FOR THE NINTH CIRCUIT

DIXIANNE HAWKS,                        No. 95-16714

           Appellant                   USDC EAST. DIST. CAL.
                                       Civ. No. 93-82 WBS




                                        Dixianne Hawks
                                        13803 N. Granada Dr.
                                        Magalia, Calif. 95954
                                        Tel: (916) 877-6436

                                        Appellant in her Person

                           Cover Page

                        TABLE OF CONTENTS

Table of Contents (this page)................................i

Table of Cases..............................................ii

Other Authorities..........................................iii

Statement of Jurisdiction....................................1

Statement of Issues Presented................................2

Statement of the Case........................................2

Damages Were Not Sought Against the Federal Judges...........3

Introduction to the Issue....................................4

The Rationality of Judicial Immunity.........................7

   1.  Judicial Immunity Prevents Democratic Change..........7

   2.  Judicial Immunity Undermines Judicial Credibility.....8

   3.  Judicial Immunity Violates Two American Revolutions...9

Conclusion of This Part.....................................10

I  The Scope of Judicial Immunity Applied...................11

       The Mullis Distinction from Pulliam v Allen..........17

II The Historical Basis for Judicial Immunity...............18

       We Are Three World Away from Ancient English Law.....23

III    Judicial Immunity Violates the Constitution..........26

EXCERPTS (under separate cover)


                         TABLE OF CASES

United States Supreme Court:

Bivens v Six Unknown Named Agents, 403 US 388...............11
Briscoe v Lahue, 460 US 325.................................30
Bradley v Fisher, 80 US (13 Wall) 335 (1872)............18, 21
Bridges v California, 314 US 252 (1941).................19, 22
California Transport v Trucking Unlimited, 404 US 508 (1972)26
Dennis v Sparks, 449 US 24..................................13
Edelman v Jordan, 415 US 651.................................7
Mine Workers v Illinois Bar Assn., 318 US 217...............26
Pulliam v Allen, 466 US 522..............................4, 17
Scott v Sanford, 60 US 393 (1857)............................8
Stump v Sparkman, 435 US 349 (1978).....................15, 18
Yick Wo v Hopkins, 118 US 356 (1886)........................29

United States Courts of Appeal:

Attica Cor. Fac. v Rockefeller, 477 F2d 375.................18
Gobel v Maricopa County, 867 F2d 1201.......................17
Hawks v Butte Co., 9th Cir. No. 93-15346....................12
Mullis v US Bankruptcy Court, 828 F2d 1385...........2, 11, 18
Peek v Mitchell, 419 F2d 575................................18
U.S. v Hylton, 710 F2d 1111 (5th Cir.)......................27

California Supreme Court:

City of Long Beach v Bozek, 31 Cal.3d 527 (1982)........26, 27
In Re Hallinan, 71 C2d 1179.................................19

English Court Cases:

Floyd and Barker, reported by Coke, in 1608, (12 Coke 25)...22
Kendillon v Maltby, 174 Eng. Rep. 562,566 (N.P. 1842).......21
Taaffe v Downes, 3 Moore P.C. 41............................20


                        OTHER AUTHORITIES


First Amendment Petition Clause................4, 6, 7, 26, 27
Fifth Amendment Due Process Clause.................2, 3, 4, 15
Thirteenth Amendment.....................................2, 29


18 USC 241/242..........................................17, 18
28 USC 453...................................................3
28 USC 2674...........................................4, 6, 28
42 USC 1985...........................................3, 4, 11


Dixianne Hawks
c/o General Delivery
Magalia, Calif. 95954
Tel: (916) 877-6436

Appellant in her Person


                    FOR THE NINTH CIRCUIT

DIXIANNE HAWKS,                         No. 95-16714

           Appellant                    USDC EAST. DIST. CAL.
                                        Civ. No. 93-82 WBS



     STATEMENT OF JURISDICTION: (Circuit Rule 28-2.2)

     (a) This  portion of  the lawsuit  is against  four  federal

judges for  violating the Petition Clause, Due Process Rights and

42 USC  1985. Jurisdiction  in the  District Court is pursuant to

Article III, Section 2, U.S. Constitution, and 28 USC 1331.

     (b) Appellate Jurisdiction is in this court pursuant to FRCP

Rule 54(b) and 28 USC 1291.

     (c) Judgment  was entered  pursuant to  the  Memorandum  and

Order of  Judge Shubb,  filed in  the District  Court on July 27,

l995.   The Notice  of Appeal  was filed in the District Court on

August 24, l995.  It is timely pursuant to FRAP Rule 4(a)(1).

     Rule 28-2.3 Reasonable Attorney Fees are sought under 42 USC


     Rule 28-2.5  Standard of Review from a motion to dismiss; de

novo as to all issues.

                    Appellant's Opening Brief:
                          Page 1 of 35


     Appellant presents the following issues to this Court:

     1.   Was judicial immunity lawfully applied to Judge Garcia?

     Was his  conduct of  dismissing on  the basis of a policy of

prejudice against IFP litigants without return of summons, notice

or hearing, a judicial act as opposed to an administrative act?

     Are the  remedies sought  against  Judge  Garcia  prohibited

within the ambit of Mullis v US Bankruptcy Court, 828 F2d 1385?

     Is the Mullis doctrine of judicial immunity constitutional?

     2.   Was judicial immunity lawfully applied to Judges Canby,

Schroeder and Wiggins?

     Is a  conspiracy of  judges to  institute an illegal policy,

within "subject  matter  jurisdiction,"  within  the  meaning  of

Mullis?   And, if  so, is  the Mullis  judicial immunity doctrine


     3.   Does  the   judicial  immunity   doctrine  violate  the

Petition,  the   Due  Process,   or  the   Thirteenth   Amendment

Involuntary Servitude Clauses?

                      STATEMENT OF THE CASE

     This is  an appeal  from a  dismissal of  the Fifth Cause of

Action, on  motion of  all federal  judge Defendants,  granted on

July 27,  l995, on  the basis  of judicial  immunity. Pursuant to

Rule 54(b),  a final  judgment was  entered.   Appellant's  claim

arises under  the Petition and Due Process clauses for denials of

Equal Protection  by Judge  Garcia, and  a conspiracy to cover-up

his  violations  and  maintain  a  secret  policy  denying  equal

protection on  the basis  of poverty,  by the three Ninth Circuit

Court of Appeals Judges who heard the appeal.

                    Appellant's Opening Brief:
                          Page 2 of 35

     THE FACTUAL  ALLEGATIONS: "(n:n)" Refers to page and line of

the First Amended Complaint (FAC).

     Appellant is  indigent and  entitled  to  proceed  in  forma

pauperis (IFP)  (7:10) without discrimination because of poverty,

under the  Petition  Clause,  the  Due  Process  Clause  and  the

judicial oath;   28  USC 453.  On 1/13/93,  she filed  a  federal

complaint IFP,  for 42  USC 1983 violations by state officers. It

was assigned  to Judge Garcia. (7:12-23) She had a right to amend

the complaint. (7:28-8:3) (FRCP 15).

     Judge Garcia  has a  policy of  discrimination against  poor

People who  proceed IFP,  by dismissing  with prejudice,  without

notice or  hearing.   The  policy  denies  rights  to  amend  the

complaint because of IPF status and increases the cost of justice

to the poor because they are poor. (8:4-11). On January l9, l993,

under the  aforesaid illegal  policy, Judge  Garcia dismissed the

complaint with prejudice. (8:12-17)

     Hawks appealed to the Defendants:  Circuit Judges Schroeder,

Canby  and   Wiggins.  As  Judge  Garcia's  superiors,  they  are

obligated to   disaffirm  the aforesaid  illegal policy which was

placed so  squarely before them they could not avoid it. They did

arbitrarily and  capriciously cover-up,  adopt, and  ratify  said

illegal policy  in violation  of Appellant's  due process rights,

and  by  such  conspiracy  to  adopt  and  ratify  it,  they  did

intimidate and  oppress her  Petition Rights  in  federal  court,

violating 42 USC 1985(2). (See 9:8-10:2 generally).

