Stump V. Sparkman, Should Judges Have Absolute Or Qualified Immunity?, Further Readings
A judge’s complete protection from personal liability for exercising judicial functions.
Judicial immunity protects judges from liability for monetary damages in civil court, for acts they perform pursuant to their judicial function. A judge generally has IMMUNITY from civil damages if he or she had jurisdiction over the subject matter in issue. This means that a judge has immunity for acts relating to cases before the court, but not for acts relating to cases beyond the court’s reach. For example, a criminal court judge would not have immunity if he or she tried to influence proceedings in a juvenile court.
Some states codify the judicial immunity doctrine in statutes. Most legislatures, including Congress, let court decisions govern the issue.
Judicial immunity is a common-law concept, derived from judicial decisions. It originated in the courts of medieval Europe to discourage persons from attacking a court decision by suing the judge. Losing parties were required instead to take their complaints to an appellate court. The idea of protecting judges from civil damages was derived from this basic tenet and served to solidify the independence of the judiciary. It became widely accepted in the English courts and in the courts of the United States.
Judicial immunity was first recognized by the U.S. Supreme Court in Randall v. Brigham, 74 U.S. (7 Wall.) 523, 19 L. Ed. 285 (1868). In Randall the Court held that an attorney who had been banned from the PRACTICE OF LAW by a judge could not sue the judge over the disbarment. In its opinion, the Court stated that a judge was not liable for judicial acts unless they were done “maliciously or corruptly.”
In Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L. Ed. 646 (1871), the U.S. Supreme Court clarified judicial immunity. Joseph H. Bradley had brought suit seeking civil damages against George P. Fisher, a former justice of the Supreme Court of the District of Columbia. Bradley had been the attorney for John H. Suratt, who was tried in connection with the assassination of President ABRAHAM LINCOLN. In Suratt’s trial, after Fisher had called a recess, Bradley accosted Fisher “in a rude and insulting manner” and accused Fisher of making insulting comments from the bench. Suratt’s trial continued, and the jury was unable to reach a verdict.
Immediately after discharging the jury, Fisher ordered from the bench that Bradley’s name be stricken from the rolls of attorneys authorized to practice before the Supreme Court of the District of Columbia. Bradley sued Fisher for damages relating to lost work as a result of the order. At trial, Bradley attempted to introduce evidence in his favor, but Fisher’s attorney objected to each item, and the judge excluded each item. After three failed attempts to present evidence, the trial court directed the jury to deliver a verdict in favor of Fisher.
On appeal by Bradley, the U.S. Supreme Court affirmed the trial court’s decision. Judges could be reached for their malicious acts, but only through IMPEACHMENT, or removal from office. Thus, the facts of the case were irrelevant. Even if Fisher had exceeded his jurisdiction in single-handedly banning Bradley from the court, Fisher was justified in his actions. According to the Court, “A judge who should pass over in silence an offence of such gravity would soon find himself a subject of pity rather than respect.”
Since Bradley, the U.S. Supreme Court has identified some exceptions to judicial immunity. Judges do not receive immunity for their administrative decisions, such as in hiring and firing court employees (Forrester v. White, 484 U.S. 219, 108 S. Ct. 538, 98 L. Ed. 2d 555 ).
Judges also are not immune from declaratory and injunctive relief. These forms of relief differ from monetary relief. Generally they require parties to do or refrain from doing a certain thing. If a judge loses a suit for DECLARATORY JUDGMENT or injunctive relief, he or she may not be forced to pay money damages, but may be forced to pay the court costs and attorneys’ fees of the winning party. For example, assume that a judge requires the posting of bail by persons charged in criminal court with offenses for which they cannot be jailed. If a person subjected to this unconstitutional practice files suit against the judge, the judge will not be given judicial immunity and, upon losing the case, will be forced to pay the plaintiff’s attorney’s fees and court costs. (Pulliam v. Allen, 466 U.S. 522, 104 S. Ct. 1970, 80 L. Ed. 2d 565 ).
The Court held in Pulliam that a judge could be forced to pay the plaintiff’s attorney’s fees and court costs under the 1976 Civil Rights Attorney’s Fees Awards Act, 42 U.S.C.A. § 1988. Gladys Pulliam, a Virginia state court magistrate, had jailed two men for failure to post bail following their arrest for abusive language and public drunkenness. Under Virginia law, the defendants could not receive a jail sentence if convicted of these offenses. The plaintiffs sued under the federal CIVIL RIGHTS ACT 42 U.S.C.A. SECTION 1983 and obtained an INJUNCTION forbidding the judge to require bail for these offenses. The judge was also ordered to pay the defendants $8,000 as reimbursement for their attorneys’ fees.
Judges throughout the United States viewed the Pulliam decision as a serious assault on judicial immunity. The Conference of State Chief Justices, the JUDICIAL CONFERENCE OF THE UNITED STATES, the AMERICAN BAR ASSOCIATION, and the American Judges Association lobbied Congress to amend the law and overturn Pulliam. Finally, in the Federal Courts Improvement Act of 1996 (Pub. L. No. 104-317, 110 Stat. 3847), Congress inserted language that voided the decision. The amendment prohibits injunctive relief in a § 1983 action against a “judicial officer for an act or omission taken in such officer’s judicial capacity” unless “a declaratory decree was violated or declaratory relief was unavailable.” In addition, language was added to § 1988 that precludes the award of costs and attorney’s fees against judges acting in their official capacity.
Filing a civil complaint against a judge can be risky for attorneys because the doctrine of judicial immunity is well established. In Marley v. Wright, 137 F.R.D. 359 (W.D. Okla. 1991), attorney Frank E. Marley sued two Oklahoma state court judges, Thornton Wright, Jr., and David M. Harbour, their court reporter, and others. Marley alleged in his complaint that Wright and Harbour had violated his constitutional rights in connection with a custody case concerning Marley’s children. The court not only dismissed the case, but also ordered Marley to pay the attorney’s fees that Wright and Harbour had incurred in defending the suit. According to the court, Marley’s complaint “was not warranted by existing law,” and Marley had used the suit “not to define the outer boundaries of judicial immunity but to harass judges and judicial personnel who rendered a decision he did not like.”
May 15, 1984
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The Supreme Court ruled today that state judges may be sued for civil rights violations and may be ordered to pay the lawyers’ fees of those who sue them successfully.
While the 5-to-4 decision permitted only suits for injunctions, not damages, it marked a significant retreat from the doctrine of absolute judicial immunity to which the Court has long adhered.
Six years ago, for example, the Court ruled that a judge who had ordered a young woman to be sterilized without her knowledge or consent was absolutely immune from the woman’s subsequent damage suit.
The decision today, written by Associate Justice Harry A. Blackmun, retained the bar against suits for damages. But the dissenters, in an opinion by Associate Justice Lewis F. Powell, argued that there was little practical difference, from the point of view of a judge’s pocketbook, between a damage suit and an order to pay lawyers’ fees.
