Monday, November 2, 2009

Bob Hurt on "Immunity"

Bob Hurt
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Bank of U.S. v. Planters Bank 9 Wheaton (22 US) 904; 6 L. Ed. 24, (1824), the Court stated, in part: "The government, by becoming a corporator, lays down its sovereignty; exercises no power or privilege which is not derived from the charter."

"Governments lose their immunity and descend to level of private corporations when involved in commercial activity enforcing negotiable instruments, as in fines, penalties, assessments, bails, taxes, the remedy lies in the hand of the state and its municipalities seeking remedy." Rio Grande v. Darke, 167 P. 241.

Other cases:

"The rule of governmental immunity as to all political subdivisions of government is hereby abrogated as it has heretofore been abrogated as to municipal corporations, i.e., cities. No longer is the defense of governmental immunity for tort liability available, irrespective of whether the involved political subdivision is functioning 'governmentally' or 'proprietarily'." MYERS v GENESSEE COUNTY , 375 Mich 1, 1965.

"The principal of sovereign immunity is not one which allows the sovereign to continue to inflict injury.... [sovereign immunity] does not give the sovereign the right to totally disregard the effect of it's actions upon the public." Shaw v. Salt Lake County , 224 P2d 1037.

"Sovereign immunity does not apply where (as here) government is a lawbreaker or jurisdiction is the issue." Arthur v. Fry, 300 F.Supp. 622 (1960).

"The general rule is that a qualified immunity defense fails once a plaintiff has alleged that defendants have violated the plaintiff's clearly established rights. Occasionally, however, objectively "extraordinary circumstances" are present which combine to justify a grant of immunity nonetheless." Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982).

*On Our Adversarial System; Mack vs. City of Detroit, Chief Justice Cavanagh, No. 118468, 2002.

"The adversarial system ensures the best presentation of arguments and theories because each party is motivated to succeed. Moreover, the adversarial system attempts to ensure that an active judge refrain from allowing a preliminary understanding of the issues to improperly influence the final decision. This allows the judiciary to keep an open mind until the proofs and arguments have been adequately submitted. In spite of these underlying concerns, the majority today claims that the benefits of full briefing are simply a formality that can be discarded without care. The majority fails to comprehend how the skilled advocates in this case could have added anything insightful in the debate over the proper interpretation of a century's worth of precedent. Whatever its motivation, the majority undermines the foundations of our adversarial system."

When a judge knows that he lacks jurisdiction, or acts in the face of clearly valid statutes expressly depriving him of jurisdiction, judicial immunity is lost. Rankin v. Howard, (1980) 633 F.2d 844, cert den.Zeller v. Rankin, 101 S.Ct. 2020, 451 U.S. 939, 68 L.Ed 2d 326.

In Rankin v. Howard, 633 F.2d 844 (1980) the Ninth Circuit Court of Appeals reversed an Arizona District Court dismissal based upon absolute judicial immunity, finding that both necessary immunity prongs were absent; later, in Ashelman v. Pope, 793 F.2d 1072 (1986), the Ninth Circuit, en banc , criticized the "judicial nature" analysis it had published in Rankin as unnecessarily restrictive. But Rankin's ultimate result was not changed, because Judge Howard had been independently divested of absolute judicial immunity by his complete lack of jurisdiction.

Some Defendants urge that any act "of a judicial nature" entitles the Judge to absolute judicial immunity. But in a jurisdictional vacuum, (that is, absence of all jurisdiction) the second prong necessary to absolute judicial immunity is missing. Stump v. Sparkman, id., 435 U.S. 349.

"Where there is no jurisdiction, there can be no discretion, for discretion is incident to jurisdiction." Piper v. Pearson, 2 Gray 120, cited in Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872)

A judge must be acting within his jurisdiction as to subject matter andperson, to be entitled to immunity from civil action for his acts. Davisv. Burris, 51 Ariz. 220, 75 P.2d 689 (1938)

Generally, judges are immune from suit for judicial acts within or in excess of their jurisdiction even if those acts have been done maliciously or corruptly; the only exception being for acts done in the clear absence of all jurisdiction. Gregory v. Thompson, 500 F2d 59 (C.A.Ariz. 1974)

There is a general rule that a ministerial officer who acts wrongfully, although in good faith, is nevertheless liable in a civil action and cannot claim the immunity of the sovereign. Cooper v. O'Conner,99 F.2d 133

When a judicial officer acts entirely without jurisdiction or without compliance with jurisdiction requisites he may be held civilly liable for abuse of process even though his act involved a decision madein good faith, that he had jurisdiction. State use of Little v. U.S. Fidelity & Guaranty Co., 217 Miss. 576, 64 So. 2d 697.

"... the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument." Marbury v. Madison, 1 Cranch 137 (1803).

"No judicial process, whatever form it may assume, can have any lawful authority outside of the limits of the jurisdiction of the court or judge by whom it is issued; and an attempt to enforce it beyond these boundaries is nothing less than lawless violence." Ableman v. Booth, 21Howard 506 (1859).

"The courts are not bound by an officer's interpretation of the law under which he presumes to act." Hoffsomer v. Hayes, 92 Okla 32, 227F 417.

"The constitution of the Union constitutes a contract with the members and is the measure of the authority conferred upon the organization to expel or otherwise discipline them.' [Citing cases]; Accord: Leo v. Local Union No. 612 of International Union of Operating Engineers, 26 Wn.2d 498, 174 P.2d 523 (1946).

"IT IS THE DUTY OF THE COURT TO DECLARE THE MEANING OF WHAT IS WRITTEN, AND NOT WHAT WAS INTENDED TO BE WRITTEN. J.W. Seavey Hop Corp. v. Pollock, 20 Wn.2d 337, 348-49, 147 P.2d 310 (1944), cited with approval in Berg v. Hudesman, 115 Wn.2d at 669.

"It being impossible to obtain the remedy sought, the state and their agencies/municipalities being impotent to enforce their judgments/decrees and thus should not even exercise their otherwise ˜general" jurisdictions." Louisiana v. NAL, 106 La. 621. And;

"Mere equity is impotent to correct the defect." McGraw v. Gortner, 96 Md 489.;

"A law which restricts their power to render and enforce a judgment is therefore a limitation upon the exercise of jurisdiction; and a law which destroys or impairs the effect which their judgments without such law would have, is equally so." Fordyce v. Beecher, 2 Tex. Civ. App. 29, 31.