Tuesday, August 10, 2010

Immunity is DIAMETRICALLY opposed to the Rule of Law


Immunity is DIAMETRICALLY
opposed to the Rule of Law

A member of the Bar will never challenge judicial absolute immunity.  The Judges have, for too long, intimidated the Bar.
I have been at this for 7 years.  I know I am not the only one that feels the sad irony in the assertion of Judicial Immunity.  “The irony is unmistakable: those who are the guardians (judges) of the Constitution are themselves privileged to violate it with corrupt, malicious, incompetent and intimidating impunity.[1]” If it were not so heinous it would almost be laughable, that the judiciary would even attempt to assert immunity from the Rule of Law.  “Immunity is DIAMETRICALLY opposed to the Rule of Law” by definition.  I sometimes feel as if I am the waif in the old Danish parable "The Emperor's New Clothes".  The Judiciary has no credible claim to immunity from the rule of LAW and no clothes old or new will hide their malice, corruption and incompetence.
Judges are tasked by our constitution to oversee the Justice Department’s administration of our laws: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States.[2]” They are not at liberty to make LAW.  Their liberty is restrained just like every other citizens under the Rule of Law.  The supremacy of the United States Constitution transcends all.
“We the People” in 1791 with the ratification of our Constitution and Bill of Rights established the Rule of Law, the Protection of the Laws, to “secure the Blessings of Liberty to ourselves and our Posterity[3].  Almost immediately our Supreme Court confirmed it in 1803: “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury. One of the first duties of government is to afford that protection,” THE PROTECTION OF LAWS.  MARBURY V. MADISON, 5 U. S. 137 (1803) Page 5 U. S. 163.  
Today in the year 2010, nearly 220 years later, “We the People” do not have the Protection of the Laws.  “We the People” are little more than chattel to the despotic tyrants in the Judiciary that rule with their malice, corruption and incompetence unrestrained by their self-serving grant of absolute immunity from the rule of law, impunity.  The Judiciary acts as tyrants creating Judge Made Law: “The creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny.[4]” Our Judiciary became tyrants when they repealed the writ of habeas corpus[5], the prohibition of ex post facto laws[6], and of TITLES OF NOBILITY[7] with the establishment of the Judge Made Law of Absolute Judicial Immunity, impunity, for themselves and trickle-down impunity for others. 

This (absolute impunity) immunity applies even when the judge is accused of acting maliciously and corruptly” (Bradley v. Fisher, 80 U.S. 13 Wall. 335 (1871) @ page 349), (Pierson v. Ray, 386 U.S. 547 (1967) @ page 554) and (Mireles v. Waco, 502 U.S. 9, 11-12 (1991))…
A malicious and corrupt (as noted above) “judge of a criminal court, invested with general criminal jurisdiction over offenses committed within a certain district, should hold a particular act to be a public offense, which is not by the law made an offense[8], and proceed to the arrest and trial of a party charged with such act, or should sentence a party convicted to a greater punishment than that authorized by the law[9] upon its proper construction, no personal liability[10] to civil action for such acts would attach to the judge” Bradley v. Fisher, 80 U.S. 13 Wall. 335 335 (1871) Page 80 U. S. 352
and
There is no safety for the citizen except in the protection of the (malicious and corrupt) judicial tribunals for rights which have been invaded by the officers of the government professing to act in its name. There remains to him but the alternative of resistance, which may amount to crime.” (Non-italic and lined through editing added for clarity)(United States v. Lee, 106 U.S. 196 (1882) , Page 106 U. S. 219) (Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) @ 403 US 394-395).

