July 19, 2003
Provision of J.A.I.L.
(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
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
--deliberate violation of
--fraud or conspiracy
--intentional violation of due
process of law
--deliberate disregard of material
--judicial acts without
--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
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
Sent: Thursday, 17 July 2003 08:32
Subject: Why Three Strikes and You're Out
Why Three Strikes and
You're Out Within J.A.I.L.?
Question presented by Michael
Chacon / Response by Ron Loeber
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.
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
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
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
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
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?
"..it does not require a majority to prevail,
but rather an irate, tireless minority keen to set brush fires in people's
minds.." - Samuel Adams
"There are a thousand hacking at the
branches of evil to one who is
striking at the
-- Henry David Thoreau <><