Case Law on Judicial Conduct and Pro Se Treatment

Weld County District Court Chief Judge James Hartmann - Truth & Malice.

Weld County District Court Chief Judge James Hartmann – Truth & Malice.

Case Law on Judicial Conduct and Pro Se Treatment

Please find below a list of case laws concerning:

1- Judge’s misconduct, violations of Constitution, loss of jurisdiction, etc. They can be used in state courts too. Remember, federal law supersedes the state law and each and every state law HAS to defer to the federal law and ultimately to the United States Constitution, which is incorporated into every state’s constitution, hence the judge would be violating the state constitution too.

2- Rights and expectation under the law for the pro se litigant.

If there are other areas that you might be interested in having case laws, please let me know. The areas of law I that have been dabbling in are those that have impinged on my quest to get back the custody of my children as a result of fraud and constitutional violations of the former wife, her attorney and the judges in the custody case. Therefore, I have been involved in custody law (Indiana) and federal laws, primarily constitutional and those related to fraud, void orders, jurisdiction, tort, judicial immunity, federal removal, and related matters.

LEGAL BRIEF

Constitution Supreme Clause Article VI, Clause 2 of the Constitution (This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; . . . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.)

When a judge acts intentionally and knowingly to deprive a person of his constitutional rights he exercises no discretion or individual judgment; he acts no longer as a judge, but as a ” minister” of his own prejudices.

[386 U.S. 547, 568]

A judge is liable for injury caused by a ministerial act; to have immunity the judge must be performing a judicial function. See, e. g., Ex parte Virginia, 100 U.S. 339 ; 2 Harper & James, The Law of Torts 1642-1643 (1956).

The presence of malice and the intention to deprive a person of his civil rights is wholly incompatible with the judicial function.

U.S. Supreme Court Reports, PIERSON v. RAY, 386 U.S. 547 (1967)
386 U.S. 547 PIERSON ET AL. v. RAY ET AL.

When a judge acts intentionally and knowingly to deprive a person of his constitutional rights he exercises no discretion or individual judgment; he acts no longer as a judge, but as a ” minister” of his own prejudices. [386 U.S. 547, 568];
A judge is liable for injury caused by a ministerial act; to have immunity the judge must be performing a judicial function. See, e. g., Ex parte Virginia, 100 U.S. 339 ; 2 Harper & James, The Law of Torts 1642-1643 (1956). The presence of malice and the intention to deprive a person of his civil rights is wholly incompatible with the judicial function.

“a judge shall uphold the integrity and independence of the judiciary

“a judge should avoid impropriety and the appearance of impropriety in all his activities” and should act so as to “promote public confidence in the integrity and impartiality of the judiciary

When the jurisdiction of a judge is challenged, as has been maintained for some time by the Respondent, it is not for the judge to state that he has jurisdiction. It is the adversarial party, Petitioner in this case, who has to prove that the Judge does indeed have jurisdiction with clear and convincing evidence. The Petitioner has not done so, and indeed could not do so because overwhelming evidence show that the Judge has indeed lost personal and subject matter jurisdiction in this instant case.

“Jurisdiction, although once obtained, may be lost, and in such case proceedings cannot be validly continued beyond the point at which jurisdiction ceases”. Federal Trade Commission v. Raladam Co., 283 U.S. 643, 75 L.Ed. 1324, 51 S.Ct. 587.
For the purposes of review, it has been said that clear violations of laws on reaching the result, such as acting without evidence when evidence is required, or making a decision contrary to all the evidence, are just as much jurisdictional error as is the failure to take proper steps to acquire jurisdiction at the beginning of the proceeding. Borgnis v. Falk Co., 133 N.W. 209.

“No sanction can be imposed absent proof of jurisdiction”. Stanard v. Olesen, 74 S.Ct. 768.
“Once jurisdiction is challenged, it must be proved.” Hagans v. Levine, 415 U.S. 533, n. 3.

As previously observed in this opinion, the diversity statute must be strictly construed, and the jurisdiction cannot be assumed by a District Court nor conferred by agreement of the parties, but it is incumbent upon Plaintiff to allege in CLEAR terms, the necessary facts showing jurisdiction, which must be proved by CONVINCING evidence.” Harris v. American Legion, ____ F.Supp. 633 (1958).
“Mere fact that parties stipulated to jurisdiction does not automatically vest authority in district court to adjudicate all issues presented, for subject matter jurisdiction cannot be assumed by the court, nor can it be waived by parties.” Bush v. U.S. 703 F.2d 491 (1983); Jackson v. Seaboard Coast Line, 678 F.2d 992 (1982), quoting F.R.Civ.P. Rule 12 (h) (3).

