Tag Archives: Civil Rights Removal

Curbing (Abolishing) Official Immunity for Federal and State Officers: Executive, Judicial, and Legislative, following where Senators Sam Ervin & Strom Thurmond of North & South Carolina led the way

The “law” of absolute judicial immunity not only cannot be found in the Constitution nor in any statute, but in fact offends the Constitution and common sense, when articulated as follows:

     Judges enjoy absolute immunity from liability for damages for acts performed in their judicial capacities.  Immunity exists for “judicial” actions; those relating to a function normally performed by a judge and where the parties understood they were dealing with the judge in his official capacity. 
      The policy behind this principle is that judges must be free to act in a manner they view proper without fear of subsequent personal liability.  This rule is deemed essential to preserve judicial independence.  
       A judge’s errors may be corrected on appeal, but he should not have to fear that dissatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation.
      The immunity afforded judges is quite broad and applies to all acts performed in the exercise of judicial functions. Judges are immune from liability even for corrupt or malicious acts. Liability exists only where a judge acted in the “clear absence” of all jurisdiction or performed an administrative task not embraced within the judge’s judicial duties.
Olney v. Sacramento Bar Association, 212 Cal.App.3d 807, 260 Cal.Rptr. 842 (July 28, 1989)(citations omitted).

Obviously, being a judge by these standards rights right up there with the Divine Right of Kings or even divinity itself!  Nice work if you can get it, I guess, but can we tolerate such immunity for judges, prosecutors, and even (effectively) for the police and other officers of executive and judicial function if we are to remain in any sense a free society?  “Jurisdiction” limits judicial power, as do doctrines of “judicial discretion”—but if immunity remains absolute, regardless, and only clumsy, indirect, highly technical, and cumbersome appellate remedies exist, do judges not in fact rise higher in the real power hierarchy of earth than all the gods of the Ancient Nile, Greek Olympus and Norse Valhalla combined, inferior only to the One Creator of the Universe, who for unknown reasons rarely intervenes directly in human affairs?

I oppose all sorts of official immunity: executive, legislative, and judicial, but I especially deplore and oppose absolute immunity for judges to take actions without jurisdiction which infringe upon or violate constitutional rights.  If elected to the United States Senate, I promise to fight vigorously to construe all civil rights laws to apply to judicial and prosecutorial misconduct, as well as to executive “police actions” and legislatively authorized derogations from the Bill of Rights and other fundamental constitutional protections.  I will work to strengthen and ensure the colorblind, race neutral, application and construction of 42 U.S.C. §§1983, 1985, 1986, and 1988, which the Courts currently only apply and construe in favor of African-Americans (and occasionally but atypically Hispanics or Asians) against Whites.   White Caucasian Americans must have equal rights to assert violations of their Civil Rights, even when the civil rights involve commercial,  contractual, or proprietary violations rather than race-based violations, but as I have often stated on this blog, I do contend that the judicial constructions of 28 U.S.C. §1443 and 42 U.S.C. §1981-1982 actually DO constitute race-based infringements upon the equal rights of White Caucasian Americans to invoke the provisions of these statutes in their own defense in cases of non-race-based discrimination and oppression under color of law.  But now on to the general concept of immunity, and the roles of Senators Sam Ervin and Strom Thurmond in fighting these concepts.

“POLITICAL PROCESS” labels the mechanism by which societies allocate decision-making authority.  “AUTHORITY” means “POWER”.  “POWER without CONSEQUENCES FOR ABUSE” defines “ABSOLUTE POWER”, and “ABSOLUTE POWER” equates (in societies possessing relatively well-developed judicial systems) with “ABSOLUTE IMMUNITY” from civil suit or criminal prosecution for official derogations, deviations, excessive use or application, infringement, or violations of any stated limits on power or action, especially when these result in the derogation, infringement, or violation of the rights or powers of others.   English Political language contains an ancient aphorism that “Absolute Power corrupts Absolutely.”  In my opinion, that aphorism needs to be expanded as a constitutional norm that “Absolute Immunity corrupts Absolutely.”  And the simple truth is that in modern America, both Federal and State Officers, Executive, Judicial, and Legislative, possess something very close to absolutely immunity for all crimes, torts, and violations of the constitution which they may choose to commit in their “official capacity.”  

This problem stands as a central focus of my life and career since at least 1995 when I first perceived that Family Court Judges in Texas possessed unreasonable power and discretion to infringe on the Constitutional rights of litigants in family court actions, and that the law itself, through such hopelessly vague concepts as the statutory power of Family Court Judges to rule “in the best interests of the child” when a marriage is “irretrievably broken” constituted a wild derogation from the constitutional norms of due process of law applicable in every other field.  “Best interests of the child”, and/or “irretrievably broken” as formally enacted statutory norms, constitute extreme legislative breaches and violation of constitutional rights to due process and equal protection, in my humble opinion.

On February 15, 2012, an opinion came down from a Florida District Court of Appeal which reversed a final decision rendered 19 days after my fiftieth birthday in 2010, on the grounds that “the circuit court did not have jurisdiction to render a final order disposing of the case.”  “A trial court lacks jurisdiciton to render a final order while an appeal from a non-final order in the same case is pending and, if the trial court does so, the final order is a nullity.”  “A trial court may proceed in a cause pending a non-final appeal and dispose of any matter not in form or effect interfering with the power and authority of the appellate court to make its jurisdiction effective, but the trial court may do so only short of final disposition.”  “This may all sound like legal gobbledegook to some…but jurisdiction is not a question a court can take or leave, and a judgment entered without jurisdiction is void.”  Many other aspects of this case offer promise and possess extreme interest to all who care deeply about the Constitution as a guiding light for the life of the United States of America, but those aspects must await the briefing of a Motion for Rehearing and, eventually, remand to the Circuit Court from whence this particular appeal arose.

In citing and quoting this very recent decision of an intermediate appellate court in Florida, I mean only to ask the question: should a judge so described by his immediate court of appeals not be held personally liable for acting in the complete absence of jurisdiction?  If his actions caused harm, why should any immunity at all attach to “judicial conduct” undertaken without jurisdiction, since “jurisdiction is not a question a court can take or leave, and a judgment entered without jurisdiction is void.”  

Only the bravest and most eccentric and idiosyncratic of all recent politicians have ever dared to confront the question of immunity head on.  Among these are Sam Ervin and Strom Thurmond.

The Senatorial career of North Carolina Senator Sam Ervin began and ended with questions of legislative and executive immunity, respectively, which rocked the nation between 1954 and 1974, respectively, namely the investigations into the conduct of Wisconsin Senator Joseph Raymond McCarthy (1908-1957) and President Richard Milhous Nixon (1913-1994).  

Ervin’s 1954 role in leading to the censure of Senator McCarthy for making irresponsible allegations constitutes a curious (and effectively unique) abrogation of or exception to the most basic and fundamental concepts of “legislative immunity” in that McCarthy’s conduct which Ervin’s inquiry deemed “censurable” occurred almost entirely in the context of Senate Debate’s and proceedings, and consisted entirely of verbal conduct.  In that sense, McCarthy’s censure differed from all but one of the other nine censures rendered by the Senate in United States history, which mostly commonly have concerned non-debate related issues such as financial irregularities (Hiram Bingham 1929, Thomas J. Todd 1967, Herman Talmadge 1979, and David Durenberger 1990), physically fighting on the Senate Floor (Benjamin R. Tillman and John L. McLaurin 1902) and breaches of secrecy (Timothy Pickering 1811 and Benjamin Tappan 1844).  Of these eight, only Pickering’s conduct, a breach of secrecy during 1811, actually occurred on the Senate floor during Senate debates, and even so was only very vaguely comparable to the censure against McCarthy.  Senator Sam Ervin’s role in leading the censure of McCarthy is notable as the most severe censure ever for conduct almost clearly within the meaning of the Constitution’s Article I “debates” clause (protecting members of the U.S. House and Senate as “be[ing] privileged from Arrest during their attendance at the Session of their Respective Houses, and in going to and from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”  In this connexion I consider Ervin’s role in prosecuting McCarthy historymaking: it shows (or at least suggests) that members of Congress must be held responsible for their role in obstructing or interfering with justice (and other constitutional rights) even while participating in senate proceedings.

As important and historical as Ervin’s early work with the investigation of Joseph McCarthy may have been), Ervin achieved immortality by his monumental and most memorable role on the world stage as Chairman of the Senate Select Committee on Watergate, 1973-1974. Richard Milhous Nixon’s extremely ambiguous place in United States and World history began as a communist-baiter (in the House, largely contemporaneous with McCarthy’s in the Senate), but ended as a communist-appeaser (seeking “Detente” with the Soviet Union and beginning the “sellout” of America to Maoist China), whom the Senate (including Republicans such as Barry Goldwater) forced to resign because of a twisted and bizarre serial episode of abuses of Presidential power in connexion with the Watergate Scandal.  Senator Sam Ervin earned worldwide reverence as  advocate for the nation’s conscience while this writer was in High School in Hollywood, California.  Senator Sam Ervin’s final year in the Senate oversaw the collapse of the Nixon Presidency, in large part due to Sam Ervin’s commitment AGAINST Executive Privilege (as Nixon referred to his claim of immunity from prosecution or even inquiry regarding his domestic actions taken as President against American citizens in the name of National Security).  

