Appendix — Krajicek v. Justin

Suproms Court, 0.8.

FILEDN

99 610 jy 29 199

OFFICE OF

No. OF THE CLERK

Supreme Court of the Anited States

October Term, 1998

CONSTANCE KRAJICEK,

Petitioner

"se

K. M. JUSTIN, JAMES SHEEHY,

DAVID BRECK, ROBERT TEMPLIN

On Petition for Writ of Certiorari

To the United States Court of Appeals

For the Sixth Circuit

APPENDIX

Constance Krajicek

In Pro Se

P.O.Box 506

Lake Orion, MI 48362

1-810-319-6767

No. 98-1249

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CONSTANCE E. KRAJICEK ) FILED

Plaintiff-Appellant ) MAR 23, 1999

LEONARD GREEN,

V. ) Clerk

)

K. M. JUSTIN, JAMES P. SHEEHY, )ORDER

ROBERT TEMPLIN, DAVID BRECK, )

Defendant-Appellees

Before BOGGS, CLAY AND GODBOLD,* Circuit

Judges

Constance E. Krajicek, appeals pro se from a

district court judgment that dismissed her civil rights ac-

tion under 42 U.S.C. §§1983 and 1985(3), as well as U.S.

C. §§ 241-242. Her appeal has been referred to a panel of

this court pursuant to Rule 34(j)(1), Rules of the Sixth

Circuit. Upon examination, the panel unanimously agrees

that oral argument is not needed. Fed. R App.P. 34(a).

Krajicek alleged that a state magistrate and three

State court judges had conspired to violate her

constitutional rights during various judicial proceedings.

On February 4, 1998, the district court granted the

defendants’ motion and dismissed Krajicek’s case under

*The Honorable John C. Godbold, United States Circuit

Judge for the Eleventh Circuit, sitting by designation

Appendix - A - 1

No. 98-1249

Fed. R. Civ. P. 12(b)(6). In so ruling, the court held that

each of the defendants was protected by absolute judicial

immunity. It is from this judgment that Krajicek now

appeals, moving for costs against the appellees.

We review the dismissal of Krajicek’s case de novo.

See Mann v. Conlin,22 ¥3d 100, 103 (6" Cir.), cert

denied, 513 U.S. 870 (1994)

| J judicial immunity is not overcome by allegations

of bad faith or malice... Rather, our cases make

clear that the immunity is overcome in only two

sets of circumstances. First, a judge is not immune

from liability for nonjudicial actions, i.e., actions

not taken in the judge’s judicial capacity. Second,

a judge is not immune for actions, though judicial

in nature, taken in the complete absence of all

jurisdiction.Mireles v Waco, 502 U.S. 9, 11-12

(1991) (per curiam) (citations omitted).

Krajicek now argues that juducial immunity does

not apply and that the defendants were liable for damages

under § 1983 because their actions were unconstitutional.

This argument lacks merit because judicial immunity

applies even when a judge acts erroneously, maliciously,

or in excess of his authority. See id.at 12-13; Stump v.

Sparkman, 435 U.S. 349, 356-357 (1978).

Krajicek also argues that the defendants’ failure to

deny all of the allegations in her complaint shows that

they acted in the complete absence of jurisdiction. This

Appendix - A - 2 -

No. 98-1249

argument is unavailing because the defendants filed a mo-

tion to dismiss in lieu of an answer to the complaint.See

Fed. R. Civ. P. 12(b)(4). Thus, we will not construe their

failure -3-

to deny all the allegations in the complaint as an admission

under Fed. R. Civ. P. 8(d). Moreover, the district court

properly determined that all of the defendants had acted

within their jurisdiction under Michigan state law.

Consequently, Krajicek’s claims were properly dismissed

on the basis of judicial immunity. See Jreland v Tunis, 113

F 3d, 1435, 1440-43 (6" Cir.) Cert. Denied, 118 S. Ct.

560 (1997), Mann, 22 F3d at 104-05.

The dismissal of Krajicek’s claim under § 1985(3)

was also proper because she did not show that the

defendants were motivate by gender bias or some other

class-based, invidiously discriminatory animus. See Maki

v Laakko, 88 F3d 361, 367 (6" Cir. 1996) cert. denied

519 U.S. 1114 (1997). Moreover, the district court

properly dismissed the criminal conspiracy claims that

Krajicek raised underl8 U.S.C. §§ 241-242, as these

statutes do not provide a basis for civil liability See Cok

v. Consentino,876 F 2d 1, 2, (1* Cir. 1989)(per curiam).

