by Irwin Ironstone –
I would like to thank Bob Vinik for allowing me to place this short letter brief on academia.edu. Mr. Vinik has innovative thoughts that make the law become alive. At the same time that he respects the law and legal institutions, he also questions them to insure that others get a fair break. Bob Vinik is not a lawyer. This is necessary when so many individuals cannot afford to hire an attorney.
This brief was written at least 15 years ago but is still applicable today. One interesting application may be to question any judge who fails to have an ability to pay hearing before locking someone up to coerce them to pay child support before having any hearing. In New Jersey, the Supreme Court determined that an ability to pay hearing is required before locking someone up for failure to pay child support. (In New Jersey see Pasqua v. Council, 186 N.J. 127, 892 A.2d 663 (2006)).
It is necessary to verify judicial notice and the laws related to civil contempt in your jurisdiction.
Some of the names used have been changed so that the parties are anonymous.
This specific paper uses two legal theories.
• First it addresses the right to counsel and then, it addresses judicial notice.
• It also questions the public defender’s form that appears to be a retainer agreement. This retainer agreement appears to be in conflict with higher authorities. Florida in some of its counties requires the poor to pay a fee before the public defenders will represent them in criminal actions.
• I have been in courts where judges will do almost anything to prevent a party from giving judicial notice.
• One reason for this is that once a judge is given judicial notice, and acts contrary to that notice, there are times when he is acting without jurisdiction and may lose immunity.
• Lawyers who depend upon their livelihood may not act as aggressively as someone who assists a party who cannot afford a lawyer (even a public defender.)
• This issue of judicial immunity and judicial notice may go hand in hand.
• When a judge is given notice of a higher authority and fails to recognize that authority does he/she lose immunity?
• It is an interesting thought and may insure that judges follow their constitutional limits.
John R. Doe
P.O. Box 300
Medford, N.J. 08999
SUPERIOR COURT OF NEW JERSEY
STATE OF NEW JERSEY
MORRIS COUNTY: CRIMINAL DIVISION
Case No. 95001222
Indit. No. 95-10-01777-I
LETTER BRIEF IN SUPPORT OF
MOTION FOR RECONSIDERATION
JOHN R. DOE OF DENIAL OF MOTION FOR
On the Brief: Bob Vinik
Dear Judge Bozonelis:
Please accept this letter brief in lieu of a more formal brief.
Defendant Doe clearly and plainly requested appointed counsel, at public expense, at each opportunity before you and Judge Collester. He is indigent and proceeding through Chapter 7 Bankruptcy at this time. His indigency was not controverted by anyone throughout the proceedings. He was told each time he must sign the retainer agreement provided or he would not be represented. Although the agreement was called a REIMBURSEMENT AGREEMENT it was clearly a retainer agreement that required payment for services rendered. Moreover, the agreement did not specify the amount to be charged per hour or the hours to be charged for.
Defendant DOE refused to sign a retainer agreement requiring him to pay an indeterminate amount for services he was Constitutionally entitled to, without charge. A copy of the retainer agreement (falsely called a REIMBURSEMENT AGREEMENT) is attached. Defendant Doe was advised both in court and by letter from the Public Defender, David L. Kervick, that if the agreement was not signed, “this office will not represent you.” A copy is attached.
This court is mandated to take notice of the Legal and Constitutional arguments presented herein. Defendant DOE invoked N.J.R.E. 201(d) during the proceedings in open court on the record, on January 29, 1996, before Judge Bozonelis. Defendant DOE again invoked N.J.R.E. 201(d) in his notice of motion for reconsideration, and he again invokes N.J.R.E. 201(d) herein. This court shall take Judicial Notice of the Constitutions of New Jersey and The United States as well as decisional law therein, pursuant to N.J.R.E. 201(d).
THIS COURT IS DENIED JURISDICTION
AND SHALL NOT PROCEED IF DEFENDANT IS DENIED COUNSEL
This court no longer has jurisdiction to proceed because it denied a clearly asserted request for appointed counsel. This assertion raises the requirement of the court far in excess of the requirement that the defendant “intelligently and knowingly waive the right to counsel”. Defendant Doe reasserts his request for appointed counsel and restates herein that he does not waive the right to appointed counsel.
