J.A.I.L. News Journal
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Los Angeles, California                                           March 30, 2004
 
No-- Judicial Immunity Laws
Will Not Thwart J.A.I.L.
 
We received many responses to our recent JNJ regarding the question of existing judicial immunity laws thwarting J.A.I.L.  Some linked the question with the Supremacy Clause of the Constitution, which in turn evoked messages regarding treaties (a subject that is irrelevant to the scope of J.A.I.L.)  Ron said that he intends to re-issue a JNJ dated September 2000 that he wrote on that subject. It's worth re-reading and reading initially for those who have joined since.
 
Below is my response to Manuel Machado who originally wrote us to warn us about the probability of J.A.I.L. being declared unconstitutional because it questions the actions of state judges and goes against federal statute regarding judicial immunity which would come under the Supremacy Clause. -Barbie- victoryusa@jail4judges.org
 

Dear Manuel:
 
Thank you for your sincere reply to my article. One glaring sticking point, however, is the following (in green) that apparently was written by Michael James Anthony (who is not on our records as being a member of J.A.I.L.).
 
And now... considering Article VI, Clause 2 of the Constitution (This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; . . . . . 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.) This means literally, "judicial immunity" (in this case... "absolute immunity" from financial responsibility) extends to the states and therefore their judges. This will remain if and until the Constutionality of the amendment of Sec. 1983 of Title 42 is tested before the courts!!! For who is it that determines the Constitutionality of a statutory enactment?... the Supreme Court!!
 
Judicial immunity will be put to the ultimate test under J.A.I.L. If a judicial record brought to the Special Grand Jury under J.A.I.L. shows by written evidence (the record) that a judge did violate any part of the Constitution and did it willfully, i.e., after being so advised by the litigant and the judge stands on his decision anyway-- the judge will have his immunity removed and he will have to stand trial before a petit jury where he will be tried on his judicial conduct.  Judges will not be able to continue to rely on their shield of judicial immunity for constitutional violations.
 
If a Supreme Court Justice upholds a decision that a judge is absolutely immune when it is shown that the judge did violate constitutional provisions, and did so willfully, then any higher court judge or justice will be held liable for conspiracy with the lower court judges to violate constitutional provisions in a particular case brought under J.A.I.L. So, even the Supreme Court, as high and mighty as they are-- cannot allow the violation of constitutional principles in court proceedings under J.A.I.L. That's why we need J.A.I.L. --to stop this runaway judicial tyranny and it being covered up by the higher courts and the People left in the dust with no redress of grievance. It has got to stop!
 
So Manuel, it will not be "business as usual" with the courts-- especially the U.S. Supreme Court having the final say, no matter how they rationalize constitutional violations by the judiciary, such as "overriding governmental interests,"  "the Constitution is a flexible and elastic instrument that changes with the times,"  "the Constitution is a dead letter" or most common of all, not even taking a case involving constitutional  violations, especially due process of law. The idea that only one-tenth of one percent of cases are even heard by the Supreme Court is appalling!
Oh! they don't have enough personnel to hear all the cases??  Well, that will no longer be an excuse. One thing J.A.I.L. will do is greatly reduce the number of cases reaching the courts, because judges will start acting in accordance with constitutional law, once they are held accountable.
 
So, it won't be a question of this or that law (especially a statute) is on the books. A judge's actions will be scrutined under constitutional standards, and if a law doesn't measure up to those standards according to the evidence shown by the record, then it obviously is not a law made in pursuance of the Constitution. I'm not saying that there is absolutely no case for judicial immunity, but it will certainly be closely examined once J.A.I.L. becomes law. If it in any way interferes with constitutional mandates, then judicial immunity must give way.
 