The decision upheld a ruling by the United States Court of Appeals for the Fourth Circuit, in Virginia, ordering a state magistrate to reimburse two men for $7,000 in lawyers’ fees.
The two men were arrested for petty offenses for which they could not have received a jail sentence. However, the magistrate jailed them because they could not make bail. The men sued in Federal court for a declaration that it was unconstitutional to require bail for non-jailable offenses and for an injunction against the continuation of the practice. They won and were awarded lawyers’ fees under the Civil Rights Attorney’s Fees Awards Act of 1976, which provides that prevailing parties in civil rights suits can recover their lawyers’ fees from the losing party.
Technically, the only question before the Court was whether, in passing the 1976 law, Congress intended to make judges liable for lawyers’ fees. But to decide that question, the Court first had to decide whether a state judge could be subject to a civil rights suit for an injunction in the first place.
Suit Used 1871 Rights Act
The suit against the Virginia magistrate was brought under the Civil Rights Act of 1871, one of the most widely used Federal civil rights laws. Usually referred to as Section 1983, this law permits suits for damages or injunctive relief against those who, ”under color of state law” violate an individual’s civil rights.
In his opinion, Justice Blackmun reviewed the history of judicial immunity in English common law, from which the American immunity doctrine is derived. He concluded that because English judges were subject to certain common-law writs much like modern- day injunctions, there was no historical basis for extending judicial immunity to injunctive suits.
Justice Blackmun also said there was no evidence that Congress meant to exclude judges from injunctions under Section 1983.
His opinion, Pulliam v. Allen, No. 82- 1432, was joined by Associate Justices William J. Brennan Jr., Byron R. White, Thurgood Marshall and John Paul Stevens.
In his dissenting opinion, Justice Powell said the majority opinion ”in effect eviscerates the doctrine of judicial immunity.” Subjecting judges to ”the ever-present threat of burdensome litigation,” he said, threatened judicial independence. Chief Justice Warren E. Burger and Associate Justices William H. Rehnquist and Sandra Day O’Connor joined the dissent.
The Court dealt with these other matters today:
Jury ChallengesFor the second time in a year, the Court refused to consider the question of whether a black defendant’s rights are violated by the prosecution’s use of its peremptory challenges to keep blacks off the jury. The Court turned down three death penalty appeals from state appellate courts in Illinois challenging the exclusion of black jurors.
The Court had the cases under review for some months, an indication that the Justices may have been close to taking up the issue. But only Justices Marshall and Brennan voted to take the cases. Justice Marshall said he dissented from the Court’s ”refusal to confront” what he called ”one of the gravest and most persistent problems facing the American judiciary today.” (Williams v. Illinois, No. 83-5785).
Psychiatric ExamIn another death penalty case, the Court refused to hear a challenge by a Texas death row inmate to the conditions set by the trial judge on a psychiatric examination. The judge refused to order an examination of the defendant’s competency to stand trial unless the defendant agreed to permit the prosecution to use anything he said in the examination against him in the sentencing phase of the trial. In order to impose a death sentence under Texas law, a jury must find that a defendant would pose a continuing threat of violence. The defendant argued that the judge’s terms violated his constitutional right against compelled self-incrimination. The United States Court of Appeals for the Fifth Circuit denied his petition for a writ of habeas corpus. Justices Marshall and Brennan voted to hear the appeal. (Porter v. McKaskle, No. 83-5808).A version of this article appears in print on May 15, 1984, Section A, Page 15 of the National edition with the headline: SUPREME COURT ROUNDUP; RULING SAYS STATE JUDGES MAY BE SUED IN CIVIL RIGHTS CASES.
Judicial Immunity – Is NOT Absolute!
By David C. Grossack, Constitutional Attorney
Common Law Copyright © 1994 All Rights Reserved
Also see article on How To Sue A Judge and always remember, case law is ALWAYS changing.
Here is a selection of case/reference citations regarding judicial immunity when personally suing a Judge for money damages, from the collection of former Phoenix, AZ Attorney Robert A. Hirschfeld, JD. (Warning: Look up and read the cited case for consistency with your situation, before citing it in your own brief.)
When a judge knows that he lacks jurisdiction, or acts in the face of clearly valid statutes expressly depriving him of jurisdiction, judicial immunity is lost. Rankin v. Howard, (1980) 633 F.2d 844, cert den. Zeller v. Rankin, 101 S.Ct. 2020, 451 U.S. 939, 68 L.Ed 2d 326.
In Rankin v. Howard, 633 F.2d 844 (1980) the Ninth Circuit Court of Appeals reversed an Arizona District Court dismissal based upon absolute judicial immunity, finding that both necessary immunity prongs were absent; later, in Ashelman v. Pope, 793 F.2d 1072 (1986), the Ninth Circuit, en banc , criticized the “judicial nature” analysis it had published in Rankin as unnecessarily restrictive. But Rankin’s ultimate result was not changed, because Judge Howard had been independently divested of absolute judicial immunity by his complete lack of jurisdiction.
Some Defendants urge that any act “of a judicial nature” entitles the Judge to absolute judicial immunity. But in a jurisdictional vacuum, (that is, absence of all jurisdiction) the second prong necessary to absolute judicial immunity is missing. Stump v. Sparkman, id., 435 U.S. 349.
“Where there is no jurisdiction, there can be no discretion, for discretion is incident to jurisdiction.” Piper v. Pearson, 2 Gray 120, cited in Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872)
A judge must be acting within his jurisdiction as to subject matter and person, to be entitled to immunity from civil action for his acts. Davis v. Burris, 51 Ariz. 220, 75 P.2d 689 (1938)
Generally, judges are immune from suit for judicial acts within or in excess of their jurisdiction even if those acts have been done maliciously or corruptly; the only exception being for acts done in the clear absence of all jurisdiction. Gregory v. Thompson, 500 F2d 59 (C.A. Ariz. 1974)
There is a general rule that a ministerial officer who acts wrongfully, although in good faith, is nevertheless liable in a civil action and cannot claim the immunity of the sovereign. Cooper v. O’Conner, 99 F.2d 133
When a judicial officer acts entirely without jurisdiction or without compliance with jurisdiction requisites he may be held civilly liable for abuse of process even though his act involved a decision made in good faith, that he had jurisdiction. State use of Little v. U.S. Fidelity & Guaranty Co., 217 Miss. 576, 64 So. 2d 697.
“… the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument.” Marbury v. Madison, 1 Cranch 137 (1803).
“No judicial process, whatever form it may assume, can have any lawful authority outside of the limits of the jurisdiction of the court or judge by whom it is issued; and an attempt to enforce it betond these boundaries is nothing less than lawless violence.” Ableman v. Booth, 21 Howard 506 (1859).
“The courts are not bound by an officer’s interpretation of the law under which he presumes to act.” Hoffsomer v. Hayes, 92 Okla 32, 227 F 417.
