DIXIANNE HAWKS, No.
Appellant USDC EAST. DIST. CAL.
Civ. No. 93-82 WBS
COUNTY OF BUTTE,
FEDERAL JUDGE EDWARD OPENING
GARCIA and BRIEF
CIRCUIT JUDGES SCHROEDER,
CANBY and WIGGINS,
INTRODUCTION TO THE ISSUE
The facts underlying this appeal are easy to understand. It is the “law” of “judicial
immunity“ to violate the
Constitution that is complex and incomprehensible; it is a false body of law
that begins with a contradiction:
1. Judges are immune from redress to those they injure in violation of
constitutional rights under color of office.
2. “Congress shall make no law ... abridging the right of the People ... to
petition government for a redress of Grievances.”
3. The “Coup de Grace” emasculating the Petition Clause is found in
28 USC 2674,
in the 1988 amendments.
“Personal” immunities created by the judiciary now completely immunize the
government from accountability to those its immunized officers injure in
violation of constitutional rights. Today, most government officers who have
direct contact with the People can find an immunity to hide behind.
What happened to the Petition Clause? If it speaks true, wherefrom comes
immunity to violate the Constitution? We are told the judges created it; but
under Article I, only Congress can make law; under Article IV, only the
Constitution and law made pursuant to it, not in derogation of it, are the
Supreme Law of the Land; and under Article VI, all judges are sworn to support
“This Constitution.” The contradictions rage on.
Judges contend the authority is implied in a constitutional doctrine that is
also implied, called the “Separation
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
The problem with that
rationalization is not only that its premise is twice removed from the
Constitution, so that we can’t find it except by blind faith in our judiciary,
but immunity to violate Constitutional Rights also has nothing to do with
separation of powers. The issue is accountability to the People for violating
their rights, not accountability to another branch.
A constitution that “implies” a right for judges to violate it with impunity is
not a constitution at all, but a license to violate rights under color of
Another weakness of that argument is that the judiciary also created immunities
for the rest of government. That violates the same separation principle said to
justify it, in four ways:
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
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
For example, judges created immunities over 120 years, then in 1988 Congress
insulated government by amending
28 USC 2674,
thereby consolidating two branches of government. Then the executive branch
defends government before the courts, thereby consolidating all three branches
against the People.
Fourth, another “separation principle” also violated is
Tenth Amendment States’
Rights. The Federal Judiciary has not just created immunity for itself and for
federal officers, but, disguised as constitutional doctrine, it has created
immunity for state officers as well. This not only unites the federal branches
against the People, it also unites them with state and local governments, all
against the People’s civil rights.
What begins to appear is that the judges, by grant of immunity to themselves and
to select government officials at all levels, have completely redesigned our
Constitution. As we shall see herein, this redesign goes far beyond simple civil
immunity. It renders the People incapable of enforcing any rights against anyone
judges want to protect, for any reason, or for no reason.
Unenforceable rights are not rights at all.
The effect of these immunities over time
is to create an elite ruling class,
bound not by the general law, nor to our constitution, but bound only by
personal loyalty to government.
That is a New Nobility, and it emerged this way:
As the separation fallacy became apparent, the judiciary created another
rationale that had been brewing for a hundred years to justify the same end. As
nations are sovereign from each other, the judges ruled, governments are
sovereign from their own People. Since it is sovereign, government can decide
if, when, and how to waive its sovereignty and subject itself to the Petition
Clause, within whatever limits it wants. If it wants not, the Petition Clause is
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
and “ancient common law,” and pulled past the REvolution and through the
Constitution. For an example, see
Edelman v Jordan, 415 US 651,
where the Court amended both the Petition Clause and the Eleventh Amendment
based on the ancient English doctrine of
Divine Right of Kings.
Again, the People are subjugated to the whims of kings by another name, without
right of redress through compulsory process of law. Law, inaccessible to the
People to redress grievances with government, is not law, but tyranny. The new
civilized relationship of government to governed -- won in war, written in
blood, and sealed into our Constitution -- was lost, one “judicial
interpretation” at a time. The awesome forces it was designed to protect us
from, are unchained.
and from where it came. There is no justification for it in a nation tending to
be civilized. It is not lawful under our Constitution, nor is it rational to our
democratic institutions. Yet, today judicially created immunities have become
the dominant force of government, organized against the People.