Yes, there will be those instances where a judge heard a case based on the facts presented by the plaintiff and responses by the defendant (particularly the material facts of the case), as well as the law applied to those facts, and yet a losing party won't "like" a decision-- even though due process of law was followed--  it is understandable that a judge should be protected from a lawsuit resulting from that kind of situation.
But again, the record will have to clearly show that to be the case if it is brought to J.A.I.L. for scrutiny. Remember-- the judge will have the opportunity of answering any complaint brought before J.A.I.L. and present his evidence as well.
 
The People are no longer relegated to waiting for the Supreme Court to decide constitutionality, since it too is part of the judicial system that will be held accountable under J.A.I.L. The Constitution will no longer be ignored.
 
You state: "I do not believe it would be upheld as Constitutional, but it must be presented to the court in an appropriate case; or a ground swell of opposition by the people to Congress may cause this statutory provision to be revoked."  Yes, when such "an appropriate case" is presented to the court, it will have to be addressed according to the Constitution, or face the possibility of J.A.I.L. process.  J.A.I.L. is the ground swell of opposition by the People-- not to Congress for having passed such an unconstitutional law, but to the judiciary for having upheld it.  
 
Finally you state: "My thought was to join forces with J.A.I.L. and proceed in concert with the disabled veteran community and confront Congress and the states, under J.A.I.L.'s initiative. Do you believe this would further enhance your goals??? I know joining forces would surely enhance the veterans goals in this matter!!!
 
As far as joining forces with J.A.I.L.,  J.A.I.L. is for everyone -- veterans and otherwise. J.A.I.L. is not a means of confronting Congress and the states, other than to get them to pass the legislation (in the non-initiative states & the U.S.).  The real force in getting J.A.I.L. on the ballot will be through the initiative process, by-passing the legislature. Oh, it will experience a lot of opposition from the legal establishment, but it will be up to the people to decide if they want judges held accountable to the Constitution. The system will argue that it isn't necessary, and they'll have plenty of money (from the taxpayers-- and the rich who benefit from the corruption, such as large corporations); but it will be the People who will ultimately decide. Once we have an accountable judiciary, you'll be able to take your case regarding veterans' benefits, or whatever, and have redress of grievances as was intended in this country. But first-- we need J.A.I.L.
 
To that end, we have established our target state, of South Dakota, as being the first state to put J.A.I.L. on the ballot. As a national effort, J.A.I.L. should get behind and support that state in that goal, as it will benefit all of us nationally.  J.A.I.L. will no longer just be a matter of conversation-- it will finally become reality.
 
I note that you're not on our email list, and we invite you to join. Here's our formal invitation to you (that we send to all prospects):
    Hello - my name is Ron Branson, author/founder of J.A.I.L. There is afoot a unique new movement now spreading across this country called JAIL as explained below.
     This letter is an invitation for you to become part of that movement by joining JAIL's email. There is absolutely no cost or objective other than to motivate you to become involved.
     JAIL is a unique way of turning our government around by the method explained at
href="../../State_Chapters/dc/DC_initiative.doc">www.jail4judges.org. One of our readers recognized our uniqueness by saying, "Hey, man you're doing a really good job! I have been unsubscribing to most newsletters because of priorities. But yours is the exception, it's too good to do without! Keep em coming."
    There is currently nothing like JAIL in this entire nation. Please accept our invitation to join with us.
 
-Ron-
------------------------------------
Again, thanks Manuel, for your input.
 
-Barbie-
Assistant to the Founder
victoryusa@jail4judges.org
 

 
 
----- Original Message -----
From: Manuel Machado Jr
To: VictoryUSA@jail4judges.org
Sent: Monday, March 29, 2004 6:53 AM
Subject: Re: Would Existing Judicial Immunity Laws Thwart J.A.I.L.?

Dear Barbie.
 
The following was a response to a member of J.A.I.L. (Michael James Anthony). I believe it will answer, most if not all of, your questions here.
 
