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Re: Current § 1983 RE: Suing State Judges

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  • CarlS
    My thoughts exactly. If a judge acts in a manner that is unlawful in his official capacity, he then forfeits judicial immunity and becomes liable for damages
    Message 1 of 13 , Jun 1 6:57 AM
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      My thoughts exactly. If a judge acts in a manner that is unlawful in his official capacity, he then forfeits judicial immunity and becomes liable for damages as a citizen or individual acting under color of law, correct?



      --- In tips_and_tricks@yahoogroups.com, stonekutteral <stonekutteral@...> wrote:
      >
      >
      > On May 31, 2013, at 3:27 AM, Legalbear wrote:
      >
      >
      > >>>>>>>>I found courts saying the following regarding this 1996 Amendment to 42 USC § 1983 and what it means when it comes to suing judges:<<<<<<<<<<<<<<<
      >
      >
      >
      > Absolute immunity bars not only Montero's § 1983 claim for damages but also his claim for injunctive relief. The 1996 amendments to § 1983 provide that "in any action brought against a judicial officer for an act or omission
      >
      > >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> Bear (and the courts) have emphasized this part, when it is the very next part that should have the emphasis---
      > taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable."
      >
      >
      > the fact is that most things the judges should be sued for is Not stuff they have done in their judicial capacity, but stuff which it is not legal for them to do in their official capacity.......
      >
    • jai mann
      If a judge acts in an manner that is unlawful in his official capacity, then he has absolute immunity (it s ridiculous). If the jurisdiction of the court is
      Message 2 of 13 , Jun 1 2:37 PM
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        If a judge acts in an manner that is unlawful in his official capacity, then he has absolute immunity (it's ridiculous). If the jurisdiction of the court is not invoked, or the judge only has one type of jurisdiction (say probate) but the judge acts as a judge with criminal jurisdiction, then the judge has no absolute immunity.


        http://supreme.justia.com/cases/federal/us/435/349/case.html

        "(a) A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority, but, rather, he will be subject to liability only when he has acted in the "clear absence of all jurisdiction," Bradley v. Fisher, 13 Wall. 335, 80 U. S. 351. Pp. 435 U. S. 355-357."

        http://supreme.justia.com/cases/federal/us/80/335/case.html

        "
        2. Judges of courts of record of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly. A distinction as to their liability made between acts done by them in excess of their jurisdiction and acts done by them in the clear absence of all jurisdiction over the subject matter."

        "

        In the present case we have looked into the authorities and are clear, from them, as well as from the principle on which any exemption is maintained, that the qualifying words used were not necessary to a correct statement of the law, and that judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly. A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject matter. Where there is clearly no jurisdiction over

        Page 80 U. S. 352

        the subject matter any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible. But where jurisdiction over the subject matter is invested by law in the judge, or in the court which he holds, the manner and extent in which the jurisdiction shall be exercised are generally as much questions for his determination as any other questions involved in the case, although upon the correctness of his determination in these particulars the validity of his judgments may depend. Thus, if a probate court, invested only with authority over wills and the settlement of estates of deceased persons, should proceed to try parties for public offenses, jurisdiction over the subject of offenses being entirely wanting in the court, and this being necessarily known to its judge, his commission would afford no protection to him in the exercise of the usurped authority. But if on the other hand a judge of a criminal court, invested with general criminal jurisdiction over offenses committed within a certain district, should hold a particular act to be a public offense, which is not by the law made an offense, and proceed to the arrest and trial of a party charged with such act, or should sentence a party convicted to a greater punishment than that authorized by the law upon its proper construction, no personal liability to civil action for such acts would attach to the judge, although those acts would be in excess of his jurisdiction, or of the jurisdiction of the court held by him, for these are particulars for his judicial consideration, whenever his general jurisdiction over the subject matter is invoked. Indeed some of the most difficult and embarrassing questions which a judicial officer is called upon to consider and determine relate to his jurisdiction, or that of the court held by him, or the manner in which the jurisdiction shall be exercised. And the same principle of exemption from liability which obtains for errors committed in the ordinary prosecution of a suit where there is jurisdiction of both subject and person, applies in cases of this kind, and for the same reasons.


        The distinction here made between acts done in excess

        Page 80 U. S. 353

        of jurisdiction and acts where no jurisdiction whatever over the subject matter exists, was taken by the Court of King's Bench, in Ackerley v. Parkinson. [Footnote 13]

        "

        There is related material in this common law of England text. but for the life
        of me I can't seem to find the passages I remember reading before.
        One may have to do case name searches that are related to the topic
        and cited in cases like Bradley.


        One of the case law dissenting opinions that I read seemed the most
        honest and reasonable and in it the judge said that absolute immunity
        SHOULD NOT cover any judges who are engaged in criminal actions or
        coverups. Make note that this was the dissenting opinion and that the
        majority decided to extend absolute immunity even to criminal behavior
        just as long as the judge had JURISDICTION.

        My research on this topic is what led me to make the post a while back
        about getting around their absolute immunity. I'll remind everyone who
        may have missed it. While dealing with a lower court judge who is
        acting outside of their jurisdiction, or perhaps even criminally, one
        has the option of writing a petition of writ for mandate and/or prohibition.
        I did that. Now I can't sue the appellate division judges who refused
        to issue either writ because I gave them jurisdiction via the petition.
        Instead of petitioning, one might consider sending a NOTICE to the
        appellate division (or what ever division is immediately above the division you're in)
        judges, giving notice to the higher level judges of the unlawful actions of the lower
        court judge and officials. At that point, the ball is in their court
        with out you having given them jurisdiction, via petition, to "hear" any thing on the
        matter, and if they fail to intervene you can sue them via 42 USC 1986 for
        neglect to prevent wrongs conspired to be done.