THE RATIONALITY OF
Reason imposes limits on the justifications for judicial concepts of immunity.
We address three separate considerations:
PREVENTS DEMOCRATIC CHANGE
First, moral or legal concepts are not born in full bloom. They emerge, are
examined and refined, and take on a gloss defining the limits of application in
various contexts. Ideas in law or ethics are like ideas in science: only a few
are really basic and the rest give way to competing ideas that make more sense
in the changing world that measures their worth.
An interesting thing about ideas: wrong ideas imposed by law prevent development
of better ideas necessary to evolving culture. So, for example, wrong ideas of
governmental immunity carried into an age of constitutional democracy stagnate
development of democratic relationships and prevent the new institutions
necessary to the changing times.
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 same intellectual era as
development of ideas and institutions for government accountability to the
People under the Constitution for its wrongs to them.
It is an
anti-democratic institution in a democratic age.
UNDERMINES JUDICIAL CREDIBILITY
Second is the context of intellectual Evolution in which ideas are examined. The
moral, legal and scientific world into which ideas are born changes over time.
Judicial ideas, developed when governments ruled through alliances with the
Church and under authority of the “Divine
Right of Kings,”
are not in the same moral, legal or scientific world in which they originated.
The result is justifications that once seemed irrefutable are now obviously
false or irrational. So, for example, once it was acceptable to argue “Judicial
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 and Kings
to a People who reject
both Divine Right and Kings, undermine judicial credibility.
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
VIOLATES TWO AMERICAN REVOLUTIONS
Third are the REvolutionary Changes in accepted legal theory.
America has had
two rEvolutions separating it from the British.
The first was the
REvolution of 1776.
It freed the Nation from British Rule. Thereafter, the law of England had no
legal force in America. We set up our own laws and institutions and were free to
accept or reject any basis for law, until the next rEvolution, only fourteen
We sometimes fail to appreciate the significance of adopting the Constitution.
Unlike any other in history, it rEvolutionized the relationship between the
government and the governed into one now accepted as the basis for governmental
legitimacy around the world.
British Common Law inconsistent with our Constitution is legally incompetent,
regardless of the supporting justifications for it. There could be no more
complete a break in the legal bonds of two nations than a war to separate them,
and a constitution from which to go their separate ways.
There is no more
compelling a legal reason to adopt
English Common Law, than
the ancient law of Rome or of Greece.
Neither the fact (if it is a fact) that
was found in
English Common Law,
nor that judicially created rules of
allow courts to refer to Common Law, allows let alone compels us to adopt
particular bodies of that law.
Ultimately, it is consistency with the Constitution, both in process and
substance, not a rule purporting to authorize adoption that determines whether
rules of antiquity can become the law in these United States.
“Laws” inconsistent with the Constitution are not the law of the United States.
For government to coercively insist that it is, is to court civil war. In this
age of science,
it is only a matter of time until the People see it and call it
for what it is: Open Rebellion by Government against the Constitution. [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 three-step process:
First, to define the doctrine to see exactly what
Judge Shubb says is barred
Second, what is the historic justification for immunity and what does it mean to
Americans of the twenty-first century? If the doctrine is not justified by
today’s standards of reason, it is exposed as a holdover from legal theory long
past its time.
Third, is the immunity
Each of these issues will now be examined in turn.
THE SCOPE OF THE
Judge Shubb found Hawks
“alleges that the judges violated her civil rights under
Bivens v Six Unknown Named Agents, 403 US 388,
and engaged in conspiracy to deprive her of her federally protected rights. She
seeks damages as well as injunctive and declaratory relief.” Memorandum and
Order (M&O) 2:5-11.
