Time: Mon Nov 03 04:48:48 1997
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Date: Sun, 2 Nov 1997 22:58:08 -0500
Originator: heritage-l@gate.net
From: Paul Andrew Mitchell [address in tool bar]
To: pmitch@primenet.com
Subject: SLS: Absolute immunity of state and federal judges --NOT!!!
Objection!
42 U.S.C. 1983 is for federal citizens ONLY.
Authority: =20
Wadleigh v. Newhall, 136 F 941 (CC Cal, 1905),
quoting:
"Rights under 42 USCS =A7 1983 are for citizens
of United States and not of state."
at 42 USCS =A7 1983, B. Who is Protected; Standing --
n 853. Generally.
Check it out!
42 U.S.C. 1983 is a codification of the
1866 Civil Rights Act -- a municipal law
enacted specifically to create federal
citizenship as a municipal franchise.
A good treatise on judicial immunity can
be found in Hawks v. County of Butte et al.,
now loaded in the Supreme Law Library at
the URL just below my name here:
/s/ Paul Mitchell
http://supremelaw.com
>
>ABSOLUTE IMMUNITY OF STATE AND FEDERAL JUDGES--NOT!!!
>
> Title 42 U.S.C. Section 1983, enacted as part of the Ku Klux Klan Act of
>1871, creates the primary remedy for deprivation of federal constitutional
>rights by state or local officials. Section 1983 reads:
>
> "Every person who, under color of any statute, ordinance,
>regulation, custom, or usage, of any State or Territory, subjects,
>or causes to be subjected, any citizen of the United States or=20
>other person within the jurisdiction thereof to the deprivation of any=20
>rights, privileges, or immunities secured by the Constitution and laws,=20
>shall be liable to the party injured in an action at law, suit in equity,=
=20
>or other proper proceeding for redress."
>
> Although enacted as part of a legislative package designed to deal with
>southern racial problems, Section 1983 reaches not only deprivation of=
equal
>protection, but of any right which may properly be characterized as
>springing from the Constitution. As Representative Dawes said, in
>supporting Section 1983's enactment:
>
> "[t]he rights, privileges, and immunities of the American citizen,
>secured to him under the Constitution of the United States, are the=20
>subject-matter of this bill. They are not defined in it, and there is
>no attempt in it to put limitations upon any of them; but whatever they
>are, however broad or important, however minute or small, however
>estimated by the American citizen himself, or by his legislature, they
>are in this law". =20
>
> CONGRESSIONAL GLOBE, 42nd Congress, 1st Session 475 (1871). See
>also the statement of Section 1983's author, Representative Shellabarger,=
id.
>at appendix 68.
>
> Recent commentary suggests that Section 1983's protections may extend
>only to a limited set of constitutional rights. This is inconsistent with
>the view which almost all courts have taken of Section 1983. A review of
>the legislative history cited reveals that it has either been quoted out of
>context by the United States Supreme Court and the lower federal courts in
>many judicial immunity and other public official immunity cases, or it has
>been mistakenly only applied to sections of the Ku Klux Klan Act other than
>Section 1983.
>
> Federal court jurisdiction for litigation of Section 1983 claims and of
>other federal civil rights causes of action is provided by 28 U.S.C. 1343.
>Congress from time to time has enacted other causes of action for the
>protection of particular constitutional or statutory civil rights. Section
>1983's coverage of the broad spectrum of constitutional rights, however,=
has
>made it far and away the most popular of civil rights statutes. =20
>
> This broad and flexible civil remedy was limited, however, by the 1967
>decision in Pierson v. Ray, 386 U.S. 547 (1967). Over the dissent of Mr.
