J.A.I.L. News Journal
_____________________________________________________
Los Angeles, California                                   March 28, 2004
 
Would Existing Judicial Immunity Laws Thwart J.A.I.L.?
 
I have viewed your sites (Florida and California) and find the intent being admirable and truly necessary. However, your goal... even if successful, will come to a shocking revelation. The U.S. Congress in 1996 amended the Civil Rights Acts (42 USC Sec. 1983 and 42 USC Sec. 1988) to extend immunity to judicial officials. With these laws in place, your enactment of a state constitutional amendment would be voided under the Supremacy Clause of the U.S. Constitution as long as the accused were acting in their judicial capacity. 
--Manny Machado, Jr,
(See string of messages below)
 
Dear Manny:
 
This is Barbie writing, to try to clarify a few things. First, I thank you for your good-faith effort to warn us about possible shortcomings of J.A.I.L. I appreciate your desire to want to be of help to this cause.
 
I presume that you have read the J.A.I.L. Initiative. You will note that the reason stated for the need for J.A.I.L. is based on the judge-made doctrine of judicial immunity, and more specifically its abuse. "We, the People of California, find that the doctrine of judicial immunity has been greatly abused, and when judges abuse their power, the people are obliged - it is their duty - to correct that injury, for the benefit of themselves and their posterity. ..."
 
In my research of judicial immunity, I found that it was created by judges so they wouldn't have to answer to every lawsuit against a judge, because they said it was usually the result of disgruntled litigants not "liking" the decision against them. Judges call these kinds of complaints "frivolous" (a term that has greatly outgrown its usefulness), and judicial immunity was designed to protect judges against "frivolous lawsuits" against them. It was said that if judges had to attend to the thousands of such lawsuits, they wouldn't have time to attend to their regular cases, and it would "chill the ardor" of strong decisionmaking (I believe that's the term used by the Supreme Court justifying the need for J.I.). Sorry, I don't have my legal authorities readily available to cite here. (Bradley v. Fisher; Stump v. Sparkman; I don't have the cites off hand-- and there are other cases).
 
But suffice it to say, judicial immunity became a very jealously guarded doctrine by the courts-- so much so that when 1983 says "Every person," the Supreme Court decided that in order for that to have been intended to include judicial officers, Congress had to specifically so state in the statute (every person, including judges) to show its intent, otherwise without Congress specifically spelling it out, the SC decided that such was not its intent. My question is, was there a conflict of interest here???
 
The thing to remember, Manny, is that judicial immunity is NOT law. It does not appear in the Constitution, nor could it because that doctrine actually operates against Constitutional principles. When first created, the doctrine was well taken by the courts because they saw a need for judges to be protected from harrasing lawsuits. There were certain limitations placed on the use of judicial immunity so that judges would not be placed above the law. However, as time went on, judges found that doctrine to be very comfortable for them, and soon it was applied across the board for any judicial conduct, unless it was so egregious that it caused embarrassment to the system, especially if the conduct was reported in the media. It is my opinion that this doctrine lies at the base of judges disregarding the law and the facts-- in other words, disregarding the right of redress of grievances. They may do so with impunity. That's the impetus of J.A.I.L. Judges must be held accountable to the people for their actions.
 
One of our California JAILers, John Wolfgram, wrote an excellent law review article called "How the Judiciary Stole the Right of Petition."  I had written a J.A.I.L. News Journal about four months ago on this subject. Yes, our judiciary stole our right of petition by the abuse of the doctrine of judicial immunity. Judicial immunity actually blocks that fundamental right protected by the First Amendment of the Constitution. Examining any of the constitutional amendments, or other provisions, together with the doctrine of judicial immunity or any "law" relating thereto, which law prevails? 
 
Manny, you said (see below) "be it understood that any action in a state court which  brings a judge into question will also evoke the Supremacy Clause... as it is "the law of the land."  You quoted the supremacy clause which states it is the U.S. Constitution and laws made in pursuance thereof.  Where is judicial immunity found in the Constitution?  Are any "laws" enforcing judicial immunity, laws "made in pursuance" of the Constitution?  Are you saying that a state judge may not be brought into question according to the Constitution?  Please clarify why you made that statement.  I'm not saying you're wrong-- I just don't understand how that could be true.
 
It is my understanding that the Constitution was written to protect the People-- not government officials: executive, legislative, and judicial. The Constitution limits government officials, and it certainly doesn't release judicial officials from those limitations and mandates by the use of judicial immunity. I would have to conclude that judicial immunity, or any government immunity that gets in the way of performing their duties under constitutional precepts, IS UNCONSTITUTIONAL!  Anything that blocks constitutional practice and procedure cannot be constitutional.  Manny, where am I misunderstanding something?  Maybe I am, so please tell me.
 
