Judicial Sanctions violate the Constitution, as does Judicial Immunity for Violation of Fundamental Rights

On Tuesday, October 13, 2009, Judge Clay D. Land imposed Rule 11 Sanctions in the amount of $20,000.00 on Dr. Orly Taitz.

To put it all in perspective, keep in mind that sanctions are very common in modern litigation. Sanctions in amounts comparable to those imposed on Orly are routinely imposed for failure to cooperate in discovery, for delaying the dates of trial or depositions, and “fee-shift” on the British model (”Looser pays attorneys’ fees”) has gotten more and more “popular” as means of “locking the courthouse door” to all but a few who can, basically “take their lumps as they come.”   Kathy Ann Garcia-Lawson, a close friend of mine in Florida, was sanctioned $15,000.00 a couple of years ago in the Palm Beach County 15th Judicial Circuit for “Dragging her Feet” in divorce proceedings.  Ridiculous impositions such as this amount to little more than Judicially order expropriation designed to close the courthouse doors on all but the richest litigants.

I would say that in essence, it was something of an honor for Orly to have been sanctioned in this manner and I frankly hope that she realizes that the government does not bother to injure harmless people who pose no threat to the established order.

What’s unusual about Land’s sanctions entered against Orly is that they are purely punitive rather than compensatory (no “fee shifting” involved here), and that the conduct for which Orly is being punished is purely “content-related” rather than having to do with actual violations of well-known or established court rules. Judge Land’s biggest points are that Orly’s suits on behalf of officers seeking to question their chain of command were completely frivolous from the beginning (basically because Officers should serve unquestioningly, despite their oath to uphold the Constitution), Orly’s suits were completely political from the beginning, filed to advance her own “political agenda.”

In this context, it is obvious that Judge Land’s purpose is political. That political aspect of Judge Land’s order almost smells of “bribery” at the end of his 43 page order when JUDGE LAND OFFERS THE ENTIRE $20,000.00 SANCTION AGAINST ORLY, IF COLLECTED, TO THE NATIONAL INFANTRY FOUNDATION, A PRIVATE ORGANIZATION OF ARMY VETERANS. If this is not an example of a Judge trying to make political hay off a potentially controversial ruling, I have no idea what is. Judge Land’s expression of purpose is an overture to the Army, in essence, to say, “Support me and do not question your President—every time an attorney loses YOUR right to Freedom of Speech and the right to Petition in MY Court, there will be a compensatory contribution to the memory and honor of those who served without questioning, so SHUT UP!” That’s how I read it, anyhow.

Orly now needs to prepare for appeal, which will involve, for example, filing for a stay of execution of judgment against her. She is apprehensive that Judge Land will just sanction her an addition $10,000 or more for every subsequent filing. I can only say: this raging bull is out of his pen—let him do as much damage as he can, because the imbalance in his red-eyes and flaming nostrils will become more apparent to everyone, the worse he does. In other words, I think the wilder Judge Land’s behavior at this stage, the better are Orly’s chances on appeal, although the imposition of sanctions is typically reviewed only for “abuse of discretion” and “a judge’s lawful discretion” includes just about everything except murder with malice aforethought IN the Courtroom.

The Gospel of Matthew tells us, “Blessed are they who suffer persecution for the sake of Righteousness” and later that the people of God are “sheep sent out among wolves.” Psalm 69 reminds us how long is the history of unjust persecution the innocent, and of the particularly vindictive punishment inflicted on those who try to avoid or even fight the ways of evil. So do Isaiah 59 and dozens of other passages of Holy Scripture.
Orly is an innocent but righteous victim here, but we need to realize that the flaws are systemic, and are attributable in part to doctrines such as “judicial immunity”, whereby an “Unjust Judge” can punish a repetitive filer by violating her First Amendment Right to Petition rather than finally awarding her justice (cf. Luke 18: 1-8).

Many unjust judges have used Rule 11 with increasing frequency to lock the courthouse doors to all injured parties. Conservatives are certainly at fault for supporting “Tort Reform” and lacking sympathy for the injured and abused in society. “Tort Reform” is one of the engines behind the increasing use of sanctions to throw parties and their attorneys’ out of the system.

