IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DIXIANNE HAWKS, No. 95-16714
Appellant USDC EAST. DIST. CAL.
Civ. No. 93-82 WBS
v.
COUNTY OF BUTTE, MICHAEL RAMSEY APPELLANT'S OPENING
FEDERAL JUDGE EDWARD GARCIA and BRIEF
CIRCUIT JUDGES SCHROEDER, CANBY
and WIGGINS,
Appellees
_______________________________/
APPEAL FROM DISMISSAL BY JUDGE WILLIAM B. SHUBB
Dixianne Hawks
13803 N. Granada Dr.
Magalia, Calif. 95954
Tel: (916) 877-6436
Appellant in her Person
Cover Page
TABLE OF CONTENTS
Table of Contents (this page)................................i
Table of Cases..............................................ii
Other Authorities..........................................iii
Statement of Jurisdiction....................................1
Statement of Issues Presented................................2
Statement of the Case........................................2
Damages Were Not Sought Against the Federal Judges...........3
Introduction to the Issue....................................4
The Rationality of Judicial Immunity.........................7
1. Judicial Immunity Prevents Democratic Change..........7
2. Judicial Immunity Undermines Judicial Credibility.....8
3. Judicial Immunity Violates Two American Revolutions...9
Conclusion of This Part.....................................10
I The Scope of Judicial Immunity Applied...................11
The Mullis Distinction from Pulliam v Allen..........17
II The Historical Basis for Judicial Immunity...............18
We Are Three World Away from Ancient English Law.....23
III Judicial Immunity Violates the Constitution..........26
EXCERPTS (under separate cover)
ii
TABLE OF CASES
United States Supreme Court:
Bivens v Six Unknown Named Agents, 403 US 388...............11
Briscoe v Lahue, 460 US 325.................................30
Bradley v Fisher, 80 US (13 Wall) 335 (1872)............18, 21
Bridges v California, 314 US 252 (1941).................19, 22
California Transport v Trucking Unlimited, 404 US 508 (1972)26
Dennis v Sparks, 449 US 24..................................13
Edelman v Jordan, 415 US 651.................................7
Mine Workers v Illinois Bar Assn., 318 US 217...............26
Pulliam v Allen, 466 US 522..............................4, 17
Scott v Sanford, 60 US 393 (1857)............................8
Stump v Sparkman, 435 US 349 (1978).....................15, 18
Yick Wo v Hopkins, 118 US 356 (1886)........................29
United States Courts of Appeal:
Attica Cor. Fac. v Rockefeller, 477 F2d 375.................18
Gobel v Maricopa County, 867 F2d 1201.......................17
Hawks v Butte Co., 9th Cir. No. 93-15346....................12
Mullis v US Bankruptcy Court, 828 F2d 1385...........2, 11, 18
Peek v Mitchell, 419 F2d 575................................18
U.S. v Hylton, 710 F2d 1111 (5th Cir.)......................27
California Supreme Court:
City of Long Beach v Bozek, 31 Cal.3d 527 (1982)........26, 27
In Re Hallinan, 71 C2d 1179.................................19
English Court Cases:
Floyd and Barker, reported by Coke, in 1608, (12 Coke 25)...22
Kendillon v Maltby, 174 Eng. Rep. 562,566 (N.P. 1842).......21
Taaffe v Downes, 3 Moore P.C. 41............................20
ii
OTHER AUTHORITIES
U.S. CONSTITUTION:
First Amendment Petition Clause................4, 6, 7, 26, 27
Fifth Amendment Due Process Clause.................2, 3, 4, 15
Thirteenth Amendment.....................................2, 29
STATUTES:
18 USC 241/242..........................................17, 18
28 USC 453...................................................3
28 USC 2674...........................................4, 6, 28
42 USC 1985...........................................3, 4, 11
iii
Dixianne Hawks
c/o General Delivery
Magalia, Calif. 95954
Tel: (916) 877-6436
Appellant in her Person
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DIXIANNE HAWKS, No. 95-16714
Appellant USDC EAST. DIST. CAL.
