Case Law
- If you have questions about your own case, CLICK HERE
The following cases cited below
typically involve many more issues than the one for which they are herein cited. The
interpretation proffered preceding the citation is that of a number of individuals, and
not necessarily an interpretation agreed upon by others. FOR YOUR PROTECTION, IT IS HIGHLY
RECOMMENDED THAT YOU LOOK UP AND READ a cited case before you cite it in your own
pleadings, to make sure that it is representative of what you are trying to do.
ANCPR now offers extensive and complete legal
research including all the relavent case law for your particular situation. Wether
you are representing yourself, working with a lawyer, or simply want to understand your
rights under the law, you should definitely consider this the following options.
- If you have questions about your own case, CLICK HERE
You should also sheperdize these citations to
make sure they are still good law. Otherwise, you run the risk that the opposition
or the court will evaluate your cited case and find something in it distinguishable from
your case, or even usable against you. In some contexts this violates the rules of court
as well as the voluntary ethical constraints you must labor under to effectively represent
yourself Pro Se. It is generally preferable for you to quote in legal pleadings the
verbatim pertinent wording from reading the case itself, followed by the volume/reporter
designation/page/year citation, rather than to quote the general, and unofficial, summary
by which the cases are stated below. The majority of the following cited decisions can be
found in your local (and publicly available) county, state, city or college law library.
Supreme court citations can be found at a number of sites on the Internet.
It must be stated that while case law is often
helpful in appellate and complex actions, it is more helpful to the average user in
understanding the decision making logic used by the judiciary in the performance of their
jobs. To be an effective Pro Se litigant you MUST spend some time in an available law
library learning how to look up and find the cited cases.
The Law is a dynamic process. We are also
adding so much new information that occasionally there is duplicity or lack of clarity.
Please check back periodically as we are continually adding, updating, and revising the
information contained herein. Our goal is to make this web site the most comprehensive
family law resource on the Internet.
Webmasters Note:Before you jump into the
cases presented herein, it might be helpful to understand what they mean and how they can
be useful to you. We recommend that you take a long look at the following information.
Basic Legal Citation
Parental rights may not be terminated without
"clear and convincing evidence"
"Even when blood relationships are
strained, parents retain vital interest in preventing irretrievable destruction of their
family life; if anything, persons faced with forced dissolution of their parental rights
have more critical need for procedural protections than do those resisting state
intervention into on going family affairs."
CHILD SUPPORT- Obligor's second family- Change
of circumstances
Webmasters Note: If you are paying for two
families you might use this. Often times precedents win cases. There have been numerous developments in case law
concerning this issue, and you are encouraged to thoroughly investigate the newest
decisions in your state concerning child support and ability to pay. CLICK HERE FOR THE TOOLS YOU NEED
TO PROTECT YOUR RIGHTS.
A family court hearing examiner should not
have dismissed a non-custodial fathers's petition for downward modification of his child
support obligation where the request was based on the fact that his current wife recently
bore him twin sons, a new York trial court has ruled. the twins were born six months after
entry of the final support order. The court said that their birth must be construed as a
significant change of circumstances supporting modification. The court noted that this
result accords with current legislative intention as contained in the recently enacted
state Child Support Standard Act. This new consideration of subsequently-acquired children
following divorce and re-marriage reflects the change in social patterns as a result of
increased divorces, the court commented. Legislative adherence to the time honored
doctrine that an obligor cannot avoid supporting offspring of a previous marriage by
voluntarily undertaking the financial burden of an additional family has given way to new
factors in determining child support, it observed. The court further stated that the act's
legislative history takes into account the second family dilemma. It also noted that the
state bar association has made clear that "reality dictates" that the prior
doctrine give way to accommodating an obligor's incurred responsibilities-- "
including the after-spawned children who have needs of their own.
The Court stressed, "the parent-child
relationship is an important interest that undeniably warrants deference and, absent a
powerful countervailing interest, protection." A parent's interest in the
companionship, care, custody and management of his or her children rises to a
constitutionally secured right, given the centrality of family life as the focus for
personal meaning and responsibility.
A child has an equal right to be raised by the
father, and must be awarded to the father if he is the better parent, or mother is not
interested.
If custodial mother has boyfriend living with
her, state can change custody to father.
Custody can be awarded to father of girls of
"tender years" if mother commits perjury, and is otherwise immoral.
Arguments that Joint Custody constitutes a
"fundamental right"
Mother cannot take child out of state if that
prevents "meaningful" relationship between father and child.
See also:
DAGHIR V. DAGHIR, 82 AD 2d 191 (NY 1981)
MUNFORD V. SHAW, 84 A.D. 2d 810, 444 NYS 2d
137 (1981)
SIPOS V. SIPOS, 73 AD 2d 1055, 425 NYS 2d
414 (1980)
PRIEBE V. PRIEBE, 81 AD2d 746, 438 NYS 2d
413 (1981)
STRAHL V. STRAHL, 66 AD 2d 571, 414 NYS 2d
184 (1979)
O'SHEA V. BRENNAN, 88 Misc.2d 233, 387 NYS
2d 212 (1976)
WARD V. WARD, 150 CA 2d 438, 309 P.2d 965
(Calif. 1957)
MARRIAGE OF SMITH, 290 Or.567, 624 P.2d 114
(Oregon 1981)
MEIER AND MEIER, 286 Or. 437, 595 P.2d 474
(1979), 47 Or. App. 110, 613 P.2d 763 (Oregon 1980)
All of these cases deal with preventing the
custodial mother from taking the child out of the jurisdiction.