>Justice Douglas, the U.S. Supreme Court held state court judges immune from
>Section 1983 damages. However, a clear reading of the Pierson case shows
>that the Supreme Court justices made major mistakes and inappropriately
>gutted the Civil Rights Act with respect to judicial immunity. Much of the
>Section 1983 litigation has been against state judges. Plaintiffs in such
>lawsuits have often been state prisoners suing pro se. Many of the actions
>have been frivolous litigation and inartfully drawn actions by laymen with
>limited educational backgrounds. But some the litigation has brought
>positive results in overturning barbaric prison conditions (Holt v. Sarver,
>300 F.Supp. 825 (E.D. Ark. 1969), inhuman or incecent treatment of=
prisoners
>in jails (Jordan v. Fitzharris, 257 F.Supp.674 (N.D.Cal. 1966), suing=
entire
>appellate court panels for alleged misconduct at arraignments and suing
>judges in all other types of proceedings. Attempts to dispose summarily of=
=20
>such cases on shaky procedural grounds have not always met with approval=20
>in the federal appellate courts. =20
>
> In the Pierson decision the Supreme Court confined their search for
>legislative intent to the debates of the Ku Klux Klan Act of 1871, of which
>Section 1983 was the first section. These debates back then, however, are
>singularly unenlightening, for in them Section 1983 received scant and
>perfunctory attention. Despite it primacy in the bill and despite its
>importance today, in 1871 Section 1983 was by far the least controversial
>portion of a politically explosive package which also included a grant of
>unprecedented peacetime powers to the federal government. Furthermore, it
>was well understood that Section 1983 was to be modeled directly upon a
>statute, now known as 18 U.S.C. 242, which provides a criminal analog to
>Section 1983 in virtually identical language and which had been fully
>discussed by Congress in 1866. Both the author and most of the proponents
>of Section 1983 were members of that Congress. As Section 1983's author
>said in discussing it:
>
> "[m]y first inquiry is as to the warrant which we have for enacting
>such a section as this. The model for it will be found in the second=
section
>of the act of April 9, 1866, known as the "civil rights act". That
section provides=20
>a criminal proceeding in identically the same case as this one provides a
civil=20
>remedy for..."
>
> CONGRESSIONAL GLOBE, 42nd Congress, 1st Session appendix 68 (1871).
>(Representative Shellabarger)
>
> The 1866 Act was directed primarily at state judicial behavior. Both=
the
>House and the Senate debates confirm that the criminal nature of the Act's
>penalties extended to state judges. In each house of Congress, hostile
>questions as to whether state judges would be criminally liable were met
>with unequivocal affirmatives from the Act's sponsors and supporters. See
>the Remarks of Senator Trumbull (Senate sponsor of the bill), being
>interrogated by Senator Cowan, CONGRESSIONAL GLOBE, 39th Congress, 1st
>Session 475-476 (1865-1866); and colloquy between Representatives Thayer=
and
>Eldridge. Id. at 1154-1155.=20
>
> In further proceedings on the 1866 Act, the propriety and
>constitutionality of federal imposition of criminal liability upon state
>judges was the subject of bitter debate. While the debate demonstrated=
that
>there was considerable opposition to criminal liability for state judges,=
it
>is equally clear that all parties understood that such criminal liability
>was intended by the Civil Rights Act. On at least two occasions amendments
>to delete the imposition of criminal liability on state judges were
>unsuccessfully introduced. Interestingly enough, the second such amendment
>would have substituted "civil liability" for judges (in words almost
>identical to Section 1983) for criminal liability. The Act's sponsor, in
>opposing this amendment, pertinently commented that the issues as to
>criminal and civil liability were identical--if Congress could
>constitutionally make judges civilly liable, it could constitutionally make
>them criminally liable and vice versa. Id. at 1925 (statement of
>Representative Wilson). =20
>
> Based on the recent history of case decisions handed down by the U.S.
>Supreme Court and other federal courts, the proposition that Section 1983
>leaves the common law of judicial immunity intact, while the statute upon
>which it was consciously modeled abrogates it) approaches the incredible.
