11882Re: The Judge Won't Rule On My Motions
- Aug 4, 2006
The way I see it is that you are EITHER ASKING the so-called “judge” to EXERCISE JUDICIAL DISCRETION (thus supposedly invoking the JURISDICTION of the court) or you are DEMANDING he do his MINISTERIAL DUTY.
MINISTERIAL. That which is done under the authority of a superior; opposed to judicial; that which involves obedience to instructions, but demands no special discretion, judgment, or skill.
—Ministerial act. A ministerial act may be defined to be one which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment, upon the propriety of the act being done. Acts done out of court in bringing parties into court are, as a general proposition ministerial acts. Pennington v. Streight, 54 Ind. 376; Bair v. Struck, 29 Mont. 45, 74 Pac. 69, 63 L. R. A. 481 ; State v. Nash, 66 Ohio St. 612, 64 N: E. 558: Grider v. Tally. 77 Ala. 424, 54 Am. Rep. 65.—Ministerial duty. A ministerial duty, the performance of which may in proper cases be required of a public officer by judicial proceedings, is one in respect to which nothing is left to discretion ; it is a simple, definite duty arising under circumstances admitted or proved to exist and imposed by law. State v. McGrath, 92 Mo. 355, 5 S. W. 29; Mississippi v. Johnson, 4 Wall. 498. 18 L. Ed. 437: People v. Jerome, 36 Misc. Rep. 256, 73 N. Y. Stipp. 306; Duvall v. Swann, 94 Md. 608. 51 Atl. 617 ; Gledhill v. Governor, 25 N. J. Law, 351. A ministerial duty arises when an individual has such a legal interest in its performance that neglect of performance becomes a wrong to such individual. Morton v. Comptroller General. 4 S. C. 473.—Ministerial officer. One whose duties are purely ministerial, as distinguished from executive, legislative, or judicial functions, requiring obedience to the mandates of superiors and not involving the exercise of judgment or discretion. See U. S. v. Bell (C. C.) 127 Fed. 1002; Waldoe v. Wallace. 12 Ind. 572; State v. Loechner. 65 Neb. 814, 91 N. W. 874, 59 L. R. A. 915; Reid v. Hood. 2 Nott & McC. (S. C.) 169, 10 Am. Dec. 582.—Ministerial power. See POWER. —Ministerial trust. See TRUST. Black's Law Dictionary, 2nd Ed., p. 781.
Remember it the CHARACTER of the ACT that DETIRMINES its NATURE and NOT the CHARACTER of the ACTOR.
"It was insisted during the argument on behalf of the petitioner that Congress cannot punish a State judge for his official acts; and it was assumed that Judge Cole, in selecting the jury as he did, was performing a judicial act. This assumption cannot be admitted. Whether the act done by him was judicial or not is to be determined by its character, and not by the character of the agent. Whether he was a county judge or not is of no importance. The duty of selecting jurors might as well have been committed to a private person as to one holding the office of a judge. It often is given to county commissioners, or supervisors, or assessors. In former times, the selection was made by the sheriff. In such cases, it surely is not a judicial act, in any such sense as is contended for here. It is merely a ministerial act, as much so as the act of a sheriff holding an execution, in determining upon what piece of property he will make a levy, or the act of a roadmaster in selecting laborers to work upon the roads. That the jurors are selected for a court makes no difference. So are court- criers, tipstaves, sheriffs, &c. Is their election or their appointment a judicial act?
But if the selection of jurors could be considered in any case a judicial act, can the act charged against the petitioner be considered such when he acted outside of his authority and in direct violation of the spirit of the State statute? That statute gave him no authority, when selecting jurors, from whom a panel might be drawn for a circuit court, to exclude all colored men merely because they were colored. Such an exclusion was not left within the limits of his discretion. It is idle, therefore, to say that the act of Congress is unconstitutional because it inflicts [100 U.S. 339, 349] penalties upon State judges for their judicial action. It does no such thing." EX PARTE STATE OF VIRGINIA, 100 U.S. 339 (1879)
And if the ACT is NOT JUDICIAL then the so-called “judge” is POTENTIALLY LIABLE.
"However, the Supreme Court has held that judges can be held liable for damages in suits where actions which are administrative in nature are challenged. See Forrester v. White, 484 U.S. 219, 224-225 (1988). The Court in Forrester refused to attach judicial immunity to a judge's decision to fire a court employee, because the act was not judicial in nature. The Court held that truly judicial acts must be distinguished from the administrative, legislative or executive functions that judges may occasionally be assigned to perform. According to the Court, it is the nature of the function performed -- adjudication -- rather than the identity of the actor who performed it -- a judge -- that determines whether absolute immunity attaches to the act. Any time an action taken by a judge is not an adjudication between parties, it is less likely that the act [will be found to be] a judicial one. Cameron v. Seitz, 38 F.3d 264, 271 (6th Cir. 1994).
In Morrison v. Lipscomb, 877 F.2d 463 (6th Cir. 1989), a Chief Judge's moratorium on writs of restitution during two holiday weeks was challenged by a landlord unable to redeem his property from a tenant for those two weeks. The Court of Appeals for the Sixth Circuit held that the moratorium, though performed by a judge, was not a judicial act entitled to absolute immunity. Id. at 466. The court noted that the act was not judicial in nature, because the legislature could have easily issued the moratorium as well. Id. "
UNITED STATES' BRIEF AS AMICUS CURIAE Badillo v. Andreu, et al
And given the following it appears to me that the LEGISLATURE has CLEARING given the courts a MINISTERIAL DUTY.
PENAL CODE 12. The several sections of this Code which declare certain crimes to be punishable as therein mentioned, devolve a duty upon the Court authorized to pass sentence, to determine and impose the punishment prescribed.
Patrick in California
"Make yourselves sheep and the wolves will eat you." - Benjamin Franklin
--- In email@example.com , Frog Farmer <frogfrmr@...> wrote:
> Demands. Looks just like a motion, but doesn't use that word. It uses
> "demand" instead. It doesn't say "please" or "prays" or any other
> grovel language. Comes from the point of view of the master over the
> servants, not the subject under the rulers.
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