Ex Parte conferences, hearings or Orders
denying parental rights or personal liberties are unconstitutional, cannot be enforced,
can be set aside in federal court, and can be the basis of suits for money damages.
RANKIN V. HOWARD, 633 F.2d 844 (1980);
GEISINGER V. VOSE, 352 F.Supp. 104 (1972).
Laws and court procedures that are "fair
on their faces" but administered "with an evil eye or a heavy hand" was
discriminatory and violates the Equal Protection Clause of the Fourteenth Amendment.
Federal Courts can rule on federal claims
(constitutional questions) involved in state divorce cases and award money damages for
federal torts or in diversity of citizenship cases involving intentional infliction of
emotional distress by denial of parental rights, "visitation", as long as the
Federal Court is not asked to modify custodial status.
LLOYD V. LOEFFLER, 518 F.Supp 720 (custodial
father won $95,000 against parental kidnapping wife)
FENSLAGE V. DAWKINS, 629 F.2d 1107 ($130,000
damages for parental kidnapping)
KAJTAZI V. KAJTAZI, 488 F.Supp 15 (1976)
SPINDEL V. SPINDEL, 283 F.Supp. 797 (1969)
HOWARD V. KUNEN, USDC Mass CA No. 73-3813-G,
12/3/73 (unreported)
SCHWAB V. HUTSON, USDC, S.Dist. MI, 11/70
(unreported)
LORBEER V. THOMPSON, USDC Colorado (1981)
Right to jury trial in Contempt Cases.
BLOOM V. ILLINOIS, 88 S.Ct. 1477
DUNCAN V. LOUISIANA, 88 S.Ct. 1444
Contempt of Court is quasi-criminal, merits
all constitutional protections:
Excessive fine on Contempt
Payment of support tied to visitation:
BARELA V. BARELA, 579 P.2d 1253 (1978 NM)
CARPENTER V. CARPENTER, 220 Va.299 (1979)
COOPER V. COOPER, 375 NE 2d 925 (Ill. 1978)
FEUER V. FEUER, 50 A.2d 772 (NY 1975)
NEWTON V. NEWTON, 202 Va. 515 (1961)
PETERSON V. PETERSON, 530 P.2d 821 (Utah
1974)
SORBELLO V. COOK, 403 NY Supp. 2d 434 (1978)
Child Support:
ANDERSON V. ANDERSON, 503 SW 2d 124 (1973)
ONDRUSEK V. ONDRUSEK, 561 SW 2d 236, 237
(1978; support paid by mother to custodial father)
SMITH V. SMITH, 626 P.2d 342 (1981)
SILVIA V. SILVIA, 400 NE 2d 1330 (1980
Mass,)
Although court may acquire subject matter
jurisdiction over children to modify custody through UCCJA, it must show independent
personal jurisdiction (significant contacts) over out-of-state father before it can order
him to pay child support.
KULKO V. SUPERIOR COURT, 436 US 84, 98 S.Ct.
1690, 56 L.Ed.2d 132 (1978); noted in 1979 Detroit Coll. L.Rev. 159, 65 Va. L.Rev. 175
(1979) ; 1978 Wash. U.L.Q. 797.
Kulko is based upon INTERNATIONAL SHOE V.
WASHINGTON, 326 US 310, 66 S.Ct. 154, 90 L.Ed 95 (1945) and HANSON V. DENCKLA, 357 US 235,
78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)
Attorney's Fees:
Attorney's fees only if court-appointed in
contempt for non-payment of child support.
SAUMS V. SAUMS, 610 SW 2d 244.
EX PARTE MCMANUS, 589 SW 2d 790 (1981)
Custody can be changed if visitation is
denied.
Wife can be held in contempt if visitation is
denied. This is another area
where much legal discussion and reform has taken place recently. You should
definitely discover what your jurisdiction has to say on this topic. CLICK HERE FOR THE TOOLS YOU NEED TO PROTECT YOUR
RIGHTS.
Habeas Corpus:
Unlawfully retaining noncustodial parent
cannot argue change of custody at Habeas Corpus hearing.
NGUYEN DA YEN V. KISSINGER, 528 F.2d 1194
(1975);
SMART V. CANTOR, 117 Ariz. 539, 574 P.2d 27
(1977);
MCNEAL V. MAHONEY, 117 Ariz. 543, 574 P.2d
31 (1978)
Stay of execution by Court of Appeal protects
its jurisdiction, not to protect Appellant's rights.
Justice delayed is justice denied.
Attorney can be sued for malpractice under
consumer protection laws.
Money damages in federal civil rights suits
need not exceed $10,000
But claim under $10,000 is cause of dismissal
of diversity of citizenship action in federal court.
Spouses can sue each other while still married
for torts, intentional and unintentional.
Judge's dismissal for no cause is reversible.
Non-lawyers can assist or represent litigants
in court.