>If the test is one of Congressional purpose (as it surely is), no absolute
>immunity for state judges can be read into Section 1983. As Mr. Justice
>Douglas pointed out in his Pierson v. Ray dissent at 386 U.S. at 563-64, Ex
>Parte Virginia, 100 U.S. 339 (1879), holds that a state judge may
>constitutionally be subjected to federal criminal liability for violating
>federal civil rights. There can therefore be no serious doubt of the
>constitutionality of federal civil liability for state judges. Barring
>constitutional impediments, whether or not state judges are to be liable
>under the Civil Rights Act is a matter solely left to Congress. =20
>
> It may be suggested that the equivalency of criminal versus civil
>liability is not so clear as is assumed by the argument in the text of
>Pierson. But, however correct such a suggestion might be in general, it is
>not applicable to the Civil Rights Act debate. First, as we have seen, the
>author of the Civil Rights Act (and presumably a majority of his fellow
>Congressmen) considered the issues of civil and criminal liability to be=
the
>same. Second, the federal courts have repeatedly held that criminal
>statutes enacted for the protection of a particular class from a particular
>harm endow the intended beneficiaries thereof with a civil cause of action
>for their violation. See, e.g., J.I. Case Co. v. Borak, 377 U.S. 426
>(1964)(construing provisions of Securities and Exchange Act for the
>enforcement of which only criminal penalties are provided, to create civil
>cause of action); Reitmeister v. Reitmeister, 162 F.2d 691 (2d Cir.
>1943)(civil cause of action impliedly created by congressional prohibition
>of wire tapping). Indeed, that very principle has been applied to hold=
that
>Sections 1981 and 1982, the only enforcement of which was by the general
>criminal prohibition now contained in 18 U.S.C. Section 242 (1964), create
>civil causes of action both for damages and for an injunction. Sullivan v.
>Little Hunting Park, Inc., 396 U.S. 229 (1969); Jones v. Alfred H. Mayer
>Co., 392 U.S. 409 (1968). =20
>
> The possibility of a judge's being held liable in damages for a good
>faith mistake or even for a negligent mistake is the one thing proponents=
of
>judicial immunity fear. But as commentary suggests, the appropriate
>standard for Section 1983 judicial liability is one of "actual malice", a
>term which is defined to include "reckless disregard". These definitions
>can be found in every State Tort Claims Act as they apply to government
>officials and employees. A review of the 1866 debate amply supports the
>proposition that Section 1983's authors intended it to provide for partial
>immunity for mistakes. The Act's Senate sponsor and its other supporters
>vigorously denied that state judges who "innocently" infringed upon the
>rights conferred by the statute would be liable. Rather, they said, state
>judges would be liable only if they acted "acted knowingly, viciously or
>oppressively, in disregard of a law of the United States..." =
CONGRESSIONAL
>GLOBE, 39 Congress, 1st Session 1758 (1865-66) (statement of Senator
>Trumbull). =20
>
> However, as we have seen the history of absolute judicial immunity=
unfold
>in the past 10 years, the U.S. Supreme Court has given judges absolute
>immunity protection even if they act with malice or corruptly. Now, the=
new
>standard is a two-pronged test: (1) Was the judge acting within his/her
>jurisdiction and the act is a function normally performed by a judge; (2)
>whether the parties dealt with the judge in his judicial capacity. The=
U.S.
>Supreme Court has undermined the whole Civil Rights Act, as it pertains to
>judges, and has allowed tyranny to present itself. The Supreme Court has
>held that if a judge has acted maliciously it is of no moment because a
>judge "should not have to have fear that unsatisfied litigants may hound=
him
>[or her] with litigation charging malice or corruption". See, Pierson v.