Liberals are at still greater fault, I think, for scorning the idealism of the Founding Fathers, for despising individual autonomy and initiative, and generally for creating interest-based “safe zones” where privileged minorities can wreak havoc on the rest of society, and thereby subvert true democracy.

The Constitution was our hope (and the hope of the whole world) in ages past. If it is to be our hope in years to come, we desperately need to curtail judicial immunity where constitutional rights, especially the right to petition, are involved, so that judges can feel at least some of the sting which they can now inflict on others, at no cost to themselves.

In my own experience, I was sanctioned $150,000.00 by Judge Walter S. Smith of Waco for the dastardly crime of “spearheading a movement to have the Texas Family Code declared unconstitutional.” What was curious about the sanctions imposed on me is that I was neither a party nor a witness in the lawsuit wherein I was sanctioned. If a truckdriver veers off course and takes out a house, when his 18 wheeler crashes into it, he will be fired, license suspended, and may well do some jail time, especially if people were injured inside the house. When a Judge veers off course and imposes sanctions on a person who was neither a party nor a witness nor ever summoned or subpoenaed in a case, that party has no right of appeal (unless he intervenes) and no easy way of collateral attack. Judges have too much power. Judges can violate the Constitution continually and suffer no adverse consequences.

And so, Judges occupy a uniquely powerful position in society, and all Freedom-Loving Americans should work for judicial reform and stripping away the—not merely unconstitutional but anticonstitutional privileges–not only of judges, but of the conformist lawyers under whose protection judges aggrandize ever greater power to themselves, at the expense of the people.

Orly Taitz is the antithesis of a conformist lawyer, and it is for that reason that she is being sanctioned, why she is now being made a prey—precisely because she has turned away from evil, as in Isaiah 59: 14-15:

So justice is driven back,
and righteousness stands at a distance;
truth has stumbled in the streets,
honesty cannot enter.

Truth is nowhere to be found,
and whoever shuns evil becomes a prey.

In Cohens v. Virginia, decided by the U.S. Supreme Court in 1821, Chief Justice Marshall wrote that for a court to refuse to exercise its jurisdiction was “treason” to the constitution.

Judge Land has built his entire assault against Orly’s integrity based on the doctrine of abstention—that he has jurisdiction which he should ignore. The 5th Circuit Mindes case from 1971 specifically found constitutional questions regarding the military and the application of its rules were subject to Judicial challenge, yet Judge Land ignores the substance of the very precedent he cites. (Note: the 11th Circuit in Atlanta branched off from the 5th Circuit in New Orleans in 1981, but all earlier 5th Circuit precedent remained as the foundation of 11th Circuit Law, and the 11th and 5th Circuits, crossing Dixie, still share a great deal of, mostly rather repressive, jurisprudence in common).

Judge Land issued a 43 page order condemning Orly, for among other things, utilizing the Courts for political purposes, and yet he proposes to use the $20,000.00 he expects to obtain from Orly for what can only be called a political contribution to advance certain political positions and philosophical assertions within the army.

Judge Land is clearly utilizing his power under Rule 11 to attempt to sanction Orly for legitimate exercise of her First Amendment Right to Petition, and that of her clients. Post-judgment motions and an appeal will be filed.  Anyone who knows Orly’s determination knows that.

I have been concerned about the question of Judicial Immunity, and the perverting effect this has on judicial decisionmaking and power, for many years.  I believe and submit that the 1996 Amendments to 42 U.S.C. Sections 1983 and 1988 set the standard of review of judicial conduct as “clearly in excess of jurisdiction.”  This means that, under Federal Civil Rights substantive law (Sections 1983 & 1988 are normally considered merely formal or procedural, but the 1996 amendments were substantive, and 1988(a) is clearly substantive), a Judge can be held liable, at least for costs of litigation and attorneys fees, where his conduct was “clearly in excess of jurisdiction.”  The Senate Report at 1996 USCCAN 4216-7 clearly confirms that this standard is applicable to Federal as well as State Court Judges.

One response to “Judicial Sanctions violate the Constitution, as does Judicial Immunity for Violation of Fundamental Rights

  1. It is my understarding that orly can now ask for a trail to defened her self and use this oportunity to try obama without the defence of obamas lawyers interferring as disclosure must be provided for her defence . THis is a back door approch. I like it . How about youall ……..G.B.

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