Members of group who are competent nonlawyers
can assist other members of group achieve the goals of the group in court without being
charged with "unauthorized practice of law"
BROTHERHOOD OF RAILWAY TRAINMEN V. VIRGINIA
, 377 US 1;
NAACP V. BUTTON, 371 US 415 (1962);
SIERRA CLUB V. NORTON, 92 S.Ct. 1561;
UNITED MINE WORKERS V. GIBBS, 383 US 715;
FARETTA V. CALIFORNIA, 422 US 806.
Pro Se (Without a Lawyer, representing self)
pleadings are to be considered without technicality; pro se litigants pleadings are not to
be held to the same high standards of perfection as lawyers.
HAINES V. KERNER, 92 S.Ct. 594;
JENKINS V. MCKEITHEN, 395 US 411, 421
(1969);
PICKING V. PENNA. RWY. CO. 151 F.2d 240;
PUCKETT V. COX, 456 F.2d 233.
Federal judges can set aside or overturn state
courts to preserve constitutional rights.
Right to electronically record one's own
conversations without "beep note" when life, liberty or property is threatened,
or to preserve sanctity of home.
A conspirator is responsible for the acts of
other conspirators who have left the conspiracy before he joined it, or joined after he
left it; statutes of limitations tolled for previous acts when each new act is done.
US v. GUEST, 86 S.Ct. 1170;
US V.COMPAGNA, 146 F.2d 524.
State statute of limitations is tolled (does
not run) in SOME STATES while same action is pending in federal court; action can be
brought in State Court after federal court dismisses for lack of subject matter
jurisdiction.
ADDISON V. STATE, 21 Cal. 3d 313 (1978);
NICHOLS V. CANOGA IND., 83 Cal. App 3d 956
(1978) (Equitable tolling).
Either parent can sue for interference with
parental rights.
Pro se:
HANDBOOK OF THE LAW OF TORTS (West Publ.
1955) page 682;
CARRIERI V. BUSH, 419 P.2d 132 (1966)
SWEARINGEN V. VIK, 322 P.2d 876 (1958)
LANKFORD V. TOMBARI, 213 P.2d 627, 19 ARL 2d
462 (1950);
7 F.L.R. 2071 RESTATEMENT OF TORTS section
700A
MARSHALL V. WILSON, 616 SW 2d 934
Children must be returned to home state before
child support payments are continued.
Custody can be changed if wife is
"disrespectful" of "visitation" order.
Wife held in contempt for denial of
visitation; new judge should not suspend contempt order.
There is no violation of statute governing
unauthorized publication or use of communications or of statute governing interception of
wire or oral communication if one of the parties to the communication has given prior
consent to such interception.
Under the Fourth Amendment, there is no
invasion of privacy in monitoring, recording, and introduction into evidence a telephone
conversation where one party has given prior consent to the interception.
There is no need to obtain an ex parte order
for wiretapping or eavesdropping if the recording is made with the consent of one of the
parties to the conversation or telephone communication to be recorded.
Consent of one party to conversation is
sufficient to allow taping of conversation.
STATE V. HOLMES, 476 P.2d 878, 13 Ariz. App.
357, application den. 91.S.Ct 1669, 402 U.S. 971, 29 L.Ed. 2d 135; cert. den. 91 S.Ct.
2255, 403 U.S. 936, 29 L.Ed.2d 717. (emphasis supplied)
Additional Cites re:
WIRETAPPING/taping/telephone, etc.
Implied risk of communicating with any other
person via phone that said person will divulge statements; hence OK to record
conversation; no expectation of privacy.
US v. PHILLIPS, C.A. Mo. 1976, 540 F.2d 319,
cert.den. 97 S.Ct 530, 429 U.S. 1000, 50 L.Ed. 2d 611;
Question is whether person being recorded had
reasonable expectation of privacy at time of recording. (Calif has its own wiretapping
statutes, perhaps stronger re: privacy than U.S.)
PEOPLE V. NEWTON, 1974, 116 Cal. Rptr 690;
42 C.A.3d 292, cert.den. 95 S.Ct.1147, 420 11 U.S. 937, 43 L.Ed.2d 414.
U.S. V. HODGE, C.A. MI 1976, 539 F.2d 898,
cert.den. 97 S.Ct. 1100, 429 U.S 1091, 51 L.Ed. 2d 536
U.S. V. PERKINS, (D.C. OH 1974) 383 F.Supp.
922.
The alleged inadequacies of a parent must pose
a serious risk to the child. The state cannot interfere with the parent/child relationship
merely because its social workers believe the challenged parent might become a better
parent. To allow such interference would make for systematic abuse of state power,
victimizing the poor, the uneducated and cultural minorities.
IN RE CARMEMATA, 579 P.2d 514, 146 Cal.Rptr.
623(1978);
IN RE VISKE, 413 P.2d 876 (Mont.1966).
Alimony and wive's lawyers fees are civil
debts, not enforceable by contempt procedures, since the Constitution did away with
debtor's prison.
Fathers' Rights Case Law Title 42 USC 1983 is
for (federal) civil rights violations. "Judges may be punished criminally for willful
deprivation of rights on the strength of Title 18 U.S.A. 241 and 242."
"Judges may be punished criminally for
willful deprivation of rights on the strength of Title 18 U.S.A. 241 and 242."
