judicial wrongdoing © Part 6

Strollin' Pettifoggers -
U S District Court & the 6th Circuit
Case One
Library of Congress Copyright No.
TX4-487-022 dated 1 Apr 1996
TX4-558-085 dated 11 Jun 1997
by Robert Hedges ©

Suit was filed against three Kentucky Court of Appeals judges, (Stumbo the signer being now on the KY Supreme); the 19th Judicial Circuit Judge Hinton ; and the 53rd Judicial District Court judge Stewart, on 6 April 95 in the Eastern District of Kentucky in Frankfort, KY are defendants in a case to remedy constitutional deprivations and deprival of meaningful access to the state court. The complaint Civil Action No. 95-33 was 44 pages, and contains the cases stated in this series practically verbatim.

The Kentucky Attorney General's Office assigned a lawyer to defend the judges. Plaintiff Robert Hedges filed an amendment to the original complaint when the defendant judiciary failed to file a responsive pleading to the complaint, but instead filed a motion for a summary dismissal. The amended list of defendants added several judges, three non-judges, and mentioned several more judges who merely looked on.

The US District Court Summary Judgment included three alleged basis or reasons for the dismissal and cited a few authorities.-

1) Judicial Immunity -

2) 11th Amendment Sovereign Immunity -

3) Rooker-Feldman Doctrine -

1) Judicial Immunity = There are non-judge defendants, as well as the eight named judge defendants so all litigants do not have judicial immunity, unless the US District court is extending judicial immunity to non-judiciary, regardless of the fact that jurisdiction (authority) is the key element allowing or bestowing judicial immunity (which is designed to protect DISCRETIONARY decisions by judges from the threat of suit), and jurisdiction (authority) is clearly absent in the state to violate constitutional rights. Plaintiff believes that even if the doctrine of judicial immunity were allowed to protect some defendants who have acted in absence of authority (jurisdiction) Kentucky case law states that judicial immunity is denied and the District Court Judge and the prosecutor are liable (in tort) as trespassers when forcible detainer is misused.

2) 11th Amendment Sovereign Immunity = The entire principle of 11th Amendment sovereign immunity is to protect the state treasury from attack. Any money damage case which is ultimately a judgment against the state treasury is disallowed automatically. However, County, city, personal, and municipal treasuries and accounts are not immuned under the 11th Amendment from damage suits. The biggest reason that this reason fails to support a summary dismissal is because Plaintiff seeks relief other than just money damage, such as a declaration of several denied rights, a series of remand for hearings, an expungment of a void contempt, and the return of certain real estate, as well as damages for the taking and deprival of the use of the land in the intervening time. The defendants are being sued as individuals which is supposed to put their private assets on the damages line.

3) Rooker-Feldman Doctrine = Feldman clearly states that a judgment affirmed by the state supreme court cannot be attacked in the lowest Federal Court, but can only be attacked in the US Supreme. The Strollin Pettifoggers Article contains no rulings on the merits in any court above the state Circuit, and there is no judgment affirmed on the merits anywhere in the article. Several states have ruled that a dismissed appeal is not an affirmed judgment, and Plaintiff is certain that the US Supreme Court has written that when it refuses to hear a case that refusal is not an affirmation of the lower court's ruling. Blacks Law Dictionary and AmJur2d agree. A Dismissed appeal =/= affirmed judgment. Also the US Supreme Court has declined reviewing denied writs to a state supreme court because the issues are not settled issues before the state supreme rules upon them. Thus the principle that the state supreme court has only one superior, and can be reviewed by only one court, the US Supreme court, is never invoked. Thus the Rooker-Feldman Doctrine cannot apply to dismissed appeals which are constitutional deprivations of the very right of appeal, and cannot deprive the jurisdiction from the US District Court to hear the issue.

The US District Court must have been slow on the 24th of August,1995, because the same US District Court Judge dusted off his pen and resumed jurisdiction in the core of the same case which he relinquished jurisdiction of unto the appellate court, when the Notice of Appeal was filed in June. US District Court Judge Hood's effort to maintain his own jurisdiction while a case is on appeal through dual jurisdiction which cannot ever exist. He reaffirmed his own earlier ruling, while all litigants are properly before the higher court, and are notified, and not prejudiced in any way or without knowledge of the case against them.
This US District Court judge who had a case full of nullities before him, arguably wrote a nullity. Once the lower court gives over jurisdiction to the court of review, it no longer has authority to rule on the central issues which are on appeal. This legal principle is based on the reasoning that a judge could always hamper an appeal if allowed to rule in the same case while a litigant tries to follow the timely rules of appeal. Plaintiff/Appellant Hedges made simultaneous motions in both the District and 6th Circuit to combine all judgments into the single appeal, for the sake of judicial economy, and/or to hold the post-Notice of Appeal judgment as a nullity for absence of jurisdiction.