As an aside, I pledge that if I should achieve election to the United States Senate—Senator Sam Ervin would serve as my role-model on almost every issue.  I would fight both legislative and executive immunity and simultaneously uphold the Bill of Rights against all legislative infractions including the “no knock” laws which Ervin fought, which have now become routine nationwide.  Ervin, like his South Carolina cohort Strom Thurmond, feared the advent of the Police State in America long before it became fashionable or even acceptable to do so among most of the Southern and Western U.S. Middle Class—who have a terrible habit of confusing and conflating their perfectly reasonable political opposition to cultural social change with a need for legal repression and suspension of the Constitution.   All constitutionalists must deplore such confusion and conflation, for without the Constitutional protections for our freedom, no hope remains for our traditional cultural or social norms whatsoever.

Now, ironically enough, everything that Nixon did (and covered up) during Watergate is now not only legal, in the aftermath of Federal “National Security” legislation passed in 1996-2011), but Nixon’s (and his White House staff’s) conduct and career of constitutional infringements and violations pales and seems of little consequence or importance compared with what President’s now have “statutory authority” to do.  The recent National Defense Authorization Act, in particular, provides legislative statutory authority for the president to order “indefinite detention” of “terrorists” which (as a pair of connected concepts subject to wildly abusive application) is exactly analogous to the vaguest provisions of family law mentioned above regarding judicial authority to rule and render in the “best interests of the child” whenever a marriage is “irretrievably broken.”

I have in any event focused on the career of North Carolina Senator Sam Ervin because he was one of my first “media heroes” and I first dreamed of studying and applying myself to the resuscitation of American Constitutional Law while watching him preside over the Watergate hearings.

Less known and less famous (and much less politically correct in the modern context) to celebrate is Senator Sam Ervin’s role as the co-author of the “Southern Manifesto” with Senators Strom Thurmond of South Carolina and Richard Russell of Georgia.   The “politically correct” way to look at this document requires calling it a reactionary racist response to Brown v. Board of Education and the subsequent orders of the Supreme Court of the United States requiring school desegregation.  But forced desegregation and integration caused social chaos, first in the South, and only slightly later in the North, causing murderous race-riots even in such “liberal” citadels as Boston, Massachusetts through the mid-1970s.   Just as I have often observed that Brazil never experienced anything approaching the level of racial hatred or tensions known in the United States, precisely because emancipation took place gradually and without force there in the Brazilian Empire (and in fact in every nation of the Americas EXCEPT first Haiti and then the United States), the use of force to accelerate the implementation of social change is almost always destructive.

The authors of the Southern Manifesto saw this destructive waive being unleashed by the Supreme Court in America, and they also perceived, correctly, that pitting black against white constituted a means of destabilizing society and increasing the power of the Federal government (in particular) over the people, and of accelerating the empowerment of the police state.  

The authors of the Southern Manifesto against forced school-integration rightly focused their criticisms on Chief Justice Earl Warren.  

As I like to point out, Earl Warren’s life-long commitment to civil rights manifested itself early on in his career as Attorney General and Governor of California when he supervised the hateful and purposeless, in fact counterproductive, internment of hundreds of thousands of (as the newsreels of the time and even early “Batman” movies recited over and over again) “shifty-eyed Japs”, the Second Generation or “Nisei” as they called themselves during World War II.  

In any event, Senators Sam Ervin and Strom Thurmond led the ultimately failing Southern Resistance against Earl Warren’s Court and what became, effectively, America’s Second “War Between the States”, although this time more ink spilled in the Courtrooms than blood on the streets.

For purposes of this present topic of immunity, I will end with my repeated hymn of praise to Senator Strom Thurmond for his crafty drafting of the 1996 Amendments to the Civil Rights Action, 42 U.S.C. §§1983, 1988(a).   The United States had handed down its most dramatic and emphatic “anti-Judicial Immunity” opinion in 1984, in the decision of Pulliam v. Allen, which has been my personal favorite Supreme Court decision for more than a quarter of a century now.  Pulliam v Allen 466 US 522 104 SCt 1970 80 LEd2d 565 (May 14 1984).  In 1996, Strom Thurmond proposed a relatively minor amendment to 42 U.S.C. §§1983 & 1988 to clarify the application of this provision to judicial officers.  Under Thurmond’s leadership, Congress amended the Civil Rights Statute to clarify that judges would only be liable for judicial actions taken “clearly in excess of jurisdiction” in the statute, and this language exactly tracks Justice Blackmun’s language in his opinion in Pulliam v. Allen (footnote 12) which reviews the tradition of limiting judicial immunity to matters “clearly within their cognizance” or “clearly within their jurisdiction”, in full (Blackmun here was in fact quoting Blackstone!).  Writing of the Judges of England, Blackstone in Volume 3 of his commentaries at pages 112-113 stated that if these Judges,

in handling of matters clearly within their cognizance, they transgress the bounds prescribed to them by the laws of England; as where they require two witnesses to prove the payment of a legacy, a release of tithes, or the like; in such cases also a prohibition will be awarded. For, as the fact of signing a release, or of actual payment, is not properly a spiritual question, but only allowed to be decided in those courts, because incident or accessory to some original question clearly within their jurisdiction; it ought therefore, where the two laws differ, to be decided not according to the spiritual, but the temporal law; else the same question might be determined different ways, according to the court in which the suit is depending: an impropriety, which no wise government can or ought to endure, and which is therefore a ground of prohibition. And if either the judge or the party shall proceed after such prohibition, an attachment may be had against them, to punish them for the contempt, at the discretion of the court that awarded it; and an action will lie against them, to repair the party injured in damages.

The Southern Manifesto co-authored by Sam Ervin & Strom Thurmond (and Richard Russell?) did not expressly cite Blackstone but began:

The unwarranted decision of the Supreme Court in the public school cases is now bearing the fruit always produced when men substitute naked power for established law.  The Founding Fathers gave us a Constitution of checks and balances because they realized the inescapable lesson of history that no man or group of men can be safely entrusted with unlimited power. They framed this Constitution with its provisions for change by amendment in order to secure the fundamentals of government against the dangers of temporary popular passion or the personal predilections of public officeholders.”

The consequences of this language include the assertion that public officeholders (including judges) must be liable for the consequences and injuries caused by their derogations from and violations of “established law.”  Just as in the recent Florida case decided above, where a judge enters a decision in violation of well-and-long established law relating to jurisdiction and scope of authority, that Judge renders nothing but a personal statement with personal consequences, for which that Judge should be personally liable.
I ask here: should any Judge enjoy immunity from prosecution for civil rights violations and/or suit for civil rights violations when that judge violates the letter of the Constitution, especially when a litigant points out that violation to the Court and no excuse (such as a Constitutionally declared war or surprise invasion) exists to suspend the Constitution temporarily…. and temporarily only… I have often had occasion to refer to 1996 USCCAN 4216-4217 which affirms that these amendments do not establish absolute immunity for judges.  I submit that Strom Thurmond authored the 1996 Amendments to the Civil Rights Action to ensure that Judges (like Chief Justice Earl Warren) could and would be held liable for their actions taken “clearly in excess of jurisdiction.”  Unfortunately, to date, neither the State nor Federal Courts have recognized the importance of these amendments, and continue to enforce Absolute Judicial Immunity.
The doctrine of “qualified immunity” also arose out of Watergate, particularly in the case of Mitchell v. Forsythe, 472 U.S. 511 (June 19, 1985) in which the Supreme Court limited former Attorney General John Mitchell to merely “qualified immunity” rather than “absolute immunity.”  Oddly enough, the standard the Supreme Court applied to the Attorney General of the United States involved a determination of what a “reasonable person” would know about the law (reasonably or unreasonably, most people in the United States today know almost nothing about the law, which explains why lawyers run amok and control the country).  Specifically, the Supreme Court held that the Attorney General of the United States would enjoy qualified immunity, “so long as his actions do not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
         Rather unsurprisingly, in practice, interlocutory appeal of any and every trial court determinations of qualified immunity plus a very pro-defense, anti-plaintiff judiciary means that even for prosecutors and police officers, “qualified immunity” is difficult to distinguish from “absolute immunity.” 

I know that my critics often accuse me of writing overly long-and-windy commentaries on my blog, and I suppose this will constitute one of my more offensive pieces.  I submit that the American public have become too used to short sound bytes and non-analytical thinking, and I hope I can encourage a more “in depth” and historically-based approach here.

Regarding legislative immunity, I recently discovered a very interesting and historically based article by a journalist name Chuck Murphy (Colorado Constitution and History of Legislative Immunity):

Murphy: Colorado’s legislative immunity rooted in 17th century England

Blame it on King Charles I.

He dissolved Parliament, made Oliver Cromwell famous and is as responsible as anyone for the get-out-of-jail-free card Rep. Laura Bradford of Mesa County used last week.