[The fact that There are federal rules\laws
regarding suing including judges for violations of constitutional rights is proof enough
that it occurs.] [Often instead of coming right out with it phrases like "an error of
law" are used, not that the law is in error, but that the judge's ruling\ order or
decision is "in error of the law". This means the judge's ruling is contrary to
or in opposition to the law. Note the law may be "case law".]
Right of parents to the care, custody and to
nurture their children is of such character that it cannot be denied without violating
those fundamental principals of liberty and justice which lie at the base of all our civil
and political institutions, AND SUCH RIGHT IS A FUNDAMENTAL RIGHT PROTECTED BY THIS
AMENDMENT AND AMENDMENTS 5, 9, and 14.
" courts (must) indulge every reasonable
presumption against waiver of fundamental constitutional rights, and... .not presume
acquiescence in the loss of fundamental rights"
"Disobedience or evasion of a
Constitutional mandate may not be tolerated, even though such disobedience may not be
tolerated, even though such disobedience may. . . . promote in some respects the best
interests of the public."
The pleading of one who pleads pro se for the
protection of civil rights should be liberally construed.
Parents have fundamental constitutionally
protected interest in continuity of legal bond with their children.
The United States Supreme Court noted that a
parent's right to "the companionship, care, custody and management of his or her
children" is an interest "far more precious" than any property right.
"No bond is more precious and none should
be more zealously protected by the law as the bond between parent and child."
"A parent's right to the preservation of
his relationship with his child derives from the fact that the parent's achievement of a
rich and rewarding life is likely to depend significantly on his ability to participate in
the rearing of his children. A child's corresponding right to protection from interference
in the relationship deprives form the psychic importance to him of being raised by a
loving, responsible, reliable adult." (Emphasis added)
A parent's right to the custody of his or her
children is an element of "liberty" guaranteed by the Fifth Amendment and
Fourteenth Amendment to the Constitution of the United States.
Legislative classifications which distributes
benefits and burdens on the basis of gender carry the inherent risk of reinforcing
stereotypes about the proper place of women and their need for special protection; thus,
even statutes purportedly designed to compensate for and ameliorate the effects of past
discrimination against women must be carefully tailored. The state cannot be permitted to
classify on the basis of sex.
The United States Supreme Court held that the
"old notion" that "generally it is the man's primary responsibility to
provide a home and its essentials, " can no longer justify a statute that
discriminates on the basis of gender. "No longer is the female destined solely for
the home and the rearing of the family, and only the male for the marketplace and the
world of ideas."
Classifications by gender must serve important
governmental objectives and must be substantially related to achievement of those
objectives.
Classifications based upon sex, like
classifications based upon race, alienage or national origin are inherently suspect and
must be subjected to strict judicial scrutiny. . . .Any statutory scheme which draws a
sharp line between the sexes, solely for the purpose of achieving administrative
convenience, necessarily commands dissimilar treatment for men and women who are similarly
situated and therefore involves the very kind of arbitrary legislative choice forbidden by
the Constitution.
A classification must reasonable, not
arbitrary, and must rest upon some ground of differences having a fair and substantial
relation to the object of the legislation, so that all persons similarly circumstanced
shall be treated alike.
While a state has broad power when it comes to
making classifications, it may not draw a line which constitutes an invidious
discrimination against a particular class.
"The claim and exercise of a
Constitutional right cannot be converted into a crime."
"We find it intolerable that one
Constitutional right should have to be surrendered in order to assert another."
Government may not prohibit or control the
conduct of a person for reasons that infringe upon constitutionally guaranteed freedoms.
An individual may not be punished for
exercising a protected statutory constitutional right.
U.S. v. GOODWIN, 102 S.Ct. 2485, 457 U.S.
368, 73 L.Ed2d 74, on remand 687 F.2d 44 (1982)
Within limits of practicability, a state must
afford to all individuals a meaningful opportunity to be heard. . .Whenever one is
assailed in his person or his property, there he may defend. . .The right to meaningful
opportunity to be heard within limits of practicality must be protected against denial by
particular laws that operate to jeopardize it for particular individuals.
BODDIE V. CONNECTICUT, 92, S.Ct. 780, 401
U.S. 371. 28 L.Ed.2d 113 conformed t 329 F. Supp. 844 (1971)
Quite apart from the guarantee of equal
protection, if a law impinges on a fundamental right explicitly or implicitly secured by
the Constitution it is presumptively unconstitutional.
If a law has no other purpose that to chill
assertion of constitutional rights by penalizing those who choose to exercise them, it is
patently unconstitutional.
HARRIS V. McRAE, 100 S.Ct. 2671, 448 U.S.
297, 65 L.Ed.2d 784,rehearing denied 101 S.Ct. 39, 448 U.S. 917, 65 L.Ed.2d 1180 (1980)
In pursuing substantial state interest, state
cannot choose means which unnecessarily burden or restrict constitutionally protected
activity.
Only where state action impinges on exercise
of fundamental constitutional right or liberties must it be found to have chosen the least
restrictive alternative.
"Because the State is supposed to proceed
in respect of the child as parens patriae and not as adversary,. . . ."