> Journal: Cato Journal Vol 8, No. 1 – 1988
> Author : Bruce Benson
> Title : An Institutional Explanation for Corruption of Criminal Justice Officals
> Journal: Cato Journal, Vol. 7, No. 2, 1987
> Author : Robert Craig Waters
> Title : Judicial Immunity versus Due Process: When Should a Judge Be Subject to Suit?
Justice Field in Bradley v. Fisher. (13 Wall) 353 (1871) stated: “…judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction.”
“The doctrine of judicial immunity originated in early seventeenth-century England in the jurisprudence of Sir Edward Coke. In two decisions, Floyd & Barker and the Case of the Marshalsea, Lord Coke laid the foundation for the doctrine of judicial immunity.” Floyd & Barker, 77 Eng. Rep. 1305 (1607; The Case of the Marshalsea, 77 Eng. Rep. 1027 (1612) were both cases right out of the Star Chamber.
Coke’s reasoning for judicial immunity was presented in four public policy grounds:
1. Finality of judgment;
2. Maintenance of judicial independence;
3. Freedom from continual calumniations; and,
4. Respect and confidence in the judiciary.
The Marshalsea presents a case where Coke denied a judge immunity for presiding over a case in assumpsit. Assumpsit is a common-law action for recovery of damages for breach of contract. Coke then explained the operation of jurisdiction requirement for immunity:
. “[W]hen a Court has (a) jurisdiction of the cause, and proceeds iverso ordine or erroneously, there the party who sues, or the officer or minister of the Court who executes the precept or process of the Court, no action lies against them. But (b) when the Court has not jurisdiction of the cause, there the whole proceeding is [before a person who is not a judge], and actions will lie against them without any regard of the precept or process…”
Although narrowing the availability of judicial immunity, especially in courts of limited jurisdiction, Coke suggested that there was a presumption of jurisdiction and that the judge must have been aware that jurisdiction was lacking.
Thus, questions of personam, rem and res jurisdiction are always a proper issue before the court to obviate the defense that the court had no way to know they lacked jurisdiction.
“Stump v Sparkman Revisited” continues to show it was Chief Justice Kent (circa 1810) that was instrumental in establishing the “doctrine” of JI in America, in Yates v. Lansing, 5 Johns 282. Thereafter Justice incorporated the “doctrine” in two cases: Randall v. Brigham, 74 U.S. (7 Wall.) 523, and Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1871). Both Yates and Randall dealt with officers of the court.
“The belief that Bradley narrowed the scope of the doctrine respresents a serious misunderstanding of the decision. First, Bradley provides no authority for the belief that a judge of general jurisdiction may be liable for acts taken in absence of subject matter jurisdiction. The distinction between excess of jurisdiction and absence of jurisdiction in the opinion is simply explanatory. Because a court of general jurisdiction has jurisdiction over all causes of action, a judge of such a court will always be immune for his judicial acts, even if he exceeds his authority. See Bradley, 80 U.S. at 351-52.”
CASE NOTE: “Federal tort law: judges cannot invoke judicial immunity for acts that violate litigants civil rights; Robert Craig Waters. Tort & Insurance Law Journal, Spr. 1986 21 n3, p509-516”
A Superior Court Judge is broadly vested with “general jurisdiction.” Evidently, this means that even if a case involving a particular attorney is not assigned to him, he may reach out into the hallway, having his deputy use “excessive force” to haul the attorney into the courtroom for chastisement or even incarceration. Mireles v. Waco, 112 S.Ct. 286 at 288 (1991). Arguably, anything goes, in a Superior Court Judge’s exercise of his “general jurisdiction”, with the judge enjoying “absolute judicial immunity” against tort consequences. Provide he is not divested of all jurisdiction.
A Judge is not immune for tortious acts committed in a purely Administrative, non-judicial capacity. Forrester v. White, 484 U.S. at 227-229, 108 S.Ct. at 544-545; Stump v. Sparkman, 435 U.S. at 380, 98 S.Ct. at 1106. Mireles v. Waco, 112 S.Ct. 286 at 288 (1991).
Administrative-capacity torts by a judge do not involve the “performance of the function of resolving disputes between parties, or of authoritatively adjudicating private rights,” and therefore do not have the judicial immunity of judicial acts. See: Forrester v. White, 484 U.S. 219, 98 L.Ed.2d 555, 108 S.Ct. 538 (1988); Atkinson-Baker & Assoc. v. Kolts, 7 F.3d 1452 at 1454, (9th Cir. 1993). A Judge as a State Actor is not vested with the sovereign immunity granted to the State itself . See: Rolfe v. State of Arizona, 578 F.Supp. 987 (D.C. Ariz. 1983); Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, (9th Cir, 1981) cert. granted Kush v. Rutledge, 458 U.S. 1120, 102 S.Ct. 3508,73 L.Ed.2d 1382, affirmed 460 U.S. 719, 103 S.Ct. 1483, 75 L.Ed.2d. 413, appeal after remand 859 F.2d 732, Ziegler v. Kirschner, 781 P.2d 54, 162 Ariz. 77 (Ariz. App., 1989).
It is said that absolute judicial immunity is favored as public policy, so that judges may fearlessly, and safe from retribution, adjudicate matters before them. True. But equally important, is the public expectation that judicial authority will only be wielded by those lawfully vested with such authority.
The history of Arizona’s admission to the Union reveals at least one reason why historic public policy in Arizona would favor ARCP Rule 42(f)(1)’s complete and expeditious divestiture of jurisdiction, and its concurrent divestiture of absolute judicial immunity in the event a renegade judge persists in wielding the tools of his office after having been affirmatively stripped of them.
In 1912, the U.S. Congress refused to admit Arizona to the Union for the stated reason that Arizona’s proposed Constitution provided the public with a mechanism for removing sitting judges from office. Joint Res. No. 8, 8/21/11, 37 U.S. Stat. 39, cited in Vol. 1, Ariz. Rev. Stats., p.130. To facilitate admission to the Union, the judge-removal mechanism was excised from the State Constitution, allowing Arizona to become a State on 2/14/12. Soon afterward, on 11/5/12, Arizona voters restored the mechanism by amendment. Ariz. Constitution, Art. VIII “Removal from Office”, section 1; A.R.S. Vol. 1, p. 178. So strong was the citizens’ distrust of sitting State Court Judges in Arizona, that after Arizona copied the Federal Rules of Civil Procedure, it added the present Rule 42(f)(1) to provide a mechanism for a litigant to permanently remove the assigned judge from the case.
The difference between selectively disabling a judge in various aspects of adjudication (such as during the appellate period) and the permanent extinguishment of his jurisdiction in a given case, has a logical relevance to a Judge’s expectation of enjoying absolute judicial immunity in that case.
In examining entitlement to immunity, the U.S. Supreme Court focused upon the nature of the act: is it an act ordinarily performed by a Judge? Unfortunately, judges sometimes exceed their jurisdiction in a particular case. But an act done in complete absence of all jurisdiction cannot be a judicial act. Piper v. Pearson, id., 2 Gray 120. It is no more than the act of a private citizen, pretending to have judicial power which does not exist at all. In such circumstances, to grant absolute judicial immunity is contrary.