The District court responded with two off-point case citations, claiming that Plaintiff Hedges filed a Notice of Appeal prematurely, and thus the appeal is void. Further Judge Hood claims Hedges should have waited for further judgments from the US District court before filing a Notice of Appeal. Bunk! The Notice must be filed timely or the appeal is lost (barring some fraud).

Another nullity, and I wanted a trial before this trial judge !! The brief is described below.

Comes the Appellant/Plaintiff Robert HEDGES, and supplements his MOTION to Amend the Notice of Appeal to prevent any confusion among the Appellee and to adhere to the Doctrine of Judicial Economy as follows- The US District Court has written a Final and Appealable Judgment denying the Motion filed below which Plaintiff filed as a formality, since the issue of legality of jurisdiction existing simultaneously in two courts is reserved for the Circuit court to determine.

The Final and Appealable Judgment denys the Plaintiff an extension of time to file a Notice of Appeal, which was intended to give the 6th Circuit an opportunity to hear the Motion which will determine the issue of dual jurisdiction on the central issues in the case.

The US District Court has decided to increase the complexity of the Appeal by seemingly requiring multiple Appeals, which of course require multiple Notices of Appeal. There could be potentially three Notices of Appeal filed and actively taking court time now. HEDGES describes the faulty logic of the District Court.

Island Creek Coal v Gainsville, 764 F2d 437, (6th Cir 1985) and Sine v Local 992, Teamsters, 790 F2d 1095 at 1097, (4th Cir 1986) are cited as the authorities giving the US District Court extended and dual jurisdiction in a case actively on appeal. Each case can be distinguished by a very wide margin from the instant case of the Appellant HEDGES. The opponent of a litigant/appellant during the appeal is the trial court judge, and only his issues are preserved for the appeal. Thus he is not allowed to interfere in the main issue portion of the case after the Notice of Appeal is filed.

Island Creek supra was an Arbitration award, appealed to the District Court, and then taken to the 6th Circuit on writ of certiorari, which did not suspend the pending judgment. The Appellate court (the District Court) maintained jurisdiction to enforce the judgment due to the absence of a bond to pay damages, since the judgment was not suspended by the 6th Circuit.

HEDGES case against the several state judges for constitutional deprivations is not an arbitration appeal in the District, nota writ of certiorari in the 6th Circuit, not a case requiring a performance bond, and thus the cited dual jurisdiction legal principle is far removed from the HEDGES case whether it is equitably valid in Island Creek supra or not. Sine v Teamsters is a case in which a Plaintiff therein voided his own Notice of Appeal by filing FRCP 52, 59 and 60 motions simultaneous with the Notice of Appeal. Any Rule 59 motion voids any Notice of Appeal made against the same judgment, as spelled out by the Rule itself. HEDGES did not void his own Notice of Appeal, nor does the defendant have the authority to do so. The cited lower court jurisdiction rule fails to apply.

Sine v Teamsters was quoted when the court was "begging the question" by saying that "since the Notice of Appeal was filedpremature", it must be a nullity. No valid reasoning was presented by the District Court to establish what voided the original and timely Noticeof Appeal. The District Court did allude to a future intent which was not written or clearly reflected in the final and appealable order which triggered the time to file the original Notice of Appeal. The District Court cited no authority which explains how premonitions can be the basis for the filing of late Notices of Appeal, which Notices are the SINGULAR basis for jurisdiction of the 6th Circuit to ATTACH to the case.

If the US District Court could maintain jurisdiction during a valid appeal to hear any motion in the same case, it wouldneed jurisdiction to be able to choose to act either affirmatively or negatively. This jurisdiction does not exist during a valid appeal.

The 6th Circuit issued an order filed 31 August, 1995 which stated that the case will be heard on the merits by a three Judge panel.

UPDATE

The 6th Circuit heard this case on 20 Aug 1996, Affirming the Dismissal, and then promptly failed to notify Plaintiff/Appellant HEDGES. The Order was not served, andon 23 September 1996, the Mandate was also unserved. Two failuresto notify a litigant, when both documents are needed for a USSupreme Court bid, (timely when filed in 90 days) is verysuspicious.

Appellant HEDGES Motion for Leave to File after Failure of Service, as a prelude to a Motion for a Rehearing,Rehearing En Banc and a Motion for a Writ of Certiorari. All motions were denied.

