rough draft #2 by Robert Hedges © Jan 6, 1997
107th CONGRESS
1st Session
S. 1997A
To amend the Civil Rights Code of 198__ to provide additional
safeguards to protect citizen's rights from violations committed
by state judiciary.
___________________________________________
IN THE SENATE OF THE UNITED STATES
January 01 (legislative day, January 01), 1997
Sen ________________________ introduced the following bill; which
is to be read twice and referred to the Judiciary Committee.
___________________________________________
A BILL
To amend 42 USCA 1983 of the Civil Rights Code of 198__ to
provide additional safeguards to protect citizen's constitutional
rights.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
Citizens may bring a civil action for damages against the state
judiciary, in their individual and official capacities, (only for
directives and judgments which have ripened into finality), which
can be factually determined to be carried out in the absence of
jurisdiction.
Officers of the court who have aided, abetted, caused, allowed,
ignored, avoided, and/or assisted in the deprivation of
Constitutional right are subject to being sued for actual damage,
compensation for constitutional injury, and punitive damages, all
limited by statute.
Suit may be brought in the U.S District Court, timely as set
forth below. The time to file runs from the date of the last act
when a series of acts constitutes the constitutional deprivation.
The ancient doctrine of common law judicial immunity shall not
hinder or limit the U.S. District court from hearing facts to
determine jurisdiction (as a basis for judicial immunity) of a
lower state court, unless the cause has been affirmed on the
merits by the state's highest court.
(a) Short Title.--This Act may be cited as a bill placing
"LIMITS on JUDICIAL IMMUNITY".
(b) Amendment of 198__ Civil Rights Code. -- Except as
otherwise expressly provided, whenever in this Act an amendment
or repeal is expressed in terms of an amendment to, or repeal of,
a section or other provision, the reference shall be considered
to be made to a section or other provision of the Civil Rights
Code of 198__.
(c) This Bill is the solution to the problem of state
politicians acting as judges in political fiefdoms, and after
violating constitutional law, retreating behind the shield of
common law judicial immunity, and the protective camaraderie of
brother state judges.
(d) Table of Contents.--The table of contents of this Act is
as follows:
1} DEFINITIONS:
2} CODIFIED JUDICIAL IMMUNITY
3} DISCRETION AS BASIS FOR IMMUNITY
4} EXCESS OF JURISDICTION
5} QUALIFIED IMMUNITY
6} JUDICIAL IMMUNITY DENIED -
JURISDICTION LACKING AND JUDGMENT VOID
7} COURT OF ORIGINAL JURISDICTION
8} APPEAL
9} LIMITATIONS
10} DAMAGES
11} LEGAL FEES
12} CONGRESSIONAL AUTHORITY
===========================
1} DEFINITIONS:
This bill is intended to clearly define the terms:
a) discretion as it applies to all public servants which creates
common law immunity.
b) immuned judicial acts which are absolutely barred under the
common law doctrine of judicial immunity against suit.
c) excess of jurisdiction, which confers judicial immunity.
d) the term jurisdiction as it applies in a state court to form a
basis for common law judicial immunity, and where the line at the
edge of authority can be crossed .
e) the circumstances accentuated by absence of
jurisdiction/authority:
2} CODIFIED JUDICIAL IMMUNITY
Suit filed which are based on barred circumstances will require:
a) an immediate Rule 8 dismissal;
b) dismissal with minimal or even no response by defendant
judiciary (but with a clear and concise judgment by the US
District Court, with case law citation (both for the Plaintiff's
appeal benefit, and the Defendant's res judicata benefit);
c) Rule 11 sanction for defendant's cost (stayed pending appeal);
d) mandatory legal instruction for the plaintiff in error (at
Plaintiff's expense -notice immediately to plaintiff, as this may
reduce frivolous appeal);
3} DISCRETION AS BASIS FOR IMMUNITY
The judicial decisions absolutely barred are discretionary
decisions by the state judiciary (including but not exclusively
limited to) :
a) jury selection (not to effect the voids identified on habeas
corpus motions); jury or juror impropriety; jury instructions;
b) granting a new trial, or denying same;
c) witness inclusion or exclusion; (there are due process issues
concerning witness - discussion, more research)
d) brief, deposition, or evidentiary amendment, acceptance,
weight or allowance of time extension;
e) location; venue; date of trial; continuances allowed;
f) injury size or definition;
g) dismissal of an indictment, or refusal to dismiss;
h) bail amount (reasoning to be clearly stated in the record);
i) consolidation of cases, or not;
j) (other-this list should grow as experienced individuals
identify more discretionary issues)
(note - these issues can only be attacked on direct appeal as
abuses of discretion)
4} EXCESS OF JURISDICTION
Excess of jurisdiction is a basis for judicial immunity:
a) Excess of jurisdiction has been defined as a longer sentence
than the applicable statute allows. The law requires a judge to
pass sentence after a conviction, and he has no discretion :
1) IF he will pass sentence;
2) HOW LONG the sentence passed will be in some cases. (to pass
sentence LONGER than the statute maximum (which many state laws
limit)
b) no other definition of "excess of jurisdiction is known to
this writer -(research, discussion needed here)
(note - misusing a statute by increasing its scope past the
legislative definition to include individuals within its sphere
of effects is not in "excess" but rather in "absence" of
jurisdiction. Judges are not allowed to substitute themselves
for the legislature. When we have judges extending legislative
law we have a government of men and not laws)
5} QUALIFIED IMMUNITY
Qualified immunity is a valid defense which may be raised during
trial.