Bradford, R-Collbran, was pulled over Wednesday night on suspicion of driving while intoxicated after a Denver officer saw her make an improper lane change. But after failing a roadside sobriety test, Bradford mentioned that she was on her way home after a legislative function at a Colfax Avenue bar.

Those were the magic words.

Article V, Section 16 of the Colorado Constitution says:

“The members of the general assembly shall, in all cases except treason or felony, be privileged from arrest during their attendance at the sessions of their respective houses, or any committees thereof, and in going to and returning from the same; and for any speech or debate in either house, or any committees thereof, they shall not be questioned in any other place.”

That’s where Charles comes in.

By the time he took the crown in 1625, England had a robust Parliament and Charles was determined to put them in their place. He declared the divine right of the king to rule as he chose, and, after a series of confrontations, dissolved Parliament. Four years later, he did it again — and this time, he put much of the body’s leadership in prison. He was eventually defeated by Cromwell and lost his head — literally.

Say this for Brits — they have long memories.

It was 60 years later when Charles’ second son, James II (Dismal Jimmy), ascended to the throne. He wanted to impose Catholic rule on a deeply skeptical nation, and it did not go well. Within four years, he was deposed by his daughter Mary, and her husband, William of Orange. They are better known today as William and Mary.

Parliament had invited them to take over, but with certain conditions, partly based on the naughty behavior of Charles I. One of those was the 1688 Bill of Rights, which said in part:

“That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal;

“That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal;”


“That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”

A couple hundred years went by before 1876, when Colorado was working on its latest version of a state constitution designed to get us admitted to the union. By then, we had the U.S. Constitution and the work of several other states to crib from, including an 1859 effort from Kansas:

“For any speech or debate in either house, the members shall not be questioned elsewhere. No member of the Legislature shall be subject to arrest — except for felony or breach of the peace — in going to or returning from the place of meeting, or during the continuance of the session; neither shall be he subject to the service of any civil process during the session, nor for fifteen days previous to its commencement.”

Look familiar? It all leaps right out of 17th-century England.

Now, say what you will about Gov. John Hickenlooper — he is impetuous, and he does on occasion show signs of a temper — but he is not about to lock up members of the legislature, not even the House, if he doesn’t get his way. I’m certain of it.

These immunity clauses exist in a majority of state constitutions today (legislators know a good thing when they see it). Arizona has discussed getting rid of theirs after their former Senate majority leader avoided arrest on a domestic-violence charge by invoking legislative immunity. His girlfriend was arrested while he went home, provoking well-placed outrage.

Legislators have no right to any protections not enjoyed by every other citizen, period, and most don’t avail themselves of this constitutional provision anyway. Even Bradford denies that she intended to avoid arrest by mentioning where she was coming from.

So who in Colorado’s legislature will take up the charge to rid our constitution of this anachronism? We amend the document all the time, with mixed results, but this seems like a no-brainer in an election year.

All it takes is a proposal to get it on the ballot. A majority of Coloradans just might go along.

Chuck Murphy: 303-954-1829, cmurphy@denverpost.comortwitter.com/cmurphydenpost

Read more:Murphy: Colorado’s legislative immunity rooted in 17th century England – The Denver Posthttp://www.denverpost.com/murphy/ci_19849376#ixzz1mpThOiJt
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Civil Rights Removal: To Limit Removal to Cases involving Racial Discrimination on the basis of Statutory Schemes to enforce racial inequality is to make a travesty of Civil Rights—either we all have real rights or none of us do!

Lori G. McDonald now tests the waters with the best and most comprehensive Notice of Civil Rights Removal filed to date.  Why are so many eviction cases, when removed on grounds of diversity alone, remanded for the reason that the claims of dollar amounts in a Plaintiff’s case (no matter how illusory or illogical those amounts might be) is absolutely controlling for diversity jurisdiction?  Plaintiffs in limited jurisdiction “unlawful detainer” cases only claim “back rental” (if anything) in dollar amounts, but a huge amount of jurisprudence supports a completely different angle of analysis of “amount in controversy” and such claims as to value are always frivolous, fraudulent, and designed precisely to avoid the rigors of federal court. Lori has now addressed these issues in her Notice, filed November 28, 2011, in Santa Ana, Orange County, California, based on the legal research and ligation support which only the Charles Lincoln Trust for Tierra Limpia  provides to pro se homeowners….. and those who have been wrongfully deprived of home ownership.  California Civil Code §2924 et seq. is an “equal opportunity destroyer,” and there will be no peace until the entire process of non-judicial foreclosure is wiped from the face of the earth and declared unconstitutional, never to be raised from the grave again.  The lawyers, such as Steven D. Silverstein and their allies the corrupt Superior Court Judges such as Cory Cramin, who knowingly enforced that unconstitutional and immoral statute and took pleasure in the infliction of misery on millions must be punished, as must politicians such as Dianne Feinstein, Barbara Boxer, and Edmund G. Brown who smiled and used their positions and influence to uphold the special privileges, grossly inequitable and immorally granted rights and blatantly unconstitutional powers of the Banks while it was all going on.

If elected to the United States Senate, I will filibuster to eradicate the requirement of race-based classifications and even “protected group” analysis from equal protection jurisprudence: All must be free or none can be free, because some animals are NOT really more equal than others…..  

11-28-2011 Lori G McDonald & Mark Privitera Removal of Wells Fargo Case to USDC CDCA re 8-09-cv-01072-DOC-E ; 11-28-2011 Civil Cover Sheet for Lori G. McDonald & Mark Privitera Notice of Civil Rights Removal ; 11-28-2011 Lori G McDonald Certificate of Interested Parties for Notice of Removal

Federal Civil Rights Legislation and litigation simply did not exist before the War Between the States of 1861-1865.  Such legislation and litigation were only necessary because the Military dictatorship which arose after the War made certain that the newly emancipated slaves actually had the upper hand (for a few years, anyhow) before the Compromise of 1877 obliterated what little integrity was left in the Union’s claim to the moral highground.  After a couple of decades of dormancy, “Civil Rights” became the most divisive issue in the nation again, starting almost immediately after World War II (for which the war of 1861-65 in America was a very clear and plain rehearsal).   Now the Banks have allied themselves with the United States government in a manner analogous to the alliance between Carpetbaggers and Union Troops in the South (also, coincidentally, with full bank-establishment backing….) and are wreaking havoc all over the country.  Millions are losing their homes and seeing their savings and security wiped out.  Now the whole nation knows what it was like to be a Southern White Farmer in the late 1860s.  And ironically, blacks and whites and Hispanics and Asians are all being turned out of their homes without regard to race, creed, or color, but it could not have happened without the Civil Rights Laws’ having been expressly applied by the Courts ONLY to protect the rights of one race against another, and not of all people together. 

If you would like to help the fight for “corny old values” like Truth, Justice, and the American Way, for Family, Home, and Freedom, and to add one Senator for the Bill of Rights and against Indefinite Detention, against the PATRIOT ACT, and against the use of United States Troops in this Country against its own citizens, please support Charles Edward Lincoln, III, for U.S. Senator from California.  We are fighting one of the most entrenched establishment seats in Congress—Dianne Feinstein who tried to make cosmetic changes—and we ask you to send your check or money order to Lincoln-for-Senate 2012 to Charles Edward Lincoln, III, 952 Gayley Avenue, #143, Los Angeles, California 90024.  Call 310-773-6023 for more information.

Who knows corruption and oppression in America best? The victims all know….. And yes, I am one….

Why should you vote for a convicted felon?  Because you could be the next victim of injustice—and if you’re not, some relative or neighbor of yours probably is the next.  The government has set out to reduce us all to shame and compliance through a horrendous code which has already imprisoned/restricted the liberty of 3% of the population—that means that just under 1 in every 30 people, nationwide.

Some people may wonder why I am considering a run for U.S. Senate when I am a disbarred lawyer and “convicted felon.”  I find it hilarious that my detractors like to call me a “convicted felon.” It’s just so inglorious to call me a “convicted one-time misstater of his social security for no readily ascertainable reason. I am a convicted “Enemy of the State,” and damned proud of it, because “Everybody know that the system’s rotten.”

My opponents will probably get a kick out of circulating my Federal Prison system ID and mug shots I’m sure, once the campaign really starts (my Federal Prison ID number was already published somewhere on line—and not be me, either…and those who enjoy discussing my “crime” of a misstated social security number have repeatedly published my social security number INcorrectly—which you’ve got to admit is kind of funny).

But as I’ve said and written many times, I wear them all as “Red Badges of Courage.” These pictures are wounds which show nothing more than that I have deeply disturbed the powers that be so much that they feel they MUST make me into a criminal, because to allow me to stand, free and respectable, would make them all look so much less so.  To the population at large I’ll tell you: you NEED to contribute to and vote for this convicted Felon and Disbarred Lawyer because he is one of the few with the knowledge and perspective to really dismantle the corrupt system and start to make YOU free or at least free-ER and less shackled and manacled. You are all shackled and manacled in this land of false-freedom, lame-liberty, and conscience-free semi-consciousness in front of the TV.

We need to restore freedom.

