NAPA FAMILY COURT
You have a California Constitutional Right to be heard by a Judge appointed by the people and to Not stipulate to be heard by a Commissioner.
I highly suggest that you Do Not Stipulate to be heard by Commissioner Williams.... he has skirted the law buy repeatidely not obtaining stipulation in advance of a hearing! He may change if he sees this document... and that would be good.
When you file a compliant, I recommend that you present to the clerks office in a written documentation that specifically's request that your case be heard by a Judge who was appointed by the people! That is your RIGHT!
Judge = Elected by the People for the People
In Brief: Judge vs Commissioner
California Consitution = Right to be heard by a Judge. A Judge is also known through Ca Penal Code 807 & 808
California Penal Code Section 807
- A magistrate is an officer having power to issue a warrant for the arrest of a person charged with a public offense.
California Penal Code Section 808
The following persons are magistrates (ie Judges):
(a) The judges of the Supreme Court.
(b) The judges of the courts of appeal.
(c) The judges of the superior court.
Court commissioners have the power to act as temporary judges by stipulation of the parties (if you don't stipulate, then a Judge must hear your case) . The jurisdiction of a court commissioners, or any other temporary judge, to try a cause derives from the parties = stipulation. In the absence of a proper stipulation, a judgment entered by a court commissioner would be void. In re Horton , 54 Cal. 3d 82, 90 (1991).
Per Napa Register Nov 26, 2009
- for a fair proceeding. "....... they're entitled to an elected judge," Davis said. "These cases are really, really important to each defendant that walks to the door, and they need to be taken seriously."
- Presiding Judge Raymond Guadagni said
"From the court's point of view, we recognize that Terry Davis has a constitutional right to not stipulate to the commissioner, and we recognize that right, so I've just made the changes the best I can," he said.
In terms of how they work, and their knowledge of the law, and how they get paid, there is no difference between judges and commissioners.
However, Judges are "elected officials" and you have a right to have your case heard by someone who was elected by the People. The theory goes, that someone who's been elected is someone who the People trust to resolve both Criminal and Civil matters.
A Commissioner is appointed to the bench by the Presiding Judge of the court. They are like "substitute" teachers, taking up the slack when a judge is ill, or otherwise cannot appear on the bench. They are also used when, on a regular basis, a particular courthouse has a shortfall of judges for all of the courtrooms. That's why some Commissioners are assigned to a particular courtroom.
Commissioners are still used quite frequently; but because they are not elected officials, you have a constitutional right to have someone who the People chose to sit at a bench to make judgments.
A judge is a person who has been legally appointed or elected to the bench (depending upon the jurisdiction). In California, although the Governor may make interim appointments, all judges must stand for election, and be re-elected every few years. A judge has the legal power to act in any case brought before him or her.
Commissioners are attorneys who are hired by the court (in California, every county has a superior court), and they are authorized to perform "subordinate judicial duties." They can perform judicial duties involving the determination of contested issues only upon the stipulation of the parties, but with that stipulation they have the same powers as judges.
California Constitution, article VI, sections 21 & 22
30 years as a criminal defense attorney
California Code Of Civil Procedure Section 259
Subject to the supervision of the court, every court commissioner shall have power to do all of the following:
(a) Hear and determine ex parte motions for orders and alternative writs and writs of habeas corpus in the superior court for which the court commissioner is appointed.
(b) Take proof and make and report findings thereon as to any matter of fact upon which information is required by the court. Any party to any contested proceeding may except to the report and the subsequent order of the court made thereon within five days after written notice of the court's action. A copy of the exceptions shall be filed and served upon opposing party or counsel within the five days. The party may argue any exceptions before the court on giving notice of motion for that purpose within 10 days from entry thereof. After a hearing before the court on the exceptions, the court may sustain, or set aside, or modify its order.
(c) Take and approve any bonds and undertakings in actions or proceedings, and determine objections to the bonds and undertakings.
(d) Act as temporary judge when otherwise qualified so to act and when appointed for that purpose, on stipulation of the parties litigant. While acting as temporary judge the commissioner shall receive no compensation therefor other than compensation as commissioner.
(e) Hear and report findings and conclusions to the court for approval, rejection, or change, all preliminary matters including motions or petitions for the custody and support of children, the allowance of temporary spousal support, costs and attorneys' fees, and issues of fact in contempt proceedings in proceedings for support, dissolution of marriage, nullity of marriage, or legal separation.