You suggest that "It is my belief that your tact should include a move, by petition, to rescind the existing federal laws protecting judicial officials. This would give judicial validity to your current course of action..."
Manny, that won't be necessary because any laws that are repugnant to the Constitution are null and void. As I said, I believe the Constitution exists for the protection of the People-- not protection of judicial officials.
J.A.I.L. is built on that premise.
 
Assuming you are sincere in wanting to warn us about any shortcomings of the J.A.I.L. Initiative or legislation, we welcome your input and appreciate the opportunity of discussing this matter with you. It is our hope that we can all learn from it.
 
-Barbie-
victoryusa@jail4judges.org
 

 
----- Original Message -----
From: Manuel Machado Jr
To: mferran@nycap.rr.com ; VictoryUSA@jail4judges.org
Cc: iandersonadvocate
Sent: Wednesday, March 24, 2004 3:14 PM
Subject: Re: The Short-Coming Of J.A.I.L., by Manny Machado
(Responding to Mark Ferran below)
My intent is not to throw a monkey wrench into the efforts of Jail4Judges. My intent is to enlighten so that the efforts of this group will not be in vain!!! Jail4Judges' mandate is, at present, focused on... approaching the individual states for a constitutional amendment. However... this single approach will lead to ineffective redress... relying here on the U.S. Constitution - Article VI, Cl. 2 citing:
 

U.S. Constitution: Article VI - Clause. II. [Pertinent Part ]

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.

 

Based upon this citation... do you believe my premise incorrect??? Taking it further... I will address your assumption which provided: "Congress did not 'amend' the federal Civil Rights Acts." So... for those not wishing to follow up and review the statutory provisions... here they are:

 

Section 1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordinance,
regulation,custom, or usage, of any State or Territory or

the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person

within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action

at law, suit in equity, or other proper proceeding for redress,
except that in any action brought against a judicial officer

for an act or omission taken in such officer's judicial 
capacity, injunctive relief shall not be granted unless a 
declaratory decree was violated or declaratory relief was

unavailable. For the purposes of this section, any Act of
Congress applicable exclusively to the District of Columbia
shall be considered to be a statute of the District of Columbia.

 
AMENDMENTS
1996 - Pub. L. 104-317 inserted before period at end of first

sentence '', except that in any action brought against a judicial
officer for an act or omission taken in such officer's judicial
capacity, injunctive relief shall not be granted unless a

declaratory decree was violated or declaratory relief was
unavailable''.

 

Section 1988. Proceedings in vindication of civil rights

(b) Attorney's fees
     In any action or proceeding to enforce a provision of 
sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this

title, title IX of Public Law 92-318 (20 U.S.C. 1681 et seq.),
the Religious Freedom Restoration Act of 1993 (42 U.S.C.
2000bb et seq.), the Religious Land Use and Institutionalized

Persons Act of 2000 (42 U.S.C. 2000cc et seq.), title VI of
the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), or

section 13981 of this title, the court, in its discretion, may
allow the prevailing party, other than the United States, a
reasonable attorney's fee as part of the costs, except that in
any action brought against a judicial officer for an act or
omission taken in such officer's judicial capacity such officer
shall not be held liable for any costs, including attorney's

fees, unless such action was clearly in excess of such officer's
jurisdiction.

                                                         AMENDMENTS


1996 - Subsec. (b). Pub. L. 104-317 inserted before period at
end '', except that in any action brought against a judicial
officer for an act or omission taken in such officer's judicial
capacity such officer shall not be held liable for any costs,
including attorney's fees, unless such action was clearly in
excess of such officer's jurisdiction."

See:

U.S. Supreme Court - PULLIAM v. ALLEN, 466 U.S. 522 (1984) this case started the amendment process -  see case language as it provided the content of the amendments.

 

Further... all of your citations predate the amendments... which will result in their inapplicability after the enactment of the amendments stated above. And... be it understood that any action in a state court which brings a judge into question will also evoke the Supremacy Clause... as it is "the law of the land."

 

Now... are my assumptions "wrong" or "based on wrong statements of law???" Until recently... I spent more than 27 years advocating for the rights and benefits of veterans and other disabled persons. I have been schooled in the law and applied that schooling before many tribunals. Yet not once has even a judge indicated that my actions were predicated upon false statements or that I was working against any group to thwart its efforts. I resent your statements in this regard... especially since you did not bother to research the basis of my writing!!! And... I do apologize for not preparing a legal treatise, with appropriate citations. I was not aware I would be submitting to a tribunal where my rights or liberties were at stake.