                    Appellant's Opening Brief:
                          Page 3 of 35


     Each of  the first  four causes of action seeks damages from

Butte County  and Michael Ramsey. (See FAC 3:10; 3:28; 5:11; 6:21

and Punitive Damages at 6:25 et seq.)  Hawks did not seek damages

in the  fifth cause  against the  federal  judges.  Instead,  she

prays "under  this supplement"  for: (1)  an  injunction  against

Judge Garcia;  (2) a  declaration that  the policy  violates  due

process; (3-5)  a jury trial as to whether the conduct complained

of violates  due process,  the Judicial Oath, and 42 USC 1985(2);

(6) from  each judge  a public  apology; (7)  from  Judge  Garcia

reasonable costs  and attorney  fees  for  the  appeal  from  his

dismissal;   and (8)  attorney fees  and costs  in this case, and

such other relief as is just and proper.

     The Fifth  Cause complies  with Pulliam v Allen, 466 US 522.

While Pulliam  addressed state  judges under  42 USC  1983, there

appears no  reason why  its principle  does not  apply to federal

judges under the Petition and Due Process Clauses and under their

oath and 42 USC 1985.

                    INTRODUCTION TO THE ISSUE

     The facts  underlying this appeal are easy to understand. It

is the  "law" of  "judicial immunity" to violate the Constitution

that is  complex and incomprehensible;  it is a false body of law

that begins with a contradiction:

     1. Judges  are immune  from redress  to those they injure in

violation of constitutional rights under color of office.

     2. "Congress  shall make  no law  ... abridging the right of

the  People   ...  to   petition  government  for  a  redress  of


     3. The  "Coup de  Grace" emasculating the Petition Clause is

found  in  28  USC  2674,  in  the  1988  amendments.  "Personal"

immunities created  by the  judiciary now completely immunize the

                    Appellant's Opening Brief:
                          Page 4 of 35

government from  accountability to  those its  immunized officers

injure  in   violation  of  constitutional  rights.  Today,  most

government officers  who have  direct contact with the People can

find an immunity to hide behind.

     What happened  to the  Petition Clause?   If it speaks true,

wherefrom comes  immunity to  violate the  Constitution?   We are

told the  judges created  it; but  under Article I, only Congress

can make  law; under  Article IV,  only the  Constitution and law

made pursuant to it, not in derogation of it, are the Supreme Law

of the  Land; and  under Article  VI, all  judges  are  sworn  to

support "This Constitution."  The contradictions rage on.

      Judges contend the authority is implied in a constitutional

doctrine that is also implied, called the "Separation of Powers."

Judicial Immunity, they say, comes not from law, but from its own

constitutional separation  from the  Legislature. It  cannot make

law breaching that separation. That is the basis of immunity.

       The problem with that rationalization is not only that its

premise is  twice removed from the Constitution, so that we can't

find it  except by  blind faith in our judiciary, but immunity to

violate  Constitutional  Rights  also  has  nothing  to  do  with

separation of  powers.  The issue is accountability to the People

for violating their rights, not accountability to another branch.

A constitution  that "implies"  a right  for judges to violate it

with impunity  is not  a constitution  at all,  but a  license to

violate rights under color of judicial fiat.

     Another weakness of that argument is that the judiciary also

created immunities  for the rest of government. That violates the

same separation principle said to justify it, in four ways:

                    Appellant's Opening Brief:
                          Page 5 of 35

      First, its extensions of immunity to other branches are not

merely making rules for itself, but making laws that apply to all

of government.  That invades the legislative function.

       Second,  those laws also apply to the People, denying them

redress for constitutional wrongs under "law" designed by judges.

That also  invades the  legislative function,  albeit beyond  the

legislative power.

       Third,  by setting  the terms  and conditions  under which

government, in  all branches,  is immune  to violate  rights,  it

achieves  the   opposite  of   separation:  It  consolidates  and

organizes government  against the  People's exercise  of  rights.

For example,  judges created  immunities over  120 years, then in

1988 Congress  insulated government  by  amending  28  USC  2674,

thereby  consolidating  two  branches  of  government.  Then  the

executive branch  defends government  before the  courts, thereby

consolidating all three branches against the People.

       Fourth,  another "separation  principle" also  violated is

Tenth Amendment  States' Rights.  The Federal  Judiciary has  not

just created  immunity for  itself and for federal officers, but,

disguised as constitutional doctrine, it has created immunity for

state officers as well. This not only unites the federal branches

against the  People, it  also unites  them with  state and  local

governments, all against the People's civil rights.

       What  begins to  appear is  that the  judges, by  grant of

immunity to  themselves and to select government officials at all

levels, have  completely redesigned our Constitution. As we shall

see herein,  this redesign goes far beyond simple civil immunity.

It renders  the People  incapable of enforcing any rights against

anyone judges  want to protect, for any reason, or for no reason.

                    Appellant's Opening Brief:
                          Page 6 of 35

       Unenforceable rights are not rights at all.

       The  effect of  these immunities over time is to create an

elite ruling  class, bound  not by  the general  law nor  to  our

Constitution, but bound only by personal loyalty to government.

       That is a New Nobility, and it emerged this way:

       As  the separation  fallacy became apparent, the judiciary

created another  rationale that  had been  brewing for  a hundred

years to justify the same end. As nations are sovereign from each

other, the judges ruled, governments are sovereign from their own

People. Since  it is  sovereign, government  can decide if, when,

and how  to waive  its sovereignty  and  subject  itself  to  the

Petition Clause,  within whatever  limits it  wants.  If it wants

not, the Petition Clause is not.

        That is the argument of "sovereign immunity." Stripped of

its mystique,  it is  "The Divine  Right of  Kings," a  barbarian

doctrine that  died at  the Convention  and was  buried under the

Petition Clause  until resurrected  under the  doctrine of  stare

decisis and  "ancient common law," and pulled past the Revolution

and through  the Constitution.   For  an example,  see Edelman  v

Jordan, 415  US 651,  where the  Court amended  both the Petition

Clause  and  the Eleventh Amendment based  on the ancient English

doctrine of the Divine Right of Kings.

     Again, the  People are  subjugated to  the whims of kings by

another name, without right of redress through compulsory process

of law.   Law,  inaccessible to  the People to redress grievances

with government,  is not  law, but  tyranny.  The  new  civilized

relationship of  government to governed -- won in war, written in

blood,  and  sealed  into  our  Constitution  --  was  lost,  one

"judicial interpretation"  at a  time. The  awesome forces it was

designed to protect us from, are unchained.

                    Appellant's Opening Brief:
                          Page 7 of 35

       That is judicial immunity and from where it came. There is

no justification  for it  in a nation tending to be civilized. It

is not  lawful under  our Constitution, nor is it rational to our

democratic institutions. Yet, today judicially created immunities

have become  the dominant  force of government, organized against

the People.


       Reason  imposes limits  on the justifications for judicial

concepts of immunity.  We address three separate considerations:


       First, moral or legal concepts are not born in full bloom.

They emerge,  are examined  and refined,  and  take  on  a  gloss

defining the  limits of application in various contexts. Ideas in

law or  ethics are  like ideas in science:  only a few are really

basic and  the rest  give way  to competing  ideas that make more

sense in the changing world that measures their worth.