How to Sue a Judge Without Using a Lawyer
By David C. Grossack, Constitutional Attorney
Common Law Copyright © 1994 All Rights Reserved
Has a judge violated your constitutional rights? Have you been discriminated against by being treated differently than other people in similar situations by reason of race, religion, national origin, gender, sexual preference or political opinion? Have you lost certain rights without a meaningful hearing or even an opportunity to be heard?
Have you been deprived of any other constitutional protection? Have you been subject to Court action for the purpose of intimidating you from exercising an opinion, or practicing your faith? Don’t let them get away with it.
Although it is almost impossible to recover monetary damages from a judge (unless you can prove he or she acted ultra-vires beyond his or her legal jurisdiction) it is in fact possible to obtain relief in equity against a judge through civil rights actions. Equitable relief includes:
a. declaratory relief – (rulings by another judge in the form of opinions establishing the constitutionality or lack of constitutionality of another judges actions.)
b. injunctive relief – a command or order to do something or refrain from doing so.
As a general rule, however, judges cannot be held liable for money damages for acts done in the exercise of his judicial function, within the limits of his jurisdiction, no matter how erroneous, illegal or malicious his acts may be. (48A Corpus Juris Secundum §86) A minority of decisions have held that if an inferior judge acts maliciously or corruptly he may incur liability. Kalb v. Luce, 291 N.W. 841, 234, WISC 509.
Federal Civil Rights statutes, and possibly Bivens actions, appear to offer the best path for redressing constitutional grievances with state and federal judges, respectively, in Federal Court. As a practical matter, such cases will usually be brought by pro se litigants. Neither the politics nor economics of law practice permits lawyers to pursue such cases nor makes them affordable except to a small elite of citizens.
However, lawyers who do successfully sue state judges in federal court in Title 42 U.S. Code § 1983 cases can recover attorney’s fees from judicial defendants provided they can show time sheets kept contemporaneously with their work.
The most important step you have to take in beginning your lawsuit is in writing the complaint that will be conforming to the Federal Rules of Civil Procedure (available in every Government Bookstore or from the Government Printing Office in Washington, DC.)
Properly drafted complaints need not be prepared by a lawyer. All that is required is a very fundamental understanding of a few basic constitutional principles and a typewriter and paper. Handwritten complaints can also be filed in court.
Each federal court publishes its own local rules which can impose some additional requirements, but essentially there are only a handful of things you need to know. 1. Each complaint has a caption reading “United States District Court, District of (name the jurisdiction e.g. Southern New York or Eastern California.) 2. Each complaint includes a caption indicating the name of the plaintiff, and the name of the defendant. The words “individually and in his official capacity” should appear after the name of the defendant judge. The words “Verified Complaint” should appear on the right side of the caption. Your caption should appear like this:
United States District Court
District of (State)
Civil Docket No. _______
vs. VERIFIED COMPLAINT
individually and in his/her official capacity as Justice of the Superior Court ) of [*****] County,
A couple of spaces below, you must begin to spell out your reasons for bringing your complaint to Court. Make an outline of your case. First, state your “Jurisdictional Basis” in Paragraph I. I usually write as follows:
I. Plaintiff claims federal jurisdiction pursuant to Article III § 2 which extends the jurisdiction to cases arising under the U.S. Constitution. Next you should write Paragraph II stating the precise Statutory Authority why you brought the case. If you are suing a state judge, you will state:
II. Plaintiff brings this suit pursuant to Title 42 U.S. Code § 1983 for violations of certain protections guaranteed to him by the First, Fifth, Eighth, Ninth and Fourteenth Amendments (select which apply) of the federal Constitution, by the defendant under color of law in his/her capacity as a judge in the Superior Court of (****) County.
If you are suing a federal judge, state:
“Plaintiff brings this action against (name), a federal judicial officer, pursuant to Title 28 U.S. Code § 1331, in claims arising from violations of federal constitutional rights guaranteed in the (fill in) amendments to the U.S. Constitution and redressable pursuant to Bivens v. Six Unknown Narcotics Agents 403 U.S. 388 (1971).”
Be aware that the issue of whether federal judicial officers can in fact be sued under this authority is unresolved, but my opinion is that there is a strong implication in the affirmative based on the language in many cases.
Your complaint should then have a section entitled “Parties”. The next two paragraphs would read:
III. Plaintiff (Your name) is a natural person residing at (Your address), (County), (State).
IV. Defendant is a Judge presiding at (fill in.)
Following this you must now describe your claim in detail, giving legal and factual basis for your case. This portion of the case is entitled “Statement of Case”
What kind of factual pattern would give rise to a successful claim under the federal civil rights law? Title 42 U.S. Code § 1983 reads as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities 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.
The burden of proof is upon the plaintiff to show that the defendant judge acted unconstitutionally or outside of his/her jurisdiction. If the judge engaged in an egregious discrimination against males in a divorce court, minorities in state criminal cases, members of an unpopular religious group in confrontation with government authorities and treated suspiciously in court or members of a “fringe” political group, these situations can give rise to a claim of denial of equal protection under the Fourteenth Amendment.
If a judge permits an ex parte attachment, i.e. seizure of real estate without giving you notice of a hearing in a state court proceeding, this is a deprivation of property without due process, violating the Fifth Amendment as well as the Fourteenth Amendment.
Ex parte restraining orders forcing men or women out of their homes based on abuse allegations in state courts are a primary and rampant example of violations of constitutional rights today, and certainly actionable in federal court.
The first ten amendments of the Bill of Rights are self explanatory. Violations of any of the rights described in these amendments give rise to causes of action, both against state judges under Title 42 U.S.C. § 1983 and arguably against federal judges in Bivens actions.
Pro se litigants should give a clear and concise description of what happened in chronological order, identifying the judge, the date, time, and place of his or her action, and specifying which acts violated which constitutional amendments.
The complaint finishes with a section entitled “Prayer for Relief.” In such a case you can ask for an injunction ordering another judge to so something, or to refrain from doing something. Successful use of these suits has been made to nullify attachments, end incarcerations, declare laws or court practices unconstitutional and scare the heck out of black robed tyrants with gavels. See Pulliam v. Allen, 466 U.S. 522 (1983).
I often phrase my prayers for relief as follows:
Wherefore plaintiff prays this Court issue equitable relief as follows:
1. Issue injunctive relief commanding defendant to . . .
2. Issue declaratory relief as this Court deems appropriate just.
3. Issue other relief as this Court deems appropriate and just.
4. Award plaintiff his costs of litigation.
Your name printed
City, State, Zip Code
Statement of Verification
I have read the above complaint and it is correct to the best of my knowledge.
Complaints are filed in the Civil Clerk’s Office in the United States District Court for your district.
Federal rules now allow for service of process by certified mail. You will be required to serve the defendant judge and also your state attorney general if you are suing a state judge.