Manny

 

On Wed, 24 Mar 2004 11:57:14 -0500 "Mark Ferran" <mferran@nycap.rr.com> writes:
Mr. Manny Machado, Jr's comments are very mistaken.
 
First of all, Congress did not "amend" the federal Civil Rights Acts (42 USC Sec. 1983 and 42 USC Sec. 1988) to extend immunity to judicial officials.  The Supreme Court itself simply decided (prior to that) that Judges would be allowed immunity because Congress did not explicitly state otherwise.   Congress can enact civil rights legislation (such as a Federal JAIL Act)that would enable citizens to hold Judges accountable for their violations of the Constitution, but has not done so in a sufficiently explicit manner to overcome the Supreme Court's decision to afford Judicial immunity from suit under 42 USC Sec. 1983 and 42 USC Sec. 1988.  
Suing Judges - Judicial Immunity  http://www.perkel.com/pbl/immune.htm
 
Secondly, "judicial immunity" from suit under 42 USC Sec. 1983 and 42 USC Sec. 1988, is not the same as judicial immunity from suits brought under state Law in the state courts.  Each state has the authority to control its own officers (judges) and would have the sovereign power to enact a law providing for the punishment (civil and criminal) of its officers, including judges.  It would be highly doubtful that Congress could claim any power to interfere with the state's exercise of its sovereign power to control and punish its judicial officers, other than to insure that Judges, as persons, receive the benefit of Due Process of Law.
 
Third, Judges do not enjoy "immunity" even under 42 USC Sec. 1983 and 42 USC Sec. 1988, from "injunctive relief."   And, Judges do not enjoy judicial immunity from criminal prosecution under Federal Criminal Civil Rights Acts, e.g. 18 USC section 242 (see Part 1, at www.billstclair.com/ferran )

"In the following cases, courts have found that the judges acted outside of their judicial capacity and were not entitled to immunity: Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988)(state court judge did not have absolute immunity from damages suit under S 1983 for his decision to demote and dismiss a probation officer); Morrison v. Lipscomb, 877 F.2d 463 (6th Cir.1989)(state court judge was not entitled to judicial immunity in connection with order declaring moratorium on issuance of writs of restitution from December 15 through January 2, as judge was acting in administrative and not judicial capacity); King v. Love, 766 F.2d 962, 968 (6th Cir.), cert. denied, 474 U.S. 971, 106 S.Ct. 351, 88 L.Ed.2d 320 (1985)(although setting bond on an arrest warrant is a judicial act, the act of deliberately misleading the police officer who was to execute the warrant about the identity of the person sought was nonjudicial); Sevier v. Turner, 742 F.2d 262 (6th Cir.1984)(juvenile court judge's initiation of criminal prosecution and civil contempt proceeding against father for child support in arrears constituted nonjudicial acts); New Alaska Development Corporation v. Guetschow, 869 F.2d 1298 (9th Cir.1988)(receiver appointed by state court to manage business assets of an estate was entitled to absolute derivative judicial immunity, but receiver was not absolutely immune from allegations that he stole assets or slandered parties, as such alleged acts were not judicial); Harper v. Merckle, 638 F.2d 848 (5th Cir.), cert. denied, 454 U.S. 816, 102 S.Ct. 93, 70 L.Ed.2d 85 (1981)(holding a contempt proceeding and ordering plaintiff incarcerated were not judicial acts where controversy that led to incarceration did not center around any matter pending before the judge, but around domestic problems of plaintiff former wife who worked at the courthouse); Harris v. Harvey, 605 F.2d 330 (7th Cir.1979), cert. denied, 445 U.S. 938, 100 S.Ct. 1331, 63 L.Ed.2d 772 (1980)(allegedly repeated communications to the press and city officials which were critical of police lieutenant, and the improper instigation of criminal proceedings against the lieutenant by judge as part of a racial campaign to discredit lieutenant were not judicial acts)." http://www.perkel.com/pbl/immune.htm

"This court also has held that the initiation of accusatory processes, such as criminal prosecutions or civil contempt proceedings, is a non-judicial act that may subject a judge to liability. Sevier v. Turner, 742 F.2d 262, 272 (6th Cir.1984). However, recently, in Barnes, we explained that the exception to absolute immunity, when a judge engages in a purely prosecutorial function, is a narrow one; and, even if the judge encroaches upon prosecutorial functions, the *334 broad shield of absolute immunity is not automatically overcome. 105 F.3d at 1118-119."  http://www.perkel.com/pbl/immune.htm
 