He ruled that “judges are absolutely immune from civil liability for damages for
their judicial acts,” citing
Mullis v US Bankruptcy Court, 828 F2d 1385, 1388,
and he found that all the actions of the judges “occurred within the course of
their judicial duties.” (M&O 2:12-17). He went on at M&O 2:17:
“In this circuit, federal judges also have
judicial immunity against
claims seeking injunctive or declaratory relief to the same extent that they are
immune from damages. See
Mullis, 828 F2d 1385, and to actions brought under
USC 1985. See
O’Conner v State of Nevada, 686 F. 2d 749, 750.
The only exception to this rule is where a judge acts in the clear
absence of all jurisdiction.
Stump v Sparkman, 435 US 348, 356-357.
Here, all four judges acted well within their jurisdiction, See
Mullis, 828 F2d at 1389.”
relies upon the Mullis case. But, in point of fact, Hawks did not seek damages
and her “injunctive and declaratory relief” is predicated upon a trial by jury
and does not fall within the ambit of the Mullis holding on that issue. In fact,
one may say Hawks’ case is pleaded under
Pulliam v Allen
and around Mullis to
obtain jury findings of rights violations.
But Judge Shubb’s holding ignores those differences and finds that
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
That no judge has “jurisdiction” to violate constitutional rights is immaterial.
For the purposes of this appeal, Hawks seeks Remedies and the Right to sue for
damages, notwithstanding that the constitutional violators are Federal Judges.
Initially, within a
week of filing a complaint intended to be amended before service, Judge Garcia
dismissed without notice or hearing and with prejudice, based on IFP status. In
addition to the lack of due process, the complaint was against local government
for its political persecution of Hawks; it was (and is) a Petition to the
Federal Government to Redress Grievances of a Constitutional Magnitude with
local government, under an act of Congress specifically authorizing it (42
USC 1983). Given those
facts, it is hard to conceive of anything more constitutionally protected. (The
Court may take judicial notice of facts from
Hawks v Butte Co., 9th Cir. No. 93-15346.)
Judge Garcia had no
subject matter jurisdiction.
According to Judge Shubb, the hypothetical fact that Judge Garcia conspired with
Butte County D.A. Defendant Ramsey to dismiss, and that Ramsey paid him $10,000
to do just that and promised to exercise his official state power to get Judge
Garcia’s son out of state prison in exchange for the dismissal, doesn’t matter.
But, under the Mullis rationale, what could matter is that summons wasn’t
returned; no defendant appeared and no motion to dismiss was made; for those
reasons, no subject matter was before Judge Garcia as a judge, but only as an
administrator, for which he has no
even under Mullis.
Further, after the appeal was assigned in this court, Judge Garcia
hypothetically may have met with Judges Canby, Schroeder and Wiggins in a
smoke-filled room behind a San Francisco bar, split the $10,000 four ways, and
negotiated favors that Ramsey would do for them, in exchange for upholding his
dismissal; which initially they did. (Reversal occurred on reconsideration.)
The point is not that this happened, but that it is possible under the
pleadings. Under Judge Shubb’s ruling, it doesn’t matter as to the appeals court
judges. But, as to Judge Garcia, he is again outside his
subject matter jurisdiction,
and the fact that he conspired with other judges does not protect him. See
Dennis v Sparks, 449 US 24, 28-29.
That such important constitutional issues should turn on whether he had, in some
undefinable sense, “subject matter” jurisdiction blatantly to violate
Amendment Rights as he undeniably did, is an absurdity in its own right.
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
incredible on its face as to imply judicial arrogance to the constitution and
some unknown irregularity behind the scenes (not apparent on its face) to
account for a “motive” that is necessary to explain why the order issued.
What does “Jurisdiction” mean in this context? Judge Garcia
dismissed with prejudice,
without a motion before him; without notice or hearing; and he assumed this
“right” because of Hawks’ IFP status? If that is “jurisdiction” on which to
predicate immunity, then he has “jurisdiction” to shred the files assigned to
him in his office; and to execute those he finds guilty, without trial, on the
spot, in his own courtroom. (Reductio
Take the hypothetical of defendants’ selling judicial orders for $10,000. Taking
bribes, obtaining favors, conspiring in back rooms + these are all part of the
one indivisible transaction and not within judicial jurisdiction. But because
the “favor” they trade, the order they sold, is “subject to their jurisdiction,”
immunity attaches to violate constitutional rights of the persons whose cause is
assigned in form only, to a constitutionally corrupt judge?