The pro se road will be easier if you study the Federal Rules of Civil Procedure, obtain a Black’s Law Dictionary and familiarize yourself with legal research methods. You must also read the Local Rules of the Federal Court where you are suing, and learn Constitutional law fast.
Using a lawyer as a coach is helpful. Bear in mind that your lawsuit is disfavored because it is against a judge. Nevertheless, our system of “justice” is in such tough shape that suits against judges are a socio-political necessity.
Complaints should be photocopied, disseminated to the legislature, the media and political action groups.
Perhaps the cumulative impact of these suits will bring a healthy radical change for the American people.
The author is an attorney in private practice in Boston.
Post Office Box 90
Hull, Massachusetts 02045
Copyright ©1994 All Rights Reserved
NOTE: Please read article and cases related to Judicial Immunity before taking action.
Originally published by The Law Office of Bryan Fagan, PLLC Blog.
It has become a trend in recent years for courts in southeast Texas to mandate that parties must attend at least one session of mediation (and likely more) before they ever are able to have their case presented in front of a judge during a trial. As far as alternatives to having to go the “distance” in a contested child custody case, mediation is at the top of the list as far as places to go when you need a resolution to your case.
The benefits of meditation are many. You and your opposing party are able to take an active and participatory role in the process that will determine the outcome of your case. This is the case to an extent in a trial, but keep in mind you are only able to present evidence once you get in front of a judge. It is the judge who will be making the final decision in your trial.
Domestic violence and mediation in Texas
Child custody cases that involve domestic violence can be especially troublesome when taken in the context of mediation. For one, if you are the victim of acts of domestic violence as perpetrated upon you by the opposing party in your child custody case that you may not be able to negotiate to the fullest extent possible. This is often times the case because you are not only fearful of your own well-being during mediation but can also be “under the thumb” of the opposing party due to their role in supporting you economically. If you haven’t worked in a decade or more, how freely can you negotiate in mediation knowing that your well-being is tied up in the other person paying your bills?
It is for this reason that the requirement for you and your opposing party to mediate your case is waived in many southeast Texas courts when family violence is an issue. Furthermore, even if the requirement to mediate your case is not waived automatically due to family violence being involved, it can happen that if you object to having to go that the objection will likely be upheld by the judge.
In cases where there is domestic violence that has occurred between you and your opposing party do not be surprised if the judge takes extraordinary steps to ensure your protection. I have seen judges appoint third parties to attend mediation as an extension of the court in order to help prevent additional acts of violence from occurring. Many judges have “go-to” mediators who have specific experience one expertise in handling cases where there have been acts of domestic violence perpetrated by one party against the other.
If you have been the victim of family violence it is ultimately up to you whether or not you will attend mediation in your case. Some people believe that there are still benefits to be had with the process if, in fact, you feel that you can negotiate freely, considering the circumstances. On the other hand, you may feel constrained for multiple reasons and can choose to opt out of the mediation requirement of your court. Either way, this is a decision that is fact-specific and ought to be discussed at length with your attorney prior to arriving at a final decision.
International divorces- how where you’re from can impact your Texas divorce
In a city like Houston, it is not at all uncommon to encounter families who have one or both parents born internationally or at least have roots in another country. You may be in a position where you are currently living abroad while your spouse lives here in the United States. Or, you both may live here in the United States but you could own property in foreign countries. Your having had children may have created opportunities for you to visit family abroad more often. There are certainly numerous ways that your family could have international ties.
Family law in Texas becomes a tad more complicated when you consider the implications of an international divorce. The more diverse the set of facts and circumstances, the more crucial it becomes for you to be able to sort through them in a logical and clear-headed manner. In today’s blog post from the Law Office of Bryan Fagan, we will discuss this topic in greater detail.
What are the main issues relevant to an international divorce?
From my experiences, there are basically six topics that we have to discuss that relate in some way to an international divorce. Those issues would be jurisdiction, service of process, choice of law, discovery, property division and then the enforcement of the orders that are arrived at in the child custody or divorce case. While we can say with some confidence what the issues are that we need to discuss, the fact that they are all interconnected can make things more complicated.
Let’s take each of those six issues and discuss them in greater detail.
Jurisdiction- who gets to decide what?
If you are like most people who go through a divorce, you are likely chomping at the bit to have the important questions of your case decided. Who gets what property? How much child support are you going to have to pay? To what extent will you be able to see your children? These are all relevant questions that need to be answered. Unfortunately, they are questions that cannot be answered without first determining whether or not Texas has jurisdiction to hear the case. If, in fact, the state of Texas lacks jurisdiction to hear your case then you are in a position where you need to figure out what venue is appropriate.
Simply put, jurisdiction refers to a court’s authority to make rulings and issue orders in a specific legal matter that is brought before it. These rulings, in a divorce context, are usually tied to property rights and child custody. In an international divorce, you not only have to contend with the questions of whether or not Texas has jurisdiction over your case but whether or not any U.S. state has jurisdiction over your case.
Personal jurisdiction is the first issue that we have to tackle. Ask yourself whether or not you and your spouse have sufficient ties with Texas in the event that it is here that you want your case to be heard.
Next, you will need to determine whether or not a court in Texas has the authority to handle your divorce case and all the issues that are connected to it.
Finally, it could be the case that Texas and another jurisdiction both have equally strong claims to hearing your case. In that event which court should and would your case be heard in?
From the beginning of your case until its end, these are the dominant themes and questions that you will be asking yourself. The difficult part of the process is that determining jurisdiction is not always a straightforward issue. A judge in Texas may have jurisdiction over your case while a judge in another country may have an equally strong claim to having jurisdiction. In those type of situations, you and your attorney will need to determine where your case ought to be filed from a strategic standpoint.
What country’s laws should apply to your international divorce?
Family laws differ significantly from state to state in our country so I’m sure it wouldn’t surprise you to find out that the laws of divorce can vary even more so from country to country. Once you have determined which court will actually be hearing your case the next question that needs to be asked is what set of laws will be determining the contested issues in your case.
First of all, how will you file for divorce? Do you need to assert “fault grounds” for your divorce? Texas allows you to file for divorce for any reason under the sun- including no particular reason at all. However, some foreign countries do not allow you to do so. Will you need to prove adultery or domestic violence in order to get your divorce if you have to file in an international divorce?
Next, does the law of the country that will govern your divorce require that you divide the property up in your divorce along with a 50/50 basis? Texas is a community property state that, absent other circumstances, will usually require a fairly even split of the marital assets (property that came into being during the course of your marriage).
Will prenuptial or postnuptial agreements be honored?
The concept of prenups has become fairly well known through our popular culture in the United States. Coming to an agreement with your spouse-to-be while you are still on good terms regarding certain property related issues is a good idea in the eyes of the State of Texas and property agreements like this are honored in most cases.
This may not be the case for your foreign courts. When considering where you should file your divorce and attempt to establish jurisdiction this is a question you need to ask yourself: whether or not you have come to an agreement on a premarital or post-marital agreement. If you have done so it would be unwise to file for divorce in a jurisdiction that would not honor the agreement.