Many recognize that judicially created immunity is a problem:  http://www.caught.net/caught/supre.htm
 
Court of Appeal's Expansion of Judicial Immunity Is Unwarranted  http://www.metnews.com/opinion/sanctions2.html
 
Other immunities, granted by the courts to other types of officers, are not as extensive as the "judicial" immunity afforded by judges to judges:
"I am sure you have heard ELECTED and APPOINTED officials say, they have immunity from prosecution for any thing they have done wrong. Prosecutors and police officers are notorious for that statement. There is a U.S. Supreme Court case that says they are liable. George D Owen V. City of Independence, Missouri. Decided April 16, 1980. When you look this up scroll down to 25 See, e.g., Globe 365 (remarks of Rep. Arthur) (For Owen v Independence Click (HERE)"
 
Thus, Mr. Machado's arguments and conclusions, which are based on wrong statements of the law, are themsleves wrong.  The complete absense of any links to cases or statutory language to support  Mr. Machado's arguments suggests that he is either relying upon hearsay from other uninformed people, or that he is deliberately misrepresenting the issue.  Either way, he is wrong, and one has to wonder why he, or whoever he is repeating, went out of his way to interject this false roadblock to the JAIL movement?
 

----- Original Message -----
From: VictoryUSA@jail4judges.org
To: Manuel Machado Jr
Cc: VictoryUSA@jail4judges.org
Sent: Wednesday, March 24, 2004 3:35 AM
Subject: The Short-Coming Of J.A.I.L., by Manny Machado

The Short-Coming Of J.A.I.L
(By Manny Machado, Jr, af63maw@juno.com)
 
----- Original Message -----
Sent: Tuesday, March 23, 2004 1:59 PM
Subject: May Need Another Approach

I have viewed your sites (Florida and California) and find the intent being admirable and truly necessary. However, your goal... even if successful, will come to a shocking revelation. The U.S. Congress in 1996 amended the Civil Rights Acts (42 USC Sec. 1983 and 42 USC Sec. 1988) to extend immunity to judicial officials. There are some minimal exceptions that essentially mean total immunity for judicial officials.

With these laws in place, your enactment of a state constitutional amendment would be voided under the Supremacy Clause of the U.S. Constitution as long as the accused were acting in their judicial capacity.
 
I have attached an article or informational writing which shows the extent of judicial misconduct in Connecticut. However... I have found like actions in a great number of other, states given the same subject matter.

It is my belief that your tact should include a move, by petition, to rescind the existing federal laws protecting judicial officials. This would give judicial validity to your current course of action, but beware, it will be an uphill battle. One that should perhaps contain a class action suit to address the validity of the federal amendments. Does Congress have the authority under the Constitution to place any citizen above the law???

I would appreciate your comments.
Manny
 

 
Ron Branson's Response:
 
Dear Manny:
 
Thank you for your input re the J.A.I.L. plan of action. As you know, according to the U.S. Constitution, state's rights are superior to that of federal mandates. (See the 10th Amendment).
 
Further, amendments by Congress to Title 42, Sec. 1983 cannot grant strength to an act that ultimately violates the rights guaranteed to all citizens by the Constitution. For instance, how can Congress constitutionally place redress of grievance against judges out of the reach of the people when they are guaranteed that right by the First Amendment of the Constitution, to wit, the right to "petition the government for a redress of grievances?" Are we to conclude that the federal judiciary is therefore not one of the Branches of government?
 
"The powers not delegated to the United States by the Constitution ... are reserved to the ... people."   Can anyone establish from the Constitution that the people delegated to the United States the powers to make any part of itself immune from the people?   I'm from Missouri. Show me!  I have just reread Article III of the U.S. Constitution, and I find nothing that hints of the authority of Congress to grant to federal judges judicial immunity. Where's even the hint of such a thing?
 
Even common sense tells you that judges, state or federal, cannot be beyond the reach of the people by judicial immunity. If Congress passed a law saying the U.S. Constitution is hereby suspended, would the Constitution thereby be suspended? Authority, please!  Redress is more than a right protected by the U.S. Constitution, but an inalienable right granted by God. Can Congress, or the Federal Courts, suspend God out of the question? Can they suspend gravity while they are at it? Command the sun that it shine not? or the waves of the sea to be calm?
 
-Ron Branson
 


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