Petition — Holway v. Thornton

Supreme Court brief1983

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ye v7 1985

ALEXANDER L. STEVAS

CLERK

IN THE

Supreme Court of the United States

October Term, 1982

JOHN B HOLWAY, Petitioner,

PERCY THORNTON

SELWYN SMITH

ALBERT BRYAN JR

MARK P. FRIEDLANDER

CLIFFORD SHOEMAKER Respondants

WILLIAM HAMBLEN

HELEN FAHEY

RONALD TYDINGS

PETITION FOR A WRIT OF CERTIORARI

TO THE U.S. FOURTH COURT OF APPEALS

Jonn B Holway

7805 Chase Ct

Manassas Va 22110

(703) 368-8472

Pro Se

Questions Presented

1. Whether an attorney who conspires with a

judge to commit fraud is protected by judicial

immunity?

2. Whether the statute of limitations in a

suit alleging continuing violations of civil

rights is two years or five years?

3. Whether the executive branch's defense of

members of the judicial branch charged with

serious torts and constitutional abuses can be

reconciled with the constitutional principle of

separation of powers and checks and balances?

4. Whether "due process" and "equal

protection" of the laws is upheld when a case is

heard by a close colleague and friend of a defen-

dant, then reviewed and dismissed by an appeals

court headed by the father of the defendant?

Whether such action “knowingly and deliberately’

violates constitutional rights?

$. Whether a judge who knowingly admits a

fraudulent citation without permitting the other

Side to see it is performing an act “normally per-

iie

formed by a _ judge"? Whether such action

"knowingly and deliberately violates a constitu-

tional right?

6. Whether fraud by an attorney and judge

violates petitioner's constitutional right to due

process 2nd equal protection of the _ law?

7. Whether a judge-—-a colleague of the first

judge—who refuses in a related suit to permit a

defendant to mount any defense in court in order

to hush up testimony of the fraud, is performing

an act “normally performed by a judge"? Whether

such action "knowingly and deliberately violates a

constitutional right?

8. Whether a judge who presides at a hearing

on fraud and refuses to permit testimony of the

fraud, thus covering it up and protecting the per-

petrators, is performing an act “normally per-

formed by a _ judge”? Whether such action

"knowingly and deliberately violates a constitu-

tional right?

9. Whether commonwealth attorneys who

knowingly make untrue statements that fraud by

judges and attorneys in court is not criminal

under the law, are performing acts "normally

performed" by prosecutors?

10. Whether the privilege of judicial and pro-

secutorial immunity is sanctioned by Act of the

United States Congress, or whether it is in viola-

tion of the wishes of Congress as expressed in the

Ku Klux Klan Act of 1871, sections 1983 and 1985

and the 42nd US Code?

ll. Whether the privilege of judicial immunity

is sanctioned by the U.S. Constitution, or whether

it is in violation of rights guaranteed to all

citizens by the Fifth, Seventh, and Fourteenth

Amendments to the Constitution?

12. Whether the U. S. Constitution is the

supreme law of the United States, or whether

English common law—specifically the 17th Century

dectrine of Divine Right of Kings and its

corollaries—takes precedence over the Constitution?

ave

13. Whether a non-constitutional privilege

takes precedence over a constitutionally

guaranteed right?

TABLE OF CONTENTS

Page

CS PUIG cc cacccccncesccecésewhenex i

Opinions Below. eeeeeevoeeeeoeeeeeeeeeeeeeeeeeeee l

Jurisdiction. eeeeeeoeeveeeeeeeeeeeeeee *eepeeeeee l

Constitutional and Statutory Provisions...... 2

Reasons for Granting Review

An attorney who conspires with a judge to commit

fraud is not pretected by the immunity claimed

by the jJudgesccccccccscccccccscccccsccccces ve f

The statute of limitations in a civil rights suit

involving property rights or ccatinuous discri-

mination is five yearSecsscccccsceceveseeees F

Tit.

The cractice of the executive branch defending

tudges accused of serious law violations and

Constituticnal acuses violates the Corscitue

tional orincisle cf separation of powers, <%

provides the defendants with unconstituticnal,

iilegal, and uncemocretic protection for their

“~

wrongdoing, and robs the public cf its right to

have such wrengcoing prosecuted, not defended, ~~

IV.

wnen a close colleague and friend of a judge de-

fendant hears his case, end when it is reviewed

by an appeals court headed by the defendant's

father, such obviously biased procedure vice

lates the equal protection clause of the Fours

COONtH AMaMEMENte 2. cccccccccccccccoccccccsscses Ia

The judge and presecutor defendants in the present

case have ffailec to meet the Supreme Court's

own test for judicial immunity: Their actions

are not appealeble; they are not actions "norr-

ally performed" by a judge, and they "Knowingly

and deliberately violate Constituticnal rights. ‘i

Jvudicial immunity is 2 privilege not granted by the

Congress, It is in direct and obvious violation

ef the Mi Klux Klan Act of 187lecccccccccsccese 2G

VII.

Judicial immunity is a privilege not granted by

the Constitution. It is pointedly left out of

the Constitution and is in obvious viclaticn of

rights guaranteed to every citizen by the Fifth,

Seventh, Fourteenth amerdmentse.eccccscssscseee

VIII.

Judicial immunity is a privilege granted by judges

themselves to themselves in violetion of the Cone

stitution and statutory law. The United States is

the only country in the demccratic world in which

judges give themselves this privilegescseccessee 29

XX.

The Constitution is the supreme law @f the land.

Dvery right expressly guaranteed by the Constitu-

vile

tion taxes crecedence over any extra=ccnstitutional

privilece in conflict with it. The Constitution

elso takes crececer.ce over all foreign constitutions,

lews, or doctrines. ‘it scecificaliy wipes out the

medieval English doctrine of Divine Right of Kings

and all privileces related to itecccccccccccce 46

4d,

COMCLUSLONeccecssccerssreceecessaseseesesssceens

DDEX TO APPENDICES

Appendix A, Order, Federal Court, Eastern District

Of Virginia. ccecccccccccccccccccccccccccesess Ob

Appendix B, Ruling, Fourth Circuit Court of

OEE ES ES TS ORES PORN SIAL

INDIX OF aUTHCRITIES

CaSES

Adickes v Kress (398 US lu, 1970)ecccccccesADp 18

Almond v Kent (321 F.Supp 1225, 1970)ecceccceee 9

Barker's Case (77 Eng Rep 1305) ecccccccevscceee 32

Berg v Cwiklinski (416 F.2d 29, 1969) cccccccce 47

Berry v Smith (U8 Va 42h, 1927)eccccccccccccce Ud

Bivens v Six Unknowns (403 US 388, 197L)eecoeee AL

Sleckledge v Perry (437 US él, Co) ee 19

viii.

Bradley v Fisner (SC VS 335, 1871)30,55,iL, app 7

Bryce v Gillespie (160 Ve 137,1933)ecccccscceee 28

Butz v Economou (438 US 478, 1978)12,17,42,51, 59

Carlson v Greem (466 US lL, 1980) .ccccccccceee 5a

Chesapeake Say v Virginie ‘/ater Control (501

F.Supp 821, 198O)cccccccccccccccccsccccecesese LO

Dennis v Sparks (449 US 2h, 1980)..ceeeeee7, APD 19

Doe v County of Lake (399 F.Supp 553, 1975)eee. 57

Eden Corp v Ytica Mut Ins (350 F.Supp 637, 1975) 9

Ex Parte Young (209 US 123, 1879) ccccccccccccee kL

FTC v Standard Oil of California (449 US at

Zhds 1980) ccccccccccccccccccccscececscccecces 56

Federated Graphics v Napotnik (424 F.Supp 291). 10

Flegg Bros v Brooks (436 US 149, 1578)..eeee App 15

Francis v Crafts (203 F.2d 809, 1953) scccsecceee 45

Frank v Mangum (237 US 309, 1915 )eccccccsscccces 19

Gregoire v Biddle (177 F.2d 579, 1949)ecceee Uh, 55

Grundstrom v Darnell (531 F.2d, 1976)eccccccceee Lb

Halperin v Kissinger (606 F.2d 1192, 1979)eeecee 4&5

Heundling v Jensen (168 NW 2d 745, 1969) scecccee bb

Inbler v Pachtman (424 US 409, 1976).ceee 37, ADP

=<s0

Jacoosom v Schaeffer (442 Fe2d L27L, 197k ccccee 45

onmnson v Moorman (20 Ya 131, L825 )eccccccscccce mb

Lopez v Vancerwater (620 F.2d 1229, 1GEO)eeveeee 46

Lugar v idmonson Oil Co (639 F.2d 1958,

ess ccscce APP Ub, 17, 22

Mack v Johnson (430 F. Supp 1139, 15977) eeccoees 18

Martury v Madison (5 US 137, 1802) eccccceccesee 27

Mealester v Srown (469 F.2d 1376, 1975) ecceudy S51

Mocre v Allied Chemical (480 F.Supp 364, 1980) 10

Moprissey v Brewer (408 US 471, 1970) cccccecee Lf

C'Srvan v Chandler (352 F.2d 545, 1966) ecccccee “5

Pierson v Rey (366 US 547, 1967)seceecee 25, ate 7

Randall v Srigham (74 US 523, 1868)...eccee 30, 56

Rankin v Howard (633 Fe2d BLL, 1980)eccecseceee 16

Ravenscroft vCasey (129 Fe2d 776, 19LL) ecocceee 45

Robertson v Wegman (436 US 584, 1978)eccsecccee 5a

Scheuer v Rhodes (416 US 232, 197k) ecccccee uty 43

Sirros v Moore (1 GB 118, 1975) ecccccccccccceee 23

Stahl v Currey (135 Ohio St 253, 1939) ececcceee 46

Sterling v Constantin (287 US 378, 1933)ececoee 50

Steward v Norfolk F&D Ry (486 F.Surp 7lL,

Ti sctcmeeaeeeeces ‘@eeeeeaeeeeeeeeeee Apz 15 3

Stump v Sparkman (435 VS 349, 1978)ecee 15, 45, 59

Thompsen v Burke (556 F.2d 231, 1977) ecccccccee 19

US v Lee (106 US 196, 1882)..ccccccccee 40, d1, 65

“White v City of Suffolk (460 F.Supp 516, 1978). 10

Wood v Strickland (420 US 308, 197k) eccccccccee 42

Yaselli v Goff (275 US 503, 1927) ecccccccccccce 37

Zarcone v Perry (572 Fe2d, 1978) cccccscccccccee 4b

MISCELLANEOUS

Annals of the Sixth Congress, D 7hese.+-seccees 26

Barth, Youglas K, "Time for a Qualified Immunity?"