>Ray, supra; accord Stump v. Sparkman, 435 U.S. 349, 356, rehearing denied,
>436 U.S. 951 (1978); Forrester v. White, 108 S.Ct. 538, 544 (1988). These
>rulings are beyond the scope and authority of the U.S. Supreme Court and=
are
>only allowed within the province of Congress. The Supreme Court has
>overstepped its boundaries and violated the Separation of Powers of the
>Constitution for the United States of America by ruling state and local
>judges have absolute immunity, even though Congress has never addressed the
>issue, but in fact addressed the opposite via the Civil Rights Acts of 1866
>and 1871. =20
>
> Judges should be liable with Section 1983 if (1) he/she has knowingly
>erred as to law or fact, or both, or erred with reckless disregard of=
making
>the proper decision; and (2) if this was done for the purpose of harming=
the
>victim or discriminating against the victim or his class or of depriving=
him
>of his constitutional rights. Such a standard would exclude even an
>intentional misconstruction of law or misfinding of fact when not committed
>for a discriminatory purpose or to infringe on constitutional rights. =20
>
> Difficulties in standards of proof to find judges liable may prove
>extremely difficult for plaintiffs. Proving that a judge's error in
>deciding one or more complex legal issues or factual questions was knowing
>rather than merely negligent or even incompetent will be difficult to=
prove.
>These difficulties of proof are surmountable, however, where there are
>blatant cases of judicial malfeasance to which Congress intended judicial
>liability to apply. The difficulties of proof will increase in exact
>proportion as the judicial decision is less clearly motivated by prejudice
>and involves more complex questions of law and/or fact as to which good
>faith error is possible. =20
>
> The proposed standard of liability for judges requires proof of two
>distinct elements: (1) intentional or reckless error and malice; (2) class
>discrimination or intentional deprivation of constitutional rights. Proof
>of one of these elements will tend to go hand in hand with the other. Once
>the proof of intentional error is made, the burden shifts to the defendant
>judge to go forward with evidence that he was actuated by something other
>than malice or prejudice. Proof that a judge was prejudiced against a
>particular defendant or civil litigant (notice the two different
>terminologies used to differentiate criminal and civil proceedings) might
>support an inference that a gross error was knowing or reckless rather than
>merely incompetent. =20
>
> Because most of Section 1983 litigation has involved only injunctive
>relief there has been little discussion of Section 1983 damage claims. An
>outstanding source on damages claims is found in Niles, "Civil Actions for
>Damages under the Federal Civil Rights Acts", TEXAS L.REV. 1015 (1967). =
The
>antiquarian language of the Civil Rights statute broadly, but
>unenlighteningly, authorizes "an action at law, suit in equity, or other
>proper proceeding for redress". The remedial resources available to a
>Section 1983 plaintiff must be read in light of 42 U.S.C. Section 1988
>which, in language both complex and verbose, requires federal courts to
>adopt any remedy available under the law of the state in which they sit
>where necessary to effectuate the civil rights laws. Thus, Section 1988
>declares a simple, direct abbreviated test: `What is needed in the
>particular case under scrutiny to make the civil rights statutes fully
>effective?' Brazier v. Cherry, 293 F.2d 401, 409 (5th Cir. 1965)(state
>wrongful death statute adopted into the case to provide cause of action for
>wife of Negro beaten to death by sheriff), cited with approval in Sullivan
>v. Little Hunting Park, 396 U.S. 229, 240 (1969). Both federal and state
>rules on damages may be utilized, whichever better serves the policies
>expressed in the federal [civil rights] statutes--although Section 1983
>authorizes punitive damages with or without compensatory damages regardless
>of whether state law would do so. Basista v. Weir, 340 F.2d 74 (3d Cir.