(note - The qualified immunity doctrine is defined in Harlow v
Fitzgerald. and many related cases. It should need no legislative
tweaking for the purposes of this bill).
6} JUDICIAL IMMUNITY DENIED -
JURISDICTION LACKING AND JUDGMENT VOID
The circumstances under which the common law doctrine of judicial
immunity (herein codified) will be denied a state judge, and for
which a fact-finding hearing shall be held to determine the facts
of the alleged deprivation:
a) Constitutional deprivation circumstances :
1) denial of meaningful access to the court;
i) ex parte acts (excepting only those allowed by statute)
ii) denial of effective notice; (state statutes frequently define
the notice requirements which are substantive);
iii) all individuals must have access to a valid court at all
times. (injunction being only one reason)
iv) prompt assignment of special judges when a new judge is
required;
2) denial of jury trial; summary trials cannot be substituted for
jury trials. (the issues which are included in the list of jury
trial issues are relatively clear and do not need elaboration in
this bill);
3) refusal to follow Rule 52, and thus thwarting meaningful
appeal in the state court of appeals
(Rule 52 is a substantive rule, and refusal to comply is not
discretionary)
4) denial of right to possession, use and benefit of real and
personal property. (this issue defines how a society cares for
its citizens).
5) denial of just compensation for property taken by state
action. (the taking of private property by the state encompasses
more than just condemnation for public use);
6) failure/refusal to follow stare decisis of the state supreme
court; (the violation of stare decisis is far more serious than a
mere ethics rule violation, because to violate stare decisis is
to violate the law as it is constructed, which is similar to
violating the legislative wording of a statute. Violating stare
decisis frequently results in constitutional deprivation, for
which the US Supreme court need not correct the state high court.
When facts are the same, the result must be the same, or we have
deprival of due process)
7) denial of significant testimony or evidence, which on the face
appears a due process violation (several strong cases suggest
this - research - discussion needed here);
8) denial of right to procreate and beget offspring; (this issue
is the subject of two famous cases, the confusion from which can
and should be determined legislatively).
(note - this is not an absolute or limited list, and may be
refined as coherent arguments are crafted by attorneys - some
serious deprivations will be first defined on appeal after a
summary dismissal; all constitutional deprivations are nullities,
and must be set aside.)
b) misuse/abuse of clearly written/defined state statute:
1) application of a statute to an individual or group which is
not legislatively defined as subject to its effects.
i) example 1- forcible detainers against owners of property in an
absence of documents required by statute
ii)example 2 - mental inquest warrants issued without adhering
strictly to the state statute -
(note - the exception to the constitutional guarantee that no
warrant shall be issued except upon probable cause is here -
probable cause is not created when the judge hears the
complainant's ex parte statement, but probable cause to make an
arrest is dependent upon the circumstances when the officer
serves the warrant on the subject. Failure of the judge to follow
the actual requirements of the statute is one potential
violation; while the absence of circumstances supporting or
suggesting actual need for the warrant when the officer locates
the subject can be a second violation. )
iii) example 3 - fee rulings which violate the American Common
Law Rule, (and thus stare decisis of fee rulings)
iv) example 4 - research - discussion needed here;
(note - misuse of statutes goes to the core of equal protection
and due process)
c) refusal to set aside a nullity;
(note - there is no discretion to fail to set a nullity aside,
and thus no immunity may accompany the refusal to act.)
d) ordering non-necessary coercion disguised as necessary means
to "control the court". (see Mireles v Wako, (1991)
e) all ministerial tasks (ministerial is defined as to implement
or execute tasks);
c) presiding or participating in non-judicial hearings, and
attempting to use "judicial power".