At the ratification of the Constitution for the United States of America we knew what we wanted.  Alexander Hamilton in the Federalist Paper #78 asserted how to protect the rights, privileges, or immunities secured by the Constitution and laws:
There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative (judicial or executive) act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid...[11]
To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them[12]”.  The Supreme Court has never been “bound down” by the constitution, statute, precedent or strict rules.  The Supreme Court is not even by the their own declaration bond down by common decency, the prohibition of corruption and malice.
One Hundred years later with several precedents to the contrary, and over the express will of Congress as expressed in § 1 of the Civil Rights Act of 1871, 17 Stat. 13 -- the forerunner of § 1983 the judiciary usurped our rights, privileges, or immunities secured by the Constitution and laws and asserted the Judge Made Law with the sophism, departmental independence requires immunity from the rule of law, i.e., independent and immune from the Constitution, Statute Law, prior precedent and common law.  In 1872 the Supreme Court falsely maliciously, criminally and incompetently attempted to intimidated “We the People” with their sophistry, the Judge Made Law:
"It is a principle of our law that no action will lie against a judge of one of the superior courts for a judicial act, though it be alleged to have been done maliciously and corruptly; therefore the proposed allegation would not make the declaration good. The public are deeply interested in this rule, which indeed exists for their benefit and was established in order to secure the independence of the judges and prevent them being harassed by vexatious actions"
“This provision of the law is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of (“We the People” being robbed and disenfranchised) the public, whose interest it is that the judges should be at liberty to (act without regard to our rights, privileges or immunities as secured by the constitution and laws of the United states of America) exercise their functions with independence, and without fear of consequences." -- and the leave was refused.“(non-italic parenthetical editing added for emphasis) ((Scott v. Stansfield, L.R. 3 Ex. 220, 223 (1868)) Bradley v. Fisher, 13 Wall. 335 (1872) @ Page 80 U. S. 349)
The Supreme Court obviously knew better in 1882.  The Supreme Court confirmed the protection of rights, privileges, or immunities secured by the Constitution and laws in 1882:
“No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy and to observe the limitations which it imposes upon the exercise of the authority which it gives.”  United States v. Lee, 106 U.S. 196 (1882) @ Page 220
The Supreme Court obviously knew better in 1932:
“If this extreme position could be deemed to be well taken, it is manifest that the fiat of a state governor (a federal officer, a state judge, a state prosecutor, a police officer, a spouse) and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the federal Constitution upon the exercise of state power would be but impotent phrases, the futility of which the state may at any time disclose… 
There is no such avenue of escape from the paramount authority of the federal Constitution. When there is a substantial showing that the exertion of state power (by a federal judge, a federal officer, a state judge, a state prosecutor, a police officer, a spouse) has overridden private rights secured by that Constitution, the subject is necessarily one for judicial inquiry in an appropriate proceeding directed against the individuals charged with the transgression. To such a case the federal judicial power extends (Article III, § 2), and, so extending, the Court has all the authority appropriate to its exercise.” (emphasis and non-italic parenthetical text added) Sterling v. Constantin, 287 U.S. 378 (1932) Page 287 U. S. 397-398
Two Hundred years after our Declaration of Independence driven by the desire to escape the prerogative of a King we are again subject to prerogative.  This time the prerogative of any Judicial Officer with the 1871 precedent that allows the incompetent, malicious and corrupt to deny our rights, privileges, or immunities secured by the Constitution and laws WITH IMPUNITYNOWHERE in common law, statutory law or constitutional is this immunity defined or provided for.  NOWHERE is the need for independence from the Rule of Law required.  “Like the jurisdiction of local courts, immunity itself—a judge-made doctrine—must be limited by due process, which is of constitutional dimension. The supremacy clause unquestionably nullifies even the most ancient of common law principles and even the most popular of state statutes to the extent they are inconsistent with due process.[13] 
Yet the Supreme Court with their hubris unrestrained in 1967 asserts their self-serving Judge made law, unsupported by common, statutory or constitutional law or precedent:
Few doctrines were more solidly established[14] at common law[15] than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine in Bradley v. Fisher, 13 Wall. 335 (1872). This immunity applies even when the judge is accused of acting maliciously and corruptly, and it "is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the (people being robbed and disenfranchised) public, whose interest it is that the judges should be at liberty to (act without regard to the rights, privileges and immunities secured by the Constitution and Laws) exercise their functions with independence and without fear of consequences." ((Scott v. Stansfield, L.R. 3 Ex. 220, 223 (1868), quoted in Bradley v. Fisher, supra, 80 U. S. 349, note, at 80 U. S. 350) Pierson v. Ray, 386 U.S. 547 (1967) Page 386 U. S. 554).
The effect was plain: under the doctrine of judicial immunity, a victim can be forced to bear the full burden of a serious, irreparable injury inflicted by a state-court judge in blatant violation of the Constitution. [16]”  That is insanity, what are we ignorant incompetents that we cannot write laws that CLEARLY say what we mean them to say? 

