"Personal" immunities created by the judiciary now
Appellant's Opening Brief: Page 4 of 35
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.
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
support "This Constitution." The contradictions rage
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
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. [Emph. J4J]
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
Appellant's Opening Brief: Page 5 of
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
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 legislative power.
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
"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
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
Appellant's Opening Brief: Page 6 of
Unenforceable rights are not
rights at all.
of these immunities over time is to create an elite
ruling class, bound not by the general law nor to our
but bound only by personal loyalty to
That is a New Nobility,
and it emerged this way:
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
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
doctrine of the Divine Right of Kings.
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 --
lost, one "judicial interpretation" at a time.
The awesome forces it was
designed to protect us from, are
Appellant's Opening Brief: Page 7 of
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
THE RATIONALITY OF JUDICIAL IMMUNITY
Reason imposes limits on the justifications for judicial concepts of
immunity. We address three separate
1. JUDICIAL IMMUNITY
PREVENTS DEMOCRATIC CHANGE
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
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
As we will see, judicial immunity, which comes from the
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. [Emph. J4J] It is an
institution in a democratic age.
JUDICIAL IMMUNITY UNDERMINES
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
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
Appellant's Opening Brief: Page 9 of
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
IMMUNITY VIOLATES TWO AMERICAN
the Revolutionary Changes in accepted legal theory.
America has had two revolutions separating it from the
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
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
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
Appellant's Opening Brief: Page 10 of
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
"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. [Emph.
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
The evaluation herein undertakes a
First, to define
the doctrine to see exactly what Judge Shubb says is barred from
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
Third, is the immunity Judge Shubb applied
Each of these issues will now be
Appellant's Opening Brief: Page 11 of
OF THE JUDICIAL IMMUNITY APPLIED
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)
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
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
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
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
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
Appellant's Opening Brief: Page 12 of
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
Grievances of a Constitutional Magnitude with local government, under
an act of Congress specifically authorizing it (42 USC 1983). Given
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.
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
no defendant appeared and no motion to dismiss
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
Appellant's Opening Brief: Page 13 of
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,
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
"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.
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
Appellant's Opening Brief: Page 14 of
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
immunity attaches to violate constitutional rights of the persons whose cause is
assigned in form only, to a constitutionally corrupt
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
In the sense by
which immunity attaches, "jurisdiction" means the "personal
right of the judge to do as he pleases." 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
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
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
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 1867defended 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 himself."
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
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 he the 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 1872:
"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 judicial inquiry. 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 does 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 the English 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. [Emph. J4J]
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 [Emph. J4J] 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 1789? 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
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. 1966; Ratified by the U.S. Senate in June 1992. See
Article 2. See also the Universal Declaration of Human Rights, U.N. Gen. Assem. Res. 217-A(III) of 10 Dec 48; 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. 1966; 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."
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 of broader 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
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 rights entrenched 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. [Emph. J4J] 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 1988 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
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 our system, 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! [Emph. J4J]
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, [Emph. J4J] 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.[Emph. J4J]
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. [Emph. J4J] 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. [Emph. J4J]
It is written that the longest journey begins with but one step in the right direction. When, as Brennan, Marshall and Blackmun found in 1982, 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. [Emph. J4J]
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, 1995
Dixianne Hawks by J.E.W. [John E. Wolfgram - CA. JAILer - J4J]
Appellant's Opening Brief: Page 35 of 35