(27 Case Western L Rev 742, 197lJ.eee 34, 39, KO

Cong. Globe, 39th Cong, lst Sess, U5heceee 2C, 21

Cong. Giobe, 42nd Cong, lst Sess, 653..ee0. 22, 23

Slliot, Debates in the Several St.te Conventions,

2d ed,19LL, VOL Becosrrecceccccee 259 275 Wy 59

Federalist #77ecccccccccccccccccvcccccccceceses 25

heeitek Po: ccad. Sa aoe i2, 27

F inman, Jay & Conen, “oy, "Suing Judges," (31

OC. Raw BOL, BOIS) o vcdiaccesanssckss

Kates, Son 8 dr, "Immunity of State Judges" (65

Northwestern L Rev 621, 1970) éésicesaeunse ra L8

Xie

Lacer, Irma, U of Helsinki Faculty of Law,

letter to vohn B Holway, UNGAtLOdsecccccccceces 39

Leutert, Jurg, legal advisor to Swiss embassy,

letter to John B Holway, April 18 1983..ece0. 39

Metzenbaum, Howari, "The Monopoly Gane,"

Washington Post p B5, Sent 12 1982... ceccccees 23

Nagel, Robert F, "Judicial Immunity and Sovereignty"

(6 Hastings Constitutional L Qrtly 254, 1979. 57

O'Bara, Marianne, "Judicial Immunity or Imperial

Judiciary" (47 UMKC L Rev 81, 1978)ecccccccee 48

Oysten, Storrvik, U of Oslo, letter to Jonn B

Holway, June 9 APs banedetanebeDeateccanacs 39

Pollock, F & Maitland, F, History of English Law,

2a ed MEN CK Kbnda ddd thease ebucucsccseadcces 31

Pritsch, Okatar, vice=consul German embassy,

letter to John 3B Holway, Nov 18 19GZevcsccves 40

Rosenbsrg, Irene M, "Stump v Sparkman" '4. Va L

ROW 633, 1978) ecccecicces 19, 51

United Nations Declaration of Human RightSeceee 29

wray, Frank, "Must Judzes Be Kings in Their

Courts?" (464 Judicature FO Mb esiseccccae Oh

Yale L Journ, "Liability of Judicial Officers

Under Section 1983" (vol 79, p 332).. 20, 34, 59

Code of Virgin

“cai

18, sect Ah2cccccccecececoce 12, 20

42, Sect L9Slecccvece 10, 21, ADD 33

42, Sect Bei dtinnmnd es 22, ADD 13

ia, 1950, Sect 18,91-243.. 9, App 12

Code of Virginia, 1950, Sect Bee ccecscocdee 12

United States

CONSTITUTIONS

Constitution, A. ticle besescecseee 49

Constitution, Fifth Amendmenterccses 2

Constitution, 7th Amendment... 2, 73

Constitution, 14th amcndmoentee 2, 22

Virginia Constitution, Article Lecsecceccccccee 28

IN THRE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

JOHN B HOLWAY, Petitioner,

CLIFFORD SHOEMAKER Respondants

PETITION FOR A WRIT OCF CERTIORARI

TO THE U.S. FOURTH COURT OF APPEALS

Petitioner John B Holway respectively prays

that a Writ of Certiorari issue to review the

judgment and opinion of the Eastern district of

Virginia entered in this proceeding on September

15 1982.

OPINIONS BELOW

The ruling of the Eastern District of Virginia

Court is reproduced as Appendix A hereto. The

order of the Fourth Circuit Court of Appeals is

reproduced as Appendix B.

JURISDICTION

The ruling of the Fourth Circuit Court was

entered on September 15 1982. This Petition for

Certiorari was filed within 90 days of that date.

The Court's jurisdiction was invoked under Section

28 USC section 1254 (1) and Section 1257 (3), and

28 USC Section 1332 (a)(2). |

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

l. United States Sonstitution

Article Six (in relevant part):

"This Constitution, and the Laws of the

United States which shall be made in Pursuance

thereof; and all Treaties made, or which shall be

made, under the Authority of the United States,

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."

Fifth Amendment (in relevant part):

"No person shall be... deprived of life,

liberty or property, without due process of law."

Seventh Amendment (in relevant part):

"In suits at common law, where the value in

controversy shall exceed twenty dollars, the right

of trial by jury shall be preserved..."

Fourteenth Amendment (in relevant part):

"No state shall make or enforce any law which

shall abridge the privileges or immunities of citi-

zens of the United States; nor shall any state

Geprive any person of life, liberty or property,

without due process of law; nor deny to any person

within its jurisdiction the equal protection of

the laws."

2. Virginia Constitution Bill of Rights, Section I:

1. Equality and rights of men. All men are by

nature equally f free and “independent , and have

certain inherent rights...

4. No exclusive emoluments or privileges. No

man, or set of men, is entitled to exclusive or

separate emoluments or privileges fran the

community... meither ought the offices of

Magistrate, legislator, or judge to be

hereditary."

Secticn II:

"All authorities agree that due process of law

requires tha a person shall have reasonable notice

and a reasonable opportunity to be heard before an

impartial tribunal, before any binding decree can be

passed affecting his rights in liberty or property."

STATEMENT OF THE CASE

The facts of the case are as follows:

The case had its origin when the petitioner,

Holway, sold a movie theatre to one Robert Tucker,

receiving a lien on the theatre equipment as

security for a note fram Tucker. When Tucker

defaulted, Holway exercised his lien. The theater

landlord, Jonathan England, represented by his

attorneys, defendants Friedlander and Shoemaker,

sought to stop foreclosure, arguing to Judge

Thornton, also a defendant, that Tucker had

"surrendered" the equipment to England and that

this "surrender" obviated Holway's lien.

Friedlander and Shoemaker cited a Virginia Supreme

Court precedent, Mullins v Sturgill, in support of

their argument. They showed it to Thornton.

Holway asked to see it but was not permitted to.

Thornton then ruled in favor of England. When

Holway asked what law he was citing, Thornton

replied vaguely, "the law up here in my head." On

inspection later, Holway discovered that Mullins v

Sturgill was fraudulently misquoted and actually

upheld Holway's position as lienholder. His

appeal was turned down without comment but presu-

mably on the grounds that Thornton's error was not

pointed out to him at the time it was made.

Holway complained about the fraud to the

Virginia Judicial Inquiry and Review commissicn.

He was told that the matter was not "within its

purview." He complained to the Virginia Bar but

was told by Tydings, a defendant, that such con-

duct is not illegal under Virginia law. He

complained to two commonwealth attorneys, Hamblen

and Fahey, also defendants, and was likewise told

that the conduct is not criminal in Virginia,

although Virginia law clearly says that fraud is

indeed a crime.

Holway next took the matter of fraud to Selwyn

Smith, a judge in Thornton's court and a defendant

in the present case, and called for an investiga-

tion as required by Virginia law. Smith refused

to investigate.

In a related but separate matter, Holway was

defendant in a motion heard by Judge Smith.

Holway told Smith that Friedlander had again deli-

berately lied in his opening statement and pro-

mised to detail the lies in the defense. Smith

then ruled that Holway could not mount a defense,

he angrily warned Holway that “there is plenty of

room in the jails" for Holway if he persisted in

discussing integrity of lawyers in court, and sum

marily ruled in favor of Friedlander's client,

without hearing Holway's case at all.

Holway brought an action for fraud in US

District court (Eastern District of Virginia)

against England. But Judge Albert Bryan Jr,

another defendant, refused to permit evidence of

the fraudulent behavior of the attorneys and

Judge Thornton. He then granted Friedlander's

motion to dismiss for lack of evidence! He said

he would not go behind Thornton's ruling, even if

it was wrong.

REASONS FOR GRANTING THE REVIEW

AN ATTORNEY WHO CONSPIRES WITH A JUDGE TO COMMIT

FRALD IS NOT PROTECTED BY THE IMMUNITY CLAIMED

BY THE JUDGE.

As the Court ruled in Gamez v Toledo, (446 US

635, 1980), two, and only two, allegations are

required for a cause of action under 1983:

1) the plaintiff must allege that some per-

son has deprived him of a federal right,

and

2) he must allege that the person acted

' under color of state law.

In Dennis v Sparks (449 US 24, 1980) this Court

ruled:

The action against the private parties

accused of conspiring with the judge is not

subiect. to dismissal. Private persons,

jointly engaged with state officials in a

Challenged action, are acting ‘under color'

of law for purposes of section 1983....

Historically at common law, judicial

immunity does not insulate fram damages

liability those private persons who corruptly

conspire with a judge.

Friedlander and Shoemaker could not have suc-

ceeded in their lie without the active agreement

of Thornton, who read the correct citation and

knew its contents but refused to let Holway read

it. The lie probably would not even have been

attempted without prior assurance of Thornton's

acquiescence.

Friedlander and Shoemaker are not being

sued because they went to court.

They are not being sued because they won in

court.

They are being sued cecause they lied in

in court.

Second, it is not necessary to prove bribery

of a judge. Nowhere does Dennis say that bribery

is the only circumstance in which a state

official's actions are applicable to a section 198

Of course, the possible bribery of Thornton is

the large, unspoken issue hanging over this

matter. I do not know whether Thornton was bribed

Or not. But there are only two possibilities.

Either he was paid,or he did what he did for ‘free.

I cannot say what Thornton's motives may have

been. But I can say — and I do say — what his

actions were. Those actions alone are sufficient

to establisn a section 1983 action.

THE STATUTE OCF LIMITATIONS IN A CIVIL RIGHTS SJIT

INVOLVING PROPERTY RIGHTS OR CONTINUCUS DISCRI-

MINATION IS FIVE YEARS.

Thornton, Smith, and Tydings argue that federal

courts must apply the local two-year statute of

limitations. However, the 1950 Code of Virginia,

section 8.01-243 (D), clearly prescribes a five-

year limitation on civil right injuries involving

property or business.

The five-year limit was applied by the ‘federal

Court in the Western District of Virginia in Eden

Corp v Utica Mut Ins Co (350 F.Sup 637, 1975) and

in Almond v Kant (321 F.Sup 1225, 1970). The

Eastern District of Virginia, defendant Bryan's

own court, also applied the five-year limit, that

is, until Bryan himself appeared as a defendant in

that Court. Judge Merhige applied the five-year

limit in Federated Graphics v Napotnix (424 F.Sup

291, 1976) and in Chesapeake Bay Foundations v Va

Water Control Board (501 F.Sup 821, 1980). Judge

Clarke of that court similarly applied the five-

year limit in Moore v Allied Chem Co (480 F.Supp

364, 1980).

In addition, 42 USCA section 1981 provides a

five-year limit in the case of continuous discri-

mination, such as alleged in the present suit.

Judge Clarke of the Eastern District of Virginia

recognized this limit in White v City of Suffolk

(460 F.Supp 516, 1978).

It is apparent that the Eastern District of

Virginia has one standard when one of its own

judges is a defendant accused of oreaking the law,

and quite another standard for everyone else.

This is an obvious violation of the 14th amendment

guarantee of equal protection of the laws.

THE PRACTICE OF THE EXSCUTIVE BRANCH DEFEND ING

JUDGES ACCUSED OF SERIGUS LAW VIOLATIONS AND

CONSTITUTICNAL ABUSES VIOLATES [HE CONSTITU-

TIONAL PRINCIPLE CF SEPARATION OF POWERS. IT

PROVIDES THE DEFENDANTS WITH UNCONSTITUTIONAL ,

ILLEGAL, AND UNDEMOCRATIC PROTECTION FOR THEIR

WRCNGDOING, AND ROBS THE PUBLIC OF ITS RIGHT [0

HAVE SUCH WRONGDOING PROSECUTED, NOT DEFENDED.

The French philosopher Montesquieu said, "There

can De no liberty...if the power of judging be not

separated fram the legislative and executive powers."

The Framers of the Constituion, both of

Virginia and of the United States, spoke elo-

quently of the dangers to individual rights if two

Or more branches are allcwed to unite in an effort

to abuse those rights.

