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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.
"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 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.)
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:
John Doe,
Plaintiff
vs. VERIFIED COMPLAINT
Bobby Roe,
individually and in his/her official capacity as Justice of the
Superior Court ) of [*****] County,
Defendant
JURISDICTIONAL BASIS
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.
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"
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.
Respectfully submitted,
(Your signature)
Your signature
Complaints are filed in the Civil Clerk's Office in the United States
District Court for your district.
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.
Constitutional Business
Post Office Box 90
Hull, Massachusetts 02045
Tel. 617-925-5253
Fax 617-925-3906
Copyright ©1994 All Rights Reserved
Limited License:
The right to publish this article off-line in print, or via CD-ROM,
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otherwise, can only be granted by the author and must be in
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limited license, is published in its entirety.
The Judicial Doctrine of Immunity
"Immunity applies even when the judge is accused of acting
maliciously and corruptly." -- United States Supreme Court
See Harlow v. Fitzgerald, 457 U.S. 800, 815-819 (1982) Pierson
v. Ray, 386 U.S., at 554, Mireles v. Waco, 502 U.S. 9, 9-10, 112
S.Ct. 286, 287, 116 L.Ed.2d 9 (1991).
The appropriate role for a judge to play in a jury trial has been the
subject of a number of appeals. Listed below are several rulings
dealing with judges conduct during trials. Read carefully and you
will see how rules of conduct are "creatively" interpreted and, in
some cases, actually negated as a result.
Courts have said a trial judge must always remain fair and
impartial. Kennedy v. Los Angeles Police Dep't, 901 F.2d 702, 709
(9th Cir. 1989). "He must be ever mindful of the sensitive role [the
court] plays in a jury trial and avoid even the appearance of
advocacy or partiality." Id. quoting United States v. Harris, 501
F.2d 1, 10 (9th Cir. 1974).
"A judge's participation [in the trial] justifies a new trial only if the
record shows actual bias or leaves an abiding impression that the
jury perceived an appearance of advocacy or partiality." Laurins,
857 F.2d at 537
v.
OPINION
Appeal from the Superior Court, Third Judicial District,
Anchorage, Karl S.
Johnstone, Judge.