“The authority which the statute vests in the court to enforce the limitations of its jurisdiction precludes the idea that jurisdiction may be maintained by mere averment or that the party asserting jurisdiction may be relieved of his burden by formal procedure. If his allegations of jurisdictional facts are challenged by his adversary in any appropriate manner, he must support them by competent proof. And where they are not so challenged the court may still insist that the jurisdictional facts be established or the case be dismissed, and for that purpose the court may demand that the party alleging jurisdiction justify his allegations by a preponderance of the evidence.” McNutt v. General Motors Acceptance Corp., 55 S.Ct. 1372 (1936).

Affidavits or arguments do not expand the grounds of the jurisdictional challenge motion. Josephson v. Superior Court, 219 CA2nd 354 , 33 Cal. Rptr. 196 (1963).

“It has also been held that jurisdiction must be affirmatively shown and will not be presumed”. Special Indemn. Fund v. Prewitt, 205 F.2d 306.

Without jurisdiction, the acts or judgments of the court are void and open to collateral attack. McLean v. Jephson, 123 N.Y. 142, 25 N.E. 409.

As can be seen, the court cannot grant or assume jurisdiction. It must be affirmatively pled by the party seeking it, i.e. the Petitioner. If challenged, and the party seeking it cannot overcome the challenge, there is no jurisdiction, and all orders, judgments, decisions, etc. are void.

Under Federal law which is applicable to all states, the U.S. Supreme Court stated that if a court is “without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void; and form no bar to a recovery sought, even prior to a reversal in opposition to them. They constitute no justification; and all persons concerned in executing such judgments or sentences, are considered, in law, as trespassers.”

Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828).

When a judge acts as a trespasser of the law, when a judge does not follow the law, the judge loses subject-matter jurisdiction and the judges orders are void, of no legal force or effect.

The U.S. Supreme Court, in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 1687 (1974) stated that “when a state officer acts under a state law in a manner violative of the Federal Constitution, he “comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States.” [Emphasis supplied in original]. By law, a judge is a state officer.

The judge then acts not as a judge, but as a private individual (in his person).
The U.S. Supreme Court has stated that “No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.”.

Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401 (1958).

Any judge who does not comply with his oath to the Constitution of the United States wars against that Constitution and engages in acts in violation of the Supreme Law of the Land. The judge is engaged in acts of treason.

If a judge does not fully comply with the Constitution, then his orders are void, In re Sawyer, 124 U.S. 200 (1888), he/she is without jurisdiction, and he/she has engaged in an act or acts of treason.

Whenever a judge acts where he/she does not have jurisdiction to act, the judge is engaged in an act or acts of treason. S. v. Will, 449 U.S. 200, 216, 101 S.Ct. 471, 66
L.Ed.2d 392, 406 (1980); Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404, 5 L.Ed 257 (1821).

The Seventh Circuit Court of Appeals held that the Circuit Court of Cook County is a criminal enterprise. U.S. v. Murphy, 768F.2d 1518, 1531 (7th Cir. 1985). Since judges who do not report the criminal activities of other judges become principals in the criminal activity, 18 U.S.C. Section 1, and since no judges have reported the criminal activity of the judges who have been convicted, the other judges are as guilty as the convicted judges.

When judges act when they do not have jurisdiction to act, or they enforce a void order (an order issued by a judge without jurisdiction), they become trespassers of the law,and are engaged in treason (see below).
The Court in Yates v. Village of Hoffman Estates, Illinois, 209 F.Supp. 757 (N.D. Ill. 1962) held that “not every action by a judge is in exercise of his judicial function. … it is not a judicial function for a judge to commit an intentional tort even though the tort occurs in the courthouse.”

The Seventh Circuit Court of Appeals held that the Circuit Court of Cook County is a criminal enterprise. U.S. v. Murphy, 768F.2d 1518, 1531 (7th Cir. 1985); United States v. Maloney 71 F.3d 645 (CA7 1995), cert. Denied, 519 U.S. ___ (1996). “Maloney was one of many dishonest judges exposed and convicted through ‘Operation Greylord,’ a labyrinthine federal investigation of judicial corruption in Chicago. In United States v. Maloney, 71 F.3d 645 (CA7 1995), cert. Denied, 519 U.S. ___ (1996); see generally J. Tuohy & R. Warden, “Greylord Justice, Chicago Style (1989). Maloney served as a judge from 1977 until he retired in 1990, and it appears he has the dubious distinction of being the only Illinois judge ever convicted of fixing a murder case. (ftnt. omitted.) Before he was appointed to the bench, Maloney was a criminal defense attorney with close ties to organized crime, who often paid off judges in criminal cases. App.54-66; 81F.3d 684 (CA7 1996) (Rovner J., dissenting) (‘[B]y the time Maloney ascended to the bench in 1997, he was well groomed in the art of judicial corruption’). Once a judge, Maloney exploited many of the relationships and connections he had developed while bribing judges to solicit bribes for himself. For example, Lucius Robinson, a bailiff through whom Maloney had bribed judges while in practice, and Robert McGee, one of Maloney’s former associates, both served as ‘bag men,’ or intermediaries, between Maloney and lawyers looking for a fix. Two such lawyers, Robert J. Cooley and William A. Swano, were key witnesses against Maloney at this trial. Maloney, supra, at 650-652.”