Where certain fundamental rights are involved,
regulation limiting these rights may be justified only by a compelling state interest and
the legislative enactment must be narrowly drawn to express only legitimate state
interests at stake.
A state cannot foreclose the exercise of
constitutional rights by mere labels.
There is a right to be free from unwarranted
governmental intrusion into matters so fundamentally affecting a person as the decision
whether to bear or beget a child
Neither Fourteenth amendment nor Bill of
Rights is for adults alone.
Vague laws offend several important values;
first, vague laws may trap the innocent by not providing fair warning; second, vague law
impermissibly delegates basic policy matters to policemen, judges, and juries for
resolution on an ad hoc and subjective basis, with attendant dangers of arbitrary and
discriminatory application; and third, where a vague statute abuts on sensitive areas of
basic First Amendment freedoms, it operates to inhibit the exercise of those freedoms.
A parent may bring a suit against a
municipality which failed to provide protection against an ex-spouse, under 42 U.S.C.
Section 1983. The parent may recover damages for her son's death and her own injuries,
where the police force assured her of protection from a violent ex-spouse.
RAUCCI V. TOWN OF ROTTERDAM, No. 89-7693,
U.S. Dist. Ct. --N.Y., April 27, 1990
Police officer loses qualified immunity to
claim that facially neutral policy has been executed in a discriminatory manner in a
domestic violence situation if that police officer knows that the policy has a
discriminatory impact.
Jury trials are a must when holding a trial
for civil contempt where "clear and convincing" evidence must be produced.
United States Constitution, Amendment VII states: "In suits at common law, where the
value in controversy shall exceed twenty dollar, the right of trial by jury shall be
preserved, and no fact tried by a jury shall be otherwise reexamined in any Court of the
United States, than according to the rules of the common law." "The jury. . . .
acts not only as a safeguard against judicial excesses, but also as a barrier to
legislative and executive oppression. The Supreme Court . . .recognizes that the jury . .
. is designed to protect Defendants against oppressive governmental practices."
The Jury has "an unreviewable and power.
. . to acquit in disregard of the instructions on the law given by the trial judge."
"The common law right of the jury to
determine the law as well as the facts remains unimpaired."
"Trial by jury is available . . . as
indicated in Seventh Amendment."
"Legislative acts, no matter what their
form, that apply either to named individuals or to easily ascertainable members of a group
in such a way as to inflict punishment on them without a judicial trial are bills of
attainder prohibited by the Constitution."
Alexander Hamilton wrote: "Nothing is
more common than for a free people, in times of heat and violence, to gratify momentary
passions, by letting into the government principles and precedents which afterwards prove
fatal to themselves. Of this kind is the doctrine of disqualification, disfranchisement,
and banishment by acts of the legislature. The dangerous consequences of this power are
manifest. If the legislature can disfranchise any number of citizens at pleasure by
general descriptions.
"The Constitution outlaws this entire
category of punitive measures. The amount of punishment is material to the classification
of a challenged statute. But punishment is prerequisite. . ."
"The deprivation of any rights, civil or
political, the circumstances attending and the causes of the deprivation determining the
fact. "
The singling out of an individual for
legislatively prescribed punishment constitutes a "bill of attainder" whether
individual is called by name or described in terms of conduct which, because of its past
conduct, operates only as a designation of particular persons.
COMMUNIST PARTY OF U.S. V. SUBVERSIVE
ACTIVITIES CONTROL BOARD, 81 S.Ct. 1357, 367 U.S. 1, 6 L.Ed.2d 625, rehearing denied 82 S.
Ct. 20, 368 U.S. 871, 7 L.Ed.2d 72
Every person who, under color of any statute
ordinance, regulation, custom, or by usage, of any State or Territory, subjects, or causes
to be subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress. EVERY PERSON SHALL BE LIABLE IN AN ACTION
AT LAW SUIT IN EQUITY N0 EXCLUSION FOR JUDGES BY ANY ACT OF CONGRESS UNITED STATES CODE,
TITLE 42, SECTION 1985 (3) If two or more persons . . . conspire. . for the purpose of
depriving. any person. . . of the equal protection of the laws . . . the party so injured
or deprived may have an action for the recovery of damages . . . RECOVERY OF DAMAGES
AGAINST ANY ONE OR MORE OF THE CONSPIRATORS N0 EXCLUSION FOR JUDGES BY ANY ACT OF CONGRESS
UNITED STATES CODE, TITLE 42, SECTION 1986 Every person who, having knowledge that any of
the wrongs . . . are about to be committed, and having power to prevent or aid in
preventing the commission of the same, neglects or refuses so to do . . . shall be liable
. . . EVERY PERSON SHALL BE LIABLE FOR ALL DAMAGES NO EXCLUSION FOR JUDGES BY ANY ACT OF
CONGRESS UNITED STATES CODE, TITLE 42, SECTION 1988
"When any court violates the clean and
unambiguous language of the Constitution, a fraud is perpetrated and no one is bound to
obey it."
It is the duty of the courts to be watchful
for CONSTITUTIONAL RIGHTS of the citizen, against any stealthy encroachments
thereon."
"The judicial branch has only one duty
--- to lay the article of the Constitution which is involved beside the statue which is
challenged and to decide whether the latter squares with the former. . .the only power it
(the Court) has. . .is the power of judgement."