       An  interesting thing about ideas:  wrong ideas imposed by

law prevent  development of  better ideas  necessary to  evolving

culture. So,  for example,  wrong ideas  of governmental immunity

carried  into   an  age   of  constitutional  democracy  stagnate

development of  democratic  relationships  and  prevent  the  new

institutions necessary to the changing times.

                    Appellant's Opening Brief:
                          Page 8 of 35

       When dogmatic institutions are enforced beyond their time,

pressure builds  for democratic replacements, without which civil

strife and war fill the void. An example of judicial support of a

coercive institution  beyond its  time was Scott v Sanford, 60 US

393 (1857).    The  moral  foundations  of  slavery  had  already

crumbled, but  seven Justices  found the  institution was written

into our Constitution, and thrust the Nation into civil war.

     As we will see, judicial immunity, which comes from the same

intellectual era as Dred Scott, prevents development of ideas and

institutions for  government accountability  to the  People under

the Constitution for its wrongs to them. It is an anti-democratic

institution in a democratic age.


       Second  is the  context of intellectual evolution in which

ideas are  examined. The  moral, legal  and scientific world into

which ideas are born changes over time. Judicial ideas, developed

when governments  ruled through  alliances with  the  Church  and

under authority  of the  "Divine Right  of Kings," are not in the

same moral, legal or scientific world in which they originated.

       The result is, justifications that once seemed irrefutable

are now  obviously false  or irrational. So, for example, once it

was acceptable to argue "Judicial Immunity is justified by Divine

Right of  Kings because  the King appointed the Judge who acts in

the King's  place." But  today, such arguments are absurd and, to

reasonable minds,  they are  arguments against  immunity, not for


       In  context, judicial  concepts must  keep pace  with  the

intellectual and  theoretical basis of culture to be meaningfully

understood by  the People.    Justifications  of  privileges  and

immunities not  otherwise allowed  to  anyone,  from  common  law

doctrines of  the Divine  Right of  Kings to  a People who reject

both Divine Right and Kings, undermine judicial credibility.

                    Appellant's Opening Brief:
                          Page 9 of 35

       The Principle: If the Judiciary is not reasonable in terms

the People  understand, it  is seen  as  an  irrational  dogmatic

belief system the People will progressively reject.


       Third  are the  Revolutionary Changes  in  accepted  legal

theory.   America has  had two revolutions separating it from the


       The  first was the Revolution of 1776. It freed the Nation

from British  Rule. Thereafter,  the law  of England had no legal

force in  America. We  set up  our own  laws and institutions and

were free  to accept  or reject any basis for law, until the next

revolution, only fourteen years later.

     We sometimes fail to appreciate the significance of adopting

the Constitution.  Unlike any other in history, it revolutionized

the relationship between the government and the governed into one

now accepted  as the basis for governmental legitimacy around the


       British  Common Law  inconsistent with our Constitution is

legally incompetent,  regardless of the supporting justifications

for it.  There could  be no  more complete  a break  in the legal

bonds of  two  nations  than  a  war  to  separate  them,  and  a

constitution from  which to  go their  separate ways. There is no

more compelling  a legal reason to adopt English Common Law, than

the ancient law of Rome or of Greece.

                    Appellant's Opening Brief:
                          Page 10 of 35

       Neither  the fact (if it is a fact) that Judicial Immunity

was found  in English  Common Law,  nor that  judicially  created

rules of  stare decisis  allow courts  to refer  to  Common  Law,

allows let  alone compels  us to  adopt particular bodies of that


     Ultimately, it is consistency with the Constitution, both in

process  and  substance,  not  a  rule  purporting  to  authorize

adoption, that  determines whether  rules of antiquity can become

the law in these United States.

     "Laws" inconsistent with the Constitution are not the law of

the United  States. For  government to  coercively insist that it

is, is  to court civil war.  In this age of science, it is only a

matter of  time until  the People  see it and call it for what it

is: Open Rebellion by Government Against the Constitution.

                     CONCLUSION OF THIS PART

       Reason  places constitutional limits on judicial doctrine.

When examined,  immunity is  an irrational  policy of  government

coercively taking  rights and  property, without due process;  it

is a systemic injustice by government upon the governed.

     The evaluation herein undertakes a three-step process:

     First, to  define the  doctrine to  see exactly  what  Judge

Shubb says is barred from redress.

      Second, what is the historic justification for immunity and

what does  it mean  to Americans  of the twenty-first century? If

the doctrine  is not justified by today's standards of reason, it

is exposed as a holdover from legal theory long past its time.

     Third, is the immunity Judge Shubb applied Constitutional?

     Each of these issues will now be examined in turn.

                    Appellant's Opening Brief:
                          Page 11 of 35



     Judge Shubb  found Hawks  "alleges that  the judges violated

her civil  rights under Bivens v Six Unknown Named Agents, 403 US

388, and  engaged in  conspiracy to  deprive her of her federally

protected rights.  She seeks  damages as  well as  injunctive and

declaratory relief."  Memorandum and Order (M&O) 2:5-11.

     He ruled  that "judges  are  absolutely  immune  from  civil

liability for  damages for  their judicial acts," citing Mullis v

US Bankruptcy  Court, 828  F2d 1385,  1388, and he found that all

the actions  of the  judges "occurred  within the course of their

judicial duties." (M&O 2:12-17). He went on at M&O 2:17:

     "In this  circuit, federal  judges also  have  judicial
     immunity   against   claims   seeking   injunctive   or
     declaratory relief  to the  same extent  that they  are
     immune from  damages. See  Mullis, 828 F2d 1385, and to
     actions brought under 42 USC 1985. See O'Conner v State
     of Nevada,  686 F.  2d 749,  750. The only exception to
     this rule is where a judge acts in the clear absence of
     all jurisdiction.  Stump v  Sparkman, 435  US 348, 356-
     357.   Here, all  four judges  acted well  within their
     jurisdiction, See Mullis, 828 F2d at 1389."

     Basically, Judge  Shubb relies upon the Mullis case. But, in

point of fact, Hawks did not seek damages and her "injunctive and

declaratory relief"  is predicated  upon a trial by jury and does

not fall within the ambit of the Mullis holding on that issue. In

fact, one  may say  Hawks' case  is pleaded under Pulliam v Allen

and around Mullis to obtain jury findings of rights violations.

     But Judge  Shubb's holding  ignores  those  differences  and

finds that it doesn't matter what rights the judges violated, nor

how clear  they are,  nor the malice with which a judge acts, nor

the relief sought. Federal Judges cannot be sued as long as their

acts are within an undefined "subject matter jurisdiction."  That

no judge  has "jurisdiction"  to violate constitutional rights is

immaterial.   For  the  purposes  of  this  appeal,  Hawks  seeks

Remedies and  the Right  to sue for damages, notwithstanding that

the constitutional violators are Federal Judges.

                    Appellant's Opening Brief:
                          Page 12 of 35

     Initially, within  a week  of filing a complaint intended to

be amended  before service, Judge Garcia dismissed without notice

or hearing  and with  prejudice, based on IFP status. In addition

to the  lack of  due process,  the complaint  was  against  local

government for  its political  persecution of Hawks;  it was (and

is) a Petition to the Federal Government to Redress Grievances of

a Constitutional Magnitude with local government, under an act of

Congress specifically  authorizing it (42 USC 1983).  Given those

facts, it  is hard  to conceive of anything more constitutionally

protected. (The  Court may  take judicial  notice of  facts  from

Hawks v Butte Co., 9th Cir. No. 93-15346.)

     Judge Garcia  had no subject matter jurisdiction.  According

to Judge Shubb, the hypothetical fact that Judge Garcia conspired

with Butte  County D.A.  Defendant Ramsey  to dismiss,  and  that

Ramsey paid  him $10,000 to do just that and promised to exercise

his official  state power  to get Judge Garcia's son out of state

prison in  exchange for the dismissal, doesn't matter. But, under

the Mullis  rationale, what  could matter  is that summons wasn't

returned; no  defendant appeared  and no  motion to  dismiss  was

made; for  those reasons,  no subject  matter  was  before  Judge

Garcia as a judge, but only as an administrator, for which he has

no judicial immunity, even under Mullis.