>1965)(punitive damages available without proof of compensatory damages,
>though punitive damages not so available under state law). =20
>
> Damage suffered as a result of knowing judicial error or misconduct=
seems
>roughly divisible into two categories: (1) actual demonstrable damage; and
>(2) loss of constitutional rights. Constitutional rights deprived by
>knowing judicial error or misconduct would presumably be either due process
>or the right to equal treatment in judicial proceedings (a subcategory of
>equal protection of the law), or both. But they could also include other
>constitutional rights, as for instance where the judicial misconduct had
>been motivated by desire to punish the plaintiff for his opinions or
>associations. A person against whom an adverse judgment (civil or=
criminal)
>is rendered through judicial misconduct will suffer demonstrable
>consequential damages in the form of counsel and other fees expended to
>appeal, time served in jail or cost of bail pending appeal. Counsel fees
>and other costs in a successful appeal of a criminal conviction resulting
>from a false arrest were recovered in Stringer v. Dilger, 313 F.2d 536=
(10th
>Cir. 1963). Costs of counsel and other fees to defend against a criminal
>charge brought subsequent to a false arrest were recovered in both McArthur
>v. Pennington, 253 F.Supp. 420 (E.D.Tenn. 1963); and Brooks v. Moss, 242
>F.Supp. 531 (W.D.S.C. 1965). Shepardizing of cases necessary. =20
>
> Where the judicial misconduct did not relate to or result in an adverse
>judgment (as, for instance, where the person aggrieved is a witness
>subjected to verbal abuse because of his race), the only damages would be
>humiliation and emotional distress. Emotional distress of varying types=
may
>be suffered both where a verdict was rendered against the Section 1983
>plaintiff and where it was not. A party who loses a case through judicial
>misconduct, but who was not subjected to public humiliation, may
>nevertheless suffer considerable anxiety and emotional distress until that
>judgment is corrected on appeal. A party who has suffered an adverse
>judgment and been publicly humiliated, as, for instance, by being held in
>contempt for refusal to answer questions addressed to her by her first name
>will suffer both varieties of emotional harm. =20
>
> The gravamen of a Section 1983 complaint is deprivation of=
constitutional
>rights. It has repeatedly been held that deprivation of such rights is
>remediable in damages without proof of other loss.=20
>
> "...While traditional tort-law damage rules may be appropriate to
>accomplish some of the civil rights statutes' purposes, the tort-law
>rules do not allow full realization of those purposes because of their
>emphasis upon loss-shifting rather than upon punishment and
>deterrence."=20
> Niles, "Civil Actions for Damages under the Federal Civil Rights
>Acts", 45 TEXAS L.REV. 1015, 1026, note 51 (1967). =20
>
> No mere standard of proof--however rigorous, however difficult to
>satisfy-- will answer the objections of partisans of judicial immunity.
>Their objection is not to successful litigation against judges, that is, to
>the idea that judges, like other men, should be liable for torts. Their
>objection is that for every one legitimate grievance, there will be a
>hundred or a thousand frivolous cases in which judges will be put to the
>unremunerated expense of defending successfully. The case for complete
>judicial immunity (and complete tyranny and oppression against We the
>People) is perhaps most persuasively put in a classic Learned Hand opinion:
>
>"It does indeed go without saying that an official, whois in fact guilty
>of using his powers to vent his spleen upon others, or for any other=20
>personal motive not connected with the public good, should not escape
>liability for the injuries he may so cause; and, if it were possible in
>practice to confine such complaints to the guilty, it would be monstrous=20
>to deny recovery. The justification for doing so is that it is impossible
to=20
>know whether the claim is well founded until the case has been tried,=20
>and that to submit all officials, the innocent as well as the guilty, to=
the=20
>burden of a trial and to the inevitable danger of its outcome, would dampen=
=20
>the ardor of all but the most resolute, or the most irresponsible, in the=
=20
>unflinching discharge of their duties. Again and again the public interest=
=20
>calls for action which may turn out to be founded on a mistake, in the face=
=20
>of which an official may later find himself hard put to it to satisfy a
jury of=20
>his good faith. There must indeed be means of punishing public officers=20
>who have been truant to their duties; but that is quite another matter from=
=20
>exposing such as have been honestly mistaken to suit by anyone who=20
>has suffered from their errors. As is so often the case, the answer must=
=20
>be found in a balance between the evils inevitable in either alternative. =
In
>this instance it has been thought in the end better to leave unredressed=
the
>wrongs done by dishonest officers than to subject those who try to do
>their duty to the constant dread of retaliation." Gregoire v. Biddle,=20
>177 F.2d 579, 581 (2d Cir. 1949). =20
>
> Judge Learned Hand should have immediately been removed from the=20
>bench for the aforementioned remarks. These were treasonous remarks that
>implicated official misconduct and obstruction of justice, not to mention
>violating his Oath of Office to Uphold and Defend the Constitution. =20
>
> A direct opposition and repudiation to Judge Hand's slick opinion comes
>from a member of the House Judiciary Committee, during the Civil Rights
>Acts' debates in 1866. Representative Lawrence, declared: =20
>
> "I answer it is better to invade the judicial power of the State
>than permit it to invade, strike down, and destroy the civil rights of
>citizens. A judicial power perverted to such uses should be speedily
>invaded. The grievance would be insignificant". =20
>
> See, Briscoe v. La Hue, 103 S.Ct. 1108, 1123, 1127-1130 (1983).