"Whoever, under color of law, statute, or
ordinance, regulation, or custom, willfully subjects any inhabitants of any state to the
deprivation of any rights, privileges, or immunities secured or protected by the
Constitution or Law of the United States. . . shall be fined no more than $1,000 or
imprisoned one year or both."
Title 18 U.S.C.A. 241, 242 are the criminal
equivalent of Title 42 U.S.C.A. 1983, 1985 et seq. "Judges have no immunity from
prosecution for their judicial acts."
"Federal Courts should avoid a ruling
that any act of Congress is void on it face if the act can be either construed as
constitutional or applied as constitutional."
"When a judge acts intentionally and
knowingly to deprive a person of his constitutional rights, he exercises no discretion or
individual judgement; he acts no longer as a judge, but as a "minister" of his
own prejudice."
"We should, of course, not protect a
member of the judiciary "who is in fact guilty of using his power to vent his spleen
upon others, or for any other personal motive not connected with the public good."
"Government immunity violates the common
law maxim that everyone shall have remedy for an injury done to his person or
property."
Immunity fosters neglect and breeds
irresponsibility, while liability promotes care and caution, which caution and care is
owed by the government to its people."
RABON V. ROWEN MEMORIAL HOSP., INC, 269 NSI.
13, 152 S.E.2d 485, 493 (`1967)
"Actions by state officers and employees,
even if unauthorized or in excess of authority can be actions under 'color of law'. "
"A judge is not immune from criminal
sanctions under the civil rights act."
"State officials acting in their official
capacities, even if in abuse of their lawful authority , generally are held to act
"under color" of law. This is because such officials are " clothed with the
authority" of state law, which gives them power to perpetrate the very wrongs that
Congress intended Section 1983 to prevent. "
"The language and purpose of the civil
rights acts, are inconsistent with the application of common law notions of official
immunity. . . "
JACOBSEN V. HENNE, 335 F.2d 129, 133 (U.S.
Ct. App. 2nd Circ. - 1966) Also see" ANDERSON V. NOSSER, 428 F.2d 183 (U.S. Ct. App.
5th Circ. - 1971)
"Governmental immunity is not a defense
under (42 USC 1983) making liable every person who under color of state law deprives
another person of his civil rights."
Judicial immunity is no defense to a judge
acting in the clear absence of jurisdiction."
As long as a defendant who abridges a
plaintiff's constitutional rights acts pursuant to a statute of local law which empowers
him to commit the wrongful act, an action under the Federal Civil Rights statute is
established. 42 U.S.C.A. 1981 et seq.;
"The Supreme Court initially discussed
judicial immunity in Randall v. Brigham, 74 U.S. (7 Wall.) 523, 19 L.Ed. 285 (1869). In
Randall, the Court wrote that judges of superior or general jurisdiction courts were not
liable to civil actions for their judicial acts, even when such acts, where the acts, in
excess of jurisdiction, are done maliciously or corruptly." [Editor's Note: In more
recent cases: Stump v. Sparkman, 435 U.S. 349 (1978) and Dennis v. Sparks, 449 U.S. 24 it
was found that judges were really not acting in a malicious and corrupt manner and the
proofs also showed that. Congress by its words and meaning enacted the Civil Rights Act of
1871 and that meaning included judges to be held responsible to an injured plaintiff for
the deprivation of Constitutional Rights. Any judge made case finding to the contrary is
hereby challenged as unconstitutional and unlawful. No Court has ever challenged the
Constitutionality of the Civil Rights Act of 1871, and therefore said Congressionally
enacted legislation stands as law. The only way to change an act of Congress is by an act
of Congress. No judge can change it and any such findings and changes are not to be upheld
in Federal Courts as lawful. No changes in the wording have ever been made to Title 42
U.S.C.A. 1981, 1983, 1985, 1986 and 1988 and therefore these Congressionally enacted laws
are enforceable in the Federal Courts. The only change made to Title 42 U.S.C.A. 1983 took
place in 1979. At this time the words "or the District of Columbia" were
inserted following "Territory". If any judges or persons representing judges had
wanted to make a change this would have been an opportune time to do so. No action was
ever taken to change the wording of the law and it remains as such today.]
"The resolution of immunity questions
inherently requires a balance between the evils inevitable in any available alternative.
In situations of abuse of office, an action for damages may offer the only realistic
avenue for vindication of constitutional guarantees."
Editor's Note: Federal lawsuits can be brought
under both Title 42 U.S.C.A. 1983, 1985, 1986, 1988 and/or brought directly under the
Constitution against federal officials. Butz at 504
"Referring both to the objective and
subjective elements, we have held that qualified immunity (Ed. Note: or "good
faith") would be defeated if an official "knew or reasonably should have known
that the action he took within his sphere of official responsibility would violate the
constitutional rights of the [plaintiff], or if he took the action with the malicious
intention to cause a deprivation of constitutional rights or other injury. . ."
