant to the guaranty of liberty contained in the Fourteenth Amendment." Stromberg v. California, 283 U.S. 359, 369 . See also Herndon v. Lowry, 301 U.S. 242 ; Thornhill v. Alabama, 310 U.S. 88 ; Winters v. New York, 333 U.S. 507 .
The test for determining whether a statute is vague is whether it forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. State v. Sprague, 213 Neb. 581, 330 N.W.2d 739 (1983).
The procedural due process prohibition on vague laws or regulations serves two important interests:
1. to ensure fair notice to citizens, and
2. to provide clear standards for law enforcement.42
The first goal requires that citizens understand what a law means. "A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law."43 Thus, a local ordinance would be inconsistent with the first goal of the vagueness doctrine where it does not clearly specify what activities require a license and what grounds are sufficient for denial of a license.
The second goal of the vagueness doctrine is to require precise standards for enforcement. "A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.44 A local ordinance or rule that vests too much discretion in those responsible for its enforcement is inconsistent with the second goal of the vagueness doctrine and is likely to be found to violate it.45
The vagueness doctrine is particularly significant when a regulation or rule affects a fundamental right such as free speech.46 The precision is necessary to prevent self-imposed constraints on the exercise of fundamental rights. "Uncertain meanings inevitably lead citizens to 'steer far wider of the unlawful zone' than if the boundaries of the forbidden areas were clearly marked."47 Thus, if an ordinance "interferes with the right of free speech a more stringent vagueness test should apply."48
Moreover, a vague law creates additional concerns with enforcement since "the danger of censorship and of abridgment of our precious First Amendment freedoms is too great where officials have unbridled discretion over a forum's use."49 Accordingly, the courts will not presume that the public official responsible for administering a legislative policy will act in good faith and respect a speaker's First Amendment rights; rather, the vagueness "doctrine requires that the limits the [government] claims are implicit in its law be made explicit by textual incorporation, binding judicial or administrative construction, or well-established practice."50
Thus, a vague municipal law or policy has the potential to create significant constitutional problems for a city or village well beyond the realm of procedural due process. Accordingly, local government ordinance or policy drafting procedures should include the early and active participation of the local government attorney.
Due process of law is not only constitutionally guaranteed, but its basic concept of fairness in legal proceedings is an ancient one. The ancient Egyptians required judges to hear both sides of a case. The Greeks and Romans used juries and professional orators.
Due process of law is also a cornerstone of the American experience brought to this continent at the beginning of European settlement. It is a fundamental part of the compact between the American government, at all levels, and every American.
Thus, procedural due process is one of the most important legal concepts and duties for local government officials. The basic procedural due process outlines included in this comment should provide local government officials with a good start for understanding and implementing this important government responsibility in their city or village.
Captions: Liability 401; Powers of Municipalities 898
Other Captions: Liability; Powers of Municipalities
A State cannot, per the Fourteenth Amendment, abridge the privileges of a United
States citizen, even when a person is a resident of a State which tries to do
so. Colgate v. Harvey, supra, 296 U.S. at 428. The Fourteenth Amendment
prohibits any State from abridging the privileges or immunities of United States
citizens. Id. The Fourteenth Amendment demands that each state honor each United
States citizen's full privileges and immunities per the Federal United States
The governments of the United States and of the several states that comprise the
United States are distinct from one another. Colgate v. Harvey, supra, 296 U.S.
at 429. The rights of a citizen under one government may be materially different
from those which he has under the other. Id. To each he owes an allegiance, and,
in turn, he is entitled to the protection of each in respect of such rights as
fall within its jurisdiction. Id. If a person claims a right that falls within
his rights by virtue of his status as a United States citizen, per the
Fourteenth Amendment, no State can abridge that right. Id., 429-430.