We need to simplify society and restore the right of individuals to structure their own relationships with each other, and the reduce the power of government by, among other things, dismantling the unnatural infrastructures which only government can maintain, and which all depend on communistic theft and wealth redistribution, which ultimately makes us all so much poorer.   So yes, what this country needs is more convicted felons (convicted, in essence, of breathing air—or dust at the worst), all frankly, ALL lawyers, the very practice of law itself, MUST BE DISBARRED and all the practitioners set truly free, as I have been for the last nine-eleven years, to form my own opinions and come to my own conclusions, free from the oppression of Bar Committees and Judges.

So, if you’ve never been arrested, never seen any Federal or State jail, penitentiary, or “correctional facility” from the inside, you may consider yourself lucky, or worse, you may consider yourself a “really good, law-abiding citizen.”

But I would beg to differ with you.

In fact, I think you are deprived and lack information necessary to see the world as it really is: you know only what a cave looks like in electric lights, and not what one looks like in torchlight, starlight coming through an open cliffside entrance, or, indeed, no light at all.  And not to know a cave in total darkness is simply not to know the reality of a cave.

For my part, I think it is the not merely the birthright but the duty of every American to see and understand how the least fortunate in society are treated.   Only there in prison, not just watching the men and women chained together in rows but being one of them, can one really see into the heart of darkness of this bright land of the free.  I submit that no one should criticize Nazi Germany, the Soviet Gulag, or the massive slaughters of Maoist and Pol-Pot’s versions of Oriental Despotism until s/he is aware of what it feels like to live even for a short while incarcerated, surrounded by those men and women of sorrows who are hated, rejected, despised and intimately acquainted with grief.  To live all one’s life in a comfortable middle-class cocoon is hardly to live at all.  It is good and worthwhile to see up close and understand the depraved sadism of White American young and middle-aged male and female prison guards, how much pleasure they take in herding and taunting formerly free men and women like cattle, feeding them like pigs, sheering them like sheep of all outward trappings of dignity.

Ask yourself what normal person would want the job of a “Correctional Services Officer,” but also ask yourself what person could remain normal and decent while serving as a “Correctional Services Officer.”  As is so frequently advertised on late night Television—the “Correctional Services Industry” is one of the fastest growing fields and opportunities for employment in America—“Help Keep the Prison Planet Safe”—I am inclined to wonder whether the Russian Press is right that Dominique Strauss-Kahn was arrested, framed for rape, because of the revelations he planned to make about the American Financial System.  

Once you have reflected on these points, you will understand how Auschwitz and Treblinka were built, staffed, and maintained by the German people, born in one of the two or three most civilized nations in the world, who had grown up listening to Bach, Beethoven, and Mozart, reading Goethe & Schiller, and Nietzche and Schopenhauer.

How much easier will it be for today’s generation raised on grunge or punk (at the best) or rap (the currently universal lowest common denominator) to imprison their fellow man?   The cultural degradation of America means to me that we will soon care nothing at all for our fellow human beings, and will treat them worse than the Nazis, more in tune with the Soviet gulags and Chinese/Cambodian mass slaughters.

In state penal systems, the worst treated are the sex-offenders, alleged and real, who are the real bearers of the ultimate stigmata our courts have the power to inflict, worse than murderers, worse than bombers, sex-offenders, in or out of prison, are a category or prisoners unto themselves. They are feared and shunned even by other inmates.

In the federal “correctional” system, the worst treated are the illegal immigrants. These are honest, hardworking people from foreign lands, lured by greedy employers on this side of the border who CONSTANTLY open their doors and wallets to the illegals, and the illegal immigrants are all shuttled around on busses and on “Con-Air” and, like the sex offenders, bullied by otherwise unemployable, middle-aged guards while shackled and manacled, stigmatized for life by their offenses.

How much I loathe the state and federal penal systems in America, and the lawyers, judges, and “justice” systems, filling them with populations larger than the original population of the 13 colonies, I can never say.  And yet I am so grateful to God Almighty and indeed to U.S. District Judges Lynn N. Hughes and Janis Graham Jack as well. I am so happy that I have spent two months behind bars, so that I can speak for America’s victims of injustice from personal experience, and understand the dehumanization and filth of even the most “sanitary” federal facilities.  Otherwise I never would have known about the clinical cold of the stale air conditioned air meant to depress minds and souls and simulate death, the mind washing drill of telling people that they have no rights, only privileges, while supposedly creating a more “healthful” environment (socially and biologically).

V-for-Vendetta as a movie is emblematic of my life: like the prisoner from Cell V, and also like Madame Terese Defarge in Tale of Two Cities, I count the days and treasure the memories of those who have oppressed me until the revolution will tear down all our hundreds and thousands of crowded, modern-day “Bastilles” and “relocation camps.”

The Obama Administration was elected in part to fulfill the American Dream of true racial equality, but the reality is that the jails remain disproportionately filled with people of color, and Obama has done nothing to restore the freedom of “his” people.  I am not Black or Hispanic, but I would fight for genuine penal reform, repeal of most of the Federal Criminal Code in fact, and define “the general welfare” as something better than a choice between government handouts to the unemployed, membership in the Army to destroy freedom abroad in the name of safety here at home, and incarceration for so many good business entrepreneurs who had the drive or incentive to make their own way in the world.

I am inspired to write today by reviewing the sanctimonious texts written about me on one particularly “Foggy” newsgroup dedicated to supporting and exonerating the Obama regime.   The contributors to this group are silly, all too comfortable, middle-class professionals and a few Foggy-bottom-feeding scum-suckers they collect around them.  Among the latter there is a former ungrateful homeless tenant and single mother for whom I did way too much and from whom I got absolutely nothing in return except grief.

The bowmen in the fog are indeed the detested Pharisees and Sadducees of modern times.  They who aim and show their poison-tipped darts are rare hypocrites and self-satisfied soulless creatures, who enjoy the comfort of their government or corporate jobs and pensions and care nothing for the past or future of America or the world.

I am so happy that I know first hand, coast-to-coast, what their reality is.  They are the lawyers and government employees who love the Federal Reserve System more than life itself, and who revel in the “Brave New World” ethics of “truth” generated by internet diffusion and apparent but unreal numbers.  They do not appear in their own names because they do not dare, but behind childish “avatars” and untraceable e-mail handles (unless one knows them, as I know that former tenant and single mother from Florida).

The Victims of Foreclosure and Eviction know that America is in the midst of a Purge—destroying the Middle Class, and selling our homes and lands to foreigners by the thousands.  The Victims of Foreclosure and Eviction probably do not all realize that they were selected for this purge by their own government—by the Democrats and Republicans in Congress who favored easy credit and soft money—and that none are worse offenders than Senator Dianne Feinstein.  The Senate hearings on the mortgage crisis focused on whether the banks could escape the consequences of “robo-signing” forgery and proceed with foreclosures efficiently and expeditiously—the two major parties include few if any friends of the people, and all too many friends of Chinese investors in American realty.

But what of the millions of homeless people, in America, the inhabitants of the tent cities and “Extended Stay” hotels, uprooted by foreclosures and eviction?  They are in the extreme opposite of a jail. They are truly free, no longer shackled down by mortgages or rents or anything else.  Among their numbers are those men and women destroyed by divorce and child custody battles, destroyed by the declining income of the American population, impoverished by a dollar cheapened and weakened, oh yes, by the moneychangers, the international bankers, the finance experts and gurus, including their lawyers and the layers on layers of insanely oppressive laws and regulations which have made it cheaper and safer just to say “no” to doing business in America.

The bows in the foggy roads to socialism and dictatorship in America are many and varied, but they come down to a few key routes: (1) the destruction of the world financial system by socially engineering economists and business-strategists and lawyers, (2) the destruction of the Anglo-American legal system by those elite lawyers and judges at all levels of the State, Federal, and local judiciary, (3) the social-welfare/wealth redistribution system based on the triangulation of the Federal Reserve Banks, the Internal Revenue Service, and Social Security, and all the derivative Welfare Programs authorized under Title 42 and elsewhere in the U.S. Code.

The first key routes to destruction are pretty obvious.  I started my post-JD life working for Cadwalader, Wickersham, & Taft, and I am almost as proud of how poorly I fit into that New York hellhole of a lawfirm, with its exquisitely shiny, constantly polished marble floors, hardwood desks, embossed stationary, and managing partners whose incomes exceed the GNP of many third-world countries. With the prison-like imposition of uniform styles of dress on employees, even though the cost of dressing up to CWT standards on a weekly basis cost several times the annual Federal subsidy paid for state prisoners on a yearly basis.

“Legal education and the reproduction of the hierarchy” was the subject and theme of Duncan Kennedy’s “Little Red Book” of 25 years ago at Harvard, and it’s a marvelous read on the reality of the legal profession for anyone who doesn’t know it.  Kennedy hints at the futility of waging any virtuous wars through the legal system.  And that was BEFORE the Federal Judicial improvement acts imposed all those negative “case statistic” incentives on judges to dismiss cases and lower case loads as a major policy priority.