Finally, we note that Krajicek has moved for costs

against the appellees that would reimburse her for

including certain documents in the joint appendix. This

Appendix - A - 3 -

Pe ee

No. 98-1249

motion fails because inclusion of the disputed documents

was required under our local rules.

Accordingly, all pending motions are denied and the

district court’s judgment is affirmed Rule 34 (j) (2) (C),

Rules of the Sixth Circuit

ENTERED BY ORDER OF THE COURT

/S/ Leonard Green

Clerk

Appendix - A - 4 -

No. 98-1249

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CONSTANCE E. KRAJICEK,) FILED

Plaintiff-Appellant ) APR 30, 1999

V. )LEONARD GREEN,

K.M.JUSTIN, JAMES P. SHEE- ) CLERK

HY, ROBERT TEMPLIN, DAVID)

BRECK, ) ORDER

Defendant-Appellees _)

Before BOGGS, CLAY, and GODBOLD*,

Circuit Judges

Constance E. Krajicek moves this court to re-

consider its order affirming a district court judgment

that had dismissed her civil rights case, filed under 42

U.S.C. §§ 1983 and 1985 (3), as well as U.S.C. §§

241-242.

Upon review, we conclude that Krajicek has not

cited any misapprehension of law or fact that would

alter this court's prior decision. See Fed. R. App. P.

40(a).

Accordingly, the motion for reconsideration is

denied. ENTERED BY ORDER OF THE COURT

/s/ Leonard Green,

Clerk

“The Honorable John C. Godbold, United States Cir-

cuit Judge for the Eleventh Circuit, sitting by

designation. Appendix - B - 1 -

(Rule 14, 1.(A(v),(vi)

CITED AUTHORITIES:

United States Constitution. Article II1, Section 1:

“... The judges, both of the supreme and inferior

Courts shall hold their offices during good

behaviour ... “

United States Constitution, Article VI, Paragraph 2:

“The Constitution and the Laws of the United

States...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 ... “

United States Constitution, Article VI, Paragraph 3

“... and the Members of the several State

Legislatures and all executives and judicial

Officers, both of the United States and of the

several States, shall be bound by Oath or

Affirmation to support the Constitution.”

United States Constitution, First Amendment:

Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exer-

cise thereof, or abridging the freedom of speech, or

of the press, or the right of the people peaceably to

assemble, and to petition the Government for a re-

dress of grievances.

Appendix C-1

United States Constitution, Fourth Amendment

The right of the people to be secure in their per-

sons, homes, papers, and effects, against unrea-

sonable searches and seizures, shall not be vio-

lated, and no Warrants shall issue, but upon prob-

able cause supported by Oath or Affirmation and

particularly describing the place to be searched,

and the persons or things to be seized.

United States Constitution, Fifth Amendment:

... nor shall any person be subject for the same of-

fense to be twice put in jeopardy of life or limb.,....

nor be deprived of life, liberty, or property, with-

out due process of law; ...

United States Constitution, Sixth Amendment:

In all criminal prosecutions, the accused shall

enjoy the right... to be informed of the nature and

cause of the accusation to be confronted with wit-

nesses against him, ... and to have the Assitance

of Counsel for his defence.

United States Constitution, Seventh Amendment:

... where the value in controversy shall exceed

twenty dollars, the right to trial by jury shall be

preserved, ...

Appendix C-2

United States Constitution, Eighth Amendment:

Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishment

inflicted.

United States Constitution, Fourteenth Amendment:

... 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 de-

prive any person of life, liberty, or property with-

out due process of law, or deny to any person

within its jurisdiction equal protection of the laws

28 USC 144, MCR 2.003, Michigan Court Rules:

Whenever a party to any proceeding in a district

court makes and files a timely and sufficient affi-

davit that the judge befoe whom the matter is pen-

ding has a personal bias or prejudice either against

him or in favor of any adverse party, such judge

shall proceed no further therein, but another judge

shall be assigned to hear such proceeding, which

purports to be the basis of Michigan Court Rules,

MCR 2.003: (B) A judge is disqualified when the

judge cannot impartially hear a case, including

but not limited to instances in which (1) The

judge is personally biased or prejudiced for or

against a party or attorney:

Appendix C-3

42 USC § 1983:

Every person who, under color of any statute, ordi-

nance, regulation, custom or usage, of any State or

Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United

States or other person within the jurisdiction there-

of to the deprivation of an rights, privileges, or im-

munities secured by the Constitution and laws,

shall be liable to the party injured in an action at

law, suit in equity, or other proper proceeding for

redress. For the purposes of this section, any Act

of Congress applicable exclusively to the District

of Columbia shall be considered to be a statute of

the District of Columbia.