Spousal maintenance: to pay or not to pay?
If you are in a position where you will need to be requesting spousal maintenance be paid from your spouse to you at the conclusion of your divorce you need to do your homework to determine what laws are most favorable in this regard. Texas only recently began to allow judges to impose orders regarding the payment of spousal maintenance. Even then, these payments are typically only allowed for a relatively short period of time and under limited circumstances. The length of your marriage, for instance, must be at least ten years and you must also show that you cannot provide for your minimal basic needs otherwise.
Service of process issues for international divorces
Typically, when you file for divorce in Texas you will have a constable or private process server pick up the divorce paperwork from the courthouse, drive out to your spouse’s residence or business and have him or she served personally with notice of your lawsuit having been filed. The process can take a few days but it is typically a low-key and simple transaction to complete. It is important, nonetheless, because your case cannot proceed without your first having provided notice of the lawsuit to your spouse.
There are international treaties that are in effect that govern how you can provide notice to any person who is a resident of a country that has signed on to that treaty. While the United Nations has a treaty in place that governs this subject, each member nation interprets its contents a bit differently. From personal experience, I can tell you that this step is one that can delay a case for weeks and even months. You are best served by hiring an attorney who knows how to quickly and correctly serve an opposing party with an international service of process.
More on international divorces to be posted tomorrow
In tomorrow’s blog post from the Law Office of Bryan Fagan, we will discuss more issues related to divorce from an international perspective. In the meantime, if you have any questions about the material that we have covered please do not hesitate to contact the Law Office of Bryan Fagan. We offer free of charge consultations six days a week with one of our licensed family law attorneys. It would be an honor to meet with you to discuss your case and answer any questions you may have.
Our attorneys and staff share a commitment to putting your interests ahead of our own and to provide the best legal representation of any family law attorneys in southeast Texas. To find out what sets us apart from our competitors please give us a call today.
Originally published by The Law Office of Bryan Fagan, PLLC Blog.
Many people who go through child custody cases do so with the initial motivation to not have to live with their child’s other parent. There are always reasons for this but they tend to be fairly similar across the board: money fights, infidelity, etc. The fact is that people seem to be less and less likely to work on a failing relationship and instead opt to exit.
The ironic part about ending your relationship with your spouse or significant other is that if you have a child with that person you will actually be working closely with him or her on parenting your child after the case is over then you may have been doing before.
Co-parenting is one of those phrases that is used a lot these days by therapists, attorneys, and judges. It is a term that basically indicates two people coming together to parent a child who is not married or otherwise in a committed relationship. It’d be like if two business partners decided to adopt a child and then had to make decisions about raising the child based on a business agreement. In many ways, your Final Decree of Divorce or Final Orders in a Suit Affecting the Parent-Child Relationship (SAPCR) is exactly that.
Today’s blog post from the Law Office of Bryan Fagan will focus on your ability to co-parent your child with your ex-spouse after your child custody case has concluded.
Conflict can be minimized if you put your best effort into co-parenting
It is healthiest for your child when you do your best to work with your ex-spouse during and after your child custody case in order to make decisions together that are in your child’s best interests. Keep in mind that if there has been a history of domestic violence, substance abuse, a history of cooperation issues or even a significant distance between your residences, co-parenting may not be possible. However, for most of you reading this blog post-co-parenting is not only possible it is essential to your being able to give your child his or her best opportunity to be raised in a stable environment.
The comparison I used in the opening section to this blog post, that of a businessperson being compared to a parent, is actually quite apt in my opinion. It is hard to think about yourself, not as a loving caretaker, but rather as an objective, results-oriented businessperson but that is what you become once you enter into a family law case. The rules that govern your relationship with your ex-spouse and your child are written in black and white almost as if it were a business contract. It is, in fact, a contract of sorts between yourself, your ex-spouse and the judge.
Communication is the key to any good relationship. It may not be possible at this stage to communicate as effectively as you would like with a person who you are divorcing but it essential that you make an effort to start anew for the betterment of your child. If you can be positive with your ex-spouse about your efforts to co-parent each of you will be better served in doing so. Not only will your final orders require that you behave in such a manner, but the well-being of your child demands that you make an attempt to act civilly.
Conflict is normal- don’t be normal
If you were to ask a judge if it were normal for two divorcing parents to not get along with one another the response would surely be that, yes, it is normal. That normal back and forth of arguing, anger and conflict work against the successful resolution of a case and can also harm your relationship with your child. In these situations, it is worth noting that it is those parents who can be “weird”, set their differences aside and do what is best for their child that judges will give the most latitude to in terms of possession arrangements. If you display an unwillingness to co-parent it may be that your possession schedule is by the book and very rigid.
Most counties in southeast Texas require divorcing parents to attend, either via the internet or in person, parenting courses that will teach you how to approach your ex-spouse in terms of co-parenting. Setting aside your differences and approaching your new relationship as one where your only objective is to do what is best for your child is what I find parents do the best with.
How will a judge determine your ability to co-parent?
No matter how strongly you dislike your soon to be ex-spouse, a judge will not care about your feelings towards him or her as far as your own pride or hurt feelings are concerned. Rather, the judge will view your relationship with one another as a means to best raise your child. The question remains: how will the judge view you and your ex-spouse as a team in raising a child together?
Do you and your ex-spouse work together to make decisions that are in the best interests of your child? Have you displayed an ability and willingness to set aside time to talk to one another about the issues that are affecting your child’s life? If you can report that you and your spouse talk on the phone weekly about activities the child is involved with, changes in your work schedule that affect drop off/pick up times, and subjects like these it is more likely that your judge will view you and your spouse in a favorable light.
Next, what kind of restraint are you able to show your ex-spouse when you are feeling upset with him or her? It is easy and can feel good momentarily, to lash out in anger at your spouse while the divorce case is going on. I have heard many stories about spouses leaving nasty voicemail messages, text messages or saying mean and spiteful things to one another during a divorce case. The pressures of the case can be significant so it would be understandable to want to lash out at one another. However, if you can show restraint and civility you will earn points in favor of your case with the judge.
How often have you used your child as a messenger or go-between? Obviously, if you are the parent of an infant or toddler this probably hasn’t come up very much, but if your child is over the age of six it can be tempting to tell your son something so he can repeat it to your spouse when he goes over to his house for the weekend. This may be easier on you, but it is not a good position to be putting your child into. Furthermore, the judge does not want you and your spouse involving your child in this aspect of your case. In today’s world, we do not suffer from a lack of means to communicate information. Even if you do not want to speak directly to your spouse, email, text messages, and parenting websites make communicate easier than ever. Do not use your child to communicate updates or messages when you have a variety of means available to you in order to do so.
Next, I would ask yourself how willing you are to support your child’s relationship with your soon to be ex-spouse. This does not mean that you have to sing your ex-spouse’s praises to your child every time you see him or her. What it does mean is that your being respectful of your child’s other parent can not only build up that person in your child’s eyes but can also build yourself up. Your child is learning from you how to treat other people. If you can act respectfully towards your ex-spouse it is likely that you will act respectfully of all people. Your child will feel that it is appropriate and encouraged that he has a relationship with both you and your ex-spouse.