But the third branch of the road to socialism is the real highway, and the Federal and State government programs of taxation and welfare benefits are only part of the picture.  To really understand the evils of “welfare” we need to look at the imposition of government “benefits” such as compulsory marriage licensing, divorce, and child protection services, as well as compulsory education, compulsory driver’s licenses, and mandatory bar integration.   The government really and truly seeks to extend its tentacles into every aspect of our lives.  The government must be stopped.

Sometimes it does require the expertise of those who have been victimized by the law to become the most effective advocates and instruments of changing the law.  I am such a person.  And besides. How can I help but do well in California?   This Golden State of beautiful people which exalts everything fake, that (incredibly) just managed to survive 7.5 years under the governorship of Frederic Austerlitz’ Austrian-born compatriot Arnold Schwarzenegger, and maybe they’re ready for someone who’s actually experienced the pain of a genuinely uncharmed life.   I consider myself really and sincerely beautiful, all 272 balding, out-of-shape pounds of me.  As Oliver Cromwell said, “paint me as I am, warts and all.”  When I was first hospitalized for tachycardia in October 2006, I told my assistant, “I’m too beautiful to die” and damned if I wasn’t right—I absolutely, positively was just too beautiful to die.  I could have died 6 years before that in Egypt, or, for that matter, two months before that in a terrible car wreck by the Suwanee River near Live Oak, Florida, or one of several other occasions I can think of, but every single time I survived.   To what purpose?  Maybe, just maybe, it was to show all the people with foggy intelligence who shoot their bows with poison darts at me that my authenticity can win, and that virtue is not just about pretending to be honest and beautiful, but of having an inward and spiritual grace which belies one’s outward and visible state.

If elected to the United States Senate I would conduct filibusters, be involved in 99-1 votes, and the news that someone like me was elected might just depress the Dow Jones Industrial Average.  That would be a good thing, because there is nothing more false than the notion that stock prices have anything to do with real productivity or prosperity. But whenever the powers that be line up against someone, threaten to shut down everything if a certain candidate is elected, you have to imagine that candidate has touched a raw nerve somewhere.

To elect someone like me would be good for the Hispanics of California and the United States because I am not only fluent in Spanish and steeped in their heritage and culture, but I have suffered by and chained to their brothers, sisters, cousins, and uncles who have been persecuted for their status as illegal immigrants, seeking neither more nor less than Frederic Austerlitz’ parents came here from the Austro-Hungarian empire to find in Nebraska or than Arnold Schwarzenegger came from post WWII Austria to find.  Those are two American movie-star icons, but their parents are indistinguishable socially and economically from the Hispanic masses who continue to be chained and oppressed in these United States, even in Texas where Ernesto de Zavala co-wrote and signed the Texas Declaration of Independence from Mexico in 1836, and served as the new “Anglo-Saxon” Republic’s First Vice-President.

Moreover, I understand the Native American as well as the Hispanic roots of “Mexican,” Central American, and South American “Hispanic” culture(s), and I would fight for the recognition of “Mexican Indians” as Native Americans entitled to all of the benefits afforded by the Constitution to Native Americans inside the United States.  I would fight for their right to the recognition of their separate and distinct cultural heritage and identity.  In fact, I would fight for the right of all peoples to their separate and distinct heritages and identities, because “one size does not fit all” either in the educational, judicial, or political systems.  True equality means and must always mean the freedom to be who you really are and not shrived of your identity.

To elect someone like me would be good for the African-American citizens of California for all the same reasons.  I have seen and shared the degradation of so many of their relatives in state and federal prison, and know that while Hispanics are famously imprisoned in massive numbers for their status as “repeat” illegal aliens, blacks have, in the past fifty years, been more the victims of the insane “War on Drugs” than any other group (Hispanics are a close second).

I know that Blacks and Hispanics both need courts where they can really and truly be assured of full and fair justice by judges and juries of their peers, and that the present system does not provide them with such courts.   As a United States Senator I would fight for the rights of all ethnic groups to maintain their identity while enjoying full equality by equal protection of the law, including equality of rights to preserve and develop their distinct and separate cultural identities by allowing legal communities to develop distinctive and culturally adjusted laws within our multi-cultural “umbrella” of American political society.   To the same degree that globalists would erase all boundaries of cultural differentiation and identity, I would fight to allow each people to maintain and preserve their identities for themselves.

To elect someone like me would for all these same reasons be good for the Jews and Armenians, Chinese, Cambodians, and Vietnamese, who have been the victims of long genocidal wars in the 20th century, and major wars of repression.  No candidate, certainly not Senator Diane Feinstein, realizes the incredible degree to which America Under the Patriot Act (and related portions of AEDPA and FISA) resembles the totalitarian dictatorships of Nazi Germany, Stalinist Russia, Maoist China, Pol Pot’s Cambodia, and Vietnam under several regimes, or how much of the equipment of mass roundups and deportation of populations assembled in modern America today resembles the technology of genocide inflicted upon the Armenians of Turkey in the first genocide of the 20th century or against the Jews of Central Europe during the most famous genocide in all history.

Truly it can be said that Earl Warren, as planner of the Nisei Camps, was the Adolph Eichman of the United States, and that his cynical, racially biased implementation and application of civil rights laws was to divide, conquer, and disperse the population of America during the 1950s and 60s. The resulting America is one in which civil rights have been reduced to almost nothing, where Federal Courts repeatedly affirm that so long as all people in this Country have the same rights as white people, it doesn’t matter how severely freedom is suppressed.

This ridiculous conclusion to 150 years of civil rights legislation remains on the books today and is large part of the reason why foreclosed homeowners cannot seek adequate relief or redeem their properties by litigation under 28 U.S.C. 1443 or 42 USC 1981-1982.  Civil Rights law should be entirely color blind, but groups should have the right to defend and protect their own customs, heritage, and rights.

And this is the final reason why the (former majority, of which I am a member) White Anglo-Saxon, Northern, Eastern, Southern and Continental European Californians would benefit from my election.  I would fight to abolish all inverse discrimination against White people in this Country.  I would fight to establish true equality under the laws, recognizing the protected equality and forced assimilation are by no means the same things.   In short, I would be good for all Californians except the Foggy Bottom Poison Dart Bow Shooting fat cats, who love the status quo because it is so easy to manipulate and maintain, and so comfortable with all their precious governmental and corporate BENEFITS…. including the right to look down on others who do not agree with them and seek to deprive the true majority of their rights, all by the use and implementation of a completely biased and unfair legal system which has forgotten all the rules of fundamental fairness, due process, and constitutional rights.

Do Federal Judges have absolute de facto discretion to refuse to hear cases? After Bell Atlantic v. Twombly, is there any real point in bringing controversial cases into Federal Court?

Justice Sandra Day O’Connor was Ronald Reagan’s first and to my mind most distinguished appointee to the Supreme Court.  She wrote, early in her career, that “federal courts must normally fulfill their duty to adjudicate federal questions properly brought before them.”  Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984).  Even this statement in the early 1980s was a retreat from the court’s position, a mere 8 years earlier, asserting, “virtually unflagging obligation of the federal courts to exercise the jurisdiction given them” articulated in Colorado River Water Conservation District v. United States, 424 U.S. 800, 813, 817 (1976).  Today it seems that the Federal Courts spend more time (in important cases, too) limiting their own power by various doctrines than exercising their power.

The combined result of the Rooker-Feldman Doctrine, Younger v. Harris abstention and the judicial construction of the Civil Rights Removal  Statute is that State Courts are all but completely free to violate federally secured civil rights with impunity, because of a wall of barriers to review which make absolute judicial immunity a sad but real barrier.

The stupidest of all these doctrines, because it is on the one hand so banal and on the other hand so riddled with discretionary loopholes, is the Rooker-Feldman doctrine about which no one had ever even heard until 1983.  Rooker-Feldman has now been pronounced dead several times, first by Justice John Paul Stevens in his famous concurrence to Marshall v. Marshall (the “Anna Nicole Smith” probate case) but also by academic legal commentators (such as Samuel Bray, Rooker Feldman (1923-2006) 9 Green Bag 2d 317 “an entertaining journal of law” founded and edited by some fellow University of Chicago law grads I once knew) all in 2006.  Since it’s epitaph, however, the evil and “discretionary” flexibility of Rooker-Feldman as a tool to insulate state judges and corrupt judicial and quasi-judicial processes from examination and inquiry has not only not deterred but allowed, in fact guaranteed, this doctrine to come back as a vampire-like revenant over the past five years in District and US Courts of Appeals) everywhere.

Parallel to Rooker-Feldman is Younger v. Harris Abstention.   I have attacked repeatedly so-called Younger v. Harris abstention doctrine as a complete distorted perversion of the Dombrowski v. Pfister through Mitchum v. Foster line of cases which firmly established by legislative history and the very best of Supreme Court scholarship the power of U.S. District Courts to render injunctions against state court proceedings when asked to do so under 42 U.S.C. Sections 1983 & 1988(a).