The Virginia Bill of Rights, Article I of the

Virginia Constitution, section S, says "the

legislative, executive, and judicial departments

of the Commonwealth should be Separate and distinct.

James Madison empnatically agreed, writing in

The Federalist #47 that

Were the power of judging joined with the exe-

Cutive power, the judge might behave with all

the violence of an Copressor (Emphasis in

Original).

Alexander Hamilton, in Federalist #78, wrote

I agree that there is no liberty, if the

power of judging be not separated fram the

legislative and executive powers.

As the US Supreme Court ruled in Butz v Econamou

(S11 US at 478):

Unlike a judge, officials of the Executive

Branch would face no conflict of interest if

their legal representation were provided by the

Executive Branch (emphasis added).

The District of Columbia and Six

states—Pennsylvania, Texas, Kansas, South Dakota,

Montana, and Hawaii--recognize this conflict of

interest and do not permit their Attorneys General

to represent judges accused of wrongdoing.

Furthermore, the three judge defendants are

accused, and have admitted, behavior, which is

also criminal under 18 US Code section 242 and

section 18.02 of the Code of Virginia. As members

of the law enforcement departments, Mssrs Merrill

and Berger, defense attorneys in the present case,

have the responsibility of prosecuting

lawbreakers. By rushing to their defense, and

even excusing it, they have foreclosed any chance

that the defendant judges can ever be given an

impartial investigation or brought to justice for

their acts.

fhe Attorney General of the United States, thus

has Bryan's own admission that Bryan committed a

crime punishable by federal criminal statute. Why

does not the Attorney General prosecute Bryan for

his admitted criminal misconduct? If the Attorney

General will not prosecute an admitted violator of

criminal law, who will?

It is not lost on the public that the Attorneys

General are beneficiaries of the judge-given pri-

vilege of prosecutorial immunity. Thus they have

a personal stake in defending the orinciple of

immunity, since their own is so closely wrapved up

in that of their clients.

WHEN A CLOSE COLLEAGUE AND FRIEND OF A JUDGE DE-

FENDANT HEARS THE DEFENDANT'S CASE, AND WHEN

THE CASE IS REVIEWED BY AN APPEALS COURT HEADED

BY THE DEFENDANT'S FATHER, SUCH OBVIQGUSLY BIASED

PROCEDURE VIOLATES THE "BQUAL PROTECTION" CLAUSE

QF THE FOURTEENTH AMENDMENT.

Defendant Albert sryan Junior sits on the

federal court of the Eastern District of Virgina.

The case was heard by Richard Williams, a close

Colleague of the defendant. Williams remarked in

another case that same morning that he is a junior

member of the court and is very sensitive to

having his rulings overturned by the Fourth

Circuit Court of Appeals, a court headed by Bryan

Junior's father.

The case was appealed to Bryan's father's

court, the Fourth Circuit. Although the senior

Bryan did not (as far as is kKncwn) take an active

part in the case involving his son, the distinc-

tion is academic. This bit of nepotism is

unseemly and raises grave questicns about

propriety and bias. Every one of Bryan's fellow

defendants said they preferred the case to be

reviewed by Bryan's father's court and not by a

neutral court. Bryan Junior himself apparently

saw nothing umproper in his father's court

reviewing his case,

THE JUDGE AND PROSECUTOR DEFENDANTS IN THE PRESENT

CASE HAVE FALLED TO MEET THE SUPREME COURT'S OWN

TEST FOR JUDICLAL IMMUNITY: THEIR ACTIONS ARE

NOT APPEALABLE; THEY ARE NOT ACTIONS “NORMALLY

PERFCRMED BY A JUDGE," AND THEY "KNOWINGLY AND

DELIBERATELY VIOLATE CONSTITUTIONAL RIGHTS."

The Supreme Court ruled in Stump v Sparkman

(435 US 349, 1978) that it is the nature of the

act, mot the title of the actor, that determines

immunity.

When a judge “acts in a manner that precludes

all resort to appellate or other judicial remedies

..-he is entitled to 0 iudicial immunity,"

Justice Powell wrote.

Judge Thornton, by engaging in fraud and ore-

venting me fram seeing the true nature of Mullins

vy Sturgill, made sure that no appeal could

succeed. The Virginia Supreme Court has a rule,

which it scrupulously adheres to, that no appeal

can be successful unless the judge's error is

pointed cut to him at the time he makes it. Of

course, Thornton made sure that I would not

Giscover the fraud in time to point it at.

ith also availed himself of the same Virginia

supreme court rule when he summarily banged his

gavel down as I began my defense in his court and

refused to let me say another word Under such

circumstances, of course, it was impossible to

point out his error, and therefore a successful

appeal.

When Smith refused even to investigate a charge

of fraud, as he is required to under Virginia law,

he left the citizenwith nowhere togo for satisfaction.

But the main test of a "judicial" act, the

Stump Court said, is "whether it is a function

normally performed by a judge."

In Rankin v Howard (633 F.2d 844, 1980) a

federal court ruled that a judge's private prior

agreement to decide in favor of one party is not a

"judicial act" for purposes of judicial immunity.

Conniving with a party to predetermine the

outcome of a judicial proceeding is not a func-

tion normally performed by a judge and frustrates

the other party's expectation of judicial impar-

tiality.... If his acts were part of acon-

spiracy, he would be held properly liable under

this section (1983) for consequences thereof.

None of the five defendants who claim immunity

have claimed that their actions meet the Stump

test. They have not even offered evidence that

their actions are normally performed by judges or

prosecutors.

This Court has laid down a further criterion

for judicial immunity, ome which goes to the heart

of the present case.

When Secretary of Agriculture Butz asked for

judicial immunity, saying his ruling against a

trading company was a judicial act, the Supreme

Court rejected his argument, saying he had gone

"manifestly beyond the line of duty“ and “exceeded

constitutional limits." It said absolute immunity

for officials "wno knowingly and deliberately

violate constitutional rights is contrary to the

course of decisions in this Court from the very

early days of the republic. It added that there

are “well established and unambiguous constitu-

sional limitations on powers," and officials “may

not with umpunity ignore them" (Butz, (supra).

This Court has never purported to grant imm-

nity of any kind to any official who has mani-

festly overreached his authority or wrongfully

exceeded clear constitutional or statutory

boundaries. Official immunity is utterly una-

vailable when a government figure has wandered

completely off the official reservation" (id.

519).

The special case of Selwyn Smith merits

separate consideration. As far as is known, he is

the only judge in the entire history of American

jurisprudence, in any one of the 50 states, for

over 200 years, who has ever refused to permit a

defendant to defend himself in court.

Wrote Chief Justice Earl Warren: The minimm

requirements of due process include "the oppor-

tunity to be heard in person and to present wit-

nesses and documentary evidence." (Morrissey v

Brewer, 408 US 471, 1972).

In Mack v Johnson (430 F. Supp 1139, 1977), a pri-

soner charged that a prison disciplinary pro-

ceeding had failed to let him give his side of the

story before ordering punishment. The federal

court agreed that "frustration of nis attempts to

give his side of the story violated inmate's

Constitutional rights" and riled that the board

could be assessed punitive damages.

In Thompsen v Burke (556 F2d 231, 1977), the

Court ruled that a parole board's action in

revoking a parole without a hearing was "not

adjudicatory."

Irene Merker Rosenberg writes in the Virginia

Law Review (vol 64, p 849, 1978):

When a judge structures a controversy such

that one side is necessarily precluded from

presenting any evidence concerning the decision

to be made, the court's actions properly can be

viewed as jurisdictional error rather than a

mere error in the exercise of power.

She adds that when constitutional errors are of

such a magnitude as to deprive the proceeding of

the indicia of fundamental fairness, the Supreme

Court has declared the tribunal lacked

"Jurisdiction" and that its actions are subject to

attack (see Blackledge v Perry, 417 US 21, 1974;

and Frank v Mangum, 237 US (309, 1915).

As the Yale Law Journal (vol 79, 1969) wrote:

A citizen can legitimately expect an officer of

the law to act only with due respect to indivi-

dual rights; if he deliberately does not

respect those rights and causes injury, he is

not acting within the protection of his cam

mission (p 332).

To rule that school boards, parole boards, and

Cabinet officers are not performing valid judicial

acts when they abuse constitutional rights, but

that judges are allowed with impunity to perform

the very same acts, would invalidate the Supreme

Court's own doctrine in Stump that it is the

nature of the act, not the character of the actor,

that determines immunity.

JUDICIAL IMMUNITY IS A PRIVILEGE NOT GRANTED BY THE

U.S. CONGRESS. IN FACT, IT IS IN DIRECT AND OB-

VIOUS VIOLATION OF AN ACT OF CONGRESS, THE KU

KLUX KLAN ACT OF 1871.

In 1866 the Congress passed a Civil Rights Act

specifically imposing criminal penalties on judges

and others who violate the civil rights of citi-

zens (18 USC 242). Both the House and Senate

debates confirm that the criminal nature of the

penalties extended to state judges. (Statements

by Rep Shellabarger, Cong. Globe, 39th Cong., lst

session 475-6; colloquy by Reps Thayer and

Eldridge, id, 1154-5).

At least two amendments were introduced to

delete criminal liability for judges. Both were

defeated. (Id, U56, 1266). President Andrew

Johnson vetoed the Act, in part because it applied

to both judges and state legislators. (Id,

1679-81) The Act's Senate sponsor, Sen Trumbull,

replied that it would not apply to legislators out

would apply to judges. (Id 1755-61) The veto was

overridden in both houses.

In 1868 Congress passed the 14th Amendment to

the Constitution reiterating that the rights of

citizens cannot be abridged by any group.

In 1870 Congress passed another Civil Rights

Act, (present 42 USC 1981), which gives all

Americans the same rights to sue and the sam

punishments and penalties.

The law was enacted "primarily, if not exclusi-

vely, to control the behavior of state court

judges." (Kates, Don B Jr, “Immunity of State

Judges," 65 Northwestern University Law Review

621, 1970).

A year later, in 1871, Congress was locked in

heated debate over the Ku Klux Klan Act, since

known as the Civil Rights Act of 1871 (now section

1983, 42nd US Code). The constitutional rights of

blacks in the South were being effectively negated

by, among others, judges, who refused to enforce -

the new 14th Amendment.

Every speaker in the debate, both for and

against the bill, agreed that it was aimed speci-

fically at judges, as well as other state offials.

Senator Thurman: "There have been two or three

instances already under the (earlier) civil rights

bill of state judges being taken into US District

Court, sometimes under indictment for offense. Is

(this) intended to perpetuate that? That is the

language of the bill." The supporters replied affirmat

Congressman Rainey of South Carolina declared

that "the courts are in many instances under the

control of those who are wholly inimical to the

administration of justice.

Congressman Beatty of Ohio: "It is the duty of

Congress to listen to the appeals of those who "by

reason of...Oribed judges cannot obtain the rights

and privileges due an American citizen."

Senatcr Osborn: "Justice is mocked, innocence

punisned, vcerjury rewarded, and crime defiant in

the hall of justice." (Cong Glebe, 42nd Cong, lst

sess., 653).

Rep Platt: Judges have become "little Kings,

with almost despotic powers" (id 186 app).

After all the debate was over, both Houses

approved the biil. President Andrew Jonnscn

vetced it, because cf its effect upon the judges,

Sut the House anc Senate came right back and

overrode nis veto again. The intent of Congress

could not have been more Clear.