Finally, you need to be aware of your ex-spouse and their desire to be updated about changes in a child’s routine or daily habits. For instance, if your child has been having problems eating certain foods or has had a bad reaction to a certain sunscreen that information ought to be included to your ex-spouse. Not only is it harmful to your child it shows a lack of respect by not addressing these issues with him or her. Furthermore, if you know that your ex-spouse is taking off of work to attend a school function or doctor’s appointment you should inform him or her immediately if you are told that there has been a time change or something like that. Failing to do so can cause a great deal of animosity to be directed your way- and rightfully so.
Where do you want to live once your divorce is over with?
In today’s world, it is common for people to pick up and move at the drop of a hat. Jobs are no longer tethered as tightly to one specific location. Many employers prefer that employees work remotely and therefore have little preference as to where you live. Telecommuting seems to be the wave of the future in many jobs and sectors of the economy.
It is possible to co-parent despite living a fair distance away from your ex-spouse. Communication has never been easier with cell phones, text messages, emails and the like prevalent even among those (like myself) who are not overly tech-savvy. Whether or not a judge will allow you to move a long distance away from your child’s primary residence, or to move with your child away from your current location, is a question that depends on the specific circumstances of your case.
For example, wanting to move in order to “start fresh” or establish roots in another place are not good enough reasons in and of themselves for moving. Not only are you decreasing the stability and consistency in your child’s life (at least temporarily) but you are also causing there to be a potential rift in your child’s relationship with your ex-spouse. It would not be fair to be able to move your child away from their home and your ex-spouse for no other reason than merely wanting a fresh start somewhere new.
Next, the age of your child would need to be considered. If your child is young and has not yet started attending school on a full-time basis the chances of a judge allowing you to relocate after a divorce are increased. However, if your child is already of school age it is far less likely that a judge would endorse and allow you to move away with your child after the case has concluded.
Finally, and most important, it is almost a foregone conclusion that your ex-spouse’s relationship with your child would be harmed if you moved a considerable distance away. It would also force your ex-spouse to pick up and potentially move to be closer to your child. For this reason, most courts will insert what is known as a geographic restriction into your final orders that allows you to live in your home county and any county contiguous to your home county. This allows for greater consistency and stability for your child while ensuring that your ex-spouse does not have to constantly move to keep up with your child’s whereabouts.
What issues are the most commonly encountered in child custody cases?
Those who don’t know history are doomed to repeat it. What lessons can you learn from other people’s child custody cases that are relevant to you and your family? Stay tuned tomorrow to find out the answer to this question.
In the meantime, if you have any questions about the material that we covered today please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week where we can address your issues and answer your questions in a comfortable, pressure-free environment.
Mitchell Papers and Protests Lead to Indictments
After accepting plea deals, the Henriquezs are rumored to be consulting with divorce attorneys at McManis Faulkner and Hoover Krepelka Law Firms. The cheating scandal is rumored to be a ” boom for Silicon Valley divorce lawyers”. Sources report Silicon Valley divorce attorneys have been overheard discussing new potential clients flooding into their offices and how these lawyers are planning on ratcheting up overbilling and deceptive business practices that will include: duping clients into private judging cases and kissing up to get court appointments as minor’s counsel and custody evaluators in divorce or custody cases.
REAL ESTATE SCAM EXPOSED: Contra Costa County Assessor Gus Kramer Indicted Exposes DA Office and Supervisor Corruption
While seemingly unrelated, the indictment and disbarment of Contra Costa County DA Mark Peterson appears to have unraveled systemic corruption in California’s courts and politics that reveals systemic failures that have harmed families and two generations of children.
A former Contra Costa County Grand Jury involved in a CPS investigation, provided an off record account of how a grand jury investigation linked public corruption in Solano, Contra Costa, Santa Clara and Orange County to lawyer- doctor and former Contra Costa Supervisor Jeff Smith, who is now the county executive in Santa Clara County:
May 2018- Grand Jurors were first alerted to problems when parents marched on the streets of the sleepy Bay Area bedroom community of Walnut Creek. No arrests were made , but over 500 parents picketed, marched and protested from a community park to the steps of a courthouse where they claimed corrupt CPS workers and three female judges were involved in trafficking children after their parents were forced through a corrupt court system. Judges at the focus of the march were Fannin, Hardie and Haight .
Summer 2018- Judge Bruce Mills, reportedly been on the take for bribes delivered in the form of real estate deals and cash kickbacks assured by nefarious slumlord John Evilsizor , resigned from the Contra Costa bench after the CJP closed in on Mills in a 5th investigation related to the improper jailing of Evilsizor’s former son- in-law in a custody case Mills presided over for several years.
This was also the time when parents returned to Contra Costa and marched on the streets of Martinez, through the downtown , civic center, the steps of the courthouse and where they pounded on the doors of the District Attorney’s Office, despite DA Mark Peterson having been indicted, disgraced and disbarred a year earlier.
September 2018- it was revealed that DA Mark Peterson had been working to catch and kill complaints about county assessor Gus Kramer, a corrupt politician who reportedly turned a blind eye when it came to real estate complaints arising from the county’s family court cases.
February 2019- Parents had garnered enough support to get the recall of Judges Hardie, Fannin and Haight on the local ballot, but an attack and complaint filed to the FPPC by a judge lobbyist derailed the plan. The lobbyist reportedly focused on the Contra Costa group because of the wide spread media attention the group got, and following the landslide vote in Santa Clara County, that had recalled Judge Persky on June 5, 2018, after a successful political campaign was led by Stanford professor Michele Dauber.
HOW THEY GET THE FAMILY HOME
Converting home equity into cash for attorney fees in divorce cases was something that had been mastered in Santa Clara and San Mateo counties, but Contra Costa was late to the Silicon Valley home equity party, given its more remote location and longer commute to the Google, Facebook and other tech giant campuses.
As parents picketed and protested in Contra Costa, they fought judicially corrupt family courts in Solano County by launching a recall of Judge Carringer in 2017, which did not go to vote, and which was turned into an impeachment request to the State Assembly in April of 2018.
It was in Santa Clara County, where Jeff Smith hung his new employment shingle, that Stanford University Law Professor Michele Dauber launched a successful political campaign to recall Judge Aaron Persky. It is said that from 2016- 2018 Dauber had the help and assistance of DA Jeff Rosen, DDA Terry Harman. Alah Kinerci, Cindy Hendrickson and Luis Ramos, but she also had the help of executives at Google, Facebook and Twitter based on connections her husband Ken Dauber had as a Google executive serving on as a Board Member on the Palo Alto School District. It is also believed that Dauber had assistance from the Supervisors, Cindy Chavez, Joe Smitian, Ken Yeager, Dave Cortese and Mike Wasserman, who allowed DA Rosen to let angry #metoo mobs drown out parents seeking to bring attention to the county’s unscrupulous judges including Judge Maureen Folan, Judge Vincent Chiarello, Judge James Towery, Judge Mary Ann Grilli, Judge Julie Emede, Judge Roberta Hyashi, Judge Beth McGowan, Judge McCracken, Judge Cynthia Lie, and Judge Stuart Scott.