"I agree with the substantive standard
announced by the Court today, imposing liability when a public-official defendant
"knew or should have known" of the constitutionally violative effect of his
actions. This standard would not allow the official who actually knows that he was
violating the law to escape liability for his actions, even if he could not
"reasonably have been expected" to know what he actually did know. Thus the
clever and unusually well-informed violator of constitutional rights will not evade just
punishment for his crimes. I, also agree that this standard applies "across the
board," to all "government officials performing discretionary functions.,"
Harlow at 2739, Justice Brennan, Justice Marshall, and Justice Blackmum concurring. In
Pierson v. Ray, 386 U.S. 547, Mr. Justice Douglas, dissenting:
"I do not think that all judges, under
all circumstances, no matter how outrageous their conduct are immune from suit under 17
Stat. 13, 42 U.S.C. Section 1983. The Court's ruling is not justified by the admitted need
for a vigorous and independent judiciary, is not commanded by the common -law doctrine of
judicial immunity, and does not follow inexorably from our prior decisions." at
558-559
"The position that Congress did not
intend to change the common-law rule of judicial immunity ignores the fact that every
member of Congress who spoke to the issue assumed that the words of the statute meant what
they said and that judges would be liable." at 561
"Yet despite the repeated fears of its
opponents, and the explicit recognition that the section would subject judges to suit, the
section remained as it was proposed; it applied to "any person". There was no
exception for members of the judiciary. In light of the sharply contested nature of the
issue of judicial immunity it would be reasonable to assume that the judiciary would have
been expressly exempted from the wide sweep of the section, if Congress had intended such
a result." at 563
"We should, of course, not protect a
member of the judiciary "who is in fact guilty of using his powers to vent his spleen
upon others, or for any other personal motive not connected with the public good." at
564 ". . .the judge who knowingly turns a trial into a "Kangaroo" court? Or
one who intentionally flouts the Constitution in order to obtain conviction? Congress, I
think, concluded that the evils of allowing intentional, knowing deprivations of civil
rights to go unredressed far out weighed the speculative inhibiting effects which might
attend an inquiry into a judicial deprivation of civil rights." at 567
"Judges are not immune for their
nonjudicial activities, i.e., activities which are ministerial or administrative in
nature."
"It is not a judicial function for judge
to commit intentional tort, even though tort occurs in courthouse."
"There was no judicial immunity to civil
actions for equitable relief under Civil Rights Act of 1871. 42 U.S.C.A. 1983 Shore v.
Howard. 414 F.Supp. 379 "There is no judicial immunity from criminal liability".
Id. "Repeated pattern of failing to advise litigants of their constitutional and
statutory rights is serious judicial misconduct."
"When a judge knows that he lacks
jurisdiction or acts in face of clearly valid statutes or case law expressly depriving him
of jurisdiction, judicial immunity is lost."
[Note: If the Right to Counsel under the Sixth
Amendment is not complied with, the Court no longer has jurisdiction to proceed. Remember
this in child support contempt proceedings and false domestic violence proceedings.]
"Judges are not absolutely immune from
liability to damages under Civil Rights Act. 42 U.S.C.A. Section 1983 & 1985
"Under the common law of England, where
individual rights were preserved by a fundamental document such as the Magna Carta,
violations of those rights generally could be remedied by a traditional action for
damages; violation of constitutional right was viewed as a trespass, giving rise to a
trespass action.
"There is no judicial immunity from
criminal liability."
"State judges, as well as federal, have
the responsibility to respect and protect persons from violations of federal
constitutional rights."
"Conduct of trial judge must be measured
by standard of fairness and impartiality."
Judges must maintain a high standard of
judicial performance with particular emphasis upon conducting litigation with scrupulous
fairness and impartiality. 28 USCA § 2411;
"A judge knows that he lacks
jurisdiction, or acts in the face of clearly valid statutes or case law expressly
depriving him of jurisdiction, judicial immunity is lost." Id.
[Note: It is well settled that non-custodial
fathers as well as mothers have a constitutionally protected liberty interest in their
parent/child relationship and case law as well as statutory law has time and again upheld
that right. Judges have complete knowledge of the right of children to have access to both
parents during separation and after divorce. For a judge to discriminate on the basis of
sex to deny the parent/child relationship or severely limit it without just cause/clear
and convincing evidence, causes that judge to lose jurisdiction and therefore judicial
immunity because of his discriminatory "ministerial" personal viewpoints.]
"Law requires not only impartial
tribunal, but that tribunal appears to be impartial." 28 U.S.C.A. 455.
The rights of parents to the care, custody and
nurture of their children is of such character that it cannot be denied without violating
those fundamental principles of liberty and justice which lie at the base of all our civil
and political institutions, and such right is a fundamental right protected by this
amendment (First) and Amendments 5, 9, and 14.
The several states has no greater power to
restrain individual freedoms protected by the First Amendment than does the Congress of
the United States.
Loss of First Amendment Freedoms, for even
minimal periods of time, unquestionably constitutes irreparable injury. Though First
Amendment rights are not absolute, they may be curtailed only by interests of vital
importance, the burden of proving which rests on their government.
Parent's right to custody of child is a right
encompassed within protection of this amendment which may not be interfered with under
guise of protecting public interest by legislative action which is arbitrary or without
reasonable relation to some purpose within competency of state to effect.
REYNOLD V. BABY FOLD, INC., 369 NE 2d 858;
68 Ill 2d 419, appeal dismissed 98 S Ct 1598, 435 US 963, IL, (1977).
The United States Supreme Court noted that a
parent's right to "the companionship, care, custody and management of his or her
children" is an interest "far more precious" than any property right.