(f) Hear actions to establish paternity and to establish or enforce child and spousal support pursuant to subdivision (a) of Section 4251 of the Family Code.
(g) Hear, report on, and determine all uncontested actions and proceedings subject to the requirements of subdivision (d). Section: 259
Last modified: January 12, 2009
California Law Revision Commission Submission
SUBORDINATE JUDICIAL OFFICERS AND MAGISTRATES BACKGROUND MEMORANDUM
(January 4, 1999)
The Commission's report on Trial Court Unification listed as a subject for continuing study the topic of "magistrate as judicial officer of the state or judicial officer of a particular court." The topic was suggested because of some ambiguity in statutes dealing with preliminary hearings as to the precise nature of the magistrate's function and status. Upon further discussion and investigation, it was decided to expand the topic somewhat to encompass the status of subordinate judicial officers. This memorandum is intended to provide preliminary background information regarding magistrates and subordinate judicial officers.
Magistrates are quasi-judicial officers who perform certain constitutionally and statutorily defined functions in connection with the criminal justice system. There is no single, over-arching definition or listing of magistrates' powers, or even of who can be a magistrate. Magistrates are, in short, sui generis . As will be discussed, a magistrate is not a judicial officer of a particular court and does not exercise any court's trial jurisdiction. Instead, magistrates are judicial officers of the state.
Generally, only judges can act as magistrates. Penal Code ' 808. In very limited circumstances, some commissioners are authorized to exercise some portion of a magistrate=s power.
If courts in all counties unify, it is doubtful whether any useful purpose would be served by retaining the separate designation of Amagistrates.@ The term was convenient when there were multiple trial courts since it permitted preliminary hearings and certain other routine criminal justice functions (e.g., warrants, bail, and arraignments) to be performed by judges from so-called Ainferior@ courts who were designated as magistrates. If all courts unify, however, there will be no Ainferior@ courts, and those functions will necessarily be performed by superior court judges acting in their role as magistrates. The entirely symbolic and seamless changing of roles between magistrate and superior court judge will serve no useful purpose.
In a fully unified state, the term Amagistrate@ can continue to have significant value only to the extent that someone other than superior court judges can exercise the powers of a magistrate. Under limited circumstances under current law, some commissioners are authorized to exercise some magistrate power. The question for consideration is whether all commissioners should be given general authority to act as magistrates. If this were done, the term Amagistrate@ would retain meaning and utility since it would permit commissioners to exercise a well-defined but limited role in criminal justice proceedings.
Status and Function
The two most general provisions defining a magistrate's powers are found in the California Constitution and in Section 807 of the Penal Code. According to Article I, Section 14 of the California Constitution, A[f]elonies shall be prosecuted as provided by law, either by indictment or, after examination and commitment by a magistrate, by information.@ See also Penal Code ' 806 (proceedings before a magistrate). Section 807 defines a magistrate as an officer having power to issue a warrant for the arrest of a person charged with a public offense.@
Originally, Section 808 of the Penal Code designated as magistrates justices of the supreme court, district judges, county judges, the judge of the municipal criminal court of San Francisco, justices of the peace, and police magistrates in towns or cities. In 1880, the statute was amended to add judges of the superior courts and omit district judges, county judges and the judge of the municipal criminal court of San Francisco. Over the years, the statute was amended at various times to add judges or delete judges. Today, Section 808 of the Penal Code designates as magistrates judges of the Supreme Court, courts of appeal, superior courts, and municipal courts. Section 809 provides that A[t]he night-time commissioner of the Santa Clara County Superior Court shall be considered a magistrate for the purpose of conducting prompt probable cause hearings for persons arrested without an arrest warrant as mandated by law.@
The limits of a magistrate=s function were outlined in an 1897 California Supreme Court case that still is good law:
A superior judge, when sitting as a magistrate, possesses no other or greater powers than are possessed by any other officer exercising the functions of a magistrate . . . . The office is purely a statutory one, and the powers and duties of the functionary are solely those given by the statute; and those powers are precisely the same, whether exercised by virtue of one office, or that of another . . . . As such magistrate, he is purely a creature of the statute. People v. Cohen , 118 Cal. 74, 78 (1897).
In 1986, the Third District Court of Appeal noted that when a judge acts as a magistrate, he does not do so as a judge of a particular court but rather as one who derives his powers from the provisions of Penal Code Sections 807 and 808. People v. Superior Court , 187 Cal.App.3d. 648, 654 (1986). The court noted that the appellate jurisdiction of the superior court over inferior courts does not include the orders of a magistrate, which cannot be appealed because the term Ainferior court@ does not encompass a municipal or justice court judge sitting as a magistrate. Id. AThis is a limitation arising out of the nature of the office of magistrate.@ Id.