42 USC § 1985(2):

If two or more persons in any State or Territory

conspire to deter, by force, intimidation or threat;

any party or witness in any court of the United

States from attending such court or from testifying

from any matter therein, freely, fully, and truthfully

... or if (Wo Or more persons conspire for the pur-

pose of impeding, hindering, obstructing or defea-

ling, in any manner, the due course of justice in any

State or Territory, with intent to deny to any citizen

the equal protection of the laws;

Appendix C-4

42 USC § 1985 (3):

If two or more persons in any State or Territory

conspire ... for the purpose of depriving either di-

rectly or indirectly, any person or class of persons

of the equal protection of the laws, or of equal pri-

vileges and immunities under the laws; ... in any

case of conspiracy set forth in this section, if one or

more persons engaged therein do, or cause to be

done, any act in furtherance of the object of such

conspiracy, whereby another is injured in his per-

son or property, or deprived of having and exerci-

sing any right or privilege of a citizen of the United

States, the party so injured or deprived may have an

action for the recovery of damages, occasioned by

such injury or deprivation, against any one or more

of the conspirators.

42 USC § 1986:

Every person who, having knowledge that any of

the wrongs conspired to be done, and mentioned in

section 1985 of this title, are about to be commit-

ted, and having power to prevent or aid in preven-

ting the commission of the same, neglects or refu-

ses so to do, if such wrongful act be committed

shall be liable to the party injured, or his legal rep-

resentatives, for all damages caused by such

wrongful act, which such person by reasonable di-

ligence could have prevented; and such damages

may be recovered in an action on the case; and any

Appendix C-5

number of persons guilty of such wrongful neglect

or refusal may be joined as defendants in the

action

42 USC § 2000aa-6(c)

The United States, a State, or any other govern-

mental unit liable for violations of this chapter

under subsections (a)(1) of this section, may not

assert as a defense to a claim arising under this

chapter the immunity of the officer, ,,, except that

such a defense may be asserted if the violation

complained of is that of a judicial officer.

UNITED STATES SUPREME COURT RULES:

JURISDICTION ON WRIT OF CERTIORARI

Rule 10 (a):

a United States court of appeals has entered a de-

cision in conflict with the decision of another

United States court of appeals on the same im-

portant matter;... has so departed from the accep-

ted and usual course of judicial proceedings, or

sanctioned such a departure by a lower court, as

to call for an exercise of this Court’s supervisory

power;

Michigan Constitution, Article I § 2

No person shall be denied the equal protection of

the law ...

Michigan Constitution, Article I § 5:

Appendix C-6

Livery person may freely speak, write, express and

publish his views on all subjects, being responsible

for the abuse of such right ...

Michigan Constitution, Article 1 § 11:

The persons, houses, papers and possessions of

every person shall be secure from unreasonable

searches and seizures. No warrant to search any

any place or seize any person or things shall issue

without describing them, nor without probable

cause, supported by oath or affirmation. ...

Michigan Constitution, Article 1 § 14:

The right to trial by jury shall remain but shall be

waived in all civil cases unless demanded by one

of the parties, in the manner prescribed by law

Michigan Constitution, Article I § 16:

Excessive bail shall not be required, ... cruel or un-

usual punishment shall not be inflicted; nor shall

witnesses be unreasonably detained.

Michigan Constitution, Article 1 § 17:

No person shall be compelled in any criminal case

to witness against himself, nor be deprived of life

liberty or property, without due process of law..

Michigan Constitution, Article 1, § 20:

In every criminal prosecution, the accused shall

Appendix C-7

have the right to ... be informed of the nature of

the accusation; ... to have the assistance of counsel

Michigan Constitution, Article VI, § 1:

The judicial power of the state is vested exclusively

in one court of justice, which shall be divided into

one supreme court, one court of appeals, one trial

court of general jurisdiction known as the circuit

court, one probate court, and courts of limited juris-

diction that the legislature may establish ....