Finally, the judicial disembowelment of the Civil Rights Removal Statute (28 U.S.C. Section 1443, 1447(d)) running from Strauder v. West Virginia, and Virginia v. Rives in 1880 through Greenwood v. Peacock and Georgia v. Rachel in 1966 ending in Johnson v. Mississippi (1975) has all but destroyed some of the strongest Congressional language ever written to protect the people from the “tyranny of local minorities” which periodically manage to take charge of the State Courts, by and through local elite cadres of lawyers who move almost invisibly from bench to bar and back again, trading favors and generally patting each other’s corrupt backsides in what is so genteelly known as “the Good Ole’ Boys’ network.”

None of these three doctrines, however, ever afforded to United States District Judges the free hand, the almost unlimited ability, to refuse to hear any cases not precisely to their liking the way that John Roberts’ court now has done.  There are two cases: Bell Atlantic v. Twombly and Ashcroft v. Iqbal which, together spell the doom of the Federal Courts as vehicles for securing equal protection of the laws or due process under the law.  The Roberts’ Court has, in effect, triumphantly announced that Federal Judges are indeed kings, with Royal Sovereign immunity even from reversal on appeal, because they have unfettered arbitrary and capricious discretion now to declare which cases, in their solely subjective opinions, present plausibly detailed allegations and which do not.  The result is that discovery is no longer a realistic vehicle for “fleshing out” reasonable suspicions in litigation: the Plaintiff must know, BEYOND REASONABLE DOUBT, all his facts, and must plead these facts in his complaint, and he must be certain that the Federal District (Royal Court) Judge whom he approaches will agree that his complete set of facts ABSOLUTELY entitle him to relief within the law as that Judge will apply it.  To state that this is a hard standard to meet is, perhaps, a serious understatement.

From a personal standpoint, from my first day in Law School at the University of Chicago, I had always strongly preferred the Federal Court system. Quite simply, the rules were cleaner, more orderly, fewer in number, and seemed better designed to insure “substantial justice” than the rules and practice in the State Courts.  Frankly, the day before my first day in Law School, I had asked a (then quite young) Professor David A. Strauss whether law was a science or an art, and was there any room for creativity in the field of law, towards using law to construct a better world.  I told him that I had finally decided to choose law, as between law on the one hand and anthropology & history on the other, because I felt unsatisfied only observing and trying to describe or interpret past societies, that I wanted to be part of the construction and reconstruction of living societies.  Although he would later co-author a book called “The Living Constitution” about exactly such use of the law in the construction and reconstruction of society, Professor Strauss was at that moment dumbstruck and asked nothing more than, “well, what if you decide that the U.S. Legal is worse than all the others that came before it?”  It turned out to be a rather prophetic exchange.  Not that I have concluded that the U.S. Legal system as “alive” under the Constitution is worse than any other system, quite the contrary.  What I have concluded as of my 51st birthday—as I enter “Area 51” of my life, 3 x 17—is that the U.S. Constitution itself is either dead or on very mechanically intensive life-support, and that the legal system under the dead or dying constitution has become at least as bad as some of the worst in world history—despite its potential if the Constitution were somehow to be resuscitated and live.  Freedom is the only guardian of truth and beauty, because only in a free society can we debate the truth among competing ideas, and choose for ourselves what is the good, the bad, and the ugly—not to mention the beautiful.  Any exercise of freedom for the purpose of advancing the bad and the ugly of repression is, to put it mildly, very disappointing—but that seems to be the most common recent exercise of the residual use or appearance of vanishing freedom in America.

I did not begin Law School until I had almost completed my doctorate at Harvard University, so Law was in some sense my “Second Career” although as a child I had met several distinguished lawyers and judges, been told that I had descended from several others, and so I had always fantasized about being a lawyer long before I heard about archaeology.****

In my first year of law school, the then recently (forcibly) retired Judge Robert H. Bork among together with all other professors essentially gave a rousing endorsement to the Federal Rules of Civil Procedure as the most efficient and noble experiment in procedural justice as the guarantor of substantive justice ever.  One of the key points was the reform of pleading: that detailed, formalistic “writ pleading” was “forever abolished” along with the more arcane forms of defenses, so that at law or in equity or in admiralty there would henceforth be but “one form of civil action”, and that was outlined under the FRCP, first promulgated in the late 1930s.

One of the key points in learning the simplicity of the Federal Rules was the Conley v. Gibson doctrine of dismissal, which had already survived 30 venerable years when I began my studies at Chicago: “No complaint should ever be dismissed unless it appears beyond doubt that the Plaintiff can prove no set of facts which would entitle him to relief.”  Any civil complaint NOT written by the Zodiac killer, in essence, would have a fairly good chance of surviving this standard.

In the year 2007, exactly 50 years after Conley v. Gibson was handed down at a time when the Federal Courts were opening their doors and exercising their broad Congressional grants of expanded their jurisdiction, the U.S. Supreme Court handed down what I would say without much (if any) exaggeration is the death-knell of both substantive and procedural due process in the United States.

A judge in a case in which I was deeply involved recently asked my distinguished counsel, a former State Assistant Attorney General, how he would get around or otherwise handle Bell Atlantic v. Twombly, 550 U.S. 544 (2007).   In that case, the Supreme Court expressly overruled Conley v. Gibson as the standard of decision under 12(b)(6) Motions, and adopted a rule that a judge must find subjective plausibility in a Plaintiff’s complaint before allowing that complaint to continue to discovery and trial.  I write “subjective plausibility” although the Court itself only required a judge to find the facts “plausible”.   I add the word “subjective” because I cannot imagine, and the Court did not provide, an “objective” standard of plausibility.  In math or physics there might be some “objective” standard of probability (which one might then equate with “plausibility”, but since the history of humankind has been riddled with the most implausible and outlandish events and turns and twists of the human psyche and behavior, it seems to me obvious that Bell Atlantic v. Twombly endows each United States District Judge with the power basically to say, “I don’t like this complaint, it’s ridiculous” and dismiss on grounds of implausibility.   Plausibility or implausibility is pretty obviously, “in the eye of the beholder.”  What is plausible or not is rather like “obscenity” in that sense, “I don’t know what it is but I can recognize it when I see it.”  Plaintiffs in Federal Court are now quite simply left at the mercy of judges PREJUDICES and BIASES regarding what facts may or may not be “PLAUSIBLE” which may in fact be a subliminal message to each judge that they can simply engage in their own miniature reigns of terror by deciding cases in advance, at the 12(b)(6) Motion to Dismiss for Failure to State a Claim upon which Relief Can be Granted, whom or which side they deem worth of winning a case.  Getting past the (now especially) inevitable 12(b)(6) Motion to Dismiss in Federal Court certainly does not guarantee final victory at trial-by-jury, much less on appeal, but it is a gate by and through which every complaint (or at least 98.5% of all complaints filed in Federal Court) must pass.

I, for one, have read and review reviewed the Complaint which was the subject of the ruling in Twombly and I am unable to believe that Chief Justice John Roberts’ Court upheld dismissal of those facts.  The original and amended Twombly complaints were very fine, professionally drafted antitrust complaints drafted by experts in the field of Plaintiffs’ Antitrust law.

If that complaint could be found “implausible” upon judicial whim, then I submit to you that now the law would appear to be that any federal complaint can be found “implausible” within the judicial discretion and whim of a judge without real stated justification.

As a result, I submit and suggest that EVERY PLAINTIFF WHO FILES HIS OR HER COMPLAINT IN FEDERAL COURT, from now until Twombly IS overruled (or more likely, when it is abolished by legislative fiat), must ask as an essential part of his or her complaint that the Court NOT apply the Twombly standard of decision in the particular circumstances of their case(s).   This must become as habitual as Cato the Elder’s famous closing remark at the close of each senatorial address “Cartago delendam esse” (“Carthage must be destroyed.”)  The Twombly standard must be abandoned abrogated, and something much closer to the old Conley v. Gibson standard reinstated.

For example, each person acting without a lawyer should include in her or his complaint a count by which to request declaratory judgment that as a matter of due process and equal protection, their Court must grant, allow, and define an exception to the Bell Atlantic v. Twombly rule for pro se litigants involved in fundamentally private individual litigation with no governmental defendants or publicly held and traded corporations involved.   Where none of the defendants are publicly owned or traded corporations or entities of any kind, Twombly ought NEVER apply.  Where there are no governmental defendants here nor great public policy issues at stake, even if the underlying reasons for the relationship between the parties arose from a matter of some public interest and concern, a much more liberal and objective standard of pleading must be allowed.  There is nothing good about shutting the doors of the Federal Courthouses to as many claims as can be subjectively eliminated on any judge’s evaluation of “plausibility” of allegations, prior to discovery and in many cases prior to deep factual research—-very few clients, honestly, will pay for fifty to a hundred or more hours of pre-filing litigation research, yet the Roberts Court has all but mandated such exhaustive pre-litigation inquiry.

The only real public issue relevant to Twombly in most cases is that of the honor and integrity of the judicial system.  Twombly is  obscene in the sense that it is “without redeeming social importance.”  Twombly is not a “tough” standard, but is so subjective that it is the equivalent of “no standard at all—absolute judicial discretion allowed.”