>
> Because of the high incidences of frivolous civil rights litigation that
>ultimately negatively impacts on meritorious cases, the development of
>devices which will radically decrease the incidence of frivolous litigation
>removes the need for complete judicial immunity as a "balance between the
>evils inevitable in either alternative". Absolute immunity for judges and
>other government officials eliminates meritorious as well as frivolous
>suits. Rights of citizens to litigate meritorious claims against judges=
are
>protected by the First and Fourteenth Amendments and perhaps by Article III
>of the Constitution for the United States of America as well. United Mine
>Workers v. Illinois State Bar, 389 U.S. 217 (1967); Brotherhood of R.R.
>Trainmen v. Virginia State Bar, 377 U.S. 1 (1964); NAACP v. Button, 371=
U.S.
>415 (1963); Ex Parte Young, 209 U.S. 123 (1908). See also Cotting v.=
Kansas
>City Stockyards Co., 183 U.S. 79, 102 (1901). =20
>
> A further objection to damage actions against state court judges is the
>inappropriateness of the federal judiciary sitting in judgment upon its
>state counterparts. See, e.g., City of Greenwood v. Peacock, 384 U.S. 808,
>828 (1967) ("The civil rights removal statute does not require and does not
>permit the judges of the federal courts to put their brethren of the state
>judiciary on trial". Id. at 828). This interesting case can also apply
>when the federal government tries to bring state Citizens into the federal
>judiciary on Income Tax cases, RICO cases and the like, or the mere fact
>that federal judges cannot grant immunity to state court judges, because it
>is only a legislative function that Congress can bring.=20
>
> Chief Justice John Marshall decisively repudiated this argument over 175
>years ago when he declared federal courts to be the final and authoritative
>expositors of the Constitution. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264
>(1821). See also Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816).
>It is a little late for federal judges, who regularly review the
>constitutionality of state judicial conduct (both directly and on habeas
>corpus review) to assert the impropriety of such review. The federalism
>objection doesn't apply where federal criminal liability of state judges
>involves discrimination in jury selection or they otherwise knowingly
>violate federal constitutional standards. 18 U.S.C. Section 243; Ex parte
>Virginia, 100 U.S. 339 (1879). =20
>
> Opinions asserting the impropriety of federal review of state judicial
>conduct invariably go on to suggest appellate review as the "remedy" for
>constitutional error by state judges. This ignores the fact that appellate
>review (in itself a process often involving tremendous financial and
>emotional costs for the appellant) provides no compensation for the
>financial, emotional, and other harms suffered as a result of the trial
>court's impropriety. Appellate review is a method of correcting judicial
>error, not a remedy for judicial misconduct. To deny compensation to
>litigants whose constitutional rights have unintentionally been violated by
>an erroneous decision may, on balance, be a necessary prerequisite to
>fearless and principled judicial decision-makeing. To deny compensation
>where the constitutional error was intentional and malicious, however, is
>both unjust to the litigant and harmful to the legal system as a whole.=20
> =20
> Judicial immunity gives a state judge who is not inclined to vindicate
>constitutional rights (or who fears to do so in the face of popular
>disapprobation) every reason to ignore his duty. If the litigant lacks the
>funds or perserverance to appeal, the state judge has fully accomplished=
his
>objective. Even if the party appeals and wins, the judge has lost nothing.