Michigan Constitution, Article VI § 18:

+. In any county where an additional salary is

granted, it shall be paid at the same rate to all cir-

cuit judges regularly holding court therein...

Michigan Constitution, Article VI § 19 (3):

No person shall be elected or appointed to a judici-

al office after reaching the age of 70 years.

Michigan Constitution, Article VII § 6:

... The county shall never be responsible for his

acts, except that the board of supervisors may pro-

tect him against claims by prisoners for uninten-

tional injuries received while in his custody

Michigan Constitution Article X1, § I:

All officers, legislative, executive and judicial,

before entering upon the duties of their respec-

Appendix C-8

tive offices, shall take and subscribe the follo-

wing oath or affirmation: | do solemnly swear

(or affirm) that I will support the Constitution

of the United States and the constitution of this

state, and that | will faithfully discharge the du-

ties of the office of ..... according to the best of

my ability. No other oath, affirmation, or any

religious test shall be required as a qualification

for any office or public post.

MCL 600.151 Same as Article VI § 1 MI Constitution

MCL 600.1821 (4):

All parties, attorneys and subpoenaed witnesses are

exempt from arrest while going to, attending and

returning from the places they are required to

attend.

MCL 600.3101

The CIRCUIT court has jurisdiction to foreclose

mortgages of real estate and land contracts.

MCL 600.6501

The provisions of this chapter apply to the district

court, to municipal courts and to the common pleas

court of Detroit, except as otherwise provided in

statutes..

MCL 600.6521:

Appendix C-9

xcept as otherwise provided or limited in statutes

specifically applicable to courts of limited jurisdic-

tion, ... the courts have jurisdiction over actions at

law, ... where the amounts claimed in the matter

does not exceed jurisdictional limits applicable to

the courts.

MCL 691.1407 - Governmental Immunity from Tort

Liability:-

(2) Except as provided in this section and without

regard to the discretionary or ministerial nature of

the conduct in question, each officer and/or

employee of a governmental agency or its agents

shall be immune from tort liabilities for injuries to

persons or damages to property, while acting on

behalf of a governmental agency, if all of the

following are met:

(5) Judges and their staffs are immune from tort

liability for injuries to persons or damage to pro-

perty, whenever they are acting within the scope

of their judicial and/or constitutional authority.”

MCL 762.7

Each court of record having jurisdiction of criminal

cases, upon good cause shown by either party, may

change the venue in any cause pending therein

MCL 764.9d (2):

If a complaint is not sufficient on its face, (showing

Appendix C-10

only the law under which a defendant is charged)

and if the court is satisfied that a complaint suffici-

ent on its face cannot be drawn and filed on the ba-

sis of the available facts, or evidence, it shall dis-

miss the complaint.

Opinion of the Attorney General for Michigan:

OAG 86 of April 5, 1977, Constitution of 1963,

Article 6, Section 19 which prohiblts the election

Or appointment to a judicial office after reaching

age of 70, does not violate the equal protection

clause of the United States Constitution, and is,

therefore, valid and is in accord with the deci-

sion in Rubino v Ghezzi, 512 F2d 431 (1975)

Opinion of the Attorney General for Michigan:

OAG 5226 of September 15, 1977: As Michigan

Statutes setting forth bonding requirements for

county oficials refer to individual bonds which

‘each’ officer must obtain and places the duty upon

the officer to secure his or her own bond a single

surety bond provided by the county covering seve-

ral or all county officers and employees may not be

used in lieu of the various statutory requirements

imposed upon county officers that a surety cove-

ring faithful performance be furnished.

Appendix C-11

Letter showing that K.M.Justin is acting illegally as a

magistrate in stead of Robert Justin, a magistrate:

State of Michigan District Court - 52™ Judicial District

(Seal of 3" Division - 135 Barclay Circle

Michigan) Rochester Hills, MI 48307-5800

Honorable James P. Sheehy

Honorable Ralph Nelson

Honorable Julie A. Nicholson

District Judges December 8, 1997

Mr. Gerald Poisson

Oakland County Corporation Counsel

1200 N. Telegraph Road

Pontiac, Michigan 48341

Dear Mr. Poisson:

Please find enclosed two Summons and Complaints

regarding the case of Constance Krajicek vs. K.M.Justin

and James P. Sheehy. The complaints were served at this

Court on Friday, December 5, 1997. Please note that “K

M.Justin” is Robert Justin, a Magistrate in this division.