In the Old English system of “writs”, dismissal for failure to conform one’s pleading EXACTLY to the authorized writ formal was commonplace—-and so the courts of law and equity (Exchequer, Queen’s Bench, Common Pleas, Ecclesiastical Matters) in Mediaeval through Colonial times and even most of the 19th Century (except in havens of radical legal practice like the Republic of Texas—where a revolutionary rule of “unlimited free amendment of petitions and other pleadings” was adopted in 1836 at the time of the Revolution against Mexico and has been preserved more-or-less intact until the present time) examined the forms of each Plaintiff’s complaint and each Defendant’s answer thereto for legal sufficiency according to some very ancient and rigid templates

Under Twombly, there are no such (learnable, if difficult) rigid templates, there is only the U.S. District Judge, sitting like a Danton or Robespierre at the height of the reign of terror in France, ready and now empowered to chop off the head of each offender….

I submit that the United States Courts are being corrupted by the absolute power which Twombly affords to the Federal Judiciary.  Truly, under this modern regime, no appeal of a dismissal of any case could EVER be considered to be an abuse of discretion much less prejudicial and biased per se.

If allowed to proceed, each Plaintiff must include a plea for relief to this effect in his or her complaint: the Court shall allow each complaint to go forward to discovery, pre-trial dispositive motions (e.g. Motions for Summary Judgment after discovery) and trial itself, so long as the Complaint pleads sufficiently to put the Defendant on accurate notice of the charges against him.

***I had learned Latin first by reading Cicero and the Codex Iuris Civilis, ancient copies of which sat around my grandparents house inherited from their own respective lawyer father (my grandmother Helen’s father “Judge Benny”) and grandfather (my grandfather Alphonse’s grandfather, Rufus Daniel, the Marquis of Reading, Lord Chancellor and Viceroy of India).

Kathy Ann Garcia-Lawson’s Petition for Writ of Certiorari in the SCOTUS (Docket Files)