The Second District Court of Appeal in 1967 noted, ABy initiating proceedings before magistrates, no trial jurisdiction of any court is invoked.@ People v. Scofield , 249 Cal.App.2d 727, 735 (1967).
Witkin has written two pertinent sections on magistrates:
The magistrate's principal functions, normally exercised by municipal and justice court judges, are issuing arrest warrants, fixing and granting bail, conducting preliminary examinations, and conducting peace bond proceedings. 4 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Sec. 1809, p. 2142.
A distinction is made in criminal cases between a court or judge and a magistrate. Judges of the various trial and appellate courts are magistrates, exercising special statutory powers of the office, e.g., conducting a preliminary examination of a person charged with a felony by information. When sitting as a magistrate, the judge is not acting as a court or judge, and has only those special statutory powers. 2 Witkin, Cal. Procedure (4th ed. 1996) Courts, Sec. 25, p. 49.
A magistrate issues arrest warrants (Penal Code '807), search warrants (Penal Code '1523), bench warrants (Penal Code '881), and warrants of commitment (Penal Code '1488); sets bail (Penal Code '815a), conducts the preliminary hearing and binds the defendant over for trial or releases him at the conclusion of the hearing (Penal Code '858 et seq.); and has authority to conduct peace bond proceedings (Penal Code '701-14). Section 810 of the Penal Code requires each superior court to designate an on-call magistrate to handle search warrants, discharges on bail, and other matters when court is not in session.
A series of code sections about the AExamination of the Case,@ Penal Code Sections 858-72, outlines the procedure for the preliminary examination and for disposition by the magistrate depending upon whether probable cause is found. The United States Supreme Court explained the procedure in Press-Enterprise v. Superior Court , 478 U.S. 1, 11-12 (1986):
In California, . . . . [e]ven when the accused has been indicted by a grand jury . . . he has an absolute right to an elaborate preliminary hearing before a neutral magistrate. The accused has the right to personally appear at the hearing, to be represented by counsel, to cross-examine hostile witnesses, to present exculpatory evidence, and to exclude illegally obtained evidence. If the magistrate determines that probable cause exists, the accused is bound over for trial; such a finding leads to a guilty plea in the majority of cases.
[U]nlike a criminal trial, the California preliminary hearing cannot result in the conviction of the accused and the adjudication is before a magistrate or other judicial officer without a jury.
A number of officials may preside at arraignments, including magistrates.
Several code sections refer to defendants appearing before magistrates for arraignment. Penal Code '853.6, 859b, 991. The arraignment must be made by the court, or by the clerk or prosecuting attorney under its direction. Penal Code ' 988. As discussed more fully below, a commissioner of a municipal court may conduct arraignments if directed by the presiding judge. Gov. Code ' 72190.1.
A magistrate has little discretion in setting bail. The magistrate fixes the amount of bail at time of issuing an arrest warrant. Penal Code '815a. The superior and municipal court judges in each county prepare a uniform countywide schedule of bail for all bailable felonies, misdemeanors and infractions (except Vehicle Code infractions). Penal Code '1269b.
If a defendant has appeared before a judge on a complaint, indictment or information, bail is fixed by the judge at time of the appearance. If the appearance has not been made, bail is as fixed in the arrest warrant. If no arrest warrant has been issued, the amount of bail is pursuant to the bail schedule in the county. Penal Code '1269b.
Before a court reduces bail below the schedule for a person charged with a serious or violent felony, the court must find unusual circumstances. Penal Code '1275.
Magistrates have authority under Penal Code Sections 701 through 714 to conduct peace bond proceedings. In such proceedings, magistrates take an information that a person has threatened another person or another person=s property, issue an arrest warrant, take testimony, decide whether to release the person or to require him/her to provide an Aundertaking@ up to $5000 to keep the peace. The peace bond is good for six months and is renewable. If the person gives the bond s/he is discharged; if not, s/he goes to prison until he gives the bond. If a person released on a peace bond breaches the peace, the Aundertaking@ is broken and the district attorney will prosecute. The offense is called Abreach of undertaking.@
Witkin notes that this proceeding is designed to prevent commission of a crime and is not a criminal proceeding to punish for a crime; therefore, it does not come within the scope of the constitutional guarantee of a jury trial. 3 Witkin, Cal. Procedure (4th ed. 1996) Actions, '26, p. 82.