f) absence of jurisdiction: (coram non judice)
g) what cannot be done directly, cannot be done indirectly;
7} COURT OF ORIGINAL JURISDICTION
The court which will entertain original jurisdiction in such an
action or case against a state judicial officer:
a) US District Court will have original jurisdiction;
b) the Plaintiff will have an absolute right to jury trial (based
on the principle that juries hear common law tort matters);
c) the Plaintiff has a right to be advised by the US District
Court that a summary dismissal may end the case and take away the
right to a trial.
d) The US District Court will define/identify the nullity which
any constitutional deprivation represents as a necessary
consequence of acting without jurisdiction/authority. This would
automatically reopen/void the state case in which such nullity
was committed as if a Rule 60 motion were pending, immediately
requiring an untainted state judge and opening the door to
further state judicial action.
d) The US District Court would not need to assume jurisdiction of
the events which would normally be heard in the state court.
e) State remedies need not be exhausted to resort to the Federal
remedy.
f) the state court may hear the tort case against the judicial
tortfeasor, if the facts of the case are before a state court:
1) The case may be transferred to the Federal Court if the
climate in the state court effects to deny meaningful access.
2) Efforts by the state judiciary to thwart the hearing of the
constitutional tort once filed in a state court should be subject
to heightened scrutiny by the US District Court.
8} APPEAL
Conditions of appeal from any final and appealable judgment in
the US District Court:
a) the singular event to transfer jurisdiction from the US
District Court is a timely Notice of Appeal filed in the correct
Federal Circuit Court of Appeals;
c) the Circuit Court of Appeals will hear all unique and untested
constitutional deprivations as a trial de novo;
d) any jury award will not be directly reviewable on appeal
(based on the old doctrine that the reviewing court may not
substitute it's facts for that of the fact-finding court.) but
whether the evidence meet the clear and convincing standard as a
legal question may be appealed.
9} LIMITATIONS
The time in which such a suit shall be brought :
a) known and public non-judicial act - one year;
b) known and public constitutional deprivation - three years;
c) concealed deprivation - one year from the discovery of the
event;
d) act representing violations of statutes, which require/invoke
investigation - one year from the date of a completed
investigation, rather than from the date of the original
allegation;
e) a refusal to investigate will toll the limitations rather than
prevent the suit.
f) The limitations are tolled if the facts of the deprivation are
filed in the state court.
(note - This should be clearly defined because the Circuit judge
which would have jurisdiction in a state case may frequently be
the same judge who is named as the offending tortfeasor.)
10} DAMAGES
The dollar limits of the damage judgments allowed and the
circumstances under which each will be permitted :
a) compensatory -
i) liquidated - no limits -
ii) unliquidated - discretionary; requiring the jury to make
clear findings of fact, and describe supporting evidence (under
the clear and convincing standard);
b) Constitutional deprivation is defined as irreparable injury,
which money is a substitute compensation to soothe. $1M -
absolutely indexed to the CostLivingIndex of 1995.
c) punitive - generally punitive damages are only appropriate in
cases in which injury is clear and substantial. $1M - absolutely
indexed to the CostLivingIndex of 1995.
11} LEGAL FEES
The attorney and legal costs are discretionary and appealable:
a) fees may be awarded to attorneys as under 42 USC¤ 1988;
b) pro se litigants may be awarded fees and costs;
c) the cost of the proof of a denied truth is to be charged to
the prevaricator;
12} CONGRESSIONAL AUTHORITY
The basis for congressional authority to write this law is:
a) Congress is charged with defining constitutional law and the
federal courts are ultimately responsible for the enforcement of
all constitutional rights.
b) states fail to agree on these issues, and Congress is best
able to settle the variety of state positions.
c) constitutional law is inviolate, and deprivations by state
judiciary are inexcusable. Actual remedy must exist for all
constitutional deprivations, or constitutional guarantees have
been reduced to mere discretionary decisions by men.
d) Congress is best equipped to delegate constitutional
responsibility among the Federal courts.
e) US District Court has original jurisdiction to examine the
constitutionality of state rules already.
f) this bill represents the best solution to politically
motivated state judges who refuse to follow constitutional
guidelines, and refuse to follow stare decisis. The violation of
stare decisis by a lower state court, when the state court of
appeals refuses to hear the violation/deprivation on the merits
and refuses to correct the errant state circuit, would allow a
constitutional deprivation to ripen. The ripe deprivation must be
a nullity and must have been committed without
jurisdiction/authority, and all nullities must be corrected.
g) State judiciary would soon conform when put on codified notice
that no common law judicial immunity will protect them while
committing the clearly-defined offenses. (Any judges who would
claim ignorance of constitutional guidelines needs to be scared
out of the political arena).
h) the US Supreme Court is designed to follow congressional law
as the will of the people :
i) the US Supreme court has a larger list of cases to choose from
each year, but remains consistently able to hear only about 200
cases each year. Defining the exact circumstances under which the
US District Court hears constitutional deprivation cases
committed by state judicial officers will conserve the scarce
legal resources which the US Supreme Court represents.
ii) the Rooker-Feldman doctrine is frequently and frivolously
misused;
(note - Rooker-Feldman states clearly that cases heard on the
merits in the state's one high court are only reviewable by the
one Federal Supreme court, not it's converse, that no federal
court can hear cases alleging state constitutional deprivations,
except the US Supreme Court.)