Supreme Court Document

No. 10-1159
Kathy Ann Garcia-Lawson, Petitioner
Jeffrey P. Lawson
Docketed: March 24, 2011
Lower Ct: United States Court of Appeals for the Eleventh Circuit
Case Nos.: (10-12369)
Decision Date: October 6, 2010
~~~Date~~~ ~~~~~~~Proceedings  and  Orders~~~~~~~~~~~~~~~~~~~~~
Jan 4 2011 Petition for a writ of certiorari filed. (Response due April 25, 2011)
Jan 4 2011 Appendix of Kathy Ann Garcia-Lawson filed.
03-14-2011 Final Revisions to KAGL Petition for Writ of Certiorari Appendix & Certificates

~~Name~~~~~~~~~~~~~~~~~~~~~ ~~~~~~~Address~~~~~~~~~~~~~~~~~~ ~~Phone~~~
Attorneys for Petitioner:
Kathy Ann Garcia-Lawson 2620 Nature’s Way (512) 968-2500
Palm Beach Gardens, FL  33410
Party name: Kathy Ann Garcia-Lawson

Civil Rights Removal: A SCOTUS Petition for Writ of Certiorari to the Eleventh Circuit Court of Appeals

Readers of this blog know of my long-standing fraternal affection for and ideological and spiritual collegiality with Dr. Kathy Ann Garcia-Lawson of Palm Beach Gardens, Florida 33410.  Kathy suffered terribly this year when after 5 years of valiant and courageous resistance, she was at last unable to prevent the entry of a devastating (and for many reasons completely illegal and improper) final judgment of dissolution of marriage on April 29, 2010.   In this Order, Judge Richard L. Oftedal sought to criticize and punish Kathy for standing up to the system and objecting to it.  Kathy’s Final Judgment Oftedal 4-29-2010.  People like Judge Oftedal really dislike people like Kathy (and me) who stand in the way of the fully perfected implementation of the “Brave New World” Envisioned by Aldous Huxley in 1930 and largely incorporated as the “New World Order” being born before our very eyes.

Whether, like Kathy and I are, you are horrified by or quite entranced by the fluidity, instability, and impermanence of human relationships, human rights, and the complete and utter corruption of the institutions of government entrusted to protect and promote both, it is a reality that the most sacred of all contracts, the contract of marriage, into which most people would ever dream of entering is guaranteed to be breachable by the government with little or no “per se” penalty.  If there is an estate, much of it will be confiscated by the lawyers, and the rest of it will be divided and slaughtered like Solomon’s baby (if the true mother had not intervened—because in the modern scenario the mother may well WANT the baby to die….that, too, is a constant background feature of modern life—the abortion meat-grinder).

What emerged as a particularly important issue in Kathy’s case, however, was at best tangentially related to the institution of marriage.  That issue was: does any judicial procedure whose outcome is absolutely assured or guaranteed, even as to the one single repetitive but common issue uniting all such procedures, qualify as a fair procedure?  Specifically, since divorce is not expressly and overtly guaranteed by law: does a judicial process which grants it automatically as if it were expressly and overtly guaranteed, as a result of an overwhelming state-wide custom, practice, or policy having the force and effect of law, violate equal protection of the law?  The classes of persons involved are determined only at the time of the initiation of judicial proceedings: petitioners for dissolution must always win their petition for dissolution.  Respondents (like Kathy) to a petition for dissolution must always lose.

As it happens, there is at least one Supreme Court case which seems to say that automatic resolution in favor of one party, any outcome determinative law or custom having the force of law, is unconstitutional.  That case is Greenwood v. Peacock (1966).  Greenwood v Peacock 1966

I worked with Kathy for a long time on trying to get the U.S. District Court for the Southern District of Florida to accept Kathy’s removal of her dissolution proceedings on Civil Rights Grounds pursuant to 28 U.S.C. Section 1443(1). We sought reconsideration of the Order of Remand pursuant to the unique provisions of 28 U.S.C. Section 1447(d). April 13 2010 KAGAL Rule 59(e) Motion for REVOCATION OF REMAND.doc- Kathy’s draft Judge Kenneth A. Marra would not accept it, although he did finally acknowledge that Civil Rights Removal was an express congressional exception to the “Well-Pled Complaint” rule that the grounds for removal must plainly appear on the face of any complaint for the case to be removable.  Document 9 Denying Rule 59(e) KAM KAGL

The key issue in Civil Rights Removal is a judicially formulated interpretation, functioning as a custom, practice, or policy having the force and effect of law, which prevents most courts from allowing removal under 28 U.S.C. Section 1443(1) is that it is an affirmative action program: available to minorities only, and available to them only where specifically anti-minority (racially oppressive) state legislation is specifically overridden by affirmative federal legislation. Needless to say, the number of cases fitting this particular paradigm can be counted, well, on the thumb and forefinger of one hand, because that is precisely the number of civil rights removals the Supreme Court has ever allowed to stand.  Rachel v Georgia 1966 Rachel held that where a specific Federal statute (the Civil Rights Act of 1964) guaranteed equal access to restaurants for persons of all races specifically overrode Georgia “Jim Crow” law mandating segregation of the races, removal of Georgia state prosecutions for trespass against black diners would be permitted under 28 U.S.C. Section 1443(1).

What the judicial policy of affirmative action means is that what SHOULD be a powerful tool for correcting abuses in state courts is all but useless.  The language of 28 USC 1443 as enacted by Congress neither mentions race nor color nor any aspect of black-white minority-majority tensions in America, but the Supreme Court has construed the statute so as to mean absolutely nothing to anyone for going on 44 years now.

I suggested to Kathy and Kathy agreed that the Supreme Court’s construction of Civil Rights Removal is nothing but a blatant affirmative action program, a positive form of racial discrimination in favor of a racial minority or racial minorities generally which cannot pass the “Strict Scrutiny” test formulated for all equal protections and fundamental rights issues by the Supreme Court in the late 1970s and consistently applied ever since.  Quite simply: rendering 28 U.S.C. Section 1443(1) nugatory by imposing a racial gloss on racially neutral language is neither the simplest nor most narrowly tailored route to achieving or maintaining any compelling governmental goal or purpose.  In fact, no governmental purpose (aside from limiting the number of cases removed from state to federal court—hardly a “compelling” governmental purpose in any sense of the term) has ever even been mentioned.

So, following Marra’s orders, the Eleventh Circuit Court of Appeals ignored Kathy’s appeal and summarily affirmed Marra’s Order of Remand, without even MENTIONING the question of strict scrutiny for all race-based schemes even those called “benign.”  10-12369 Lawson v Lawson 201012369 10-06-2010

I think the most amazing aspect of the Eleventh Circuit’s Order was its complete refusal to address our strict scrutiny attack on the Judicial Policy of Implementing or Constructing the BROAD, ALL-INCLUSIVE language of 28 U.S.C. Section 1443 as an extremely narrow racial affirmative action program which really serves no one, black, white, yellow, brown, red, or completely indeterminate.   The normal Supreme Court rule is that courts must give full force and effect to EVERY WORD of any congressionally enacted statute.  Here, completely reversing that norm, the Supreme Court ruled that courts must not give effect to any words in the statute at all, but only to the Supreme Court’s gloss on the statute.  In essence, what the Supreme Court admitted in its 28 USC 1443 jurisprudence was this: the Civil Rights movement and reform of the 1950s and 1960s was really great for keeping African-Americans out of the clutches of communist infiltrators in the United States, who had gained so much of a foothold in the Black community (north and south) during the 1920s, 1930s, and 1940s, but once we had obviously won the Cold War, it was perfectly reasonable to forget about Civil Rights for any other segment of the population because, well, if Federal Courts had to police the several State’s compliance with equal protection and due process, two terribly undesirable things would happen: (1) Federal Judges would have to work really hard, because lots of cases would be removed from state court, and (2) Civil Rights might actually be upheld as applying to all people, regardless of race, creed, or color, and to allow everyone, even white people, to assert civil rights would just, really, radically, and perhaps definitively limit the power of government—and the Warren and Burger Courts certainly had NO interest in limiting the power of the Central Government (or, really, any other government for that matter—the Rehnquist and Roberts Courts really have not been significantly better—Justice Scalia has always amazed me for his jurisprudence of, “a democratically elected legislature cannot enact an unconstitutional statute unless I really don’t like it.”

So, to complete this little essay, I offer you now Kathy’s SCOTUS Petition for Writ of Certiorari to the Eleventh Circuit.  01-04-11 Petition for Writ of Certiorari Final CRR-KAGL This is a single issue petition focusing on the scope of Civil Rights Removal and the question of whether the original Congressional language adopted by the Democratically elected legislature OR the judicial construction, gloss, and interpretation imposed by the Supreme Court in 1966-1975 should prevail despite the fact that the Supreme Court in so doing designated Civil Rights Removal as a positively discriminating affirmative action program which is irrational in that it benefits almost nobody and renders Congress’ statutory language completely nugatory.

I for my part am interested in Civil Rights Removal because of my involvement in another field of American law whose outcome is almost as uniformly determined as dissolution of marriage/divorce cases: namely, judicial foreclosure and eviction and judicial eviction following non-judicial foreclosure.   Many homeowners have attempted to use Civil Rights Removal only to be told that if the state statutes apply equally to blacks, whites, hispanics, and all other racial groups, Civil Rights Removal is not available no matter how many non-racially defined civil rights and fundamental constitutional guarantees are violated.  Kathy and I would welcome any and all commentary on this Petition, to be sure. I would also like to express my deep gratitude to Edward Villanueva of San Diego who has underwritten the continued litigation of this and many other issues, and to the newest member of Tierra Limpia/Deo Vindice, S. P.,  who ably assisted in the preparation and editing of the Petition under rather astounding circumstances and short notice while I was otherwise incapacitated.

Constitutional Attorney Needed to Challenge Non-Judicial Foreclosure & Eviction Law in California



Specifically, we need a Constitutional Lawyer with experience and/or interest in state-federal jurisdictional comity to represent defendants (possible class action) who filed civil rights removal to federal court;  we specifically need immediate representation on the question of the Court’s judicially fashioned racially discriminatory scheme in application and enforcement of civil rights laws (“all race based schemes should be subject to strict scrutiny, even those called” benign which were instituted by the U.S. Supreme Court).

A hearing is set for July 19, 2010, but new and qualified counsel could probably get a continuance.  However, the arguments are really extremely simple: Judge David O. Carter has ordered Defendant Renada Nadine March to explain why her removal of a forcible detainer case from California Superior Court to the United States District Court for the Central District of California should not be remanded for failure to comply with a judicially mandated program of racial discrimination in the application of certain federal statutes, to wit 28 U.S.C. Sections 1443 and 1447, which are facially colorblind and contain broad, racially neutral language regarding their intended purpose and application.  The express purpose is to ensure that defendants who are condemned by an express statement of state law to lose, so that all cases are fixed, whether facially or as applied, can remove the prosecutions against them to the U.S. District Court to raise defenses which are unavailable to them, as a practical matter of law or local customs and policies having the force of law, in state Court.  It is beyond reasonable doubt that California Superior Courts presiding over forcible eviction/unlawful detainer prosecutions following non-judicial foreclosures are such “one way streets” in which each and every Defendant’s federally secured rights are designed to be denied by the mere fact of bringing the Defendant to trial in state court—swiftly and efficiently.  Defendants Joseph & Ana Cohen and Aurora I. Diaz are directly interested in the outcome of this issue because they have removed their own forcible eviction/unlawful detainer cases from California Superior Court to U.S. District Court.

We are now seeking an attorney who is either well-versed in, passionately interested in, or at the very least willing to become well-versed in and passionately interested in the question whether “strict scrutiny” should apply to a judicially shaped policy which turns a statute which is colorblind and racially neutral on its face into an instrument of so-called “benign” (i.e. pro minority, mostly pro-African American) Discrimination by denying equal access to removal for serious violations of civil rights which are not explicitly racial in nature or context.

Simply summarized, 42 U.S.C. Section 1981 is directly violated by the California Legislative-Judicial two step program of non-judicial foreclosure followed by judicial evictions devoid of due process or any normal or realistic possibility for ordinary defendants to win.  California non-judicial foreclosure is effectively insulated from most common law contract-based challenges under under California Civil Code 2924 et seq. both on its face as enacted by the California Legislature and as applied by the Superior Courts of the State of California.

California non-judicial foreclosure is followed by California Superior Court judicial evictions which are carefully designed and expressly limited to obliterate all the rights secured by 42 U.S.C. Section 1981(a): “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property” and 1981(b) “For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.”   The total effect and combined result of this language is or ought to be that the common law of contract and property is insulated from legislative or judicial impairment: 1981(c) “The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.”  That contractual rights are related to property rights is obvious from 1981, but confirmed by 1982, which enforces equality “to inherit, purchase, lease, sell, hold, and convey real and personal property.”

Freedom of Contract and the Fourth and Fifth Amendment rights to the security of property from invasion or seizure by the government or private properties acting under governmental authority or delegation depended in the Reconstruction era on state adherence to the common law, and in essence, they still do.

We also take the position that the references to “white citizens” in 42 U.S.C. Sections 1981 and 1982 is as archaic and out of place, and as subject to analysis under strict scrutiny requiring excision from the U.S. Code like any other irrational and racially discriminatory provisions of any law which does not serve a legitimate and compelling governmental objective.

Our position is that there should be no racial discrimination in the application of 28 U.S.C. Sections 1443 and 1447, and that this legal argument is so plain and simple that any attorney licensed in the United States District Court for the Central District of California should be capable of presenting this case.  The main difficulty is a willingness to challenge the race-based scheme mandated by plain Supreme Court precedent (from 1966-1975) which is directly contrary to and contradictory of the Bakke through Bollinger jurisprudence on equal protection from 1978-2003 and which is “good law” at the present time.

The mortgage foreclosure and eviction crisis currently sweeping the United States in general, and California in particular, goes to the heart of a basic question: are common law concepts such as privity of contract, holder in due course standing, and legal capacity or formation as an entity, so essential to constitutional definitions of private property and freedom of contract that any state statute which abrogates or infringes upon these rights, for example, by creating by statute (such as exists in California) a two step non-judicial foreclosure procedure followed by a predetermined one-way judicial eviction policy, may be said to be a statute unconstitutionally impairing the obligations of contract?

Note from Charles Lincoln:  Founder of Tierra Limpia Trust and Deo Vindice Foundation.  As any regular reader of this blog knows, in addition to holding a Master’s and Doctoral degree from the Harvard Graduate School of Arts & Sciences, wherein I wrote a dissertation entitled, “Ethnicity and Social Organization,” I am a graduate of the University of Chicago Law School who does not currently possess a valid license to appear on behalf of others in the state courts of California, Florida, or Texas where I was once licensed.  There are those both on-line and in the State Bar Organizations who think that the historical context of my disbarment is unimportant, and that one need only look at the formal charges against me to determine that I should not be taken seriously.  Naturally, I disagree and submit that historical context is everything: I was disbarred as a result of charges and an indictment handed down for one purpose and one purpose only: to silence me and to prevent the effective prosecution of my civil rights cases on behalf of non-minority victims of police brutality and systematic policies of violation of Fourth and Fifth Amendment Constitutional Rights in Texas.  In short, all of the events leading to my indictment and disbarment were the direct result of my having stood up for the principle that Civil Rights Law is for everybody, including the white majority, and not just for minorities.  I think that the “powers that be” in Texas in the 1990s who later took national office in the elections of 2000 and all their supporters at every level are deeply threatened, indeed offended, by the idea that all Americans should have civil rights.  As long as Civil Rights are only available to minorities, the concept of “discrimination” can be used to create divisions among the people and to enhance the power of transcendent government and its corporate conglomerate allies.  A nation in which civil rights applied to everyone would, from the standpoint of our national government, and most of its partisans and political officers, seem simply ungovernable.  It is my position that “none can be free until all are free” and that a civil rights policy which enhances the rights of any minority while denying the same rights and access to the courts to the majority is unworthy of the name of American Constitutional government.

Please Call Renada Nadine March at 949-586-4020 or 949-276-1970 (renada.march@gmail.com) or Kathleen Waller (727) 277-9352; propertyrightsadvocate@yahoo.com; if you are an attorney interested in representing Renada Nadine March, and possibly Joseph & Ana Cohen and Aurora I. Diaz as well.