The 6th Circuit ruled that :

Rooker Feldman denied the Federal Courtthe authority to examine the issues presented. Thus the summarydismissal was Affirmed - however;
the Notice of Appeal removed jurisdiction from the USDistrict Court, which had no jurisdiction to enter a secondjudgment. [ Comment HEDGES - Thus the second tier of defendants are not dismissedunless the causes stated against them individually fall under andwithin Rooker-Feldman.
"alleged incorrect decision by a state court will not beredressed by federal courts. cites Agg v Flanigan, 855 F2d 336,(6th Cir 1988) which says actually - " an incorrect [state]decision does not constitute deprivation of due process thatFederal Court must redress. "
comment HEDGES - The actualprinciple in Agg is that all Courts of the United States make nopronouncements upon divorce, alimony, domestic relations, andhave no jurisdiction in those related matters - Barber v Barber,62 US 582, (1859), but this principle seems to have been revamped in recent years.
Agg is an attack upongarnishment of wages and property for back child support, accruedover a ten year period. That case sought to stop garnishmentthrough :
1. attack on procedure -
  (procedure was found to containnotice and opportunity to be heard in the state court, soconstitutional due process requirements were satisfied.) USDistrict Court has jurisdiction to determine constitutionality ofstate procedure.
2. attack on an erroneous factual finding -
  (facts werebased on mutual stipulations and signed agreements) - No argumentwas made in Agg that the state court lacked discretion to decide,or jurisdiction to act after deciding the facts, which become thebasis for the dispute long after stipulation.
3. Agg further says: (while describing an argumentpresented)
  "it is fundamentally unfair to deprive a person of theirproperty, or the use of their property, before deciding that itis legally justified."
  [comment HEDGES] A determination that a court is legallyjustified requires that a court act within jurisdiction. Actingwithin jurisdiction requires following the state statute, orpost-judgment approval by the state high court expandingjurisdiction for all future cases.Rooker-Feldman would allow only US Supreme Court review after astatute is changed by the state high court, in a hearing on themerits. Technical denials a hearing on the merits by courts charged with review of trial courts leave decisions made outside of jurisdiction as nullities. Nullities are not valid state rulings, and can be used for no purpose, including invoking the Rooker-Feldman bar to jurisdiction, which disallows the direct review of state rulings. You can think of nullities as part of that very largegroup of "incorrect decisions" but nullities go farbeyond abuses of discretion, or erroneous factual findings.Nullities also do not require immediate appeal, though that remedy isoften available for their correction.
4. Agg was subject to appeal, which was not bothered with due toagreements and stipulations. The question of whether Agg'sattorney was guilty of malpractice was mentioned in the judgment.
5. Further the lone Dissent in Agg stressed a claim preclusionissue. -
  [comment HEDGES] Res judicata, or claim preclusion must rest upona valid ruling, made in a court with jurisdiction. No nullitiessupport claim preclusion.
  Also claim preclusion rests uponcases heard on the merits. Any court denying itself jurisdictionthrough technicalities or say, "Rooker Feldman", has not heardany issue on the merits, and precludes no future claim. Theconstitutional law describes a case "being heard" for the purposeof "claim preclusion" as:after the first witness is called before the fact-finder withtestimony. cite Serfass v US, 420 US 377, (1975)
  No witnesses were ever sworn for any hearing in any matter herein(excepting an unnecessary and unacceptable deposition by a nowself-impeached self-described expert who professed an absence ofskill, when the only question under state law is 'furnish dollarfigures for simple comparison shopping').
6. Agg also stressed : Federal court must exercise jurisdiction over . . . . [caseswithin its charge]Jurisdiction is not a discretionary decision, but it ismandatory.
judicial immunity is not decided at all.

The 6th Circuit Ruling is unpublished, and presumes to base Rooker-Feldman on the mere allegation that a state decision is wrong. [ Comment HEDGES - The Judge substituted his own set of facts, rarther than relying upon the facts pled by Plaintiff HEDGES. The Judge decided to show how smart he is by presuming "facts" never argued by Defendant, and thus never Rebuttaled by Plaintiff HEDGES. The Judge determine that the case was merely a "thinly vailed attempt" to have a Federal Court overrule state rulings, which could make a Federal Court an alternate Appeals Court for state cases.

The Motions pending pending in state court to set aside nullities are facts easily proven by Plaintiff HEDGES. Actually, the state decisions (as exhibits, and representing evidence of theconstitutional deprivation) are no sacred cow, when the litigant seeks a series ofdeclarations of rights, expungement of a false arrest, and settlement of the issue of a threat of contempt which allows suit for prospective relief.

Van Harken v Chicago, 103 F3d 1347 ay 1349, (7th Cir 1997) make an oblique swipe at a state court judgment by challenging the constitutionality of a state rule while seeking declaratory relief. This is not within Rooker Feldman, which denies a challenge againt the ruling made under the rule.(analysis of Feldman by Posner J)

The 6th Circuit decided against "RECALLING THE MANDATE" to reset the time for the "MOTION FOR WRIT OF CERTIORARI" to the US SUPREME COURT, and so PETTIFOGGERY again enters the picture. MOVANT HEDGES will be required to seek LEAVE TO FILE in the US SUPREME COURT, whose time is valuable, and would be much better served in noticing the facts of the case and determining the issue with a published opinion, that Nullities do not support Rooker-Feldman, (which at the very least must require a state decision correctly reached even if incorrect in fact or inconsequential point of law.

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