Civ. No. 93-82 WBS
v
COUNTY OF BUTTE, MICHAEL RAMSEY APPELLANT'S OPENING BRIEF
FEDERAL JUDGE EDWARD GARCIA and
CIRCUIT JUDGES SCHROEDER, CANBY
and WIGGINS
Appellees
_______________________________/
APPEAL FROM DISMISSAL BY ORDER OF JUDGE WILLIAM B. SHUBB
STATEMENT OF JURISDICTION: (Circuit Rule 28-2.2)
(a) This portion of the lawsuit is against four federal
judges for violating the Petition Clause, Due Process Rights and
42 USC 1985. Jurisdiction in the District Court is pursuant to
Article III, Section 2, U.S. Constitution, and 28 USC 1331.
(b) Appellate Jurisdiction is in this court pursuant to FRCP
Rule 54(b) and 28 USC 1291.
(c) Judgment was entered pursuant to the Memorandum and
Order of Judge Shubb, filed in the District Court on July 27,
l995. The Notice of Appeal was filed in the District Court on
August 24, l995. It is timely pursuant to FRAP Rule 4(a)(1).
Rule 28-2.3 Reasonable Attorney Fees are sought under 42 USC
1988.
Rule 28-2.5 Standard of Review from a motion to dismiss; de
novo as to all issues.
Appellant's Opening Brief:
Page 1 of 35
STATEMENT OF ISSUES PRESENTED
Appellant presents the following issues to this Court:
1. Was judicial immunity lawfully applied to Judge Garcia?
Was his conduct of dismissing on the basis of a policy of
prejudice against IFP litigants without return of summons, notice
or hearing, a judicial act as opposed to an administrative act?
Are the remedies sought against Judge Garcia prohibited
within the ambit of Mullis v US Bankruptcy Court, 828 F2d 1385?
Is the Mullis doctrine of judicial immunity constitutional?
2. Was judicial immunity lawfully applied to Judges Canby,
Schroeder and Wiggins?
Is a conspiracy of judges to institute an illegal policy,
within "subject matter jurisdiction," within the meaning of
Mullis? And, if so, is the Mullis judicial immunity doctrine
constitutional?
3. Does the judicial immunity doctrine violate the
Petition, the Due Process, or the Thirteenth Amendment
Involuntary Servitude Clauses?
STATEMENT OF THE CASE
This is an appeal from a dismissal of the Fifth Cause of
Action, on motion of all federal judge Defendants, granted on
July 27, l995, on the basis of judicial immunity. Pursuant to
Rule 54(b), a final judgment was entered. Appellant's claim
arises under the Petition and Due Process clauses for denials of
Equal Protection by Judge Garcia, and a conspiracy to cover-up
his violations and maintain a secret policy denying equal
protection on the basis of poverty, by the three Ninth Circuit
Court of Appeals Judges who heard the appeal.
Appellant's Opening Brief:
Page 2 of 35
THE FACTUAL ALLEGATIONS: "(n:n)" Refers to page and line of
the First Amended Complaint (FAC).
Appellant is indigent and entitled to proceed in forma
pauperis (IFP) (7:10) without discrimination because of poverty,
under the Petition Clause, the Due Process Clause and the
judicial oath; 28 USC 453. On 1/13/93, she filed a federal
complaint IFP, for 42 USC 1983 violations by state officers. It
was assigned to Judge Garcia. (7:12-23) She had a right to amend
the complaint. (7:28-8:3) (FRCP 15).
Judge Garcia has a policy of discrimination against poor
People who proceed IFP, by dismissing with prejudice, without
notice or hearing. The policy denies rights to amend the
complaint because of IPF status and increases the cost of justice
to the poor because they are poor. (8:4-11). On January l9, l993,
under the aforesaid illegal policy, Judge Garcia dismissed the
complaint with prejudice. (8:12-17)
Hawks appealed to the Defendants: Circuit Judges Schroeder,
Canby and Wiggins. As Judge Garcia's superiors, they are
obligated to disaffirm the aforesaid illegal policy which was
placed so squarely before them they could not avoid it. They did
arbitrarily and capriciously cover-up, adopt, and ratify said
illegal policy in violation of Appellant's due process rights,
and by such conspiracy to adopt and ratify it, they did
intimidate and oppress her Petition Rights in federal court,
violating 42 USC 1985(2). (See 9:8-10:2 generally).