By early 2017, court clerk David Yamasaki had moved from Santa Clara’s courts, to Orange County, where he was reportedly working to cover up construction fraud and family court fraud arising from the county’s private judging cases before retired Judge David Weinberg, Judge Moss, Judge Larsh and Judges employed through JAMS . No recalls had occurred in Orange County however former DA Tony Rackauckas was ousted by voters who put Todd Spitzer in the DA’s office as voters demanded Spitizer begin looking at the county’s family courts and real estate scandals rising from the family courts.
Grand Juror Leaks Investigation Techniques
” We interviewed the parents and protest organizers” , explained the former Contra Costa Grand Juror, ” That led us to issue the CPS report by the summer of 2019″
A copy of the report can be seen at this link.
“Simultaneously we looked at the county assessor where these corrupt real estate deals appeared to be being concealed and protected. We knew Gus Kramer had an alliance with the former DA Mark Peterson, and once Peterson was disbarred and indicted, Kramer had no more shield, so we nailed him.”
As to the systemic corruption, the former Grand Juror had this to say:
” Look we know it is bad, but we are not the worst. The worst corruption is coming from Santa Clara and Orange Counties. The State Bar, and all of the watchdogs charged with protecting the public are afraid to touch those counties, after all, they have planted Google. Facebook and Twitter investors, founders and shareholders in their courts, contracts and Supervisor’s pockets.
“It was an interview we did with a former hospital employee who was familiar with Jeff Smith that made us realize how dangerous Santa Clara County has become and we just couldn’t go there”.
Mitchell Papers: Real Estate Corruption Linked to Family Court Lawyers and Judges
Before ending the interview, the former Grand Juror noted they had reviewed what are being called the Mitchell Papers. The papers show cash payments made to cops, judges and lawyers like something out of a Chicago mobster movie. The local bar association appears to be the shell organization feeding the enterprise where billions, NOT millions, of dollars are being converted in family law cases to pay lawyers who are paying off judges, private judges and other lawyers by paying down home equity lines of credit on the homes, rental properties and vacation homes of those operating what is clearly a criminal enterprise.
For example, the county assessor in Santa Clara, Larry Stone, is known for his flagrant extra marital affairs, yet the grand jury, DA and Supervisors have left Larry Stone alone. Stone, who started out in small level government in Sunnyvale, became obsessed with power and connections to the Democratic party in the county. A party that essentially runs the state. Stone also continued to flaunt his extra martial relationships which have been actively concealed from his wife by Walter Hammon’s wife, Meri Maben, and newly elected Supervisor Susan Ellenberg.
Stone, who is nearly 80, had a home nearly paid off, but now carries a $600K loan. It is rumored that Jeff Smith’s right hand man, Steve Preminger, assures these loans are paid off with deferred payments when nobody is watching, and it is divorce attorney Walter Hammon who is brining in divorce clients high level Silicon Valley connections at YouTube, Paypal, Facebook, Google Twitter , Nvidia and even the Department of Justice that makes sure this enterprise remains in tact and meeting bribe and payment obligations.
Steve Preminger, Jeff Smith’s top aide, was recently reported as working with tech and social media executives to assure Santa Clara County Supervisor Dave Cortese could knock out his political opponents by shadow banning social media accounts and burying political adversaries or court reform candidates in search engines powered by Google.
In closing, the grand juror noted:
“All local governments have the potential to be corrupted. When the grand jury doesn’t look, the DA’s don’t indict and the Supervisors or city managers are complicit, the courts will be corrupted and people will rise up and march in the streets as they did in our sleepy little town of Walnut Creek. We tried to do something about it, I hope it wasn’t too little , or too late.”
Originally published by The Law Office of V. Wayne Ward.
For generations, Americans tended to (or at least aspired to) get married, buy a house, and have kids—in that order. For many reasons, economic ones particularly, the millennial generation hasn’t fallen into that pattern. This change in the order of big life events brings changes to the legal world as well, at least in the context of divorce.
Financial Struggles Lead Millennials to Delay Marriage & Home Purchases
The youngest millennials are now entering their mid-20s. The older members of the generation are approaching 40.
Older millennials were impacted heavily by the Great Recession, which struck as many of them were graduating college and trying to start a career. Those who did find work often found it lower paying than they were counting on, due in part to a challenging job market where older workers, whose retirement accounts took big hits during the Recession, stayed on the job instead of retiring.
Burdened by huge student loan debts and skyrocketing housing prices in most large cities, many millennials found that the only way they could save enough to buy a home was to move in with their significant other. But they did not necessarily feel the need to get married, often reaching the homebuying milestone before decided to marry.
An Example Scenario
Let’s use an example to illustrate how a millennial couple might progress through their relationship (and what happens when the relationship ends).
Lisa (33) and Brian (35) were in a relationship for nine years before they married. Brian proposed to Lisa seven years into the relationship.
About a month after they got engaged, Brian bought a house. He took out a mortgage in his name only, and his name was the only name on the property deed. The couple intended that the house would be for both of them, and they decided together that buying before marriage made financial sense.
After closing, Brian and Lisa moved in together. They lived in the house for about a year, and then got married. Before the marriage, they each paid half of the mortgage and bills from money in their own personal accounts. After the wedding, the couple opened a joint account and paid from that.
After two years of marriage, Brian filed for divorce. The question is: what rights do Brian and Lisa each have to the house?
How Texas Law Applies to This Scenario
Texas is a community property state, so the house is treated as Brian’s separate property because he bought it before marriage and his name is on the deed. As a result, the judge will not award the house to Lisa.
Can Lisa seek reimbursement of any house payments? Well, each party was paying half the mortgage before marriage. Most likely, Lisa’s payments would be considered gifts to Brian and she is unlikely to be reimbursed for these pre-marriage payments.
Now, the mortgage payments made during the marriage are a different story. Lisa can request reimbursement for her portion of those payments, because they were made with “marital funds.” She would argue that Brian’s estate benefited from those marital funds, which were partially hers, so she should get money back.
However, under Texas law, Lisa would only be entitled reimbursement of funds that were allocated to mortgage principle, not to mortgage interest. The judge would have full discretion to decide how much Lisa receives.
Cohabitation Agreements Can Help in These Scenarios
Unmarried millennial couples (and any other unmarried couple) can protect themselves and their property better than Brian and Lisa did by creating a cohabitation agreement. Such a document could have stated that Lisa would get full reimbursement for mortgage payments made before marriage. This would prevent her from having to start over financially after the breakup.
The attorneys of the Law Office of V. Wayne Ward in Fort Worth can advise you on cohabitation agreements and all other legal issues affecting the end of any relationship. Contact us anytime to arrange a confidential attorney consultation.
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