It is well settled that the right to counsel, at public expense if necessary, is well established with respect to proceedings that are criminal in nature. The Sixth Amendment’s guarantee of counsel in criminal prosecutions has been applicable, through the Due Process Clause of the Fourteenth Amendment of the federal constitution, in all state felony trials since Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963), and to indigents who, if they lose, could be incarcerated for petty or misdemeanor offenses since Argersinger v Hamlin, 407 US 25; 92 S Ct 2006; 32 L Ed 2d 530 (1972).
The courts have also held that denial of counsel is too precious a right to forfeit. The Court held in Johnson v. Zerbst, 304 U.S. 458 (1937) that courts don’t have jurisdiction to proceed if the right to attorney is denied. This ruling turned merely on the absence of a waiver of the right to counsel not the denial of a direct request for counsel made to the court on the record.
“Since the Sixth Amendment constitutionally entitles one charged with a crime to the assistance of counsel, compliance with this constitutional mandate is an essential jurisdictional prerequisite to a federal court’s authority to deprive an accused of his life or liberty.” IF THE ACCUSED, HOWEVER, IS NOT REPRESENTED BY COUNSEL AND HAS NOT COMPETENTLY AND INTELLIGENTLY WAIVED HIS CONSTITUTIONAL RIGHT, THE SIXTH AMENDMENT STANDS AS A JURISDICTIONAL BAR TO A VALID CONVICTION AND SENTENCE DEPRIVING HIM OF HIS LIFE OR HIS LIBERTY. IF THIS REQUIREMENT OF THE SIXTH AMENDMENT IS NOT COMPLIED WITH, THE COURT NO LONGER HAS JURISDICTION TO PROCEED. Johnson at 468 (emphasis added)
Furthermore, this court may not impose a custodial sentence if defendant DOE is not represented be counsel. The United States Supreme Court directed this court and all courts:
“UNDER THE RULE WE ANNOUNCE TODAY, EVERY JUDGE WILL KNOW WHEN THE TRIAL OF A MISDEMEANOR STARTS THAT NO IMPRISONMENT MAY BE IMPOSED, EVEN THOUGH LOCAL LAW PERMITS IT, UNLESS THE ACCUSED IS REPRESENTED BY COUNSEL.” Argersinger Supra.
The right to counsel is very precious and must not be arbitrarily denied. “The constitutional right of assistance of counsel is too precious for such degenerate subversion.” U.S. v. Mitchell, 246 F. Supp. 874, 877 (1965)
The burden of proof lies with the state to establish that the petitioner knowingly and willingly waived his right to counsel. The state not only didn’t enter any proof, it didn’t address this most important part of the issue.
Standard for determining whether habeas petitioner knowingly and intelligently waived his right to counsel and exercised his right to proceed at trial pro se was same in habeas proceeding as it was on direct appeal. In habeas corpus proceeding, when the record demonstrates that defendant was not adequately informed of his rights to self-representation, the state must prove that the defendant voluntarily and intelligently waived his right to counsel. In order for a defendant to invoke the right to represent himself, he must waive his Sixth Amendment right to counsel, and the trial judge has a duty to determine whether a proper waiver has been made, bearing in mind the strong presumptions against a waiver of this constitutional right. A Defendant’s choice to proceed pro se cannot be voluntary in a constitutional sense when the defendant is faced with choice between incompetent or unprepared counsel and appearing pro se.(U.S.C.A. Const. Amend. 6) Sanchez v. Mondragon, 858 F.2d 1462 (U.S. Ct. App. 10th Cir. 1988).
In Argersinger Supra, the general rule is that “absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.” In all Circuit Courts of Appeals that have considered the question of right to counsel, they have found that there is such a right even in civil contempt proceedings at which incarceration can be imposed. Colson v. Joyce, 646 F.Supp. 102 (D .Me. 1986).