Congress' philosophy has not changed. As

recently as September 12, 1982, Senator Howard

Metzenbaum re-stated it in the Washington Post (p.

BS):

It is unwise and contrary to aur basic democra-

tic principles to create classes of individuals

er businesses who are above or autside the law.

JUDICIAL IMMUNITY IS A PRIVILEGE NOT GRANTED BY THE

U.S. CONSTITUTION. IN FACT, IT IS POINTEDLY LEFT

QUT OF THE CONSTITUTION AND IS IN CBVICUS AND

DIRECT VIOLATION OF THE RIGHTS GRANTED TO EVERY

CITIZEN BY THE FIFTH, SEVENTH, AND FOURTEENTH

AMENDMENTS .

"Those who have power," Montesquieu warned,

"will tend to abuse it."

So widespread was this Suspicion of

uncontrolled power that the framers of the

Constitution never even considered giving immunity

either to Presidents or judges. During the

Constitutional Convention, Madison timidly rose

and asked about immunity for the President. His

question was met with stony silence, and he sat

down. The subject was never broached again, and

the final Constitution makes no mention at all of

executive immunity. Since the Constitution does

give immunity to members of Congress, this

amission cannot be ascribed to oversight."

As for judicial immunity, it was not even

brought up at all. Not even the judges present at

the Convention dared stand up, and ask about imm-

nity for them selves. Again, the final document

made no mention at all of immunity for judges.

This mission, like that for the executive,

likewise "cannot be ascribed to oversight."

James Wilson, a delegate at the Constitutional

Convention, told skeptical members of the

Pennsylvania ratifying convention emphatically:

What peculiar rights have been reserved to

any class of men, on any occasion? Does

even the first magistrate of the United

States draw to himself a single privilege or

security that does not extend to every per-

son throughout che United States? Is there

@ single distinction attacned to him, in

this system, more than there is to the

lowest officer of the republic?... Far, far

other is the genius of this system (Ellict 523).

In the Federalist #77 Alexander Hamilton,

ancther delegate, agreed that even the President

is liable for "forfeiture of life and estates by

subsequent prosecution in the course of common law."

In the same vein, Charles Pinckney, a delegate

from South Carolina declared:

The convention well knew that this was an

important point, and no subject had been

More abused than privilege. They therefore

determined to set the example, in merely

limiting privilege to what was necessary,

and no more" (Annals of the 6th Congress, p

74).

The debate in Virginia was spirited. Patrick

Henry and George Mason led a powerful bloc of

Anti-Federalists who opposed the Constitution

because it contained no Bill of Rights to protect

the people against arbitrary abuse of rights.

Against their eloquence, no one dared raise a

voice to ask ror immunity for judicial abuses.

Judge Edmund Pendleton was a delegate, but he

remained silent. Nor did any other judge stand up

to ask about immunity for himself and hajis

colleagues. If any of them had, the Constitution

might very well have been defeated.

When the people of the United States wrote and

ratified the Constitution, they also made unmista-

kably clear that the right of jury trial was not

to be tampered with.

Trial by jury...is secured by Magna Carta and

the (English) bill of rights... It is

generally thought by Englishmen that it is so

sacred that no act of parliament can affect it

(Grayson to Virginia ratifying convention,

Elliot (supra), 72).

"The trial by jury is held as sacred in England

as in America," Madison agreed in Federalist #78.

As a result of such powerful feelings, as soon

as the Constitution was ratified, the Federalists

kept their promise to pass a Bill of Rights,

including the Seventh Amendment:

In suits at common law, where the value in

controversy shall exceed $20, the right of

trial by jury shall be preserved.

It does not add, "unless the defendant is a

judge."

Sixteen years later Marshall reiterated this

principle in Marbury v_ Madison (Supra):

The very essence of civi] liberty certainly

Consists in the right of every individual to

claim the protection of the laws, whenever

he ceceives an injury (emphasis added).

In 1868 Congress passed, and the states

ratified, the Fourteenth Amendment, calling for

equal protection of the laws.

It does not add, “unless one party to a dispute

is a judge."

The principle of equal rights for all citizens,

special privileges for none, is also enshrined in

the Virginia Constitution's Bill of Rights.

In an explanatory note, the constitution refers

to a 1933 ruling of the Virginia supreme court,

Bryce Vv Gillespie (160 Va 137):

An act is not invalid if within the sphere of

its operation, all persons subject to it are

treated alike, under like circumstances and

Conditions, both in the privileges conferred

and in the liabilities imposed.

The Virginia Bill of Rights goes on to add:

4. No exclusive emoluments or privileges. No

man, or set of men, is entitled to exclusive or

separate emoluments or privileges fram the

community...nmeither ought the offices of

Magistrate, legislator, or judge to be here-

ditary.

By including "judge" specifically in the same

article, the authors made clear that judges are

Clearly and specifically included.

The US government has signed and the Senate has

ratified, the United Nations Declaration of Human

Rights. It is now a part of internationsl lew

and, under the Constitution, a matter of US law.

It says, in part:

Article 1. All human beings are born free and

equal in dignity and rights....

Article 2. Everyone is entitled to all the

rights and freedoms set forth in this

Declaration, without distinction of ny

Ming .cee

Article 7. All are equal before the law and

are entitled without any discrimination to

equal protection of the law.

Article 8. Everyone has the right to an effec~

tive remedy by the competent national tribunals

for acts violating the fundamental rights

granted by the constitution or by law....

JUDICIAL IMMUNITY IS A PRIVILEGE GRANTED BY JUDGES

THEMSELVES TO THEMSELVES IN VIOLATION OF BOTH

THE CONSTITUTION AND THE STATUTORY LAW. THE

UNITED STATES IS THE ONLY COUNTRY IN THE DEMO-

CRATIC WORLD IN WHICH JUDGES GIVE THEMSELVES

THIS PRIVILEGE.

The United States is the only western democra-

tic nation in whicn this is true. Britain,

France, West Germany, Canada, Norway, Switzerland,

and Finland, for example, give no absolute imm-

nity to their judges. Only the Netherlands and

Israel, that I have been able to find, do. And in

both these latter countries immunity is conferred

by the constitution, not by arbitrary action of the

judges themselves.

The U.S. doctrine is a recent qe, not pro-

miulgated until 1868, 81 years after the

Constitution, which withholds immunity fran the

judiciary. The new doctrine was enunciated by the

Supreme Court (Randall v Brigham, 74 US 523,) two

years after Congress passed the Civil Rights Act

calling for criminal penalties for judges, and the

very same year that the 14th Amendment passed

Congress providing for equal crotection of the law.

Three years later, 1871 — ome year after the

1870 Civil Rights Act gave all citizens the right

to sue and guaranteed similar penalties for all,

and the same year tht the Civil Rights Act of 1871

(the Ku Klux Klan Act) was being passed by

Congress — the Court extended its own immunity to

include even malicious or corrupt acts (Bradley v

Fisher, 80 US 335),

Judidical immunity, expressly forbidden by "we the

people” who wrote the Constitution, was summarily

given by judges to every judge and justice of the

peace in America, a small army of people, now num-

bering about 28,000, who say they are not required

to obey the 5th, 7th, or 14th Amendments, or the

Civil Rights Law.

The opinions in both Randall and Bradley were

written by Justice Field. Unable to quote either

the Constitution or the laws, he was forced

instead to rest his case on a foreign law — a

Curious, quaint, and — to Americans -— cdious

law: The English common law doctrine of the

Divine Right of Kings.

As history, Fields was "simply incorrect,"

write Jay Feinman and Roy Cohen ("Suing Judges" 31

SC Law Rev 201, 1979). Actually, they write:

A careful analysis of English Law shows

that the basic rule was one of liability, that

no simple rule of immunity ever existed.... In

earliest English law, not only was immunity of

judges not recognized, but review of judicial

decisions was in the form of personal action

against the judge. The consequences of a false

judgment, a malicious judgment, or an action

outside the judge's authority were severe for

the judges (pp 205-6).

F Polleck and F Maitland in The History of

English Law, 2d edition, 1898 (pp 664-668) agree

that Britain originally allowed civil suits

against judges in the form of a complaint of

"false judgment.” Indeed, suits against the judge

were originally the amly form of appeal.

In 1607 a judge moved to change that 180

degrees. A Judge Barker, who presided at a murder

trial and sentenced the defendent to death, was

later charged with conspiracy for his action (77

Eng Rep 1305, Star Chamber). The jurist, Sir

Edward Coke, said he could not be. Coke explained

that judges are appointed by the king and act in

place of the king, the king is divine and can do

no wrong, thus "royal judges are only to make an

account to God and King" (Barker's Case, 77 Eng

Rep 1305, Star Chamber, 1607).

Since the Barker decision was a matter of com

mon law, it could be over-ridden by Parliament.

In 1751 — 25 years before the American

Declaration of Independence — Parliament did

strike down the ludicrous ruling in Barker. In

the Justices Protection Act is said the people

must be protected "fram all willful and aggressive

abuse of the several laws." Damages were specifi-

cally authorized for acts done "maliciously and

without reasonable and probable cause.” (Feinman

supra, 220).

In 1848 Parliament again affirmed the principle

of judicial liability. In the Justices Protection

Act of that year, it provided that suits alleging

malicious acts by a judge could be tried (Id),

Teday every judge in Britain is liable for his

malicious acts. As recently as 1975 Britain's

high court repeated that judges have no absolute

immunity (Sirros v Moore, 1 QB 118, 1975).

The first state to break with this American—

and English—tradition was North Carolina. Its

supreme court conferred absolute immunity om

itself and its fellow juges in 1803. New York

followed in 1810. By the time of Randall in 1868,

there — 37 states in the Union. In only 12

(Alabama, Arkansas, California, Connecticut,

Delaware, Massachusetts, New Hampshire, New

Jersey, New York, North Carolina, Virginia, and

Wisconsin) had the courts conferred abdsolute imm-

nity privileges on themselves. In six (Illinois,

Indiana, Iowa, Kentucky, Maryland, and South

Carolina) courts had given a qualified immunity to

themselves. In the other 19 — oer half

—Florida, Georgia, Kansas, Louisiana, Maine,

Michigan, Minnesota, Mississippi, Missouri,

Nebraska, Nevada, Ohio, Oregon, Pennsylvania,

Rhode Island, Tennessee, Texas, Vermont, and West

Virginia --judges qaeyed the laws the same as

everyone else (Yale Law Journal, supra). Donald K

Barth says the Connecticut ruling wes inconclusive

("Time for a Qualified Immnity?" 27 Case Western

L Rev 742, 1971).

Two-thirds of the states —26 cut of 37 — did

not recognize absolute immunity. In none of the

18 states with immunity was it conferred by the

state constitutions or by the state legislatures.

In fact, Virginia had expressly legislated a sta-

tute making judges liable personally for the

willfully erroneous appointment of guardians. The

Virginia courts simply threw that law aside.

Yet, in spite of the historical records,

Justice Field made the amazing statement in

Bradley that

The principle (of judicial immunity) obtains

in all countries where there is any well

ordered system of jurisprudence. It has been

the doctrine of the English courts for many

centuries, and has never been denied, that we

are aware of, in the courts of this country.

(Bradley v Fisher, supra, 347)

Justice Field's statement was untrue ao all

all three counts.