MAY V. ANDERSON, 345 US 528, 533; 73 S Ct
840, 843, (1952).
A parent's right to care and companionship of
his or her children are so fundamental, as to be guaranteed protection under the First,
Ninth, and Fourteenth Amendments of the United States Constitution.
Parent's rights have been recognized as being
"essential to the orderly pursuit of happiness by free man."
The U.S. Supreme Court implied that "a
(once) married father who is separated or divorced from a mother and is no longer living
with his child" could not constitutionally be treated differently from a currently
married father living with his child.
No bond is more precious and none should be
more zealously protected by the law as the bond between parent and child."
Reality of private biases and possible injury
they might inflict were impermissible considerations under the Equal Protection Clause of
the 14th Amendment.
State Judges, as well as federal, have the
responsibility to respect and protect persons from violations of federal constitutional
rights.
The right of a parent not to be deprived of
parental rights without a showing of fitness, abandonment or substantial neglect is so
fundamental and basic as to rank among the rights contained in this Amendment (Ninth) and
Utah's Constitution, Article 1 § 1.
The rights of parents to parent-child
relationships are recognized and upheld.
FANTONY V. FANTONY, 122 A 2d 593, (1956).
BRENNAN V. BRENNAN, 454 A 2d 901, (1982).
"Municipal ordinances adopted under state
authority constitute state action and are within prohibition of the Fourteenth
Amendment."
"Prohibitions of Fourteenth Amendment
apply to acts of administrative agencies of state."
"It is enough to invoke procedural
safeguards of Fourteenth Amendment that significant property interest is at stake,
whatever ultimate outcome of the hearing."
"Aliens, as well as citizens are entitled
to protection of Fifth Amendment"
On "antecedent conditions" and
"conditions precedent":
"Where some antecedent conditions must
exist prior to the exercise of power, or must be performed before certain powers can be
exercised, a statute directing fulfillment of such conditions is "mandatory".
Application of Megan, 5 N.W. 2d, 729, 733,
69 S.D. 1.
Also see:
State ex rel. Jones v. Farrar, 66 N.E. 2d
531, 534, 146 Ohio St. 467.
Crane v. Board of Sup'rs of L.A., 62 P 2d
189, 193, 17 Cal. App. 2d 360.
"But proceedings outside the authority of
the court, or in violation or contravention of statutory prohibitions, are, whether the
court have jurisdiction of the parties and subject-matter of the action or proceedings, or
not, utterly void."
"Although a court may have jurisdiction
over the parties and the subject matter, yet if it makes a decree which is not within the
powers granted to it by the law of its organization, its decree is void."
And, on statutes whose purpose is for the
pubic well being (very applicable since divorce is a statutory proceeding)
"...statutory requisitions...when the
requisitions prescribed are intended for the protection of the citizen, and to prevent a
sacrifice of his property, and by a disregard of which his rights might be and generally
would be injuriously affected, they are not directory but mandatory. They must be followed
or the acts done will be invalid. The power of the officer is all such cases is limited by
the manner and conditions prescribed for its exercise."
French v. Edwards, 80 US 506, 511, 13 Wall.
506, 20 L Ed. 702 (1871).
"A statutory power, to be validly
executed, must be executed according to the statutory directions."
Marx v. Hanthorn, 148 US 172, 180, 37 L Ed.
410, 13 S Ct 508 (1892).
State ex rel. Laurisch v. Pohl, 214 Minn.
221,225, 8 N.W. 2d 227 (Minn S Ct 1943.)
"To do business upon public streets is
not a matter of right like the right of ordinary travel.... "The right of a citizen
to travel upon the highway and transport his property thereon, in the ordinary course of
life and business...is the usual and ordinary right of a citizen, a common right, a right
common to all..." "
Schultz v. City of Duluth, 203 N.W. 449
(Minn S Ct 1925), quoting from Ex parte Dickey, 76 W. Va. 576, 85 S.E. 781, L.R.A. 1915F,
840.
"...the rule that if a statute purporting
to have been enacted to protect the public health, the public morals or the public safety,
has no real or substantial relation to those objects, or is, beyond all question, a plain,
palpable invasion of rights secured by the fundamental law, it is the duty of the courts
to so adjudge, and thereby give effect to the Constitution."
Jacobson v. Massachusetts, 197 US 11, 31, 25
S Ct 358, 49 L Ed 643 (1904),
citing, Mugler v. Kansas, 123 US 623, 661,
and Minnesota v. Barber, 136 US 313, 320, and Atkin v. Kansas, 191 US 207, 223.
Also, very good analysis of when the state
effectively adopts procedures by which they shift the "burden of proof", to
their advantage, with a LOTS of citations
One of the best cases I've come across as far
as defining what it takes to state a cause of action under 42 U.S.C. section 1983.
"By the plain terms of section 1983, two
- and only two - allegations are required in order to state a cause of action under that
statute. First, the plaintiff must allege that some person has deprived him of a federal
right. Second, he must allege that the person who has deprived him of that right acted
under color of state or territorial law."
Gomez v. Toledo, 446 U.S. 635 (1980)