     Further, after  the appeal was assigned in this court, Judge

Garcia hypothetically  may have  met with Judges Canby, Schroeder

and Wiggins  in a  smoke-filled room  behind a San Francisco bar,

split the  $10,000 four  ways, and  negotiated favors that Ramsey

would do for them, in exchange for upholding his dismissal; which

initially they did.  (Reversal occurred on reconsideration.)

                    Appellant's Opening Brief:
                          Page 13 of 35

     The point is not that this happened, but that it is possible

under the  pleadings.   Under Judge  Shubb's ruling,  it  doesn't

matter as  to the appeals court judges.  But, as to Judge Garcia,

he is again outside his subject matter jurisdiction, and the fact

that he  conspired with  other judges  does not  protect him. See

Dennis v Sparks, 449 US 24, 28-29.

     That such  important constitutional  issues should  turn  on

whether he  had, in  some  undefinable  sense,  "subject  matter"

jurisdiction blatantly  to violate  First Amendment  Rights as he

undeniably did, is an absurdity in its own right.

     "Absolute judicial  immunity" protects  not  only  "judicial

acts" with  subject matter  jurisdiction, but  the conspiracy and

conspirators that  surround those  acts.    Given  what  immunity

means, its  implication being  that if you can't sue, you have no

discovery vehicles  of truth determination, few can ever know the

effect of judicial corruption on their Petitions for Redress. The

basis for  determining a  rights violation in a case like this is

not to  see first  a conspiracy  ... but to see first a "judicial

order" that  is so  incredible on  its face  as to imply judicial

arrogance to  the  constitution  and  some  unknown  irregularity

behind the  scenes (not  apparent on  its face)  to account for a

"motive" that is necessary to explain why the order issued.

     What does  "Jurisdiction" mean in this context? Judge Garcia

dismissed with  prejudice, without  a motion  before him; without

notice or  hearing; and he assumed this "right" because of Hawks'

IFP status?   If  that is  "jurisdiction" on  which to  predicate

immunity, then  he has "jurisdiction" to shred the files assigned

to him  in his  office; and  to execute  those he  finds  guilty,

without trial,  on the  spot, in his own courtroom.  (Reductio ad


                    Appellant's Opening Brief:
                          Page 14 of 35

     Take the hypothetical of defendants' selling judicial orders

for $10,000.  Taking bribes, obtaining favors, conspiring in back

rooms + these are all part of the one indivisible transaction and

not within  judicial jurisdiction.  But because  the "favor" they

trade, the  order they  sold, is "subject to their jurisdiction,"

immunity attaches to violate constitutional rights of the persons

whose cause  is assigned  in form  only,  to  a  constitutionally

corrupt judge?   In  that context, "jurisdiction" takes on a very

onerous meaning.  It means  a judge can do as he pleases with the

matters that are before him in form only.

     This is not Lewis Carroll's Wonderland. Judges are not free,

in a  constitutional context,  to twist  words to  mean what they

want them  to mean. The Mullis treatment of "jurisdiction" is not

jurisdiction but ownership. That's what it means to be free to do

as you  want with  a matter under your control, and not according

to the trust of the Constitution.1

     In the  sense by  which  immunity  attaches,  "jurisdiction"

means the  "personal right of the judge to do as he pleases" with


1If any person, whether he be judge or Ku Klux Klansman, can take
rights or  property under  color of  law, but without due process
and without  a right  to redress  in them  whose other  rights or
property are  taken, is  not the  institution that compels such a
result an  institution of  slavery forbidden  by  the  Thirteenth
Amendment?     "Section  1.   Neither  slavery   nor  involuntary
servitude, except  as a  punishment for  crime whereof  the party
shall have  been duly  convicted, shall  exist within  the United
States, or  any place subject to their jurisdiction."  Thirteenth

                    Appellant's Opening Brief:
                          Page 15 of 35

the subject  matter, whether it regularly came before him or not.

As so  used, it  is an  arbitrary and capricious designation that

violates Due  Process of  Law. A "Jurisdiction" arising under the

Constitution that violates due process is a contradiction and can

hardly be the basis for a legitimate judicial doctrine.

     In Mullis,  this court  quotes the  distinction drawn by the

Supreme Court in Stump, at 828 F2d 1389:

     "If a  probate judge, with jurisdiction over only wills
     and estates,  should try  a criminal  case, he would be
     acting in  the clear  absence of jurisdiction and would
     not be  immune from  liability for  his action;  on the
     other hand,  if a  judge of  a  criminal  court  should
     convict a defendant of a nonexistent crime, he would be
     merely acting  in excess  of his jurisdiction and would
     be immune."

     This is  an interesting  standard when  applied  to  federal

judges.   More like  state probate  courts than  criminal courts,

federal courts  have limited jurisdiction in "all Cases in Law or

Equity, arising  under this  Constitution"  (Art. III) which they

are sworn  to support. (Art. VI)  When a case "arising under this

Constitution" is  brought to  a federal  judge and he decides it,

not according  to the  Constitution, but  according  to  his  own

personal prejudice  against poverty,  that is much more akin to a

probate court  deciding a  criminal case  than a court of general

jurisdiction making a mistake about law or fact.

     With respect  to a  criminal  court  convicting  on  a  non-

existent crime, there are tremendously different levels of wrong,

from simple  error to constitutional outrage, and the Court gives

no guidance.   It  is one thing for a judge to convict on mistake

of fact  or  law  diligently  entertained  and  otherwise  having

jurisdiction and  protecting  rights  of  due  process,  counsel,

confrontation and  jury. But  it is  another thing  to convict in

absentia without  notice or  hearing  in  a  private  "trial"  in

chambers without a reporter.

                    Appellant's Opening Brief:
                          Page 16 of 35

     The Quality of Judicial Conduct is not changed with the more

likely scenario  that the  conspiracy is  not for  money, but  to

maintain an illegal policy of clearing cases from the docket. IFP

Pro Per's  are an  opportunity like  little old  ladies  carrying

purses in  dark parks.  They are  easy pickings for judges to get

rid of  cases without  getting to  the merits,  and the  Court of

Appeals conspired with Judge Garcia to maintain that policy.

     Creating or maintaining illegal policy is no more within the

jurisdiction of  judges than conspiring to sell their orders. But

if they  do it  on cases  assigned to  them,  "jurisdiction"  for

immunity attaches?  That is form over Constitutional substance.

     That, by  analogy to  the Mullis case, is what these federal

judges did.   If  these differences don't make a difference as to

application of  Judicial Immunity,  then Appellant  concedes that

this case  is under  Mullis; but  in no way does she concede that

Mullis represents the Supreme Law of this Land.

     The Constitution either sets the limits of "Jurisdiction" or

it does  not. If  it does, then a judge has no jurisdiction to do

what it  forbids, nor to do what it commands or allows in ways it

forbids; nor  can he  change that  legal  reality  by  redefining

words.   "Subject matter  jurisdiction" means the jurisdiction to

do what the supreme law of the land commands, and no other.

     But if  it does  not set  those limits,  then wherefrom does

such authority  come to  "courts of  limited jurisdiction?"   The

Constitutional  Authority   to  Violate  the  Constitution  is  a

contradiction in  terms denying  its own legal supremacy.  Unless

we think  the Framers  were fools,  we ought  not thrust  such  a

bizarre result upon them;  but we should look for other causes.