It took the Supreme Court 80 years to abrogate

the Seventh Amendment to the Constitution in

Randail. It took it almost 100 years more to abro-

gate the Civil Rights Act, in Pierson v Ray,

Supra. Having declared that it would not obey the

Constitution, it then declared that it would not

obey Congress either. It decided that the words

"Every person who subjects any citizen, ...shall

be liable in an action at law" applied to every

other citizen, but not to them.

The Court's logic was curious. It said that,

since the law did not specifically include judges,

it obviously did not intend to include them. By

the same logic, since it did not include writers

or electricians or economists, it apparently does

apply to those groups either.

The Constitution not only withholds immunity

fram judges, it withholds the power of any citizen

to grant himself immunity. It was never intended

that any person should be allowed to decide for

himself whether he is required to cqey the

Constitution and the laws or not. Naturally, any

person with such power will decide that he need

not—but that everyone else must.

A judge with a personal interest in a case

will (or at least should) excuse himself. Every

judge has a strong personal stake in cases

involving his own immunity from the law. The

conflict of interest is glaring.

rosecutorial Immunity

In 1927 the Supreme Court extended immunity to

federal prosecutors. In Yaselli v Goff (275 US

503) it ruled that a prosecutor accused of

"willfully, maliciously, and corruptly" intro-

ducing "a great mass of false, misleading, and

hearsay testimony and evidence" was immune fram damages.

In 1976, in Imbler v Pachtman (424 US 409) this

immunity was extended to state prosecutors. The

case involved a prosecutor accused of knowingly

using false testimony and suppressing material

evidence in order to get a murder conviction. The

Court ‘ruled that immunity is necessary

++.tO protect the vigorous and fearless perfor-

mance of the prosecutor's duty, which is essen-

tial to the proper functioning of <“usticed)

Thus the Court completed the curious situaticn

in which the only persons in the court room who

say they are not bound to obey the laws and the

Constitution are the judge and the prosecutor!

Self-Given Judicial Immunity is Unique t

United States. =a so oe

The United States is the only country in the

world, whose judges have given themselves the pri¥!-

lege to break the law.

Only two other countries among the western

democracies, that I know of, give immunity to

judges—the Netherlands and Israel—and both of

those grant the immunity constitutionally. All

the other great democracies, except the United

States, permit their judges at most a qualified

immunity for good faith. In Britain, France, west

Germany, Canada, Switzerland etc, judges are

required to obey the laws they administer.

As we have seen, Britain repudiated Divine

Right of Kings, and judicial immunity 25 years

before the American Revolution. Canada and the

other nations of the Commonwealth have followed

Britain's lead.

In France, judges of all but the highest civil

court may be liable either under the Penal

(criminal) Code or under the Code of Civil

Procedures. Civil suits may be brought for

"€raud, intentional wrongful conduct or gross pro-

fessional negligence" (Barth, (supra), 727, 750).

In Norway, by act of Parliament, judges may be

sued but may plead good faith as defense (Storrvik

Oystein, University of Oslo, letter to Jonn 8

Holway dated June 9 1983),

In Switzerland also judges my be sue,

although in some cantons it is necessary to get

permission from the cantonal parliament first.

(Letter dated April 18, 1983 from Dr. Jurg

Leutert, legal advisor of the Swiss Embassy, to

Holway ).

Under Finland's Constitution Act, section 93,

judges have no judicial immunity and may be sued

for damages or on criminal charges, or both.

(Letter from Dr Irma Lager, University of Helskini

Faculty of Law to Holway)

West Germany holds its state officials,

including judges, liable for wrongdoing. The

Gectrine derives fram German canmon law, and was

codified in the constitution of 1896, section 83y.

(See also the Prussian Procedural Code and the

Saxony Civil Code.) The present constitution of

West Germany, Article 34, provides for suits for

wrongs of “willful intent or gross negligence."

(Barth, supra, 746-9)

Otakar Pritsch, Vice Consul of the German

embassy in Washington writes:

The Basic Law guarantees the independence of

the judges. Article 97, para. 1 says: "The

judge shall be independent and subject only

to the law." This means that the judge is

independent of the executive and legislative

organs...Only when the judge is subject to the

law can he be independent with out his indepen-

dence being transformed into despotism. (Letter

to Holway dated November 18, 1982)

V3:

Manwhiies” Sages re cenit lmnty te ine

Just 14 years after first giving immunity to

itself, the Supreme Court issued its most eloquent

and ringing declaration in denying immunity to the

executive branch. In 1882, in US v Lee (106 US

196) it struck down the immunity defense for an

unconstitutional act by US agents and said, "No

person shall be deprived of life, liberty, or pro-

perty without due process of law." It added:

No man in this country is so high that he is

above the law. No officer of the law may set

the law at defiance with impunity. All offi-

cers of the government, from the highest to the

least, are creatures of the law, and are bound

to obey it.

In Ex Parte Young, (209 US 123, 1879), the

Court declared:

The attempt of a state officer to enforce an

unconstitutional statute is a proceeding

without authority...and is an illegal act, and

the officer is stripped of his official

character and is subjected in his persen to the

consequences of his individual conduct.

In 1971, in Bivens v Six Unknown Narcotic

Agents (403 US 388), the Court ruled that federal

agents who violate the Constitution may be sued

for damages.

Three years later the Supreme Court stripped

Governor James Rhoades of Ohio of absolute imm-

nity in a suit arising cut of the Kent State

shootings (Scheuer v Rhodes, 416 US 232, 1974).

Writing for the Court, Chief Justice Warren

Burger conceded that governors must often act in

an atmosphere of confusion and swiftly moving

events,

Thus, Burger wrote, a governor's discretion

Must be broad. But even so, he went on, a gover-

mor is subject personally when he comes into

conflict with the superior authority of the Constitutia

In 1975 the Supreme Court ruled that a prison

administrator is not entitled to absolute imm-

nity, if he violates a clear constitutional right.

That same year the Court ruled that a school

official also may not claim absolute immunity if

he knew, or should have known, that he was

violating a constitutional right (Weed v

Strickland, 420 US 308, 1974).

In 1978 the Supreme Court ruled that qualified

immunity applies to Cabinet officers as well. In

Butz v Econamou (438 US 478), Secretary of

Agriculture Earl Butz asked for absolute immunity,

even if he infringed a constitutional right.

Cammented the Court tersely: “We are quite sure

this is unsound and consequently reject it."

It added:

Executive officials may not with impunity act

in a way that is known to them to violate the

Constitution or transgress a clearly established

constitutional rule, or go manifestly beyond the

line of duty or stray beyond the plain limits of

statutory authority.

And it repeated its rulings in Scheuer and

Wood, that there is no immunity for officials wno

act with malice or who knew, or reasonably should

have known, they were violating the Constituticn.

The courts

do not purport to protect an official who has

not only committed a wrong under local law, but

also violated those fundamental principles of

fairness embcdied in the Constitution....

Our system of jurisprudence rests on the

assumption that all individuals, whatever their

position in government, are subject to federal

LAW. 0.

This Court has never purported to grant imm-

nity of any kind of any official who has mani-

festing overreached his authority or wrongfully

exceeded clear constitutional or statutory

authority...

In 1979 another Cabinet officer, Secretary of

State Henry Kissinger, asked for immunity in a

Suite involving an illegal wiretap. (Halperin v

Kissinger, 606 F 2d 1192) Again the court said

qualified (not absolute) immunity for constitu-

tional violations "is mandated by the tradition of

equal justice under law.... Absent exigent cir-

cumstances, there can be no appeal to powers

beyond those enumerated in the Constitution.”

The President, like all citizens, must be held

to know the relevant law. Like every other

citizen charged with knowledge of the law, he

0a be held accountable for personal miscon-

et.

The Result of Immunity: Evil Judaes

Judges are supposed to be the guardians of the

rights of the people. But who guards the

guardians?

Two cases in Virginia, Johnson v Moorman (80 Va

131, 1885) and Berry v Smith (148 Va 424, 1927)

involved false arrest of innocent citizens.

Gregoire v Biddle (177 F.2d 579, 1949) involved

a man imprisoned for 18 months as an alien, when

in fact he was a US citizen.

Grundstrom v Darnell (531 F.2d 272, 1976)

involved a judge cnarged with denying a defendant

the right to bail.

Alzua v Johnson concerned a Filipino store

keeper who lost two. stores—his lifetime

investment — through illegal action of a judge.

In Bradley v Fisher, supra, an attorney was

disbarred without a hearing.

Stump v Sparkman (supra) was the case of a

judge who ordered a girl sterilized without per-

mitting her a hearing or a lawyer.

In Jacobsen v Schaeffer (442 F.2d 1274, 1974),

a judge ordered a citizen locked up because he

couldn't afford a court-appointed lawyer.

Ryan v Scoggin concerned a judge who ordered a

15-year-old girl to a mental hospital because she

ran away fram her mother to live with her father

pending a custody suit.

In Francis v Crafts (203 F.2d 809, 1953) a

Sudge transferred a feeble-minded boy from a state

school to prison for ll years without a hearing.

In McAlester v Brown Supra a deaf elderly man

who came to court to give his son clean clothes

for his trial, misunderstood the judge's order to

get cut; when he didn't move fast enough, the

judge, screaming loudly, had him locked up.

O'Bryan v Chandler (352 Y.2d 987) involved

malicious prosecution, false imprisonment ,

slander, and libel. (See also Ravenscrof* v Casey

(139 F.2d 776, 1944; Stahl v Currey, 135 Ohio St

253, 1939; Garfield v Palmieri, 297 F.2d 526, 1962.

In Huendling v Jensen (168 NW 2d 745, 1969) an

Iowa judge used the criminal process to further

his own collection business. Even the appellate

court said immunity “seems unfair", though it

applied it anyway of course.

In 1980 an Illinois judge arrested a tenant in

his apartment house at gunpoint at midnight,

locked him up, had a friend sign a blank complaint

form, charged the man with petty theft, forged his

signature om a guilty plea and waiver of jury

trial, arraigned him, convicted him, and sentenced

him to eight months in jail, while the man was

locked in a cell. (Lopez v Vanderwater, 620 F.2d

1229, 1980).

Another judge thought the coffee in the court

house vending machine tasted bad. He ordered the

vendor hauled before him in handcuffs. (Zarcone v

Perry, 572 F.2d 52, 1978)

4”

In 416 F.2d 929, 1969, a prosecutor, O'Conner,

in the absence of his key prosecution witness,

demanded that the defendant, Berg, answer self-

incriminating questions e Berg refused. The

Judge Chagrin of Santa Clara California

superior court told a 13-year-old Mexican-American

boy:

You are lower than an animal. Mexican people,

after 13 years of age, it's perfectly all

right to go out and act like an animal... I

don't have much hope for you. You will pro-

bably end Up in State's Prison before you

for doing things of this kind. You ought to

cammit suicide. That's what I think of

people of this kind. You are lower than

animals and haven't the right to live in

organized Society. Just miserable, lousy,

rotten people... You expect the County to

take care of you. Maybe Hitler was right. The

animals in our society probably ought to be

destroyed because they have nO right to live

among human beings.

Public Defender ; Your Honor, I don't think

can sit here and listen to that sort of

thing.