The cases governing peace bond proceedings are very old. In 1898, the California Supreme Court said:
The magistrate=s determination that there is just reason to fear the commission of the offense justifies his order in putting the accused person under bonds to keep the peace, and, in the event of his failure to give the required bonds, then to order him committed to jail. From this order no appeal lies. The justice=s [justice of the peace acting as magistrate] jurisdiction is as complete as it is in cases of battery, petty larceny, and other like misdemeanors. His conclusion is . . . a final determination upon the merits of the controversy and his order that the accused person stand committed contains all the essentials of a final judgment. Holliday v. Holliday , 123 Cal. 26, 32-33 (1898).
In 1919, after a defendant appealed a peace bond to the Superior Court, the Second District Court of Appeal noted:
[C]hapter 3, under which the proceeding was had before the magistrate, makes no provision for an appeal . . . . Hence it follows that the superior court acted in excess of its jurisdiction: First, in entertaining the appeal at all; and, second, assuming the order to be the subject of appeal, in making the order complained of without a trial de novo. Ross v. Superior Court of Imperial County , 39 Cal.App. 590, 592 (1919).
Writs of Habeas Corpus by individuals who are in prison for failure to pay a peace bond appear to go directly to the courts of appeal. See, e.g., In the Matter of George E. Satterthwaite , 32 Cal.App.2d 630 (1939).
One author has noted that AThe peace bond is an obscure and rarely applied provision in the statutes of most states.@ Sidney Childress, Peace Bonds -- Ancient Anachronisms or Viable Crime Prevention Devices? , 31 Am.J.Crim.L. 407, 408 (1994). The writer pointed out that equal protection doctrine eviscerates the usefulness of peace bond statutes against indigent defendants because the peace bond statutes specify a monetary requirement. Childress at 409.
The authority of court commissioners is derived from Article 6 of the California Constitution, Sections 21 and 22, which provide for temporary judges and for courts to appoint officers such as commissioners to perform subordinate judicial duties.
The powers and duties of court commissioners are outlined in the Code of Civil Procedure Section 259. The powers and duties of municipal court commissioners are found in Government Code Section 72190.
The legislature has provided that superior courts may appoint a specified number of court commissioners, depending upon the size of the counties, to help the superior courts dispose of their business connected with the administration of justice.
Generally, the powers and duties of court commissioners are:
1. to hear and determine ex parte motions for orders and alternative writs and writs of habeas corpus in the superior court,
2. to take proof and report findings as to any matter of fact on which information is required by the court,
3. to take and approve and determine objections to bonds and undertakings,
4. to administer oaths and affirmations, and take affidavits and depositions in any action, proceedings or matter,
5. to take acknowledgments and proofs of deeds, mortgages, and other instruments requiring proof or acknowledgment for any purpose,
6. to act as temporary judge when otherwise qualified to so act and when appointed for that purpose,
7. to hear and report findings and conclusions to the court for approval, rejection or change, all preliminary matters including motions or petitions for custody and child support, temporary spousal support and attorneys= fees, and issues of fact in contempt proceedings in proceedings for support, dissolution of marriage, nullity of marriage or legal separation,
8. to hear actions to establish paternity and to establish or enforce child and spousal support.
9. to hear, report on, and determine all uncontested actions and proceedings,
10. to charge and collect the same fees as notaries public,
11. to provide an official seal, and
12. to authenticate the commissioner,s acts with the official seal.
Cal. Civ. Proc. Code '259.
Court commissioners have the power to act as temporary judges by stipulation of the parties. The jurisdiction of a court commissioners, or any other temporary judge, to try a cause derives from the parties= stipulation. In the absence of a proper stipulation, a judgment entered by a court commissioner would be void. In re Horton , 54 Cal. 3d 82, 90 (1991).
Commissioners of municipal courts have the same powers as commissioners of superior courts and additional powers as may be prescribed by law. Gov. Code '72190. Municipal court commissioners may conduct arraignments, issue and sign bench warrants. Gov. Code 72190.1.
The line between the powers of judges that may properly be delegated to a court commissioner and those judicial powers which under the constitutional separation of powers are not so delegable is not always easy to define. A court commissioner has no power to appoint a receiver, to punish an individual by fine or imprisonment for contempt or to order discharge of attachment. 16 Cal.Jur.3d (Rev) Part 1 Courts '39.