                    Appellant's Opening Brief:
                          Page 17 of 35


     As mentioned  in the factual statement, and contrary to what

Judge Shubb  "found," Appellant  did not  seek damages  from  the

judges,  except   for  attorney   fees  and  costs.    The  major

distinction between  this case and Mullis is that she seeks trial

by jury to decide if the defendants violated her rights, and that

her declaratory  and injunctive  relief be  based on  the  jury's

findings. (Pursuant  to this Court's decision in Gobel v Maricopa

County, 867  F2d 1201,  fn 6  at 1203,  Appellant also  demands a

public apology. As will be apparent infra, even if a court cannot

order an apology, she is in a position to demand it.)

     Thus, the  case should  come under  Pulliam v  Allen, 466 US

522, with  a twist:  whether or not the Judges violated her civil

rights is  to be  determined by  a  jury,  just  like  any  other

defendant who is accused of violating her rights. The orders that

issue, if any, are those required by jury findings.

     Why is  this distinction important?  It is important on this

appeal because it distinguishes Mullis from Pulliam, beginning at

828 F2d  1391.   But it  is  important  in  the  underlying  case

because, in actual reality, Hawks has no other remedy.

     What the  Defendants did  (FAC  Fifth  Cause)  violated  her

Constitutional Rights. She is a victim of civil rights torts, and

crimes under  18 USC  241/242. Because  of Judicial Immunity, she

has no  civil damage  remedy.  Because  of  interpretations  like

Mullis, she  has no  injunctive relief by which to stop them from

violating her  rights and  to render to her the human respect she

is due under the Constitution.

                    Appellant's Opening Brief:
                          Page 18 of 35

     Just as  judicial immunity determined by courts have cut off

her civil  remedies, they have cut off her criminal remedies. So,

for example,  42 USC 1987 commands the U.S. Attorney to prosecute

for crimes  all persons  who violate  (now) 18  USC 241/242.  But

judicial  decisions   have  left  such  prosecutions  up  to  the

discretion  of  the  U.S.  Attorney.  (See  Attica  Cor.  Fac.  v

Rockefeller, 477  F2d 375  and Peek v Mitchell, 419 F2d 575.) And

what U.S.  attorney  is  going  to  exercise  his  discretion  to

prosecute federal judges, let alone Appeals Judges?

     Thus, because of judicial immunity and holdings like Mullis,

Appellant is  exercising the  furthermost reaches of her remedies

to get  a jury  trial and  jury finding of rights violations from

which she  can compel  an apology  from  the  Defendants,  and  a

criminal prosecution  by U.S. Attorneys who may be less reluctant

to prosecute  a judge  after a civil jury finding of civil rights


     If this  seems as  if Appellant  is going  to extremes to be

treated as  a human  being, it is because of the constitutionally

contradictory demands  of Judicial  Immunity.   As we  have seen,

that immunity  is an  immensely effective device for depreciating

human dignity.   As  we shall see in the next part, that immunity

is also not lawful.

                    Appellant's Opening Brief:
                          Page 19 of 35



     Judge Shubb  based his  dismissal  on  Mullis  v  Bankruptcy

Court, 828  F2d 1385.  The Judicial  Immunity holdings  of Mullis

are, in  turn, based  in Stump v Sparkman, 435 US 349 (1978); and

Bradley v  Fisher, 80  US (13  Wall) 335  (1872). The  history of

Judicial Immunity  in the  United States  begins with  Bradley, a

lawyer who  in  1867  defended  John  Suratt  on  the  charge  of

murdering President  Lincoln and obtained a hung jury. Fisher was

the trial  judge.   During a  recess,  Bradley  confronted  Judge

Fisher in an allegedly rude and insulting manner, accusing him of

insulting and  demeaning Bradley  from the  beginning  of  trial.

After trial,  Judge Fisher disbarred Bradley from practice in his

court because of the aforesaid. Bradley sued Fisher.

     (Note: The  verbal conduct Fisher punished Bradley for would

be protected  speech today.  (Court was in recess.) See Bridges v

California, 314  US 252  (1941); and In Re Hallinan, 71 C2d 1179.

Under the  Mullis standard,  the recessed  court would  not  have

subject matter  jurisdiction over Bradley's speech under Bridges,

and therefore, Judicial Immunity would not attach today.)

     A  reading   of  Bradley   demonstrates   that   issues   of

Constitutional rights  either didn't arise, or weren't addressed.

The issue  that is  the foundation of Judicial Immunity begins at

80 US 649:

     "For  it   is  a   general  principle  of  the  highest
     importance to the proper administration of justice that
     a judicial  officer, in exercising the authority vested
     in him,  shall be free to act upon his own convictions,
     without apprehension  of personal  consequence to  him-

     CHECK THE  PREMISE: Is  the same  not true of at least every

professional  person,   without  the   conclusion   of   immunity

following? You  hire an  attorney  so  that,  in  exercising  his

professional competence,  he will do so according to his own good

judgment; but  if he fails to meet the standard, he is liable. Is

the same  not true  of a doctor, an engineer, an electrician, and

so on?

                    Appellant's Opening Brief:
                          Page 20 of 35

     Next, Bradley says:

     "Liability to answer to everyone who might feel himself
     aggrieved  by   the  action   of  the  judge  would  be
     inconsistent with  the possession  of this  freedom and
     would  destroy   that  independence  without  which  no
     judiciary can be either respectable or useful."

     CHECK THE  PREMISE: "Subject  to liability  for violation of

Constitutional Rights"  is not  "liability to answer everyone who

might feel  himself aggrieved by the action of the judge."  There

are many  reasonable differences,  i.e. the  grievance must be of

constitutional significance;  it must  be well  enough founded to

survive summary  judgment; it must be of a "known" constitutional

right. Moreover, while, in a sense, everyone is accountable under

the law  for just  grievances of  others against  him, there  are

tools to  weed out the just from the unjust.  So, for example, in

California, a medically injured person needs a written opinion of

professional negligence before suing.

     Justice Field  would have  us believe  that judges  would be

terrified of their financial liability. But, the point of fact is

that, absent  punitive damages,  tradition and  the "Tort  Claims

Act" have  established that, if an official is sued, the Attorney

General Appears for him and the government indemnifies him.

     In other  words, the  "terrifying financial implications" of

judicial liability  are simply false;  unlike doctors or lawyers,

judges would not even carry the burden of insurance.

                    Appellant's Opening Brief:
                          Page 21 of 35

     With respect to the impairment of judicial function, the day

of judicial  mystique is past.  A People whose basic lifestyle is

based upon  science must  question the  foundations  of  judicial

decisions; and more and more the respectability and usefulness of

the judiciary  depends upon  the soundness  of judicial principle

and reasoning,  not  immunity  from  accountability.  Conversely,

today, in  the "heyday  of immunity,"  the judiciary  is  at  its

lowest ebb of respectability.

     Next, Justice  Field cites an unnamed "distinguished English

Judge" from Taaffe v Downes, 3 Moore P.C. 41, n., to wit:

     "The  principle  therefore,  which  exempts  judges  of
     courts of  superior or general authority from liability
     in a civil action for acts done by them in the exercise
     of their  judicial functions,  obtains in all countries
     where   there   is   any   well   ordered   system   of
     jurisprudence. It  has been the settled doctrine of the
     English Courts  for many  centuries and  has never been
     denied, that  we are  aware of,  in the  courts of this

     "It has,  as Chancellor  Kent observes, 'a deep root in
     the common law.'"   Bradley v Fisher, 80 US at 649.