>Even though there is some point that state judges dislike their decisions
>appealed and reversed, a judge who intentionally or quasi-intentionally
>decides to violate a litigant's constitutional rights has probably
>calculated that his satisfaction in doing so is worth the risk of eventual
>appellate reversal. In this connection, it should be also remembered that
>some federal district judges have suffered scores and even hundreds of
>reversals of their decisions in civil rights cases. =20
>
> At the very least, a state judge has put the litigant to the high cost=
of
>obtaining appellate relief. During the course of protracted appellate
>proceedings, the effect of the initial ruling (as enforced, interpreted and
>complied with by eager public officials) may have been to undermine or
>destroy a civil rights movement or organization or otherwise to make the
>appellant's eventual victory fruitless. The standard of proof in most=
civil
>proceedings, state or federal, is the preponderance of the evidence. But a
>trial court's findings of fact can be challenged on appeal only if "clearly
>erroneous". Thus a judge who declines to vindicate constitutional rights
>can shield his decision by deliberately misfinding the facts. Plaintiffs
>seeking to vindicate constitutional rights before such a judge must,
>therefore, virtually prove their cases beyond a reasonable doubt in order=
to
>secure appellate reversal.=20
>
> No where is this more true in New Jersey state courts than in domestic
>violence courts and enforcement courts when litigants are forced to appear
>against their wills under threat of incarceration, duress and coercion, and
>over their objections on child support enforcement matters. In both cases,
>the family courts have a propensity for tremendous gender bias against male
>litigants. Male litigants are routinely imprisoned for debt in child
>support enforcement matters, while the same law that is used prohibits
>incarcerating women for debt, even though state family court judges know
>that the existing laws and constitutions prohibit imprisonment for debt in
>any matter. In domestic violence matters, judges are blatantly biased
>against males to the extent that they grant over 95 percent of all domestic
>violence restraining orders against males. In child custody matters, the
>same applies. Judges routinely grant custody to females in over 90 percent
>of the cases, even though the male parent may be more capable of raising
>children.=20
>
> Male litigants must prove beyond a reasonable doubt in civil domestic
>violence matters and civil child support enforcement matters that they are
>not guilty of violating orders of the court. Male litigants are held to
>even higher standards than beyond reasonable doubt in these family-type
>matters which is unconstitutional but constantly practiced by state court
>judges. Such judicial misconduct not only deprives litigants of their
>opportunity to vindicate constitutional rights in cases actually brought,
>but discourages others from bringing such cases. =20
>
> State trial judges--from the justice of the peace or police court judge
>to the judge of the superior court of general jurisdiction--are among the
>most powerful and influential local officials in our country. Their
>decisions can hold a man for trial or convict and sentence him and can
>dictate the victor in civil litigation (even before a jury) as well as the
>bearer of costs and the scope of the remedy. The manner in which they
>address litigants, order their courtrooms, and otherwise perform their
>judicial functions can set an example to be followed by other local
>officials and can influence the attitudes of every element and individual=
in
>the community.