Court: You are going to have to listen to

it because I consider this a very wulgar,

rotten human being... What are we going to do

with the mad dogs of our society? Either we

have to kill them or send them to an institu-

tion or place them out of the hands of gocd

people... You have to make up your mind

whether you are going to abserve the law or

not. If you can't observe the law, then you

have to be put away." (Kates, supra, 626)

Writes Marianne Schwartz O"Bara:

Maintaining immunity for a judge's illegal con-

duct is unpalatable to say the least... (It)

unquestionably constitutes a self-serving attempt

to maintain an ‘imperial judiciary’ (47 UMKC L

Rev 81, 1981).

Not all judges of course are evil. But the

point is that it is completely voluntary. They

may be honest if they wish. But they can also be

wicked, and their fellow judges strenuously uphold

their privilege to be either.

THE UNITED STATES CONSTITUTION IS THE SUPREME LAW

QF THE LAND. EVERY RIGHT EXPRESSLY STATED IN,

AND GUARANTEED BY, THE CONSTITUTION TAKES PRE-

CEDENCE OVER ANY EXTRA CONSTITUTIONAL PRIVILEGE

IN CONFLICT WITH IT. THE CONSTITUTION ALSO TAKES

PRECEDENCE OVER ALL FOREIGN CONSTITUTIONS, LAWS,

OR DOCTRINES. IT SPECIFICALLY WIPES CUT THE MED-

TEVAL ENGLISH DOCTRINE OF THE DIVINE RIGHT OF KINGS

AND ANY PRIVILEGE RELATED TO IT.

As far as I know, this is the only instance in

which the Supreme Court has placed another law —

English common law, the Napoleonic code, Canon

law, Talmudic law, the Code of Hammurabi, etc —

above the US Constitution.

When "we the peole” wrote the Constitution, we

declared it "the supreme law of the land, and the

judges in every state shall be bound thereby."

(US Constitution, Article VI, section two, empha-

sis added).

When the king's high-handed abuses against the

American Colonies finally led to Revolution,

Americans laid down cheir coamlaints in the

Declaration of Independence, three-quarters of

wnich is a ringing list of grievances against the

King's arbitrary acts under the doctrine of Divine

Rights. (Indeed, the English themselves repu-

diated the doctrine and its corollary, judicial

immunity. )

In the Virginia ratifying convention, when one

delegate adjected that commn law was not

established by the new Constitution, Edmund

Randolph replied:

The wisdom of the Convention is displayed by

its omission, because the common law ought not

to be immuitably fixed...

It is established only through an act

of the legislature, and can therefore be

changed as circumstances may require it.

(Ellict, supra).

In 1932 the Supreme Court restated this

doctrine when the governor of Texas seized oil

fields by military force. In Sterling v

Constantin (287 US 378) Chief Justice Charles

Evans Hughes wrote for the majority that "there is

no escape from the paramount authority of the

federal Constitution" and that proceedings can be

brought against the individual charged with the

transgression.

Rationalizations Replace Constitutional Law

The argument against judicial immunity rests

simply and firmly on the United States

Constitution. The argument does not rest upon

rationales as to whether or not the Constitution

should have granted immunity to judges. The stub-

born and irrefutable fact that it does not.

First Rationale: Immunity Insures Indevendent Decisions

A federal judge summed up the judges’ argument

in McAlester v Brown (Supra): Even though there

may be an occasional diabolical or venal judicial

act, the independence of the judiciary must not be

sacrificed one microscopic portion of a milli-

meter, lest the fears of section 1983 intrusion

(.@. a civil rights suit) cow the judge from his

duty.

Comments Professor Rosenberg tersely: This is "a

rather unflattering estimate by judges of the

courage and moral fipder of their colleagues"

In Butz (supra) the Supreme Court ruled:

It is net unfair to hold liable the official

who knows, or should know, he is acting outside

the law. Insisting on an awareness of clearly

established constitutional limits will not

unduly interfere with the exercise of official

Judgment (emphasis added).

This echoed the Court's cpinion in Robertson v

Wegmann (436 US 584, 1978) that “the denial of

absolute immunity is intended to affect behavior

that threatens to violate constitutional rights”

(emphasis added). (See also Carlson v Green, 466

US 14, 1980).

If fearless, independent decision-making is

considered desirable, then why, one may ask, is it

not conferred on governors and cabinet officers’as

Actually, the principle of deterring judges is

well established, in theory at least.

First, they must run for election and re-

election, a process which Feinman and Cohen call

"the basest of influences."

In addition, judges are liable, in theory at

least, to discipline by state Judicial Inquiry and

Review Commissions, subject to impeachment by the

legislatures, and liable to criminal prosecution.

The Judicial Inquiry and Review Cammission is

empowered to remove a judge from the bench and

take away all future pensions. Assuming an eight-

year term at an anmial salary of $75,000, such

action could cost a judge $600,000 in salary.

Assuming a pension of 50% of full salary for, say,

ten years, that is another $300,000 out of his

pocket, for a total of almost one million dollars.

Impeachment could bring the same financial

penalty. And criminal prosecution could mean a

Similar loss, plus a prison sentence. Certainly

these steps against a judge guilty of illegal con-

duct are intended to deter such conduct much more

than the present suit.

Of course, in truth, these three deterrents do

mot deter. If they did, the illegal conduct would

not have taken place.

The executive branch does not provide a check

on his lawless behavior.

The legislative branch cannot prevent his

constitutional abuses.

And even if one or all of these means did

punish and deter the judge, none of them would

recompense the victim for the injury done hin.

A suit for damages, and only a suit for dam-

ges, will both deter illegal and unconstitutional

judicial behavior and redress the wrong,

British Chief Justice Cockburn, an authority on

English common law, scoffed at the rationale that

judges mist be free and undeterred by the very

laws they administer;

I cannot believe that judges...would fail ‘to

discharge their duty faithfully and fearlessly

according to their oaths and consciences... fran

any fear of exposing themselves to actions at

law. I am persuaded that the number of such

actions would be infinitely small and would

easily be disposed of. Om the other hand, I

can easily conceive cases in which judicial

Opportunity might be so perverted and abused

for the purpose of injustice as that the

authors of such wrong ought to be responsible

to the parties wronged.

Second Rationale: Appeal Makes Damage Suit Un=

necessary

This argument presents the spectacle of a

judge, afraid to submit himself to the judicial

process, insisting that a non=judge submit himself

to more judges’ justice through appeal.

If trial judges break the laws and violate the

Constitution, what assurance does the citizen have

that appeals judges are any better?

An appeal is costly and time-consuming.

And it does not deter the judge fram turning

around and doing the exact same thing to the next

citizen who walks into his court.

535

The Third Rationale: The Injustice of Trying an

innocent Judge

Judge Learned Hand framed the question in 1949

in Gregoire v Biddle (supra), when he said An

official who is in fact guilty of using his powers

to vent his spleen upon others, or for any other

personal motive not connected with the public

goed, should not escape liability for the injuries

he may so cause.... There must be some means of

punishing public officers who have been truant to

their duties. If, Hand said, "it were possible in

practice to confine such comlaints to the guilty,

it would vce monstrous cto deny recovery." But he

refused to subject innocent judges to the

necessity of proving their innocence.

This is an amazing admission by a famous jurist

of his lack of faith in the American court system.

If the judges themselves do not believe they can

receive justice in their own courts, how can a

non=judge trust himself to the “mercies” of the

same courts?

Why do Thernton, Smith, and Bryan fear a trial

by jury in their own courtrooms? Are they afraid

they will not get justice there?

Or are they afraid that they will?

And why are innocent judges the only innocent

citizens to be spared the need to prove their

innocence? Why not innocent bank officers, inno-

cent auto mechanics, innocent landlords, innocent

school teachers etc?

The Supreme Court dismissed Hand's argument in

1980, when it ruled:

The expense and disruption of defending itself,

even if substantial, does not constitute irre-

parable damage.... The expense and annoyance

of litigation is 'part of the social burden of

living under government’ (FIC v Standard Oil

of California, 449 US at 244, 1980).

The irony of the entire rationale was sunmed up

in 1868 by the Supreme Court when it first gave

immunity to judges in Randall v Brigham, (supra):

Immunity is meant to protect judges when

they have erred. If they have decided

rightly, they need no protection.

Fourth Rationale: Deterring Good Men from Becoming

Judces

The federal court in Doe v County of Lake, (399

F.Supp 553, 1973) dismissed this argument neatly

when it said:

Nor should ahy person be deterred fram public

service because of the possibility that a court

may order him to conform his future conduct to

the law.

It is absurd to argue that qualified people

will not run for President, or governor, or seek

Cabinet offices, or become judges, unless they are

given permission in advance to violate the

Constitution and break the laws. There is no evi-

dence that qualified men have been dissuaded fram

running for high political office since the

Supreme Court took away absolute immunity fram

cabinet officers and governors. There is no

reason to think it would have an effect on good

and honest men who are attracted toa judicial career.

However, it should deter incompetent and

dishon-est men fram becoming judges.

Fifth Rationale: Preventing Frivolous Suits

Frivolous suits will be “infinitely small,"

Chief Justice Cockburn said — "quite rare," the

US federal court agreed in Halperin — and "can be

quickly dismissed," the Supreme Court added in Butz.

Certainly most people would not bring suit even

with real grievances. Suits and appeals are

costly, time-consuming, and most people would

shrug that they can't win against a judge anyway,

with a battery of fellow judges all anxious to

protect their colleagues and thus themselves.

Then too, no lawyer will take a case against a

judge. It would destroy his career to do so.

Yet since absolute immunity was stripped fram

governors in Scheuer, there has not been an ava-

lanche of suits against governors, frivolous or otherwi

Since absolute immunity was taken away fran

Cabinet officers in Butz, we have not seen a spate

of harrassing suits against members of the

Cabinet.

Sixth Rationale: Upholding Respect for Judges

Actually, immunity leads to contempt for the

judicial profession, not respect.

Madison wrote that judicial power "cannot be

abused without raising the indignation of al] the

people" (Elliot, Supra, 535).

In more recent times, Justice Potter Stewart,

Speaking of “an aura of deism which Surrounds the

bench," wrote:

If aura there be, it is hardly protected by

exonerating fran liability such lawless con-

duct as took place here. And if intimidation

would serve to deter its recurrence, that would

Surely be in the public interest (Stump v Spark-

man, supra).

As the Yale Law Journal (Supra) put it:

Respect is hardly engendered by the knowledge

that, by reason of a judge-made rule, a judi-

Cial officer may maliciously abuse his

Powers and leave the citizen without remedy .

Justice William Rehnquist put it this way:

fashioned and applied by judges, absolute

immunity within the federal system is extended

is simply another unfortunate example of judges

treating those who are not Part of the judi-

Cial machinery as "lesser breeds without the

law." (Butz, supra )

Seventh Rationale: Immunity Is for the Public's

Good

Thornton and Smith raise this rationale in

their Motion to Dismiss. But the Supreme Court

rejected it in Butz (supra):

The Court imposed a very stringent burden on

federal officials who seek exception fram the

established rule of qualified liability. They

mist bear the burden of showing that public

policy requires an exemption of that scope.

If the public gocd is really the rationale for

judicial immunity, then why is not the same imm-

nity granted to members of the President's Cabinet

as is granted to two minor judges from a semi-

rural county in Virginia?

No judge, as far as I know, has ever asked the

public what is in its "“gocd".