I) the US Supreme court is not primarily concerned with
correcting state courts; it must :
i) correct the one state high court's potential unconstitutional
acts;
ii) settle differences among the several Circuits;
iii) construct constitutional law binding on all courts;
iv) defined for all individuals;
j) the offending state individual will have a forum to defend
any such deprivation action with a clear codified law to define
the edge of jurisdiction.
k) the injured citizen will have a consistent black letter law to
follow in his search for actual redress.
======================
Definitions:
jurisdiction = specific authority to act judiciously. All
directives issued by any court which does not have authority to
act are nullities. The authority of a court to convene is not
blanket jurisdiction (authority) to act in any or all matters.
nullity = a void directive or judgment; a judgment made "without
jurisdiction" and/or in violation of constitutional law.
constitutional deprivation = the interfering with one of the
defined rights each individual enjoys under the United States
Constitution. The defining of the edge of these rights is the
task of the U.S. Congress. The enforcement of these rights is the
jurisdiction of the U.S. District Court and the Federal Court
system. The correcting of any state Supreme court infringement is
the sole jurisdiction of the U.S. Supreme Court. No
constitutional deprivation can be authorized by the state, and no
authority (jurisdiction) exists in the state to carry out acts
which result in constitutional deprivations.
a) excessive damage awards have been defined as violations of due
process.
b) case law has defined several constitutional due process and
equal protection rights and the violations thereof.
c) no wording in this bill is to be construed as a limit on or
complete list of constitutional rights for which deprivations
might cause jurisdictional questions to arise for a fact-finding
hearing.
judicial immunity = the common law doctrine which protects all
judges from suit for damages when making discretionary judicial
decisions. The clear exclusions to this immunity are:
a) decisions made in the absence of jurisdiction.
b) decisions made outside of judicial authority (such as firing
an employee)
c) actions carried out which violate constitutional rights
protected by federal law.
absence of jurisdiction = Any action determined to be a
constitutional deprivation is by definition "without
jurisdiction". All directives from any court acting without
jurisdiction are by definition "nullities". The state's highest
court can expand the jurisdiction of a state court by affirming a
directive, through a hearing on the merits. No state court
creates it's own jurisdiction by judicial fiat.
excess of jurisdiction = acts which exceed the statute authority
of a court, which is compelled to act by law, but is limited in
it's actions.
A good example of this is a sentence mandated to be passed upon a
convicted criminal defendant, but which is limited to a specific
number of years. The application of a statute to those
individuals not subject to it's provisions or effects is not "in
excess" of jurisdiction, but "in absence" of jurisdiction.
discretion = the basis for all immunity; the decisions proscribed
and necessitated in the course of hearing a cause; these
discretionary decisions include but are not restricted to: -
times and circumstances of hearings, scheduling and quantities of
witnesses; sentences within statute guidelines. All discretionary
decisions are protected by the immunity doctrine. A court's
efforts to expand it's own authority is not discretionary, and
any expansion of that jurisdiction must be affirmed on the merits
by the state's highest court. The court may defend it's
directives by presenting facts which offer clear and convincing
proof that it's directives are discretionary decisions. Rule 11
clearly defines a good faith effort to expand or change the law.
custom or usage = acts based on a common pattern of society's
behavior, not necessarily supported as a common law. A pattern of
behavior does not confer authority if the result of the behavior
is a constitutional deprivation.
hearing on the merits = a hearing before a competent court
following proper timely notice, briefing of clarified issues, and
a clear determination of what the law is discovered to have
always been. This is to be differentiated from a hearing in which
procedural technicalities are used (either within or without
jurisdiction) as docket control, to avoid reaching a decision on
the actual issues preserved or raised in the cause. The issues of
constitutional deprivations cannot be disposed of by technical
docket control, because they are nullities. No procedural law
reaches the level of substantive violations
substantive violations of law =
procedural violations of law =
affirmed = a judgment which after being heard on the merits is
supported by a state's highest court can be defined as affirmed.
This is to be differentiated from any denied motions to have a
cause heard on the merits, or a refusal to hear based on
procedural technicalities. Avoidance and denial by a state's
highest court are not affirmations of lower court rulings.
--------suggestions welcome
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