If you set out to design a system to undermine public confidence, I don't think you could do a better job" than the typical state review system, in which complaints are kept secret, then overwhelmingly found to be meritless," said Turner. Some states have gag rules, asking complainants to keep mum about their gripes. A 1992 federal case, Kamasinski v. Judicial Review Council, rendered by then-U.S. District Judge Jose A. Cabranes in New Haven, Conn., held that the gag violated the First Amendment.
Most commonly, "gender or racial bias" is alleged in 25 of the 80 complaints. "Wrong decision" is next with 14, while 11 complaints are for "demeanor/temperament." There were six allegations of both abuse of authority and refusal to hear evidence, and five each for disrespectfulness, procedural errors, and lack of impartiality. Judges received four complaints for both failure to recuse and ex parte communications.
One complaint was lodged for: sexual harassment; racial discrimination; disability discrimination; defamation; collusion; incompetence and abuse of discretion. A decade ago, the council was criticized as ineffective, lacking a fixed address or even a telephone number. Since 1993, when Caldwell became executive director, it has had offices at 505 Hudson St., Hartford, Conn., and has steadily increased its accessibility and accountability.
GOOD LANGUAGE AND LAW
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DIXIANNE HAWKS, No. 95-16714
Appellant USDC EAST. DIST. CAL.
Civ. No. 93-82 WBS
COUNTY OF BUTTE, MICHAEL RAMSEY APPELLANT'S OPENING BRIEF
FEDERAL JUDGE EDWARD GARCIA and
CIRCUIT JUDGES SCHROEDER, CANBYand WIGGINS
APPEAL FROM DISMISSAL BY ORDER OF JUDGE WILLIAM B. SHUBB
STATEMENT OF JURISDICTION: (Circuit Rule 28-2.2)
(a) This portion of the lawsuit is against four federal
judges for violating the Petition Clause, Due Process Rights and
42 USC 1985. Jurisdiction in the District Court is pursuant to
Article III, Section 2, U.S. Constitution, and 28 USC 1331.
(b) Appellate Jurisdiction is in this court pursuant to FRCP
Rule 54(b) and 28 USC 1291.
(c) Judgment was entered pursuant to the Memorandum and
Order of Judge Shubb, filed in the District Court on July 27,
l995. The Notice of Appeal was filed in the District Court on
August 24, l995. It is timely pursuant to FRAP Rule 4(a)(1).
Rule 28-2.3 Reasonable Attorney Fees are sought under 42 USC
Rule 28-2.5 Standard of Review from a motion to dismiss; de
novo as to all issues.
Appellant's Opening Brief: Page 1 of 35
STATEMENT OF ISSUES PRESENTED
Appellant presents the following issues to this Court:
1. Was judicial immunity lawfully applied to Judge Garcia?
Was his conduct of dismissing on the basis of a policy of
prejudice against IFP litigants without return of summons, notice
or hearing, a judicial act as opposed to an administrative act?
Are the remedies sought against Judge Garcia prohibited
within the ambit of Mullis v US Bankruptcy Court, 828 F2d 1385?
Is the Mullis doctrine of judicial immunity constitutional?
2. Was judicial immunity lawfully applied to Judges Canby,
Schroeder and Wiggins?
Is a conspiracy of judges to institute an illegal policy,
within "subject matter jurisdiction," within the meaning of
Mullis? And, if so, is the Mullis judicial immunity doctrine
3. Does the judicial immunity doctrine violate the
Petition, the Due Process, or the Thirteenth Amendment
Involuntary Servitude Clauses?
STATEMENT OF THE CASE
This is an appeal from a dismissal of the Fifth Cause of
Action, on motion of all federal judge Defendants, granted on
July 27, l995, on the basis of judicial immunity. Pursuant to
Rule 54(b), a final judgment was entered. Appellant's claim
arises under the Petition and Due Process clauses for denials of
Equal Protection by Judge Garcia, and a conspiracy to cover-up
his violations and maintain a secret policy denying equal
protection on the basis of poverty, by the three Ninth Circuit
Court of Appeals Judges who heard the appeal.