Court Commissioners as Magistrates
The second district court of appeal has discussed the status of court commissioners and their relationship to magistrates:
A court commissioner is a judicial officer authorized by the California Constitution. The purpose of commissioners is to assist an overburdened judiciary with the performance of subordinate judicial duties. Under Penal Code section 808, all judges are magistrates. But Asection 808 does not make that an exclusive list. It does not say that other judicial officers cannot be magistrates.@ Branson v. Martin, 56 Cal. App. 4th 300, 305 (1997).
The court in Branson found that a commissioner acted as a magistrate in a traffic infraction proceeding. Id. at 306.
The issue of whether commissioners can be magistrates was addressed in two California Attorney General Opinions issued before the Branson decision. In 1978, the attorney general found that a commissioner of the municipal court who was sworn as a temporary judge of the municipal was not a magistrate and therefore could not issue arrest warrants or search warrants. 61 Ops.Cal.Atty.Gen. 487 (1978). The rationale was that Penal Code ' 808 does not list a temporary judge of the municipal court as a magistrate and, therefore, a temporary judge does not have the power to issue a search warrant or an arrest warrant. However, in a situation where a defendant on bail had stipulated to the use of a temporary judge, and then that defendant failed to appear, the temporary judge would have the power to issue a bench warrant. Id.
In 1984, the attorney general found that a municipal court commissioner who is not a temporary judge, when he or she is conducting an arraignment in a criminal case, may be assigned only subordinate judicial duties, which are duties not involving serious, complex or diverse issues of fact or law. 67 Ops.Cal.Atty.Gen. 162 (1984). Therefore, a court commissioner is prohibited from taking and entering a guilty plea at an arraignment. Id. However, a commissioner may take and enter a not guilty plea. Id.
The attorney general also found that the legislature has not authorized municipal court commissioners to conduct preliminary hearings in felony cases and that to preside over a preliminary hearing the municipal court commissioner must have the stipulation of the defendant and prosecutor which authorizes him to act as a temporary judge. Id. Therefore, a municipal court commissioner who is not a temporary judge does not have the authority to preside over the preliminary hearing of a defendant charged with a felony offense. Id . The attorney general noted that this opinion does not encompass court commissioners who are temporary judges acting upon stipulation of the litigating parties, who have full judicial power, or court commissioners acting as traffic referees or traffic trial commissioners. Id.
Unlike Magistrates and Court Commissioners, which derive some of their authority from the California Constitution, referees appear to be entirely statutory creations.
Code of Civil Procedure Sections 638-44 provide for reference, or referral to a referee. Code of Civil Procedure Section 638 provides that references may be ordered upon the agreement of the parties Ato try any or all issues of fact or law and report a statement of decision.@
A reference, whereby a person is appointed by the court to take testimony or exercise other judicial powers and report his findings, is a quasi-judicial proceedings and has been sustained against the constitutional objection that it constitutes an improper delegation of judicial authority. 55 Cal.Jur.3d. Referees Summary at 211. A general reference is a trial before a referee on all issues of fact or of law. Such references only may occur with the consent of the parties and the referee=s findings stand as the findings of the court. Id. A special reference does not determine the whole issue and the referees report requires further court action. Id. A reference on agreement of the parties in an action at law constitutes a waiver of the right to jury trial. Id. In the absence of consent of the parties, references may be compelled only in actions which are equitable and only when otherwise authorized by statute. Id. According to Code of Civil Procedure Section 644, the decision of the Areferee or commissioner upon the whole issue must stand as the decision of the court.@
How to Sue a Judge Note: this information was submitted by a Constitutional Attorney years ago who since has said this rarely works anymore.
One must keep in mind that we are not a country of laws anymore. We are a country where laws are creatively interpreted. This means you can go in with all the case law on point A and the court will decide the case on point D, Section 3B. The courts routinely back pedal on deciding cases that go against the status quo, especially in the cases involving judicial immunity. This is not intending to discourage you from seeking relief - just know many times the relief you get will be the embarrassment and publicity you bring to the wrongdoer.
IF EVERYONE DID THIS EVERY TIME THEY EXPERIENCED LEGAL MISCONDUCT WE WOULD NOT BE IN THIS MESS.
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:
- declaratory relief - (rulings by another judge in the form of opinions establishing the constitutionality or lack of constitutionality of another judges actions.)
- 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.
SUPERIOR COURT OF CALIFORNIA
COUNTY OF NAPA
Your Name ,
Other Name ,
DECLARATION OF Your Name
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