I am a representative of that public. And,

speaking for the public, I can say that it is not

in our good that judges are permitted unrestrained

lawlessness.

If we the people desire to change aur minds and

give judges the right to break the law and violate

the Constitution, we can amend our Constitution to

permit it. We have not.

Summary

Over the entrance of the Supreme Court, in let-

ters chiseled large and bold is written:

EQUAL JUSTICE UNDER LAW

If US judges are permitted to give themselves

immunity to break the law, then the courts—and

the laws themselves—are destroyed.

Richard Williams, in his opinion (below) in the

present case, adds to this alarming doctrine a

second, equally dangerous cne. He writes that

Holway's story is a “concoction,” which "stretches

his imagination." Now, instead of juries and

rules of evidence, and adversary proceedings, and

appeals, and all the other built-in safeguards to

insure that facts are found as accurately as

humanly possible, Williams has substituted "his

imagination;

Williams made this amazing ruling without any

evidence at all and in the face of the motions for

dismissal by every defendant, admitting all the

allegations.

Williams also miscuctes defendant Tycings'

letter to Holway, which Williams had in frent of

him. He quotes Tydings as writing that the cone

duct complained of is not misconduct "under the

Disciplinary Rules" (App 11). The correct quote

by Tydings is that the concuct is not misconduct

"under the law,"

Williams creates a Catch-22 argument when he

says Holway has not proved his case and therefore

will not be allowed an o pportunity to present

his evidence before a jury in court. That is what

the present case is all about: The constitutional

right to do exactly that, an outcame which every

judge and lawyer who has touched the case has so

far refused to permit.

A citizen who sues a judge feels like the

Washington Redskins arriving in Dallas for the big

game against the Cowboys to find the referees, the

umpires, the linesmen, even the chief of umpires

of the league, all wearing Cowboy uniforms. (He

even finds, in the present case, that appeals mst

be taxen to the father of Cowboy coach Tom

Landry.) The citizen is all too aware that he is

playing ball in the judges' court, with the

judges' ball, the judges' rules, and the judges'

umpires,

Such a manifestly unfair situation would not be

tolerated in the National Football league. Any

judge watching such a game on TV would cry protest.

Suppose that the eight defendant judges and

lawyers are eventually found liable for damages as

a result of phony citations which they are not

allowed to see, and without being allowed to offer

evidence, to submit their case to a jury, or even

to defend themselves at all. They would be the

second ones to complain that their rights had been

violated. I would be the first one. I would

demand that they receive the rights which are

their due under our Constitution and laws.

It is precisely because they do not grant me

the same rights which they demand for themselves,

that they are on trial.

There wes a2 time when jucges were Kings in

shneir courts. it menarcns in a demccretic

eociety are an anecnronism, no 7atter how

small their Kingdoms or now rarely «reir

subjects suffer abusesee. It is time te put

an end to even the pessibility of judicial

tyrenny. A doctrine that immunizes malicious

end negligent conduct can no longer te juse-

tified (‘/ray, Frank, "Must Judges Be Aings

in Their Courts?", 64 Judicature 399, 1981).

I asked in Williems' court: "Will this court

add its name to the long list of judges and

lawyers who have defended the privilece of

Gudges and lawyers to commit fraud?

It will be a sed day for Arerica if the

answer is yes.

I call on this Court to repeat its resound-

ing words in US v Lee: "No man is above the law.

All men are creatures of the law and bound to

obey it."

CONCLUSION

For these reasons a Writ of Certioriari

should issue to review the judgment and opinions

of the Eastern District of Virginia.

Respectfully submitted,

John 3 Holway

Pro Se

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

JOHN 8B. HOLWAY, )

Plaintiff, )

This matter came before the court on October

1, 1982, on four oral motions to dismiss under

Ped. R. Civ. P. 12(b)(6) and two written motions

to dismiss, each made by the various defendants to

this action. In addition, plaintiff made a motion

to disqualify all Eastern district of Virginia

judges from hearing this case. Plaintiff's motion

to disqualify is DENIED for the reasons Stated

from the bench. Based upon oral argument and upon

consideration of plaintiff's Camplaint and Reply

to Motions to Dismiss, each of the defendants'

motions are hereby GRANTED for the reasons set

forth in the accompanying memorandum opinion.

Consequently, this case is dismissed.

Let the Clerk sent a copy of this order to

all counsel for record.

Date:

UNITED STATES DISTRICT JUDGE

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

JOHN B. HOLWAY, )

Plaintiff, )

)

v7. ) Civil Action No.

) 82-0763-aA

WILLIAM HAMBLEN, ET AL., )

Defendants. )

MEMORANDUM OPINION

I. FACTUAL BACKGROUND

Plaintiff has initiated a 42 U.S.C.§ 1983

and §1985 case against these defendants for

injuries allegedly suffered as the result of a

growing "conspiracy" amongst the Bar and members

of the judiciary,

Holway was the owner of Cardinal Productions,

Inc., a corporation Operating under the name of

Featherstone Theater. (Camplaint 7). Holway

subsequently sold the corporation to John Ropert

Tucker. Tucker gave Holway a security interest in

the chattels, including all equipment in the

Featherstone Theater. (Camplaing q8). When

Tucker defaulted on a note, Holway instituted a

legal action and sought the right to remove the

equipment. (Camplaint 9). Jonathan England

became involved because he was the landlord of

Featherstone Square Shopping Center. A conveyance

of the equipment was made by Tucker to England,

and Holway claimed that this transfer was fraudu-

lent. Defendant Percy Thornton, of the Circuit

Court of Prince William County, was named in the

present suit because in 1977 he presided over the

case between Holway and England. Defendants

Friedlander and Shoemaker represented England in

that suit. (Camplaint qy 15,16,17). Holway alle-

ges that these two lawyers misinterpreted and

“deliberate(ly) and fraudulently (told) untrue

statement(s)" in that proceeding. Such statements

stem fram the attorneys' representations in court

with regard to the meaning of a case and the

nature of Virginia law. Holway tried to codtain

satisfaction for what he determined to be an

injustice by requesting that a criminal prosecu-

tion be initiated against these two attorneys.

Defendants William Hamblen, Helen Fahey and

Ronald Tydings allegedly joined the "conspiracy"

at this point. Hamblen and Fahey, of the comon-

wealth Attorney's office, refused to prosecute as

the conduct complained of was not criminal in

nature and Tydings, a ccammittee member of the

Virginia State Bar, was joined as he refused to

investigate any further or take any disciplinary

actions.

Judge Selwyn Smith, of the Circuit Court of

Prince William County, heard the next case

brought by Holway in which he tried to recover a

rug. Holway subsequently requested that Judge

Smith take action against Friedlander = and

Shoemaker for their “illegal, corrupt, dishonest,

unworthy, and unprofessional conduct." (Camplaint

q€ 40). Smith refused to do so and Holway con-

sequently filed a suit in U.S. District Court. He

appeared before Judge Albert V. Bryan, Jr. Judge

Bryan apparently refused to let in evidence of the

alleged "deception" by Friedlander, Shoemaker, and

Thornton and ruled in favor of England.

(Camplaint 456). Holway alleges in his complaint

that this action by Judge Bryan was part of the

"conspiracy" and that he sincerely doubted that

any judge was going to give him a fair trial.

The Honorable Albert. V. Bryan, Jr. has moved

this court for dismissal under Fed. R. Civ. P.

12(b)(6) on the grounds that he is absolutely

immune from liability under the cause of action

alleged in the complaint. This court agrees. The

actions taken by Judge Bryan are clearly within

his official capacity. The plaintiff complains

that Judge Bryan refused to let him introduce cer-

tain evidence and then “summarily dismissed the

jury and ruled in favor of [one of the defendants

in that lawsuit])." Under the test announced i:

stum> v. Sparkman, 435 U. S. 349 (1978), a judge

is absoulutely immune fran liability in actions

seeking monetary damages. The Supreme Court noted

with regard to immunity: "The governing principle

of law is well established... As early as 1872,

the Court recei:ized that it was ‘a general prin-

ciple of the highest importance to the proper

administration of justice that a judicial officer,

in exercising the authority vested him, [should] be

free to act upon his own conviction...’ Bradley

v. Fisher, 13 Wall 335, 347 (1872)... Later ae

held that this doctrine of judicial immunity was

applicable in suits under § 1 of the Civil Rights

Act of 1871, 42 U.S.C. § 1983, for the legislative

record gave no indication that Congress intended

to abolish this long-established principle.

Pierson v. Ray, 386 U.S. 547 (1967)." Stump, id.

at 355-356. The test to be applied is as follows:

"A judge will not be deprived of immunity because

the action he tock was in error, was done mli-

Ciously, or was in excess of his authority; rather

he will be subject to liability only when he has

acted in the 'clear absence of all jurisdiction.'"

Stump, id. at 356-357. It is clear that Judge

Bryan's actions were within his judicial capacity

and he did not act in the clear absence of all

jurisdiction. Absolute immunity is therefore

granted.

Similar analysis is necessary and dispositive

with regards to Judge Thornton and Judge Smith.

as taken fram the complaint, Judge Thornton heard

the original case and ruled in favor of England.

Holway is attacking Judge Thornton's ruling as

"fraudulent". Plaintiff bases his allegation upon

his reading and understanding of a case used as

authority in the suit. The complaint alleges

only misconduct of the Judge sitting in his capa-

city as a Circuit Court Judge. Likewise, Judge

Smith was added to the list of “conspirators” for

his ruling in a subsequent case in Circuit court

and for statements made by the Judge fram the

bench. His actions fall within the absolute imm-

nity defense as they were undertaken ir his orfi-

Cial capacity. For these reasons and in light of

Stump v. Sparkman, the case is dismissed with

regards to Judges Thornton and Snith.

William Hamblen and Helen Fahey are both

attorneys in the Cammonwealth Attorney's office.

According to the Supreme Court's opinion in Imbler

v. Patchman, 424 U.S. 409 (1976), prosecuting

attorneys are immune fram liability in actions

such as the one brought here. Although Imbler

speaks to the prosecutor's immunity for prose-

cuting, this court will make the logical extension

and apply it to cases in which the prosecutor has

exercised his or her discretion and has refused

to prosecute. For the public policy con-

siderations espoused in Imbler, such an extension

is necessary and proper for the functioning of the

cammonwealth Attorney's office. It is not alleged

that Hamblin and Fahey engaged in conduct outside

of their prosecutorial capacity and therefore the

doctrine of prosecutorial immunity is applicable.

under 42 U.S.C. § 1983, § 1985 private citizens

are given redress for the deprivation of rights.

However, under neither the Constitution of the

United states, nor the Amendments thereto, are

citizens given the right to initiate or request

initiation of criminal prosecutions. Such is left

to the sole discretion of magistrates, prosecuting

attorneys, and grand juries. There is no

constitutionally guaranteed right to have such

persons prosecute. Hence, there is no basis for a

§ 1983 or § 1985 suit. the 12(b)(6) motion is

therefore granted as to Hamblen and Fahey.

Defendant Ronald Tydings also seeks dismissal

under Fed. R. Civ. p.12(b)(6). It was Tydings

who informed Holway that after a preliminary

investigation of his complaint against Messrs.