Appellant's Opening Brief: Page 2 of 35
THE FACTUAL ALLEGATIONS: "(n:n)" Refers to page and line of
the First Amended Complaint (FAC).
Appellant is indigent and entitled to proceed in forma
pauperis (IFP) (7:10) without discrimination because of poverty,
under the Petition Clause, the Due Process Clause and the
judicial oath; 28 USC 453. On 1/13/93, she filed a federal
complaint IFP, for 42 USC 1983 violations by state officers. It
was assigned to Judge Garcia. (7:12-23) She had a right to amend
the complaint. (7:28-8:3) (FRCP 15).
Judge Garcia has a policy of discrimination against poor
People who proceed IFP, by dismissing with prejudice, without
notice or hearing. The policy denies rights to amend the
complaint because of IPF status and increases the cost of justice
to the poor because they are poor. (8:4-11). On January l9, l993,
under the aforesaid illegal policy, Judge Garcia dismissed the
complaint with prejudice. (8:12-17)
Hawks appealed to the Defendants: Circuit Judges Schroeder,
Canby and Wiggins. As Judge Garcia's superiors, they are
obligated to disaffirm the aforesaid illegal policy which was
placed so squarely before them they could not avoid it. They did
arbitrarily and capriciously cover-up, adopt, and ratify said
illegal policy in violation of Appellant's due process rights,
and by such conspiracy to adopt and ratify it, they did
intimidate and oppress her Petition Rights in federal court,
violating 42 USC 1985(2). (See 9:8-10:2 generally).
Appellant's Opening Brief: Page 3 of 35
DAMAGES WERE NOT SOUGHT AGAINST THE FEDERAL JUDGES
Each of the first four causes of action seeks damages from
Butte County and Michael Ramsey. (See FAC 3:10; 3:28; 5:11; 6:21
and Punitive Damages at 6:25 et seq.) Hawks did not seek damages
in the fifth cause against the federal judges. Instead, she
prays "under this supplement" for: (1) an injunction against
Judge Garcia; (2) a declaration that the policy violates due
process; (3-5) a jury trial as to whether the conduct complained
of violates due process, the Judicial Oath, and 42 USC 1985(2);
(6) from each judge a public apology; (7) from Judge Garcia
reasonable costs and attorney fees for the appeal from his
dismissal; and (8) attorney fees and costs in this case, and
such other relief as is just and proper.
The Fifth Cause complies with Pulliam v Allen, 466 US 522.
While Pulliam addressed state judges under 42 USC 1983, there
appears no reason why its principle does not apply to federal
judges under the Petition and Due Process Clauses and under their
oath and 42 USC 1985.
INTRODUCTION TO THE ISSUE
The facts underlying this appeal are easy to understand. It
is the "law" of "judicial immunity" to violate the Constitution
that is complex and incomprehensible; it is a false body of law
that begins with a contradiction:
1. Judges are immune from redress to those they injure in
violation of constitutional rights under color of office.
2. "Congress shall make no law ... abridging the right of
the People ... to petition government for a redress of
3. The "Coup de Grace" emasculating the Petition Clause is
found in 28 USC 2674, in the l988 amendments. "Personal"
immunities created by the judiciary now completely immunize the
Appellant's Opening Brief: Page 4 of 35
government from accountability to those its immunized officers
injure in violation of constitutional rights. Today, most
government officers who have direct contact with the People can
find an immunity to hide behind.
What happened to the Petition Clause? If it speaks true,
wherefrom comes immunity to violate the Constitution? We are
told the judges created it; but under Article I, only Congress
can make law; under Article IV, only the Constitution and law
made pursuant to it, not in derogation of it, are the Supreme Law
of the Land; and under Article VI, all judges are sworn to
support "This Constitution." The contradictions rage on.
Judges contend the authority is implied in a constitutional
doctrine that is also implied, called the "Separation of Powers."