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
It seemed clear to the Supreme Court in Monell and Owen:
Moreover, the congressional debates surrounding the passage of § 1 of the Civil Rights Act of 1871, 17 Stat. 13 -- the forerunner of § 1983 -- confirm the expansive sweep of the statutory language. Representative Shellabarger, the author and manager of the bill in the House, explained in his introductory remarks the breadth of construction that the Act was to receive:
"I have a single remark to make in regard to the rule of interpretation of those provisions of the Constitution under which all the sections of the bill are framed. This act is remedial, and in aid of the preservation of human liberty and human rights. All statutes and constitutional provision authorizing such statutes are liberally and beneficently construed. It would be most strange and, in civilized law, monstrous, were this not the rule of interpretation. As has been again and again decided by your own Supreme Court of the United States, and everywhere else where there is wise judicial interpretation, the largest latitude consistent with the words employed is uniformly given in construing such statutes and constitutional provisions as are meant to protect and defend and give remedies for their wrongs to all the people."
Cong.Globe, 42d Cong., 1st Sess., App. 68 (1871) (hereinafter Globe App) Similar views of the Act's broad remedy for violations of federally protected rights were voiced by its supporters in both Houses of Congress. See Monell v. Department of Soc. Svcs., 436 U.S. 658 (1978), at 436 U. S. 683-687. (Owen v. City of Independence, 445 U.S. 622 (1980) @ Page 445 U. S. 635-636)
Yet unrestrained malicious and corrupt tyrannical anarchy is proposed by BRADLEY V. FISHER, 80 U. S. 335 (1871) @ Page 80 U. S. 352 and Pierson v. Ray, 386 U.S. 547 (1967):
A malicious or corrupt “judge of a criminal court, invested with general criminal jurisdiction over offenses committed within a certain district, should hold a particular act to be a public offense, which is not by the law made an offense, and proceed to the arrest and trial of a party charged with such act, or should sentence a party convicted to a greater punishment than that authorized by the law upon its proper construction, no personal liability to civil action for such acts would attach to the judge” (Cong.Globe, 42d Cong., 1st Sess., App. 68 (1871))” 
Where does a victim of the DENAIL of the protection of the laws go for a remedy, a redress of grievances as guaranteed by the First Amendment[17]

1.      The Guild of Judges refuses to administer the rule of law and regulate itself.  The Judiciary asserts for themselves the self-serving protection of the Judge Made Law of absolute impunity. 
2.      The Executive will not assert the constitutional protection of the laws via his/her responsibility to “take Care that the Laws be faithfully executed.[18]” 
3.      The Legislature is dysfunctional.  The Legislature, specifically the Senate, will not and CAN not enforce the constitutional provision for impeachment “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour[19]” with its oligarchy’s unconstitutional and undemocratic control of the Senate’s rules with “secret holds“ and the filibuster.

What is left to the victim, “In such cases, there is no safety for the citizen except in the protection of the (malicious and corrupt) judicial tribunals for rights which have been invaded by the officers of the government professing to act in its name.  There remains to him but the alternative of resistance, which may amount to crime.” (Non-italic parenthetical text and lined through editing added for clarity) (United States v. Lee, 106 U.S. 196 (1882) , Page 106 U. S. 219) (Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) @ 403 US 394-395)
At the time of the Declaration of Independence we sought to throw off the “stipulations between kings and their subjects, the king’s prerogative in favor of privilege, rights surrendered to the prince[20]” to “secure the Blessings of Liberty to ourselves and our Posterity.[21]”  We have never been able to establish and or sustain the rights, privileges, or immunities secured by the Constitution and laws because of the malice, corruption and incompetence that has been empowered and commissioned by the Judiciary’s self serving Judge made law of absolute immunity/impunity.
Now I am not talking about some debatable and ambiguous act of judicial malice, corruption or incompetence.  These are overt undeniable acts of the denial of specific rights[22] over timely and repeated objections both during the trials and after the court appearances in follow up motions for reconsideration, followed by timely appeals all the way to the Supreme Court and back (see United States of America 8th Circuit of Court Appeals 07-2614[23] and 08-1823[24]). 
The effect is plain: under the doctrine of judicial immunity, a victim can be forced to bear the full burden of a serious, irreparable injury inflicted by a state-court judge in blatant (malicious and corrupt) violation of the Constitution.”[25]  “Even if the doctrine had existed in common law, constitutional supremacy dictates that it must bow before the American idea of procedural justice embodied in the guarantee of due process.[26]
This in spite of the protection of the remedial and corrective civil rights statute originally passed by congress in 1871:
§ 1 of the Civil Rights Act of 1871, 17 Stat. 13 -- the forerunner of   § 1983. Civil action for deprivation of rights
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.