Please notify me as soon as counsel is appointed.

Thank you for your time in this matter.

Sincerely,

/s/ Lynda A. Hammerstein

Lynda A. Hammerstein

Court Administrator

[lah

Appendix C-12

The Federal Courts and the Federal System, 336 2 ed

1973 (by P. Bator, P. Mishkin, D. Shapiro and H.

Weschler) by Hart and Weschler:

“Where constitutional rights are at stake, the

courts are properly astute in construing statutes,

to avoid the conclusion that Congress intended to

use the privilege of immunity to defeat them.

Adamski v Cole 494 NW 2d 794, 197 Mich App 124

(1992)

Plaintiff filed complaint for land contract forfeiture

in district court. Defendant had the case transfer-

red to Circuit Court on the basis that land contract

forfeiture was in excess of jurisdictional limits of

district court (other claims involved in appeal to

Michigan Court of Appeals)

Hackett v Kress, 133 NW 2d 221, i Mich App 6 (1965)

Ball vy Thomas, 133 NW 2d 218, 1 Mich App 1 (1965)

Under constitutional provisions that judges of

courts of record shall not be elected or appointed to

judicial office after reaching age of 70 years, age

limitation applies to all judicial positions, even

though they are not in court of record.

Stump v Sparkman, 435 U.S. 349 (1978)

In determining whether an action is “judicial”

we consider the nature of the act, and whether it

is a function normally performed by a judge.

Appendix C-13

- (tats cli asp. a

Mann v Conlin, 22 F3d 100 (1994), n6 and n9:

Judge is liable for money damages where judge acts

in nonjudicial capacity or in complete absence of

all jurisdiction (n6) Judge acts in clear absence of

all jurisdiction and liable for money damages, when

court of limited jurisdiction attempts to adjudicate

case outside its jurisdiction. (n9)

Detroit Branch, NAACP v City of Dearborn, 434 NW

2d 444, 173 Mich App 602 (1988)

All seizures of persons, including those involving

only brief detention, fall within protections affor-

ded by this section and Fourth Amendment.

People v Heffron, 19 NW 170, 53 Mich 529

The complaint was made by a person with no per-

sonal knowledge of the case other than hearsay of

unsworn witnesses whose reliability had not been

proven, therefore the complaint was invalid.

People v Quinn, 356 NW 2d 10, 136 Mich App 145

Trial court has no authority to convict a defendant

of an offense not-specifically charged. Defendant

may not be charged on basis of law alone; he must

be informed of what he is supposed to have done.

Young v Duckworth, 733 F2d 482 (7" Circ. 1984)

Assistance of counsel, to be fully effective, must

be continuous from time when prosecution began.

Appendix C-14

Brady v Maryland, 373 U.S. 83, 10 L Ed2d 215, 83 S Ct

1194 (1963)

Suppression of evidence favorable to the defendant

violates the due process rights (Granddaddy case of

“Brady decisions’’)

Edmond v Collins, 8 F3d 290 (5" Cir 1993) and

U. S. v Brumel Alvarez, 976 F2d 1235 (9" Cir 1992)

and all other “Brady” case law

The Brady doctrine requires the prosecution to

produce exculpatory evidence and evidence useful

for impeachment when requested to do so by

defendant.

U. S. v Olin Corp., D.C.N.Y. 465 F Supp 1120 (1979)

In order to support a claim of discriminatory pro-

secution by defendants, Plaintiff must present facts

tending to establish that it was the result of inten-

tional and purposeful discrimination.

In re Attorney General, 341 NW 2d 253, 129 Mich App

128 (1983)

(2) Under statute allowing venue to be changed by

a circuit court for “good cause shown” by either

party, “good cause” concerns ability to obtain fair

trial in county where action is brought, and con-

venience to parties and witnesses is not within

meaning of the statute.

Appendix C-15

_ ee

hh Se a at

People v Plyler, 272 NW 2d 623 86 Mich App 272 ;and

“Fruit of the poisonous tree” doctrine seeks to dis-

courage unlawful police practices by depriving the

people of the advantage flowing from the “primary

illegality” of police activity.