Appellant's Opening Brief:
Page 3 of 35
DAMAGES WERE NOT SOUGHT AGAINST THE FEDERAL JUDGES
Each of the first four causes of action seeks damages from
Butte County and Michael Ramsey. (See FAC 3:10; 3:28; 5:11; 6:21
and Punitive Damages at 6:25 et seq.) Hawks did not seek damages
in the fifth cause against the federal judges. Instead, she
prays "under this supplement" for: (1) an injunction against
Judge Garcia; (2) a declaration that the policy violates due
process; (3-5) a jury trial as to whether the conduct complained
of violates due process, the Judicial Oath, and 42 USC 1985(2);
(6) from each judge a public apology; (7) from Judge Garcia
reasonable costs and attorney fees for the appeal from his
dismissal; and (8) attorney fees and costs in this case, and
such other relief as is just and proper.
The Fifth Cause complies with Pulliam v Allen, 466 US 522.
While Pulliam addressed state judges under 42 USC 1983, there
appears no reason why its principle does not apply to federal
judges under the Petition and Due Process Clauses and under their
oath and 42 USC 1985.
INTRODUCTION TO THE ISSUE
The facts underlying this appeal are easy to understand. It
is the "law" of "judicial immunity" to violate the Constitution
that is complex and incomprehensible; it is a false body of law
that begins with a contradiction:
1. Judges are immune from redress to those they injure in
violation of constitutional rights under color of office.
2. "Congress shall make no law ... abridging the right of
the People ... to petition government for a redress of
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
Appellant's Opening Brief:
Page 4 of 35
government from accountability to those its immunized officers
injure in violation of constitutional rights. Today, most
government officers who have direct contact with the People can
find an immunity to hide behind.
What happened to the Petition Clause? If it speaks true,
wherefrom comes immunity to violate the Constitution? We are
told the judges created it; but under Article I, only Congress
can make law; under Article IV, only the Constitution and law
made pursuant to it, not in derogation of it, are the Supreme Law
of the Land; and under Article VI, all judges are sworn to
support "This Constitution." The contradictions rage on.
Judges contend the authority is implied in a constitutional
doctrine that is also implied, called the "Separation of Powers."
Judicial Immunity, they say, comes not from law, but from its own
constitutional separation from the Legislature. It cannot make
law breaching that separation. That is the basis of immunity.
The problem with that rationalization is not only that its
premise is twice removed from the Constitution, so that we can't
find it except by blind faith in our judiciary, but immunity to
violate Constitutional Rights also has nothing to do with
separation of powers. The issue is accountability to the People
for violating their rights, not accountability to another branch.
A constitution that "implies" a right for judges to violate it
with impunity is not a constitution at all, but a license to
violate rights under color of judicial fiat.
Another weakness of that argument is that the judiciary also
created immunities for the rest of government. That violates the
same separation principle said to justify it, in four ways:
Appellant's Opening Brief:
Page 5 of 35
First, its extensions of immunity to other branches are not
merely making rules for itself, but making laws that apply to all
of government. That invades the legislative function.
Second, those laws also apply to the People, denying them
redress for constitutional wrongs under "law" designed by judges.
That also invades the legislative function, albeit beyond the
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 People.
Fourth, another "separation principle" also violated is
Tenth Amendment States' Rights. The Federal Judiciary has not
just created immunity for itself and for federal officers, but,
disguised as constitutional doctrine, it has created immunity for
state officers as well. This not only unites the federal branches
against the People, it also unites them with state and local
governments, all against the People's civil rights.
What begins to appear is that the judges, by grant of
immunity to themselves and to select government officials at all
levels, have completely redesigned our Constitution. As we shall
see herein, this redesign goes far beyond simple civil immunity.
It renders the People incapable of enforcing any rights against
anyone judges want to protect, for any reason, or for no reason.
Appellant's Opening Brief:
Page 6 of 35
Unenforceable rights are not rights at all.
The effect of these immunities over time is to create an
elite ruling class, bound not by the general law nor to our
Constitution, but bound only by personal loyalty to government.
That is a New Nobility, and it emerged this way:
As the separation fallacy became apparent, the judiciary
created another rationale that had been brewing for a hundred
years to justify the same end. As nations are sovereign from each
other, the judges ruled, governments are sovereign from their own
People. Since it is sovereign, government can decide if, when,
and how to waive its sovereignty and subject itself to the
Petition Clause, within whatever limits it wants. If it wants
not, the Petition Clause is not.