[1] JUDICIAL IMMUNITY VS. DUE PROCESS: WHEN SHOULD A JUDGE BE SUBJECT TO SUIT? Robert Craig Waters, Cato Journal, Vol.7, No.2 (Fall 1987). Copyright © Cato Institute. All rights reserved.
[4] Federalist Paper #84, Certain General and Miscellaneous Objections to the Constitution Considered and Answered, Independent Journal, Wednesday, July 16, Saturday, July 26, Saturday, August 9, 1788 by Alexander Hamilton
[5] Writ of Habeas Corpus, US Constitution Section 9 - The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
[6]  The Constitutional prohibition of ex post facto laws, US Constitution Section 9 - No Bill of Attainder or ex post facto Law shall be passed.
[7] Immunity from the rule of law was the MAJOR issue with Nobility, the royals in the Declaration of Independence and during the ratification of the Constitution. 
[8] “The creation of crimes after the commission of the fact” A Judge made law the repeal of the Constitutional prohibition of ex post facto laws, US Constitution Section 9 - No Bill of Attainder or ex post facto Law shall be passed.
[9] “the practice of arbitrary imprisonments” A Judge made law the repeal of the Writ of Habeas Corpus, US Constitution Section 9 - The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
[10] “no personal liability” A Judge made law the repeal of the Constitutional prohibition for a Title of Nobility.  Immunity is in fact a Title of Nobility in the terminology of Colonial Times and the Constitution of the United States of America
[11] The Federalist No. 78, paragraph 12,The Judiciary Department, Independent Journal, Saturday, June 14, 1788 by Alexander Hamilton
[12] The Federalist No. 78, paragraph 20, The Judiciary Department, Independent Journal, Saturday, June 14, 1788 by Alexander Hamilton
[13] JUDICIAL IMMUNITY VS. DUE PROCESS: WHEN SHOULD A JUDGE BE SUBJECT TO SUIT? Robert Craig Waters, Cato Journal, Vol.7, No.2 (Fall 1987). Copyright © Cato Institute. All rights reserved.
[14] The DOCTIRNE was never firmly established, the assertion is a sophism.  “As early as 1613, English courts had recognized that Article 39 restricted the power of judges. Early English decisions had found that judges lost immunity from suit for acts clearly beyond their jurisdiction. Only in a single area did the English common law grant a broad form of immunity to judges, Recognizing a need to protect judges from the displeasure of the Crown and its ministers, the Star Chamber in Floyd v. Barker had held that a judge could not be prosecuted in another court” (Cato Journal, Vol.7, No.2 (Fall 1987). Copyright © Cato Institute. All rights reserved.) The doctrine of judicial immunity from federal civil rights suits dates only from the 1967 Supreme Court decision in Pierson v. Ray, 386 U.S. 547 (1967); it should be noted that there was a dissent by William O. Douglas.  Immunity was not a settled issue, see, for example, McShane v. Moldovan, 172 F.2d 1016 (6th Cir. 1949).  I note also that Randall v. Brigham, 74 U.S. 7 Wall. 523 (1868) @ Page 74 U. S. 536, three years before both § 1 of the Civil Rights Act of 1871 and Bradley: ”They are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, unless perhaps where the acts in excess of jurisdiction are done maliciously or corruptly.”  In Bradley v. Fisher, 80 U.S. 13 Wall. 335  (1871) where there was a decent (74 U. S. 7 Wall. 523) “MR. JUSTICE DAVIS, with whom concurred Mr. Justice CLIFFORD, dissenting.” “But I dissent from the rule laid down by the majority of the Court that a judge is exempt from liability in a case like the present, where it is alleged not only that his proceeding was in excess of jurisdiction, but that he acted maliciously and corruptly. If he did so, he is, in my opinion, subject to suit the same as a private person would be under like circumstances.”
[15] “Even if the doctrine had existed in common law, constitutional supremacy dictates that it must bow before the American idea of procedural justice embodied in the guarantee of due process.” JUDICIAL IMMUNITY VS. DUE PROCESS: WHEN SHOULD A JUDGE BE SUBJECT TO SUIT? Robert Craig Waters, Cato Journal, Vol.7, No.2 @ page 463 (Fall 1987). Copyright © Cato Institute. All rights reserved.
[16] JUDICIAL IMMUNITY VS. DUE PROCESS: WHEN SHOULD A JUDGE BE SUBJECT TO SUIT? Robert Craig Waters, Cato Journal, Vol.7, No.2 @ page 469 (Fall 1987). Copyright © Cato Institute. All rights reserved.
[17] Amendment I, Congress shall make no law… abridging the… right of the people to… petition the Government for a redress of grievances.
[23] State Court Case No.: 03FC-10670M, Missouri Court of Appeals eastern District ED84021, US Court Eastern District of Missouri Jeep v. Jones et al, 4:07-cv-01116-CEJ, 8th Circuit US Court of Appeals 07-2614, Writ of Certiorari to the Supreme Court 07-11115 - Oct 6 2008 Petition DENIED
[24] State Court Case # CR203-1336M, Missouri Court of Appeals Southern District SD26269, US Court Western District of Missouri 07-0506-CV-W-SOW Jeep v Bennett, et al, 8th Circuit US Court of Appeals 08-1823, Motion for rehearing for Writ of Certiorari to the Supreme Court 07-11115 with 08-1823 included - Jan 21 2009 Rehearing DENIED.
[25] JUDICIAL IMMUNITY VS. DUE PROCESS: WHEN SHOULD A JUDGE BE SUBJECT TO SUIT? Robert Craig Waters, Cato Journal, Vol.7, No.2 @ page 469 (Fall 1987). Copyright © Cato Institute. All rights reserved.
[26] JUDICIAL IMMUNITY VS. DUE PROCESS: WHEN SHOULD A JUDGE BE SUBJECT TO SUIT? Robert Craig Waters, Cato Journal, Vol.7, No.2 @ page 463 (Fall 1987). Copyright © Cato Institute. All rights reserved.