My response to Michael:
 
First of all... I agree judges were not meant to have "immunity" let alone "absolute judicial immunity" (currently upheld by our federal courts; and, this notwithstanding declaratory decrees of any kind). Nonetheless, our ill advised Congress decided in 1996 to amend Sec. 1983 of Title 42 to exclude judges from liability and provide a limited form of redress with the availability of injunctive relief; but this is available only when a declaratory decree has been violated or a declaratory decree is not available.
 
The purpose of the amendment (Public Law 104-317 (1996)) was to overcome the then current Supreme Court Decisions to hold judges (in their official capacities)  responsible for violations of rights and liberties under the color of law, pursuant to Sec. 1983 of Title 42. This was a departure from the Supreme Courts long standing posture of upholding "judicial immunity." The Supreme Court in altering its position relied upon the abuses realized under their former extension of immunity. The only alternative for the judicial officials was to petition Congress for a change in law, knowing full well that such an enactment would void the prior holdings of the Supreme Court. Whether judicial officials argued, or the Supreme Court or the Circuit Courts issued in their decisions, the immunity of the sovereign under the Eleventh Amendment extends to judges... I have no knowledge. I have yet to see that argument in the decisions I have read. However... at this point the issue is moot as Congress has enacted the appropriate statutory provision.
 
And now... considering Article VI, Clause 2 of the Constitution (This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; . . . . . 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.) This means literally, "judicial immunity" (in this case... "absolute immunity" from financial responsibility) extends to the states and therefore their judges. This will remain if and until the Constutionality of the amendment of Sec. 1983 of Title 42 is tested before the courts!!! For who is it that determines the Constitutionality of a statutory enactment?... the Supreme Court!!
 
You provide: "It is also important to realize that, despite what Article VI says, the constitution does NOT apply to the States, because State courts are NOT constitutional courts." This proviso however is inaccurate... as the Tenth Amendment establishes the Constitutional authority for the states to create a judiciary as well as a legislature, constitution, laws and police. And, let us not forget the Fourteenth Amendment.
 
As for your presentation concerning New York v US (1992) the issue concerned the "commerce clause" and the Constitution prohibits the federal government from interfering with state commerce. This is not the case however when it comes to civil liberties which are enforceable upon the states under the Supremacy Clause and the Fourteenth Amendment.    End of response.
 
Barbie... as you can see from the above presentation... Congress has the authority to enact legislation in an effort to further rights and privileges under our Constitution. Whether Congress in its efforts here (amending Sec. 1983 of Title 42) was within its authority (granting immunity from the law) is a question for the Supreme Court. I do not believe it would be upheld as Constitutional, but it must be presented to the court in an appropriate case; or a ground swell of opposition by the people to Congress may cause this statutory provision to be revoked.
 
Frankly speaking I approached J.A.I.L. in order to meet my own ends and at the same time assure the viability of their initiative. You see... disabled veterans have had a large portion of their benefits taken from them in state court actions (the attempt was made on my benefits). This is contrary to federal law... you see... VA Disability Benefits are a "gift or gratuity" and not a pension or workers compensation which are derived from employment. As such the benefits are protected from any action in law or equity, except for a debt owed the federal government. The state courts have ignored this, placed disabled veterans in jail for refusing to waive their federal rights and coerced the veterans to relinquish as much as 70% of the monthly benefit. This... Barbie... is perpetrated upon those veterans who are totally disabled; unable to work where these benefits are their primary source of income. So... the veteran community is very interested in revoking this "judicial immunity" in order to hold those judges responsible for depriving them of their benefits.
 
My thought was to join forces with J.A.I.L. and proceed in concert with the disabled veteran community and confront Congress and the states, under J.A.I.L.'s initiative. Do you believe this would further enhance your goals??? I know joining forces would surely enhance the veterans goals in this matter!!!
 
Sincerely,
Manuel Machado, Jr.
 
On Sun, 28 Mar 2004 16:12:01 -0800 <VictoryUSA@jail4judges.org> writes:
J.A.I.L. News Journal
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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, af63maw@juno.com
 
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
 

 

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