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Fw: **Reviewing The "Three Strikes" Provision of J.A.I.L.**

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  • jail4judges
    J.A.I.L. News Journal _____________________________________________________ Los Angeles, California July 19, 2003
    Message 1 of 1 , Jul 19 1:51 PM
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      J.A.I.L. News Journal
      _____________________________________________________
      Los Angeles, California                                          July 19, 2003
       

       
      Reviewing The "Three Strikes" Provision of J.A.I.L.
      An analysis by Barbie, victoryusa@...
      (See previous question presented below by CA JAILer, Michael Chacon
      and response by NY JAILer-In-Chief, Ron Loeber)
       
      People have been questioning the need for three strikes against judges for "willful" violation of constitutional law as provided for in the J.A.I.L. Initiative/Legislation. Their argument is that judges, who are held to a higher standard, are expected to know the law and all constitutional provisions they are called upon to test, judge, and apply in all cases brought before them. Therefore, the argument goes, why are judges allowed three opportunities to willfully violate their judicial responsibilities which they hold with an expectation of knowing?
       
      That is a very logical question and one that deserves a closer look. I recall in my years of legal research, that there is a lot of weight given to the term "expectation" when it comes to official duty and responsibility. A common allegation is "known or should have known" or "knew or was expected to know" whatever the alleged violation is. The expectation factor is critically important where the official holds a position of public trust, and there is no greater such position than that of Judge, as the judiciary holds the final key in any controversy in society.
       
      Government itself is an institution of public trust, with the judiciary at the helm. To bring the true focus in to the relationship between the people and its government, the word "judiciary" can replace "government" since government conduct is whatever the judiciary determines it to be in the final analysis. The High Court has ruled that the purpose of the federal courts (judiciary) is to be the guardian of people's rights, regarding alleged violations by state government, including the state judiciary. That if a remedy to protect those rights was not provided by the state judiciary, one must be fashioned by the federal judiciary in order to see that those rights are secured as intended to be. This ruling was made regarding the obtaining of injunctive relief against state judiciary --NOT on a decision, but for failing and refusing to provide a state court remedy in order to receive a decision. [Routinely and invariably the federal judiciary avoided their responsibility by blocking a remedy instead of providing one, using the Rooker-Feldman doctrine which says you cannot bring a state court decision for review in federal court --however refusing to address the record which showed by evidence that there could be no decision without the process that was due --but that's yet another story.]
       
      Getting back to the three strikes provision of J.A.I.L., one objective Ron had in designing the initiative was to give the judiciary every opportunity to correct any mistakes it had made, or show by evidence on the record that indeed no mistake was made. No more arbitrary and capricious denials or refusals to address the record by judges. Everything in the J.A.I.L. process must be shown by the written court record, which of course must be supported by exhibits.
       
      One hang-up in discussing the alleged violations against a judge is the term "willful."  The comment has been made that "willfulness" is hard to prove. In the sense that willfulness means knowing, intentional, and deliberate as it does with J.A.I.L., all it will take to prove it is supported evidence on the court record that the alleged violation had been brought to the attention of the miscreant judge by the J.A.I.L. complainant, and the judge failed and refused to justify by evidence his alleged action or inaction in the particular situation. The burden is on the complainant to prove by the established record any alleged judicial violation(s) done willfully (i.e., knowingly, intentionally, and deliberately) after notifying the judge on the record of such violation(s) to no avail.
       
      J.A.I.L. will operate on an objective basis, all based on evidence presented by the court record. It will not be subject to any "state of mind" rationale, as some people think "willfulness" involves. The only questions the Special Grand Jury will have to examine are: (1) Was the Constitution, or any applicable law in pursuance thereof (statute, court rule, regulation, etc. as shown by the record), violated by the judge according to the facts shown by the record? and (2) Was that violation done willfully-- on an objective basis showing that the judge had been apprised of the alleged violation and refused to correct it or show by evidence that there was no violation?
       
      The initiative defines the term "strike" as "an adverse immunity decision." [¶(b)5]  The following paragraph [¶(c)] provides that no immunity (i.e., adverse immunity decision) shall extend to any:
          --deliberate violation of law
          --fraud or conspiracy
          --intentional violation of due process of law
          --deliberate disregard of material facts
          --judicial acts without jurisdiction
          --blocking of a lawful conclusion of a case (defined in ¶(b)1]
          --deliberate violation of the Constitutions (state and federal)
       
      Of course, the J.A.I.L. complainant must show evidence by the court record of the existence of the above violation(s) and what was done to try to have those violations corrected, including exhausting all judicial remedies in the state court system showing the particular moving papers (e.g., motions for reconsideration, motions to strike, motions to vacate, collateral writ petitions, appellate petitions, etc.) that were timely filed and the results thereof.
       
      In the criminal context, a strike is "any criminal conviction (including a plea bargain) under any judicial process." [¶(s)].
       
      So, the question is, why are three strikes allowed under J.A.I.L. before the judge is permanently removed from office? [¶(q)]  The reason is to circumvent any accusation, especially by the judicial community and its supporters, of "rushing to judgment" or "not giving judges a chance" or any other claim of "unfairness" to judges-- to give judges the benefit of every doubt. The three strikes provision will also establish a pattern of disregard for the Constitution and laws made in pursuance thereof.
       