Therefore, the Right to counsel is well settled in litigation that may result in loss of property or liberty. The right to counsel is protected beyond a doubt by the Sixth Amendment of the Constitution of the United States as applied to the states by the Fourteenth Amendment. Defendant JOHN DOE does not waive his right to counsel, he is indigent and requests the appointment of counsel by this court, at public expense, in this matter.
WITHOUT JURISDICTION THE COURT’S JUDICIAL IMMUNITY IS LOST
This court’s jurisdiction is denied if counsel is not appointed or a waiver of the right to counsel is made by defendant. Johnson Supra, at 458. If the court proceeds to trial in this matter without appointing counsel it losses jurisdiction and therefore immunity. Defendant DOE again restates he does not waive his Sixth Amendment Right to counsel as applied to this court by the Fourteenth Amendment.
It is axiomatic that judges are absolutely immune from civil liability for damages for their judicial acts. Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347, 20 L. Ed. 646 (1872); Pierson v. Ray, 386 U.S. 547, 18 L. Ed. 2d 288, 87 S. Ct. 1213 (1967). A JUDGE MAY BE DEPRIVED OF IMMUNITY ONLY WHEN HE ACTS IN THE “CLEAR ABSENCE OF JURISDICTION.” Bradley Supra, at 351. (Emphasis added). Howard v. Leonard, 101 Bankr. 421 (D.N.J. 1989).
Generally, judicial officers are not subject to civil liability for judicial acts performed within their jurisdiction. Wilkes v. Dinsman, 48 U.S. 89 (1849); Randall v. Brigham, 74 U.S. 523 (1869); Pierson v. Ray, 386 U.S. 547, 87 S. Ct. 1213 (1967); Imbler v. Pachtman, 424 U.S. 409, 96 S. Ct. 984 (1976). See, e.g., Darr v. Wolfe, 767 F.2d 79 (3d Cir. 1985) (finding judicial immunity). IN COURTS OF GENERAL OR SUPERIOR JURISDICTION, JUDICIAL OFFICERS POSSESS JUDICIAL IMMUNITY FOR ALL JUDICIAL ACTS, SO LONG AS THE JUDICIAL OFFICER HAS NOT PERFORMED SUCH ACTS IN THE “CLEAR ABSENCE OF ALL JURISDICTION OVER THE SUBJECT MATTER.” Alzua v. Johnson, 231 U.S. 106, 34 S. Ct. 27 (1913); Pierson v. Ray, 386 U.S. 547, 87 S. Ct. 1213 (1967); Stump v. Sparkman, 435 U.S. 347, 98 S. Ct. 1099 (1978); Schuler v. City of Chambersburg, Pa., 641 F. Supp. 657 (M.D. Pa. 1986).
The doctrine of judicial immunity extends even to conduct that is in excess of the judicial officer’s jurisdiction and done maliciously or corruptly. Stump v. Sparkman, 435 U.S. at 357, 98 S. Ct. at 1104 (1978); Schuler v. City of Chambersburg, Pa., 641 F. Supp. 657, 659 (M.D. Pa. 1986). (emphasis added)
The Ninth Circuit applied these standards to a § 1983 suit against a judge based upon allegations that the Kansas judge had participated in an attempt to “deprogram” him from the Unification Church. See Rankin v. Howard, 633 F.2d 844 (9th Cir. 1980), cert. denied, 451 U.S. 939, 101 S. Ct. 2020, 68 L. Ed. 2d 326 (1981). The plaintiff had “alleged that the judge, prior to the initiation of the actual proceeding, had agreed with the parents to grant a guardianship petition, despite the fact that the judge knew (plaintiff) was not a Kansas resident.” Beard v. Udall, 648 F.2d 1264, 1268 (9th Cir. 1981) (per curiam). Noting the Stump standards, THE RANKIN COURT HELD THAT IF PLAINTIFF’S ALLEGATIONS WERE PROVEN TRUE, “THE JUDGE WOULD NOT ENJOY JUDICIAL IMMUNITY BECAUSE: (1) BY IMPOSING A TEMPORARY GUARDIANSHIP OVER A NON-RESIDENT, THE JUDGE ACTED IN THE CLEAR ABSENCE OF JURISDICTION; and (2) by agreeing in advance to grant the petition, he acted non-judicially.” Id. Brooks v. Fitch, 534 F. Supp. 129 (D.N.J. 1981)(emphasis added).