People v Tucker, 172 NW 2d 712, 19 Mich App 320

(1969)

The use of evidence proceeding from an illegal sei-

zure are the fruits of the unlawful conduct, com-

monly known as the “fruit of the poisonous tree”

and are totally inadmissible.

Maki v Laakko, 88 F3d 361 (6" Circ 1996) n7.5(1)

Plaintiff must show conspiracy between at least

two persons, that object of conspiracy is to deprive

plaintiff of equal protection of the law or of privi-

leges and immunities under the law and injury to

plaintiff as result of conspiracy.

Strength v Hubert, 854 F2d 241 (11" Cire 1988)

Freedom from malicious prosecution is a federal

right protected by § 1983.

U.S. v Sneed, 34 F3d 1570 (10" Cire 1994)

Excessive government involvement occurs when

governmental agency engineers and directs crimi-

nal enterprise from start to finish and defendant

contributes nothing more than his presence and

objections thereto.

Appendix C-16

Magna Carta of 1216:

King John: “We will make no men justices or she-

riffs unless they are such that know the law of the

realm, and are minded to observe it rightly.”

Floyd and Barker, 77 Eng Rep (1305 Star Chamber,

1607):

Judicial immunity shall be absolute when the order

of the justice is within his jurisdiction to perform.

English Declaration of Rights of 1689:

Whereas this Parliament deplores the illegality of

the directed and arbitrary use of the sentencing po-

wer by the king’s bench, we do hereby declare that

judicial immunity shall not be absolute and then be

effective only within the scope of jurisdiction.

Marbury v Madison, 5 US 137 (1803) (Cranch) Chief

Justice Marshall

“* .. a legislative act contrary to the constitution is

not law ... then, the courts are to regard the cons-

titution as superior to any ordinary act of the le-

gislature; the constitution not such ordinary act

must govern the case to which they both apply. It

is apparent that the framers of the constitution

contemplated that instrument to be a rule for the

government of courts as well as the legislature...

a law repugnant to the constitution is void and

that courts as well as other departments are

bound by that instrument.

Appendix C-17

Mc Culloch v State, 17 US 316 (1819), Chief Justice

Marshall:

“The States have no power, by taxation or other-

wise, to retard, impede, burden or in any manner

control the operations of the constitutional laws

enacted by Congress ... The nullity of an act in-

consistent with the Constitution, is produced by

the declaration that THE CONSTITUTION IS

THE SUPREME LAW.”

Mayor, Aldermen and Commonalty of City of

New York v George Miln, 36 US 102 (1837), Justice

Barbour.

“That a State has the same undeniable and unli-

mited jurisdiction over all persons and things,

within its territorial limits, as any foreign nation,

where that jurisdiction is not surrendered or re-

strained by the Constitution of the United States.”

Congress Globe, 39" Congress, First Session, the first

Civil Rights Act passed Aprol 9, 1866 over veto by

President Andrew Johnson’s objection, who said:

“The bill invades the judicial power of the States

... and judges of the State Courts and marshals

and sheriffs, sanctioned by State laws and issued

by state judges ... could be brought before other

tribunals and there, subjected to fine and

imprisonment for performance of their duties ...”

Representative Lawrence response:

Appendix C-18

“! answer, it is better to invade the judicial power

of the State than permit it to invade, strike down

and destroy the civil rights of citizens. A judicial

power perverted to such uses should be speedily

invaded. The grievance would be insignificant.”

Senator Trumbull:

“The notion of immunity for such judicial

Officials is thoroughly discredited. The idea

of judicial immunity is akin to the maxim of the

English law that ‘the King can do no wrong’ It

places judicial officials above the law. It is the

very doctrine out of which the rebellion (the

Civil War) was hatched.”

Congressional Globe, 42 Congress , First

Session (1871),

Representative Arthur:

“But if the Legislature enact a law, if the Gover-

nor enforces it, if the judge upon the bench ren-

ders a judgment, if the sheriff levy an execution,

execute a writ, serve a summons, or make an ar-

rest, all acting under a solemn official oath,

though as pure in duty as a saint, and as immacu-

late as a seraph, for a mere error in judgment,

they are liable.”

Senator Shellabarger,Senate Judiciary Committee

“Section | of the 1871 Act provides a civil reme-

dy in identically the same case or on the same

state of facts as the 1866 Act and obviously over-

Appendix C-19

rides whatever immunity may have existed at

common law for the participants in the judicial

process, in 1871. The basic words of “Every

Person and all Persons” are used to intentionally

include any judge that knowingly and willfully

deprives any person of his Constitutional Rights

under color of law ....”