      Further, it should be noted that no judge under J.A.I.L. will escape potential liability in a civil case subsequently brought against the judge. "No judge complained of, or sued civilly by a complainant pursuant to this Amendment, shall be defended at public expense or by any elected or appointed public counsel, nor shall any judge be reimbursed from public funds for any losses sustained under this Amendment." [¶(t)]  (Under the current system, judges are ALWAYS defended at taxpayers' expense.) This J.A.I.L. provision alone (strike one) would be sufficient to deter most judges from "willful" violation(s) of law. In effect, strikes one and two are severe, while strike three is "fatal."
       
      The idea behind J.A.I.L. is to encourage the judicial system to operate pursuant to the Constitution on its own, without outside "help." The three strikes provision serves as a warning to all judges that the people are serious about demanding a responsible and accountable judiciary, and thus enforcing the constitutional laws we already have. The point is to not have to involve the J.A.I.L. process any more than is absolutely necessary, and the warning given by the three strikes provision will serve to get the judiciary to straighten themselves out on their own.
       
      The objective of J.A.I.L. is NOT to punish the judiciary --throw them in jail or otherwise, but to police the judiciary by the people because they will not police themselves. While the Constitution is designed to protect people's inherent rights, it contains no provision for the people to enforce that constitutional protection --a serious omission rendering it meaningless words on paper. While theoretically the Grand Jury was designed to be a check on government on behalf of the people, there is no specific constitutional provision spelling it out in terms to be operational as such. We know now that the Grand Jury has become a puppet for the prosecution under statutory grant of government, leaving the people without enforcement power of the Constitution.
       
      It is that omission that J.A.I.L. will fill in the most just way possible. The three strikes provision lends itself to that objective.
       
      -Barbie-
       

      (Previous discussion)
      Sent: Thursday, 17 July 2003 08:32
      Subject: Why Three Strikes and You're Out Within J.A.I.L.?
       
      Why Three Strikes and You're Out Within J.A.I.L.?
      Question presented by Michael Chacon / Response by Ron Loeber
       
      From: Michael Chacon, SnorahS12@...
      To: Ron Loeber, ron@... 
       
      ....
      One thing I've been meaning to ask Mr. Branson is this, ...
      If j4j is really about reforming the judicial system, why does it allow for 3 strikes against a judge? Isn't one enough?
       
      This has been nagging at me for a long time and I needed to get it off my chest. I hope there's a reasonable explanation because I've wracked my brain and I can't come up with one. 
      ...

      Michael
       

       
       
      Michael,
       
      You wrote, "If j4j is really about reforming the judicial system, why does it allow for 3 strikes against a judge? Isn't one enough?"
       
      I'll try to answer your question.  Keep in mind, this is just my personal opinion and not the official position of J4J or Ron Branson.
       
      Why do you equate J.A.I.L. with "reforming the judicial system"?  J.A.I.L. makes no attempt at "reforming the judicial system".  It does not attempt to reform,  nor does it attempt to re-form, the judicial branch of government... nor the other branches.  J.A.I.L. does NOT attempt to change anything within any of the laws, rules, or procedures of any state.
       
      "Reform", judicial or otherwise, is properly done by the people through those who represent them in the legislature... and/or by the courts themselves.  Many people speak of "reform".  But I have yet to have any one of the "reform" advocates point to three laws or three rules of procedure that needs to be modified or added or deleted.  Frankly, I find it difficult to criticize very many laws in my state as they now stand.  I can criticize the improper application of the law, but not the law itself.  If the judge in my case had followed the law, and recognized and protected my rights as required by the Oath of Office and secured by the constitution, I wouldn't have been in county jail.  I wouldn't have had my property (water rights) taken from me.  I wouldn't have foolishly spent tens of thousands of dollars on lawyers.  I might not even be interested in J.A.I.L.  There is a lot of other things I'd rather be doing.
       
      The only thing J.A.I.L. will do when it is passed is place limits upon judicial immunity for a judge's WILLFUL violation of law, Oath of Office, and our rights by making judges directly accountable to the people for their willfulness.  Period.  Willfulness ain't all that easy to prove.  Ask any prosecutor.
       
      There is a place for judicial immunity.  Judges are human, just like the rest of us.  They may make mistakes, just like the rest of us.  From my perspective, when a judge damages someone as a result of an innocent mistake, that is... well... it is the terrible price we must pay for freedom in our Union form of government.  To that extent, I support judicial immunity.
       
      Look up "'rights" is a good law encyclopedia.  You will see a list as long as your arm, and that's just the subject matter sub-headings.  Do you think every violation of every one of your multitude of rights rises to something for which imprisonment is the best answer?  What about all those errors (violations of law) that may be corrected on appeal?  And what about the Special Grand Jurors?  Aren't they human, too.  Isn't it possible they could make a mistake?
       
      If you had a staff of domestic servants in your home, would you imprison them for their first willful mistake.  Wouldn't it be to your advantage to impose a fine on a couple of them, and fire a couple, for all the rest to see.  If you were a harsh task master, you might even want to discipline one of them regularly just to keep the others on their toes.
       
      Isn't the threat of punishment often more effective than the punishment itself?  J.A.I.L. was designed to be the Sword of Damocles suspended over the head of every judge.  The day J.A.I.L. is passed in your state, you're going to see a whole new attitude in the judiciary.
       
      If J.A.I.L. called a for imprisoning a judge every time he bruised one of your rights, do you really think we would ever be able to get it passed?
       
      Ron Loeber, NYJAILer-IN-Chief

       
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