Judicial Immunity, they say, comes not from law, but from its own
constitutional separation from the Legislature. It cannot make
law breaching that separation. That is the basis of immunity.
The problem with that rationalization is not only that its
premise is twice removed from the Constitution, so that we can't
find it except by blind faith in our judiciary, but immunity to
violate Constitutional Rights also has nothing to do with
separation of powers. The issue is accountability to the People
for violating their rights, not accountability to another branch.
A constitution that "implies" a right for judges to violate it
with impunity is not a constitution at all, but a license to
violate rights under color of judicial fiat.
Another weakness of that argument is that the judiciary also
created immunities for the rest of government. That violates the
same separation principle said to justify it, in four ways:
Appellant's Opening Brief: Page 5 of 35
First, its extensions of immunity to other branches are not
merely making rules for itself, but making laws that apply to all
of government. That invades the legislative function.
Second, those laws also apply to the People, denying them
redress for constitutional wrongs under "law" designed by judges.
That also invades the legislative function, albeit beyond the
Third, by setting the terms and conditions under which
government, in all branches, is immune to violate rights, it
achieves the opposite of separation: It consolidates and
organizes government against the People's exercise of rights.
For example, judges created immunities over 120 years, then in
1988 Congress insulated government by amending 28 USC 2674,
thereby consolidating two branches of government. Then the
executive branch defends government before the courts, thereby
consolidating all three branches against the People.
Fourth, another "separation principle" also violated is
Tenth Amendment States' Rights. The Federal Judiciary has not
just created immunity for itself and for federal officers, but,
disguised as constitutional doctrine, it has created immunity for
state officers as well. This not only unites the federal branches
against the People, it also unites them with state and local
governments, all against the People's civil rights.
What begins to appear is that the judges, by grant of
immunity to themselves and to select government officials at all
levels, have completely redesigned our Constitution. As we shall
see herein, this redesign goes far beyond simple civil immunity.
It renders the People incapable of enforcing any rights against
anyone judges want to protect, for any reason, or for no reason.
Appellant's Opening Brief: Page 6 of 35
Unenforceable rights are not rights at all.
The effect of these immunities over time is to create an
elite ruling class, bound not by the general law nor to our
Constitution, but bound only by personal loyalty to government.
That is a New Nobility, and it emerged this way:
As the separation fallacy became apparent, the judiciary
created another rationale that had been brewing for a hundred
years to justify the same end. As nations are sovereign from each
other, the judges ruled, governments are sovereign from their own
People. Since it is sovereign, government can decide if, when,
and how to waive its sovereignty and subject itself to the
Petition Clause, within whatever limits it wants. If it wants
not, the Petition Clause is not.
That is the argument of "sovereign immunity." Stripped of
its mystique, it is "The Divine Right of Kings," a barbarian
doctrine that died at the Convention and was buried under the
Petition Clause until resurrected under the doctrine of stare
decisis and "ancient common law," and pulled past the Revolution
and through the Constitution. For an example, see Edelman v
Jordan, 415 US 651, where the Court amended both the Petition
Clause and the Eleventh Amendment based on the ancient English
doctrine of the Divine Right of Kings.
Again, the People are subjugated to the whims of kings by
another name, without right of redress through compulsory process
of law. Law, inaccessible to the People to redress grievances
with government, is not law, but tyranny. The new civilized
relationship of government to governed -- won in war, written in
blood, and sealed into our Constitution -- was lost, one
"judicial interpretation" at a time. The awesome forces it was
designed to protect us from, are unchained.
Appellant's Opening Brief: Page 7 of 35
That is judicial immunity and from where it came. There is
no justification for it in a nation tending to be civilized. It
is not lawful under our Constitution, nor is it rational to our
democratic institutions. Yet, today judicially created immunities
have become the dominant force of government, organized against
THE RATIONALITY OF JUDICIAL IMMUNITY
Reason imposes limits on the justifications for judicial
concepts of immunity. We address three separate considerations:
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:
My NOTE: "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.
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