That is the argument of "sovereign immunity." Stripped of
its mystique, it is "The Divine Right of Kings," a barbarian
doctrine that died at the Convention and was buried under the
Petition Clause until resurrected under the doctrine of stare
decisis and "ancient common law," and pulled past the Revolution
and through the Constitution. For an example, see Edelman v
Jordan, 415 US 651, where the Court amended both the Petition
Clause and the Eleventh Amendment based on the ancient English
doctrine of the Divine Right of Kings.
Again, the People are subjugated to the whims of kings by
another name, without right of redress through compulsory process
of law. Law, inaccessible to the People to redress grievances
with government, is not law, but tyranny. The new civilized
relationship of government to governed -- won in war, written in
blood, and sealed into our Constitution -- was lost, one
"judicial interpretation" at a time. The awesome forces it was
designed to protect us from, are unchained.
Appellant's Opening Brief:
Page 7 of 35
That is judicial immunity and from where it came. There is
no justification for it in a nation tending to be civilized. It
is not lawful under our Constitution, nor is it rational to our
democratic institutions. Yet, today judicially created immunities
have become the dominant force of government, organized against
the People.
THE RATIONALITY OF JUDICIAL IMMUNITY
Reason imposes limits on the justifications for judicial
concepts of immunity. We address three separate considerations:
1. JUDICIAL IMMUNITY 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.
Appellant's Opening Brief:
Page 8 of 35
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 civil war.
As we will see, judicial immunity, which comes from the same
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. It is an anti-democratic
institution in a democratic age.
2. JUDICIAL IMMUNITY 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 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 credibility.
Appellant's Opening Brief:
Page 9 of 35
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 progressively reject.
3. JUDICIAL IMMUNITY 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 years later.
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.
Appellant's Opening Brief:
Page 10 of 35
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 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.
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 governed.
The evaluation herein undertakes a three-step process:
First, to define the doctrine to see exactly what Judge
Shubb says is barred from redress.
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 Judge Shubb applied Constitutional?
Each of these issues will now be examined in turn.
Appellant's Opening Brief:
Page 11 of 35
I
THE SCOPE OF THE JUDICIAL IMMUNITY APPLIED
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 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 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."
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 violations.
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 matter 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 Judges.
Appellant's Opening Brief:
Page 12 of 35
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 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 occurred on reconsideration.)
Appellant's Opening Brief:
Page 13 of 35
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 First Amendment Rights as he
undeniably did, is an absurdity in its own right.
"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.
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 ad
absurdum)
Appellant's Opening Brief:
Page 14 of 35
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.1
In the sense by which immunity attaches, "jurisdiction"
means the "personal right of the judge to do as he pleases" with
____________________
1If any person, whether he be judge or Ku Klux Klansman, can take
rights or property under color of law, but without due process
and without a right to redress in them whose other rights or
property are taken, is not the institution that compels such a
result an institution of slavery forbidden by the Thirteenth
Amendment? "Section 1. Neither slavery nor involuntary
servitude, except as a punishment for crime whereof the party
shall have been duly convicted, shall exist within the United
States, or any place subject to their jurisdiction." Thirteenth
Amendment
Appellant's Opening Brief:
Page 15 of 35
the subject matter, whether it regularly came before him or not.
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 other.
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
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 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
II
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 1867 defended 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 him-
self."
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 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.
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
l872:
"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 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.
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 concepts.
Does the Bradley rationale still obtain after Commonwealth
Countries had time to develop the Constitutional Limits of
Government which America had begun in l789? 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 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 Political Rights; U.N. Gen. Assem. Res. 2200 A(XXI)
of 16 Dec. l966; Ratified by the U.S. Senate in June l992. See
Article 2. See also the Universal Declaration of Human Rights,
U.N. Gen. Assem. Res. 217-A(III) of 10Dec48; 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. l966;
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."
III
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 535.
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. 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 grievances)";
and,
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!
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, 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.
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. 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.
It is written that the longest journey begins with but one
step in the right direction. When, as Brennan, Marshall and
Blackmun found in l982, 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.
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, l995
/s/ Dixianne Hawks
___________________________________
Dixianne Hawks by J.E.W.
Appellant's Opening Brief:
Page 35 of 35
# # #
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Hawks v. County of Butte et al.