In that context, “jurisdiction” takes on a very onerous meaning. It means a
judge can do as he pleases with the matters that are before him in form only.
This is not Lewis Carroll’s Wonderland. Judges are not free, in a constitutional
context, to twist words to mean what they want them to mean. The Mullis
treatment of “jurisdiction” is not jurisdiction but ownership. That’s what it
means to be free to do as you want with a matter under your control, and not
according to the trust of the Constitution.
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.
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
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
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
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.
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
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
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.
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.
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
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
and holdings like Mullis, Appellant is exercising the furthermost reaches of her
remedies to get a jury trial and jury finding of rights violations from which
she can compel an apology from the Defendants, and a criminal prosecution by
U.S. Attorneys who may be less reluctant to prosecute a judge after a civil jury
finding of civil rights violations.
If this seems as if Appellant is going to extremes to be treated as a human
being, it is because of the constitutionally contradictory demands of
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
THE HISTORICAL BASIS FOR
Judge Shubb based his
Mullis v Bankruptcy Court, 828 F2d 1385.
Judicial Immunity holdings
of Mullis are, in turn, based in
Stump v Sparkman, 435 US 349 (1978);
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);
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,
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
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?
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
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
have established that, if an official is sued, the Attorney General Appears for
him and the government indemnifies him.
In other words, the “terrifying financial implications” of judicial liability
are simply false; unlike doctors or lawyers, judges would not even carry the
burden of insurance.
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.,
“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.”
Kendillion is a suit for slander by a policeman against a judge for statements
from the bench. Under First Amendment standards, without
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:
“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
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
in America and in countries that looked to us for leadership in developing such
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.
WE ARE THREE WORLDS AWAY FROM ANCIENT ENGLISH LAW.
To be sure, the REvolution and Constitution each created such legal change so as
to separate us legally from England, as if into separate worlds. But today a
third worldwide development in law is occurring, even as we address this issue.
The United States is not an island, or even a continent. It is a leader, perhaps
THE ONLY leader, of the civilized world. As that leader, it set treaties into
motion by which nations become more civilized with respect to each other, and in
respect to their own People.
Today the United States is bound by Treaties, entered in good faith with the
United Nations, requiring that it provide effective remedies and redress for
violations of Constitutional Rights, “notwithstanding that the violation has
been committed by persons acting in an official capacity” and to “develop the
possibilities of judicial remedy.” See The International Covenant on Civil and
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.
“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.
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
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
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
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
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.
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
City of Long Beach v Bozek, 31 Cal.3d 527, at 533-534 (1982).
The court went on at page 535 to address the issue:
“The right of petition
is of parallel importance to the right of free speech and the other overlapping,
cognate rights contained in the First Amendment and in equivalent provisions of
the California Constitution. Although it has seldom been independently analyzed,
it does contain an inherent meaning and scope distinct from the right of free
speech. It is essential to protect the ability of those who perceive themselves
to be aggrieved by the activities of governmental authorities to seek redress
through all the channels of government. A tort action against a municipality is
but one of the available means of seeking redress.”
City of Long Beach v Bozek, 31 Cal.3d 527, at 535.
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:
“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
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.
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
grievances)”; and, Given that such immunity applies to violations of
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
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
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)
“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
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
the whim of the judicial branch
of one’s own government to whom he turns for protection of those rights! [Emph.
This is not a dispute. There is not a Judge in this Circuit who does not KNOW
Judicial Immunity, without
question, violates Our Constitution. The problem is that
your judicial ancestors
rebelled against Our Constitution,
and now you don’t know how to get back to a state of judicial constitutionality.
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
Opinion.” (In Part IV,
argues that absolute police immunity for perjury is not a compelling or even rational state
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
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.
The problem is that “Mark
US. Judges Garcia,
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.
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:
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
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
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.
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
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
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]