>
> The conduct of the local judiciary, both in judicial decision-making and
>in judicial administration, probably more than the conduct of any other
>state or local official, determines whether and to what extent the abstract
>guarantees of the Constitution are realized in a particular locality. It=
is
>no secret that all too often neither the pay nor the standards of selection
>of state judges of general jurisdiction (much less justices of the peace or
>of police courts) are commensurate with the great importance of their
>offices. It is also true that even the best judges, as other men, may
>sometimes feel inclined to indulge their prejudices or desires for=
community
>approval--particularly when they can do so without any prospect of personal
>liability. It is therefore a questionable doctrine that allows these local
>officials an absolute immunity comparable to that enjoyed by federal=
cabinet
>officers. A trial judge can make some of his rulings stick simply by
>fudging his findings of fact. See, e.g., Gregoire v. Biddle, 177 F.2d 579
>(2d Cir. 1949). =20
>
> The disinclination of the federal judiciary to sit in judgment upon its
>state brethren assures that it will do so leniently. In any case, whether
>or not state judges should be liable for intentional deprivations of
>constitutional rights was settled by Congress over 125 years ago by the Ku
>Klux Klan Act of 1871. It found that judges were liable, both criminally=
as
>well as civilly, for constitutional rights violations. As abortion
>protesters, tax protesters, human rights protesters, war protesters, draft
>resisters, fathers rights organizations, the patriot movement, and others=
of
>the same ilk are so often reminded, the federal courts sit not to judge the
>wisdom of Congress' wishes, but to carry those wishes out: =20
>
> "We decline to void [the statute involved] essentially on the=
ground
> that it is unwise legislation...." O'Brien v. United States,=
391
> U.S. 367, 384 (1968).=20
>
> The federal judiciary cannot pick and choose what laws it can void. It
>must uphold the laws made by Congress, including the Ku Klux Klan Act of
>1871, which specifically denied state judges any immunity from civil or
>criminal liability, just as their Oaths when they took office demanded.=20
>
> When suing state judges in state or federal courts, if immunity is
>granted by other judges sitting in judgment, those judges must be sued,
>removed from the case, if not the bench, and judicial misconduct complaints
>filed against them, for violations of constitutional rights. Under 28
>U.S.C. 372 federal judges can be removed for a disability & misconduct.
>Under the Federal Tort Claims Act (FTCA), federal judges can and must be
>sued for being willful and malicious when violating your constitutional
>rights. It is interesting to note here that federal judges grant state
>judges immunity, when the FTCA allows for federal officials (including
>judges) to be sued. Each state has a Tort Claims Act which essentially
>supercedes any immunities. What is that disability you ask? They took an
>Oath to Uphold and Defend the Constitution for the United States of=
America,
>when they became a federal judge, a state judge, a lawyer, a prosecutor,
>etc. To violate that Oath indicates a severe mental imbalance on the part
>of the particular judge. The Complaint against a federal or state judge
>must be in the form of an Affidavit and sent immediately to the U.S. Senate
>Judiciary Committee, the U.S. House Judiciary Committee, each state Senate
>and Assembly(House)Judiciary Committees, the Judicial review boards in each
>state, the Chief Justice of the United States Supreme Court, the Judicial
>Council for the particular federal Circuit, the Chief Justice of the
>respective state, and each respective state Bar Association (judges in
>almost every case have to be lawyers). In New Jersey, the case of In the
>Matter of Imbriani, former criminal court judge Michael Imbriani admitted=
to
>stealing over $175,000 from his business partners, was convicted, sentenced
>to 5 years probation (even though Imbriani, while as a judge, had a
>convicted white collar defendant before him for stealing the exact same
>amount, sentenced him to the maximum N.J. penalty--10 years behind bars),
>had his Bar license revoked and stands to lose his pension.
>
>
> Bruce E.--Chair, NJ Council for=20
> Children's Rights Pro Se
> Network, P.O.Box 615,
> Wayne, N.J. near PZ 07474
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Paul Andrew Mitchell, Sui Juris : Counselor at Law, federal witness 01
B.A.: Political Science, UCLA; M.S.: Public Administration, U.C.Irvine 02
tel: (520) 320-1514: machine; fax: (520) 320-1256: 24-hour/day-night 03
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_____________________________________: Law is authority in written words 09
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