     CHECK THE  PREMISE: It  is not  true.  What  was,  in  fact,

happening  was  that  the  Commonwealth  was  developing  a  more

civilized law  as they came to recognize the "Unalienable Rights"

of man that gave birth to the United States. The major premise of

Bradley was factually incorrect when made. English common law had

grown to permit judicial liability claims. In Kendillon v Maltby,

174 Eng.  Rep. 562,566  (N.P. 1842)  (see  the  Excerpts),  Chief

Justice Lord Denman stated the law in l842:

     "I have  no doubt  on my mind, that a magistrate, be he
     the highest judge in the land, is answerable in damages
     for slanderous  language, either  not relevant  to  the
     cause before  him or  uttered after  the cause is at an
     end;   but for words uttered in the course of his duty,
     no  magistrate   is  answerable,   either  civilly   or
     criminally, unless  express malice  and the  absence of
     reasonable or probable cause be established."

                    Appellant's Opening Brief:
                          Page 22 of 35

     Kendillion is  a suit  for slander  by a policeman against a

judge  for  statements  from  the  bench.  Under  First Amendment

standards, without judicial immunity, but according the judge the

same immunities  due every  American, both  the same Rule of Law,

and the  same result, would obtain. That is, the officer would be

treated  as  a  public  figure  for  which  rules  of  "conscious

disregard of truth" or malice would apply.  It is noteworthy that

the reason  Lord Denman  finds a  duty of  the judge to speak his

opinion, is  basically the  same  "public  interest"  upon  which

Americans are privileged under the First Amendment.

     Next, note,  in context  with  Lord  Denman's  statement  of

English law  in 1842,  re malice,  what Justice  Field quotes  in


     "Nor can  this  exemption  of  the  judges  from  civil
     liability be  affected by  the motives with which their
     judicial  acts  are  performed.  The  purity  of  their
     motives cannot  in this  way be the subject of judicial
     inquiry. This  was adjudged  in the  case of  Floyd and
     Barker, reported  by Coke,  in 1608, (12 Coke 25) where
     it was laid down that the judges of the realm could not
     be  drawn  in  question  for  any  supposed  corruption
     impeaching the  verity of  their records, except before
     the King himself ...."

     That ancient  England  in  1608  had  developed  systems  of

immunities to  insulate its nobility from accountability to those

they wrongly  injured does  not highly  recommend that  system to

Post Revolutionary  America;  it merely threatens to recreate the

causes of the Revolution.

     Realizing that  the right to petition government for redress

of grievances  underlies all  other rights,  including speech and

press, the  United States  Supreme Court in Bridges v California,

314 US  at 263-264,  made short  work of  the argument  that such

ancient doctrines of "common law" have any impact on our law:

                    Appellant's Opening Brief:
                          Page 23 of 35

     "For, the  argument runs, the power of judges to punish
     by  contempt  out  of  court  publications  tending  to
     obstruct the orderly and fair administration of justice
     in a  pending case  was deeply rooted in English common
     law at the time the Constitution was adopted. That this
     historical contention  is dubious has been persuasively
     argued elsewhere.  (Cites Omitted,  but see  Kendillion
     supra) In  any event,  it not  detain us, for to assume
     that English common law in this field became ours is to
     deny the generally accepted historical belief that 'one
     of the  objects of the Revolution was to get rid of the
     English common  law on  liberty of  speech, and  of the
     press in  the United  States.' 9  Publications American
     Sociological Society 67,76."

        WHO IS OUR KING: Notice that Justice Field does not quote

Coke as saying Judges are not accountable for malice. Rather, the

exception to  question motives  of judges  was "Before  the King,

himself."  How   do  you   transpose  that  to  America?  Is  the

Constitution not  clear on  who is  "King" in  our constitutional


     It is  so clearly  the right  of the  jury to  determine the

motives of  judges, that  unless it  be so,  our own  history has

taught us, there be no accountability of government at all.

      In the evolution of "well ordered systems of jurisprudence"

the limiting  function of constitutions creates systems different

in kind from those that pre-existed.  When Bradley refers to "any

well ordered  system of  jurisprudence," there simply was not the

time in  world history  necessary to  compare to constitutionally

based  systems;  AND  BRADLEY  ITSELF  prevented  development  of

concepts of  judicial accountability  in America and in countries

that looked to us for leadership in developing such concepts.

     Does the  Bradley rationale  still obtain after Commonwealth

Countries had  time  to  develop  the  Constitutional  Limits  of

Government which America had begun in l789?  Modern cases suggest

that it  does not.   But, of primary importance is the effect the

Bradley  doctrine  has  had  in  stagnating  the  development  of

constitutional law throughout the world.

                    Appellant's Opening Brief:
                          Page 24 of 35


     To be  sure, the  Revolution and  Constitution each  created

such legal  change so  as to separate us legally from England, as

if into  separate worlds. But today a third worldwide development

in law  is occurring,  even as  we address this issue. The United

States is  not an  island, or  even a  continent. It is a leader,

perhaps THE ONLY leader, of the civilized world.  As that leader,

it  set  treaties  into  motion  by  which  nations  become  more

civilized with respect to each other, and in respect to their own


      Today  the United  States is  bound by Treaties, entered in

good faith  with the  United Nations,  requiring that  it provide

effective remedies  and redress  for violations of Constitutional

Rights, "notwithstanding that the violation has been committed by

persons acting  in an  official capacity"  and  to  "develop  the

possibilities of judicial remedy." See the International Covenant

on Civil  and Political Rights; U.N. Gen. Assem. Res. 2200 A(XXI)

of 16  Dec. l966;  Ratified by  the U.S. Senate in June l992. See

Article 2.  See also  the Universal  Declaration of Human Rights,

U.N. Gen. Assem. Res. 217-A(III) of 10Dec48; Art. 8. It states:

     "Everyone has  the right  to an EFFECTIVE REMEDY by the
     competent national  tribunals for  acts  violating  the
     fundamental rights  granted him  by the constitution or
     by law."  [emphasis added]

     It is  long overdue for the Supreme Court to revisit Bradley

in light of the impact of Constitutions on the evolution of "well

ordered systems of jurisprudence."  Bradley was eighty years out-

of-date when  it was written. Its teachings are now two centuries

past their  prime and  cannot  survive  in  a  world  of  limited

government and  constitutional rights. The Treaties mentioned are

the "handwriting  on the wall" before the entire world: "Judicial

Immunity" is an embarrassing, and dying institution.

                    Appellant's Opening Brief:
                          Page 25 of 35

     Plaintiff draws the Court's Attention to Three Points:

     First, Plaintiff does not contend that there is no "judicial

immunity." She  contends that,  under the Constitution, it is the

same for  judges as  for everyone  else.  As  we  understand  the

Constitution today,  privileges from  liability for speech are so

substantial that  much  of  the  judicial  immunity  doctrine  is

redundant, unnecessary, and unconstitutional.

     Second, Kendillion  should be  examined in  conjunction with

Note 3641  from The Digest of Annotated British, Commonwealth and

European Cases  which states:  "No Liability  for  acts  done  in

Judicial Capacity  -- UNLESS interference with rights or freedoms

under Constitution  -- Award  of Damages."   Common law countries

now award  damages when  judges  violate  constitutional  rights.

Note 3641 is in the Excerpts.

     When examined  together, we  see that  constitutions develop

clear lines  of demarcation  between what  is  and  what  is  not

"duty."  By adopting such guidelines, judges know both the limits

of authority  and of  duty. Those limits today are generally well

settled constitutional doctrines that achieve much of the purpose

of judicially  created immunities and simplify constitutional law


     As for  judicial liability, existing doctrines that apply to

everyone equally,  incidentally  benefit  judges  specially.  For

example, if a judge is not sure whether a particular right exists

or an  interest is  protected, he  can  ask  for  more  argument,

certify  questions,   and  take   reasonable  steps   to  protect

interests. Constitutional  Rights have  never been interpreted to

imply strict  liability to  those who violate them without fault.

They would not be now.