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

Where a judge acts intentionally and knowing-

ly, to deprive a person of his constitutional

rights, he exercises no discretion or individu-

al judgment, he acts no longer as a judge, but

as a ‘minister’ of his own prejudices.”

Maki v East Tawas, 188 NW 2d 593, 365 Mich 151

(1971)

“Provision of MCL 691.1407 making all govern-

mental agencies, (Including judges) immune cre-

ates immunity for a much broader area.than was

intended, creating immunity for acts of negli-

gence and as such, is unconstitutional and

invalid.”

Jackson v City of Detroit, 192 NW 658, 35 Mich App 591

(1971)

“Provision of MCL 691.1407 purporting to make

governmental agencies “immune from tort liability”

is unconstitutional.”

Appendix C-20

Hampton v Chicago, 484 K2d 602, 607 (CA7 1973) (J

Stevens)

“Conduct by persons acting under color of stgte law

which is wrongful under 42 USC 1983 or 1985

cannot be immunized by state law. A construction

of the federal statute which permitted a state

immunity defense to have controlling effect would

transmute a basic guarantee into an illusory promise

and the supremacy clause of the Constitution

insures that the proper construction must be

enforced.

Pittman v City of Taylor, 247 NW 2d 512, 398 Mich 41

(1976):

“Governmental immunity from tort liability was

judicially created and may be judicially abrogated.

Courts are required to give effect to immunity

unless statute, policy or activity violates the

Constitution.”

George D Owen v City of Independence, Missouri, et al,

485 U.S.622, 63 L Ed 2d 673, 100 S Ct. 1398 (1980):

“A good faith defense recognized under 1983

authorizes liability only when officials acted with

malicious intent or where they knew or should have

known that their conduct violated the constitutional

bbl

norm.

Anderson v Creighton, 483 U.S. 635 (1987):

“... the contours of the right must be sufficiently

Appendix C-21

clear that a reasonable official would understand

that what he is doing violates that right ... it is to

say that in the light of pre-existing law, the

unlawfulness must be apparent.” (at 640)

Harlow v Fitzgerald, 457 U.S.80u (1982):

“Action for damages may offer the only realistic

avenue for vindication of constitutional guarantees.

Malley v Briggs, 475 U.S.335 (1986):

“As a matter of public policy, qualified immunity

provides ample protection to all but ... those who

knowingly violate the law ...Given malice and the

lack of probable cause, magistrate enjoyed no

immunity. Common law thus affords no support “

Forrester v White, 484 U.S. 219 (1988):

“A State court judge does not have absolute

immunity from a damage suit under 1983 for his

decisions ... “

Mireles v Waco, 502 U.S. 9 (1991):

‘A judge is not immune for actions, though judicial

in nature, taken in the complete absence of

jurisdiction.”.

Hafer v Melo, 502 U.S. 21 (1991):

“Through 1983, Congress sought “to give a remedy

to parties deprived of constitutional rights, privile-

ges and immunities by an official’s abuse of his

Appendix C-22

position” ... officials seeking absolute immunity

must show that such immunity is justified by the

governmental function at issue ... damage awards

against individual defendants in federal courts are

a permissible remedy in some circumstances. ...

Townsend v Hazdroth, 875 F Supp 1293 (E.D.Mich 1995)

(Judge Gadola)

“Governmental immunity, under Michigan law, is

an affirmative defense that defendants must prove.”

Blanche Road Corp. v Bensalem Twp., 57 F3d, 253 (3

Cir 1995)

“Government officials performing discretionary

functions, generally are shielded from liability for

civil damages insofar as their conduct does not

violate clearly established statutory or

constitutional rights of which a reasonable person

would have known.”

Ireland v Tunis,\13 F.3d 1435 @ 1440 (6" Cir. 1997)

First, a judge is not immune from liability for non-

judicial acts, i.e. actions not taken in the judge’s

judicial capacity. Second a judge is not immune for

actions, taken in the complete absence of all

jurisdiction.”.

OAKLAND COUNTY JUDGES:

“I can do anything I choose to you and you can’t

touch me. I’m immune from claims.”

Appendix C-23 .