Priedlander and Shoemaker, the Cammittee was

dismissing the matter as the conduct questioned

did mot constitute "misconduct" under the

Disciplinary Rules. In support of his motion to

dismiss, Tydings offers two defenses. First, it

is stated that Holway has no legal interest in a

camplaint filed with the Virginia State Bar, and

second, Holway failed to meet the statute of limi-

tations. As to the first point, Holway asserts

that he has been deprived of property and of

unspecified rights under § 1983 and §1985

(Camplaint 4 67, 69). Tydings first defense

would be dispositive if no property right is i

fact at issue. This court holds that Holway does

not have a property right in or legal interest in

a comlaint filed with the Virginia State Bar.

Plaintiff was given a chance to file a Reply

Brief, which he did, and based upon a careful

reading of that brief and the Complaint, this

court cannot discern any property right. As to

the second defense, the statute of limitations

does appear to bar the suit as brought against

Tydings. Although this court does not base its

dismissal solely on the statute of limitations, it

is dispositive in and of itself. A federal court

is to apply the limitation pericd provided by the

state law for a closely analogous action. In

Virginia, §8.01-243(A) is applicable to civil

rights actions such a s §§ 1983 and 1985. This

section of the Code provides for a two-year limi-

tation and since Tydings' alleged misconduct

eccurred in July of 1979, this action appears to

be barred. See, Steward v. Norfolk, F. & D. Ry.,

486 F. Supp. 744 (E.D. Va. 1980), aff'd, 661 F.2d

927 (4th Cir.); and Va. Code §8.01-243(A) (Supp

1982). This is not a continuing violation as

Holway asserts. It is alleged in the complaint

tha Tydings played a specific role in the

"“conspiracy:, and that his part in it ended when

he refused to investigate further. For these

reasons, Tydings' 12(b)(6) motion is granted as

there is no cause of action upon which relief can

be granted.

This brings us to Mr. Friedlander and Mr.

Shoemaker. Plaintiff nas sued defendants under the

civil Rights Act and under 28 U.S.C. §§ 1331,

1343, and 1391. The case against Friedlander and

Shoemaker is dismissed as the ccamplaint does not

adequately support the alleged jurisdictional base

upon which Holway relies. To fall within §§ 1331,

1343, or 1391, the matter must arise under the

Constitution, laws or treaties of the United

States. Diversity jurisdiction is not pleaded in

the complaint. For this suit to survive, itis

necessary that Holway make a sufficient claim

under 42 U.S.C. §§ 1983 or 1985. Based upon the

facts as taken fram the complaing and in light of

recent Fourth Circuit and Supreme Court opinions,

there is no claim upon which relief can te

granted.

Under 423 U.S.C. §§ 1983, 1985, there are two

threshold requirements that must be apparent fram

the complaint, in order for it to survive a motion

of dismissal. The first requirement is that the

plaintiff have suffered a deprivation cf right

secured by the Constitution of other law of the

United States. The Civil Rights Act was intended

to vindicate only federal rights determined under

federal substantive law, not to be a remedy for

ordinary state torts. It is true, however, that

where the violation of state law allegedly causes

a constitutional deprivation, a cause of action is

stated. Plaintiff is claiming a violation of the

Due Process requirement of the Fourteenth

Amendment . Assuming, arguendo, that plaintiff

passes the first requirement of a §§ 1983, 1985

suit, he does not survive the second.

It is clear from the volume of cases and com

mentary written on the Civil K.ghts Act that it is

a prerequisite that the defendant(s) have acted

(1) wumder the "color of state law", and (2) that

there be state action. Recently, the Fourth

Circuit Court of Appeals decided a § 1983 case

that is closely analogous to the case at bar. The

issue to be resolved in Lugar v. Edmonson Oil Co,

Inc., 639 F.2d 1958 (1981), was whether a

claimants' conduct, prejudgment attachment of

plaintiff's property, constituted private action

"under color of state law" within contemplation of

42 U.S.C. § 1983. In the initial action, the

defendant comany was sued for malicicusly

invoking the stateprejudgment attachment procedure

which resulted in the seizure of Lugar's property

by the facts shown. Lugar claimed that the

seizure by levy deprived him of property without

due process of law. "The district court held,

relying essentially upon Flagg Brothers, Inc. v.

Brooks, 436 J.S. 149 (1978), that the comlaint

did not allege a deprivation of property by "state

action", and accordingly dismissed that action for

failure of the complaint *o allege a claim ccni-

zabe under § 1983." Lugar, id. at 1061. Thus, it

made a distinction between the “under color of"

and state action requirements. I analyzing the

case, the Fourth Circuit emphasized the following

elements as most critical:

First, [the issue) deliberately focuses

inquiry upon whether the specific conduct

directly chargeable to the § 1983 defendants

was taken under color of state law, rather

that upon whether the ultimate deprivation

of right charged can be attributed to state

action. Next, it emphasizes that the conduct

directly chargeable to the § 1983 defendants

is narrowly that of invoking , as private

litigants, state judicial proceedings for the

adjudication of a private controversy, and

includes no earlier or later involvement of

the § 1983 defendants with the state offi-

cials other than as private litigants in

those proceedings... It has become a

commonplace that in the typical § 1983 case

involving a claim of deprivation of a consti-

tutionally secured right, the state action

requirement necessitated by the Fourteenth

Amendment's undergirding, and the under color

of state law requirement necessitated by the

statutory language ordinarily come to the

same thing. Nevertheless there has been

cecasional recognition that this is net

always so--that the two are separate, none-

cessarily congruent, but culmative predicate

elements of a prima facie § 1983 claim.

Lugar, id. at 1062.

Next, the Court focused it analysis on three pat-

terns into which, in its opinion, § 1983 litiga-

tion tends to fall. The first pattern is the

“official act" case in which state action is

apparent from the manner of the act. The second is

when private actors alone are alleged to have

engaged in conduct that has deprived a person of a

secured right. In these situations no state cffi-

cial is involved, but the action is attributable

to the state by virtue of decisions made or poli-

cies established. The third pattern involves the

conduct of a private actor defendant who has alle-

gedly combined actions with the acts of a state

official at the enforcement or operational level.

This pattern appears to be the one most closely

analogous to Holway's complaing. for this type of

case the Fourth Circuit has determined that the

two requirements of “under color of state law” and

of state action must be considered as separate and

distinct. The state action requirement is to be

found by referring to the totality of the conduct

leading to the injury, whereas the “under color of

state law" requirement, concerned as it is with a

special attribute of the specific conduct charged

to a particular tortfeasor, is properly referred

to the specific conduct. Lugar, id. at 1065 n.14.

This court must therefore look at the specific

conduct of Friedlander and Shoemaker as alleged in

the complaint to determine if they acted “under

color of state law". The Supreme Court in Adickes

v. S. H. Kress & Co., 398 U.S. 144 (1970), stated

that while a private person can be liable under §

1983, he must have acted “with the knowledge of

and pursuant to" the state officials," or put

alternatively, “a willful participant in joint

activity with the state or its agents." Adickes,

id. at 161. In the complaint Holway asserts that

the "fraudulent scheme" and "conspiracy" commenced

when Friedlander undertook certain actions, in his

capacity as England's attorney, to complete a

coveyance to a third party. There is not state

action or any pretense of action “under the color of

state law" involved in these transactions. Judge

Thornton, the next defendant to have had allegedly

become a member of the "conspiracy" could possibly

have provided the nexus necessary to fulfill the

requirement of state action. This position,

however, stretches the imagination. What simply

and straightforwardly occurred was that Holway

suffered and adverse ruling and has concocted a

wed of intrigue and conspiracy that he would have

us believe reaches all ievels of the judiciary and

the bar. In the recent Supreme Court case of

Dennis v. Sparks, 449 U.S. 24 (1980), the court

dealt with a § 1983 suit in which there was an

alleged conspiracy between a judge and a private

individual. The court noted: "Of course, merely

resorting to the courts and being on the winning

side of a lawsuit does not make a party a co-

conspirator or a joint actor with the judge. But

here the allegations were that an official act of

the defendant judge was the product of a corrupt

conspiracy involving bribery of the judge..."

Dennis, id. at 28. [emphasis added]. The court

held that dismissal was inappropriate where the

sole argument made by the defendants was that

because the judge had been awarded immunity, they

likewise were immune. This is not the case here.

The facts in Dennis show that the private persons

had persuaded the judge to exercise his jurisdic-

tion corruptly and to illegally issue an injunc-

tion against plaintiff's production of minerals.

There is no allegation of or factual support for

bribery of the judge in the case at bar and his

rulings, unlike that in Dennis, has not been

struck down as illegal.

The court in Lugar, supra stated with regards to

the Dennis opinion:

In the setting we consider, 'joint engagement

Or participation of private actor with state

official implies such a usurpation of corrup-

tion of official power by the former of

surrender of power by the latter that the

independence of the enforcing official

a |e

been comprised to a significant degree

the official powers have become in practical

effect shared by the two. Judged by this test

it is plain that merely invoking a state's

judicial process and thereafter participating

in it solely as private litigant does not

constitute joint engagement or participation

by the private litigant with the state offi-

cials who then independently conduct and

enforce that process. The private initiating

act, and the official enforcement acts are in

no realistic sense joint but are instead

discontinuous and independent. Lugar, supra

at 1069. [emphasis added].

Plaintiff, in this case, fails to show

anything other that the unpleasant imposition of an

adverse ruling and the mere allegation of a

"conspiracy" between the Judge and the lawyers is

not enough to state a claim under 42 U.S.C. § 1983

or § 1985.

Let the clerk send a copy of this memorandum

to all counsel.

UNITED STATES DISTRICT JUDGE

APPENDIX B

No. 82-2061

Jonn B. Holway,

Appellant,

Percy Thornton; Selwyn Smith;

Albert Bryan; Mark P. Friedlander;

Clifford Shoemaker; Ronald Tydings;

William Hamblen and Helen Fahey,

Appellees.

Appeal from the United States District Court for

the Eastern District of Virginia, at Alexandria.

Richard L. Williams, District Judge.

Submitted: January 31, 1983

Decided: March 22, 1983

Before SPROUSE and CHAPMAN, Circuit Judces;

BUTZNER, Senior Circuit Judge.

(Jonn B. Holway, Appellant Pro Se. Mark P,

Friedlander, Jr., FRIEDLANDER, FRIEDLANDER &

BROOKS, P.C., for Appellees Shoemaker and

Friedlander; Dennis G. Merrill, Assistant United

States Attorney, for Appellees Thornton, Smith and

Tydings; Robert Ellis, Susan Greenlief, for

Appellee Hamblen; Joanne F. Alper, for Appellee

Fahey. )

PER CURLAM:

A review of the record and the district

court's opinion discloses that this appeal from

its order denying relief under 42 U.S.C. § 1983 is

without merit. Because the dispositive issues

recently have been decided authoritatively, we

dispense with oral argument and affirm the

judgment below on the reasoning of the district

Court. Holway v. Thornton, C/A No. 82-0763 (E.D.

Va., Oct.26 and Nov. 17, 1982).*

Affirmed

* Holway has filed a motion to disqualify the

entire court. Alternatively, he moves to

dismiss Judge Albert V. Bryan, Jr., as a

defendant. | As Holway has shown no facts

indicating that the court is biased or pre-

judiced that motion is denied. Curry v.

Jensen, 523 F. 2d 387 (9th Cir. 1975). His

Motion to dismiss Judge Bryan as a defendant

is granted.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.