The United States Supreme Court recently acknowledged the judicial corruption in Cook County, when it stated that Judge “Maloney was one of many dishonest judges exposed and convicted through ‘Operation Greylord’, a labyrinthine federal investigation of judicial corruption in Chicago”. Bracey v. Gramley, 520 U.S. 899, 117 S.Ct. 1793, 1797 (1997).

If a person is arrested on less than probable cause, the United States Supreme Court has long recognized that the aggrieved party has a cause of action under 42 U.S.C. §1983 for violation of Fourth Amendment rights. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213 (1967).

Harlow v. Fitzgerald 457 U.S. 800, 818 (there can be no objective reasonableness where officials violate clearly established constitutional rights such as–

(a) United States Constitution, Fourth Amendment (including Warrants Clause), Fifth Amendment (Due Process and Equal Protection), Ninth Amendment (Rights to Privacy and Liberty), Fourteenth Amendment (Due Process and Equal Protection).
The Supreme Court ruled in Malley v. Briggs, 475 U.S. 335, 344 (1986), that the mere fact that a judge or magistrate issues an arrest warrant does not automatically insulate the officer from liability for an unconstitutional arrest. “Only where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable…will the shield of immunity be lost”. Malley at 344-45.

PRO SE STANDARD OF REVIEW

1- Because the Plaintiff is pro se, the Court has a higher standard when faced with a motion to dismiss, White v. Bloom, 621 F.2d 276 makes this point clear and states: A court faced with a motion to dismiss a pro se complaint must read the complaint’s allegations expansively, Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 596, 30 L. Ed. 2d 652 (1972), and take them as true for purposes of deciding whether they state a claim. Cruz v. Beto, 405 U.S. 319, 322, 92 S. Ct. 1079, 1081, 31 L. Ed. 2D 263 (1972).

2- Pro se litigants’ Court submissions are to be construed liberally and held to less stringent standards than submissions of lawyers. If the court can reasonably read the submissions, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or litigant’s unfamiliarity with rule requirements.
Boag v. MacDougall, 454 U.S. 364, 102 S.Ct. 700, 70 L.Ed.2d 551 (1982);
Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251
(1976)(quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); McDowell v. Delaware State Police, 88 F.3d 188, 189 (3rd Cir. 1996); United States v. Day, 969 F.2d 39, 42 (3rd Cir. 1992)(holding pro se petition cannot be held to same standard as pleadings drafted by attorneys); Then v. I.N.S., 58 F.Supp.2d 422, 429 (D.N.J. 1999).

3- The courts provide pro se parties wide latitude when construing their pleadings and papers. When interpreting pro se papers, the Court should use common sense to determine what relief the party desires. S.E.C. v. Elliott, 953 F.2d 1560, 1582 (11th Cir. 1992). See also, United States v. Miller, 197 F.3d 644, 648 (3rd Cir. 1999) (Court has special obligation to construe pro se litigants’ pleadings liberally); Poling v. K.Hovnanian Enterprises, 99 F.Supp.2d 502, 506-07 (D.N.J. 2000).

4- Defendant has the right to submit pro se briefs on appeal, even though they may be in artfully drawn but the court can reasonably read and understand them. See, Vega v. Johnson, 149 F.3d 354 (5th Cir. 1998). Courts will go to particular pains to protect pro se litigants against consequences of technical errors if injustice would otherwise result. U.S. v. Sanchez, 88 F.3d 1243 (D.C.Cir. 1996).

5- Moreover, “the court is under a duty to examine the complaint to determine if the allegations provide for relief on any possible theory.” Bonner v. Circuit Court of St. Louis, 526 F.2d 1331, 1334 (8th Cir. 1975) (quoting Bramlet v. Wilson, 495 F.2d 714, 716 (8th Cir. 1974)). Thus, if this court were to entertain any motion to dismiss this court would have to apply the standards of White v. Bloom. Furthermore, if there is any possible theory that would entitle the Plaintiff to relief, even one that the Plaintiff hasn’t thought of, the court cannot dismiss this case.