                    Appellant's Opening Brief:
                          Page 26 of 35

     Third, treaties  with the  U.N. require  the U.S. to provide

effective remedies  for violations  of  rights,  "notwithstanding

that the  violation has  been committed  by persons  acting in an

official capacity"  and to "develop the possibilities of judicial

remedy." See  the International  Covenant on  Civil and Political

Rights; U.N.  Gen. Assem.  Res. 2200  A(XXI)  of  16  Dec.  l966;

Article 2  and  Universal Declaration of Human Rights,  U.N. Gen.

Assem. Res. 217 A(III) of 10 Dec 48; Art. 8)

      But  whether this  court agrees  with the above or not, the

fact is,  as we shall see in Part III, judicial immunity violates

the Constitution.  As such, it is a "nullum pactum."



     Is a suit against judges for violating constitutional rights

a Petition  to Government  for Redress  of Grievances  within the

meaning of the Petition Clause of the First Amendment?

     The affirmative  answer  seems  self-evident.  It  is  self-

evident. But,  given its  prominent position in the Constitution,

few cases  have addressed the issue, especially in the context of

distinguishing, as  we do  here, "the  right to  sue," on the one

hand, from  The Right  to  Sue  Government  for  Redress  of  its

Constitutional Wrongs, on the other.

                    Appellant's Opening Brief:
                          Page 27 of 35

     The Supreme  Court has  declared, "Certainly  the  right  to

petition extends  to all departments of the Government. The right

of access  to the  courts is  but one  aspect  of  the  right  of

petition." California Transport v Trucking Unlimited, 404 US 508,

510 (1972).

     The California  Supreme Court,  based on an analysis of U.S.

Supreme Court holdings, found that:

     "The authorities  make  it  clear  that  the  right  of
     petition protects  attempts to  obtain redress  through
     the institution  of judicial  proceedings  as  well  as
     through  importuning   executive  officials   and   the
     Legislature. It  is equally  apparent  that  the  right
     encompasses the  act of  filing  a  lawsuit  solely  to
     obtain monetary compensation for individualized wrongs,
     as well  as filing  suit to draw attention to issues of
     broader public  interest or  political significance. As
     the Supreme  Court declared  in Mine Workers v Illinois
     Bar Assn., supra, 318 US 217, 223, 'The First Amendment
     does not protect speech and assembly only to the extent
     it can  be characterized  as  political.'    (see  also
     Thomas v  Collins, supra,  323 US  516, 531) Hence, the
     act  of  filing  suit  against  a  governmental  entity
     represents an  exercise of  the right  of petition  and
     thus invokes  constitutional protection."  City of Long
     Beach v Bozek, 31 Cal.3d 527, at 533-534 (1982).

The court went on at page 535 to address the issue:

     "The right of petition is of parallel importance to the
     right of free speech and the other overlapping, cognate
     rights  contained   in  the   First  Amendment  and  in
     equivalent provisions  of the  California Constitution.
     Although it  has seldom been independently analyzed, it
     does contain  an inherent  meaning and  scope  distinct
     from the  right of  free speech.   It  is essential  to
     protect the ability of those who perceive themselves to
     be  aggrieved   by  the   activities  of   governmental
     authorities to seek redress through all the channels of
     government.   A tort  action against  a municipality is
     but one  of the  available means  of seeking  redress."
     City of Long Beach v Bozek, 31 Cal.3d 527, at 535.

     In U.S.  v Hylton  the Fifth  Circuit  held  that  filing  a

complaint against  federal officers  with  state  agencies  is  a

petition for redress protected by the Petition Clause, at 710 F2d


                    Appellant's Opening Brief:
                          Page 28 of 35

     "As the  U.S. Supreme  Court has  held,  the  right  to
     petition for  redress of  grievances is 'among the most
     precious of  the liberties  safeguarded in  the bill of
     rights'. (Cites) Inseparable from the guaranteed rights
     entrenched  in   the  First  Amendment,  the  right  to
     petition  for   redress  of   grievances   occupies   a
     'preferred  place'  in  our  system  of  representative
     government and  enjoys a  'sanctity and  a sanction not
     permitting dubious  intrusions.' Thomas  v Collins, 323
     US 516;  65 S.Ct  315, 322.   Indeed,  'It was  not  by
     accident or  coincidence that  the rights to freedom in
     speech and  press were  coupled in  a single  guarantee
     with the rights of the people peaceably to assemble and
     to petition for redress of grievances.'  Id. at 323."

     It seems  to reason  that if  the filing  is protected, then

surely the  object of  the protected  right -- of obtaining a due

process guaranteed  fair hearing  of the  grievance  and  redress

thereon -- is the very essence of the Petition Clause.

     In fact,  the characteristic which distinguishes petitioning

through courts  from other  forms of  petition is  the access  to

compulsory process  of law,  wherein the parties are equal before

the law.  Without ultimate  recourse to  that compulsory process,

there is no reason for government to listen to grievances at all,

let alone to redress them fairly.

     It  is   therefore  axiomatic  that,  underlying  all  civil

relations between government and the governed is the right of the

governed to  compel government's  obedience to  law  through  the

compulsory process  of the  law.   If that  is not so, we can end

this discussion  now, for  you will  say that  our only rights to

redress are  really gifts  of government,  and we will not accept

your substitution  of  "gifts"  for  rights,  for  then  we  will

threaten war.   And  you will  not accept  our threat of war as a

substitute for the real thing; and that war will come about, even

though neither  of us  wants it.   Those are the battle lines for

civil war.

                    Appellant's Opening Brief:
                          Page 29 of 35

     Now, let  us talk peace based on the mutual respect each has

due. The Government and the Governed are Partners.  We go nowhere

without each  other.   Is not  that lesson of history so complete

that it need never be tested again?  Now, therefore:

     Given judicial,  quasi-judicial, prosecutorial,  and limited

immunities that  apply to  major portions  of federal  and  state

government functionaries,  as determined  by courts over the last

123 years;  and,

     Given the  1988 amendments  to 28  USC 2674 that "the United

States shall  be  entitled  to  assert  any  defense  based  upon

judicial  or   legislative  immunity  which  would  otherwise  be

available to  the employee  of the  United States  whose  act  or

omission gave  rise to  the claim  (for redress  of grievances)";


     Given  that   such  immunity   applies  to   violations   of

Constitutional Rights;

     Then, is  there any  question  but  that  Congress  and  the

Judiciary have  combined to make "law ... abridging ... the right

of the  people ...  to petition  the Government  for a redress of

grievances," in direct violation of the Petition Clause?

     When judges conspire to maintain a policy to deprive persons

of "life, liberty, or property, without due process of law" under

a claim of right due to IFP status, do we really have any dispute

as to whether that violates the Fifth Amendment?

                    Appellant's Opening Brief:
                          Page 30 of 35

     When the judiciary creates an institution to deprive injured

persons  of   redress  based   upon  twists  in  the  meaning  of

"jurisdiction," and  when it  creates case  law  (with  roots  in

"Floyd and  Barker, reported  by Coke, in 1608, (12 Coke 25)") to

deprive  injured   persons  of   remedies   for   violating   Our

Constitution, why  is that  not  an  institution  of  involuntary

servitude prohibited  by the  Thirteenth Amendment?   The Supreme

Court in Yick Wo v Hopkins, 118 US 356, 370 (1886) found that:

     "Sovereignty itself  is, of course, not subject to law,
     for it  is the  author and  source of  law;  but in our
     system, while  sovereign powers  are delegated  to  the
     agencies of government, sovereignty itself remains with
     the people,  by whom and for whom all government exists
     and acts.  And the law is the definition and limitation
     of power.  ... But  the  fundamental  rights  to  life,
     liberty, and  the pursuit  of happiness,  considered as
     individual possessions,  are secured by those maxims of
     constitutional law  which are the monuments showing the
     victorious progress  of the race in securing to men the
     blessings of civilization under the reign  of just  and
     equal laws,   so  that,  in  the famous language of the
     Massachusetts Bill  of Rights,  the government  of  the
     commonwealth "may  be a  government of  laws and not of
     men."  For, the very idea that one man may be compelled
     to hold  his life,  or the  means  of  living,  or  any
     material right  essential to  the enjoyment of life, at
     the mere  will of  another, seems  to be intolerable in
     any  country  where  freedom  prevails,  as  being  the
     essence of slavery itself."