THE PRINCIPLE THAT JUDGES ARE IMMUNE FROM SUIT EXCEPT FOR ACTIONS CLEARLY OUTSIDE THEIR JURISDICTION IS DEEPLY ROOTED IN ANGLO-AMERICAN LAW. Bradley v. Fisher, 13 Wall. 335, 80 U.S. 335, 20 L. Ed. 646 (1871); Bauers v. Heisel, 361 F.2d 581 (3d Cir. 1966). Since plaintiffs have failed to establish that defendant members of the judiciary were acting outside their jurisdiction, the doctrine of judicial immunity bars relief against all named judges. Adams v. American Bar Assoc. 400 F. Supp. 219 (D.N.J. 1975).(emphasis added)
The aforementioned holdings by the Federal Courts Clearly demonstrate that Judge Bozonelis is advised herein of the unconstitutionality of trying this case without appointed counsel for the defendant and he would leave his shield of judicial immunity behind himself. If he were not advised of the law in this matter, he might raise a defense of “Good Faith Immunity” with the argument that he was not aware of the loss of immunity nor the absolute unwavering right to appointed counsel. Judge Bozonelis is hereby put on notice that the act of trying defendant DOE without appointed counsel or a waiver of his right to appointed counsel also deprives the judge of a “Good Faith Immunity” defense.
http://civiljury.blogspot.com/2010/02/nj-rules-of-evidence-njre-rule-201.html (last visited Oct. 25, 2015)
NJ RULES OF EVIDENCE NJRE RULE 201. JUDICIAL NOTICE OF LAW AND ADJUDICATIVE FACTS
NJ RULES OF EVIDENCE NJRE RULE 201. JUDICIAL NOTICE OF LAW AND ADJUDICATIVE FACTS
(a) Notice of law. Law which may be judicially noticed includes the decisional, constitutional and public statutory law, rules of court, and private legislative acts and resolutions of the United States, this state, and every other state, territory and jurisdiction of the United States as well as ordinances, regulations and determinations of all governmental subdivisions and agencies thereof. Judicial notice may also be taken of the law of foreign countries.
(b) Notice of facts. Facts which may be judicially noticed include (1) such specific facts and propositions of generalized knowledge as are so universally known that they cannot reasonably be the subject of dispute, (2) such facts as are so generally known or are of such common notoriety within the area pertinent to the event that they cannot reasonably be the subject of dispute, (3) specific facts and propositions of generalized knowledge which are capable of immediate determination by resort to sources whose accuracy cannot reasonably be questioned, and (4) records of the court in which the action is pending and of any other court of this state or federal court sitting for this state.
(c) When discretionary. A court may take judicial notice whether requested or not.
(d) When mandatory. A court shall take judicial notice if requested by a party on notice to all other parties and if supplied with the necessary information.
(e) Opportunity to be heard. Each party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.
(f) How taken. In determining the propriety of taking judicial notice of a matter or the tenor thereof, any source of relevant information may be consulted or used, whether or not furnished by a party, and the rules of evidence shall not apply except Rule 403 or a valid claim of privilege.
(g) Instructing the jury. In a civil action or proceeding, the judge shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the judge shall instruct the jury that it may, but is not required to, accept as established any fact which has been judicially noticed.
(Adopted effective July 1, 1993.)
POSTED BY KENNETH VERCAMMEN ESQ. EDISON AT 6:48 PM
LABELS: NJ RULES OF EVIDENCE NJRE RULE 201. JUDICIAL NOTICE OF LAW AND ADJUDICATIVE FACTS
Judicial Immunity, Judicial Notice, Appointment of Counsel, Child Support, Ability to Pay