     Here, the Supreme Court declared that the essence of slavery

is the  holding of  any material right essential to the enjoyment

of life  at the  mere will of another.  How much worse a betrayal

of the  human spirit  that such rights be lost at the whim of the

judicial branch  of one's  own government  to whom  he turns  for

protection of those rights!

     This is not a dispute.  There is not a Judge in this Circuit

who does  not KNOW  that  Judicial  Immunity,  without  question,

violates Our  Constitution.   The problem  is that  your judicial

ancestors rebelled  against Our  Constitution, and  now you don't

know how to get back to a state of judicial constitutionality.

                    Appellant's Opening Brief:
                          Page 31 of 35


     Justice Brennan  faced this  question, thirteen years ago in

Briscoe v  Lahue, 460  US 325, at 346 in his dissent. It is short

enough to be quoted in the entirety:

     "Justice Marshall's  Dissenting opinion, post, presents
     an eloquent argument that Congress, in enacting Section
     1983, did  not intend  to create  any absolute immunity
     from civil liability for 'government officials involved
     in the  judicial process  ...' (post, 346-347) Whatever
     the correctness of his historical argument, I fear that
     this court has already crossed that bridge in Pierson v
     Ray, 386 US 547, and Imbler v Pachtman, 424 US 409.

     "I entirely  agree with Justice Marshall, however, that
     the policies  of section 1983 and of common-law witness
     immunity, as  they apply  to witnesses  who are  police
     officers, do  not justify  any  absolute  immunity  for
     perjurious  testimony.  I  therefore  dissent  for  the
     reasons  stated   in  Part  IV  of  Justice  Marshall's
     Opinion."   (In Part  IV, Justice  Marshall argues that
     absolute  police   immunity  for   perjury  is   not  a
     compelling, or even rational state policy.)

     We,  the  People,  must  live  with  and  under  the  policy

decisions  of   our  government,  whether  it  be  the  judicial,

executive or  legislative branch.  But, whether right or wrong in

some remote esoteric sense we cannot understand, the Constitution

entrusts such policy-making into the hands of the Legislature. If

the Judiciary is effectively to balance that policy-making power,

it cannot  do so  by  legislation  disguised  as  "case  law"  in

usurpation of  power reserved  to  Congress;    it  must  instead

relinquish that  illegitimate power  back to  the People, through

the jury trial process.

     Just as  the majority  policy made  in Briscoe  v Lahue  has

given us  the likes  of Mark  Fuhrman to  police our  streets and

testify falsely  with impunity,  the judicial  policy to cover-up

the constitutional  violations of  "Brothers  of  the  Robe"  has

created and  maintains a  "good ol' boy" network of Mark Fuhrmans

within its own ranks.

                    Appellant's Opening Brief:
                          Page 32 of 35

     The problem  is that  "Mark Fuhrman"  is US.  Judges Garcia,

Wiggins, Canby  and Schroeder  are US.  To "weed  them out"  in a

system that  corrupts is to replace them with US, and then we too

will become  corrupt in  that system. The only solution is to fix

the system. It is broken, and it needs fixing desperately.

     How to  Fix It:  The problem is unaccountability to those it

injures in  violation of  Constitutional Rights.  The solution is

accountability to those it injures in violation of Constitutional

Rights. The  idea of  accountability to  those you injure is that

the injured  party, through  the process  of law seeking redress,

polices the  system.  Immunity  blocks  that  policing  of  their

government by the People.

     It is  written that  the longest journey begins with but one

step in  the right  direction. When,  as  Brennan,  Marshall  and

Blackmun found  in l982,  we "fear  that the  Court  has  already

crossed that  bridge," if  it is  a bridge in the wrong direction

and you  cannot go back, then you must, at least, not continue on

to cross more bridges in the same wrong direction.

     All is  not lost.  The Nation's future can still be enriched

by the  lessons learned,  and a price too horrible to contemplate

can still be avoided.

     Each case  of Judicial  Immunity presents  to each  judge  a

moral  decision:   "Shall  I   obey  my   oath  and  support  the

Constitution? Or,  shall I  ignore my oath in support of the more

temporal interests that surround us all?"

     In this case, there are three choices:

                    Appellant's Opening Brief:
                          Page 33 of 35

     1.   You  can   violate  your   oath   and   advance   anti-

constitutional forces  by extending  the doctrine  of Mullis v US

Bankruptcy Court  to cover  the facts  and pleading of this case,

and  deny  the  right  to  a  trial  by  jury  to  determine  any

constitutional violations,  notwithstanding that  damages are not


     2.   You can  expressly limit  the Mullis  Doctrine  to  its

facts, bring  this case  under Pulliam  v Allen  "with a  twist,"

allowing this  suit to  go  forward  as  pleaded,  and  begin  to

question the  whole concept  of "Judicially  Created Immunities."

That will  give the  Judiciary the notice necessary to adjust to,

and adopt,  its own  rules of accountability, designed to prevent

the  need   for  people   to  sue   judges  for   violations   of

Constitutional Rights.

     3.   For those  whose courage and integrity are of the heart

of the  lion, you can refuse to honor the disgraceful doctrine in

any form.   From  you, Appellant  seeks the  right to  amend  her

complaint to seek damages as a jury may find "just and proper."

     This Court  should also  consider  the  long-range  national

interests of  the Judiciary  in  a  world  progressively  tending

toward democracy.

     On the  one hand,  it can  fight to stagnate the inevitable,

but then  it will  be confronted  with the  "future shock"  of  a

People refusing  to listen  to Government  as the  Judiciary  has

obstructed the  processes by  which Government must listen to the


     Alternatively,  it   can  and   should  prepare  itself  for

inevitable democratic  changes and,  in its  own embrace of those

changes, assist and guide them in coming into being.

                    Appellant's Opening Brief:
                          Page 34 of 35

     The Judiciary  will become  "democratized."  The question is

whether it will embrace, assist, and guide that process.  In this

case, what  it should  do, whether  by way of Points Two or Three

above, is  to deny  any judicial  immunity at  this stage  and to

allow all questions of defense to go to the jury.

     The Principle:  The policy of judicial immunity is wrong and

that wrong principle was created by the Judiciary.  It is a maxim

of jurisprudence:   "No  one may  benefit from  their own wrong."

"Democratizing the  Judiciary" means in this case:  "Let the Jury

decide the  constitutional credibility  of the defense."  If they

reject it, let that be your guide, for the Constitution is theirs

no less  than yours.  If they  accept it,  the Mullis doctrine is

vindicated and  extended in  this  case,  without  the  need  for

government coercion.

     In either  case, government  and governed  shall have  given

each his  due recognition,  and have  crossed a bridge into a new

democratic partnership in judicial democracy under a Constitution

that embraces  interpretation by  the governed,  no less  than by

those who are chosen to govern.

     The  Jury   is  the  Great  Equalizer  of  disputes  between

government and governed.

     Let it do its work.

Dated:  December 11, l995

/s/ Dixianne Hawks
Dixianne Hawks by J.E.W.

                    Appellant's Opening Brief:
                          Page 35 of 35

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Hawks v. County of Butte et al.