        It seems like an entirely reasonable solution to help force them to
        do what's right or pay the consequences.


        --- On Sat, 6/1/13, CarlS <Carl@...> wrote:

        From: CarlS <Carl@...>
        Subject: [tips_and_tricks] Re: Current § 1983 RE: Suing State Judges
        To: tips_and_tricks@yahoogroups.com
        Date: Saturday, June 1, 2013, 9:57 AM

        My thoughts exactly.  If a judge acts in a manner that is unlawful in his official capacity, he then forfeits judicial immunity and becomes liable for damages as a citizen or individual acting under color of law, correct?


      • originalfrogfrmr
        ... That s why I disqualify EVERYBODY as soon as they cause a release of adrenaline. I don t understand why people who complain of oppression PERMIT it to
        Message 3 of 13 , Jun 2 11:18 AM
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          > If a judge acts in an manner that is unlawful in his official capacity,
          > then he has absolute immunity (it's ridiculous).

          That's why I disqualify EVERYBODY as soon as they cause a release of
          adrenaline. I don't understand why people who complain of oppression
          PERMIT it to occur without objection or defense!

          Regards,

          FF
        • jai mann
          I disqualified the Judge on a lack of a constitutional oath but she went forward any way. Every thing is on the record and she lacked any jurisdiction to act
          Message 4 of 13 , Jun 2 2:04 PM
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            I disqualified the Judge on a lack of a constitutional oath but she went forward any way. Every thing is on the record and she lacked any jurisdiction to act at any point even if she had a valid oath. If getting them to step aside was so easy then perhaps this judge didn't get the memo.

            --- On Sun, 6/2/13, frogfrmr@... <frogfrmr@...> wrote:

            From: frogfrmr@... <frogfrmr@...>
            Subject: Re: [tips_and_tricks] Re: Current § 1983 RE: Suing State Judges
            To: tips_and_tricks@yahoogroups.com
            Date: Sunday, June 2, 2013, 2:18 PM

            That's why I disqualify EVERYBODY as soon as they cause a release of
            adrenaline. I don't understand why people who complain of oppression
            PERMIT it to occur without objection or defense!

            Regards,

            FF
          • Jane
            The judge I have been dealing with ignores me when I state she has not perfected her Oath......IN fact she had me held on contempt she got so pissed off. They
            Message 5 of 13 , Jun 2 3:11 PM
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              The judge I have been dealing with ignores me when I state she has not perfected her Oath......IN fact she had me held on contempt she got so pissed off.  They never had me sign anything at the jail nor did they ever actually charge me but she Ordered $10,000 bond.   My case had the same result as the one mentioned below. They completely missed all of the seven elements of jurisdiction.  This judge did not get the memo either. 
               
              From: jai mann
              Sent: Sunday, June 02, 2013 2:04 PM
              Subject: Re: [tips_and_tricks] Re: Current § 1983 RE: Suing State Judges
               
               

              I disqualified the Judge on a lack of a constitutional oath but she went forward any way. Every thing is on the record and she lacked any jurisdiction to act at any point even if she had a valid oath. If getting them to step aside was so easy then perhaps this judge didn't get the memo.

               

            • gary2666
              I have often wondered about that myself, if they just ignore your objection and go forward, what is your relief? If no one has taken the proper oath, who
              Message 6 of 13 , Jun 2 3:35 PM
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                I have often wondered about that myself, if they just ignore your objection and go forward, what is your relief?  If no one has taken the proper oath, who could even hear your complaint?
                 
                Gary
                 
                From: jai mann
                Sent: Sunday, June 02, 2013 4:04 PM
                Subject: Re: [tips_and_tricks] Re: Current § 1983 RE: Suing State Judges
                 
                 

                I disqualified the Judge on a lack of a constitutional oath but she went forward any way. Every thing is on the record and she lacked any jurisdiction to act at any point even if she had a valid oath. If getting them to step aside was so easy then perhaps this judge didn't get the memo.

                --- 
                 

              • hobot
                ... Alas this has been my experience on last 4 traffic court encounters -even to point of objecting to judge presenting States case when prosecutor shown to
                Message 7 of 13 , Jun 2 6:32 PM
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                  On 6/2/2013 4:04 PM, jai mann wrote:
                  > I disqualified the Judge on a lack of a constitutional oath but she
                  > went forward any way. Every thing is on the record and she lacked any
                  > jurisdiction to act at any point even if she had a valid oath. If
                  > getting them to step aside was so easy then perhaps this judge didn't
                  > get the memo.

                  Alas this has been my experience on last 4 traffic court encounters -even to
                  point of objecting to 'judge' presenting States case when prosecutor shown
                  to have not oath then thrown in jail for objecting while specially
                  appearing.
                  Its depressing to present proper pleadings on jurisdiction elements and due
                  process breakdowns being rail roaded over in courts and then get flak by
                  posters we were too ignorant or backed down too easy. One interesting
                  thing I discovered on last two traffic ct face off was 'judge-magistrate'
                  will not and does not look at anything you may have recorded in record
                  before arraignment - Only the docket sheet. I asked two judges about
                  that and both said until arraignment gotten they did not have reason or
                  duty [jurisdiction] too. Twice last month I was told my charges did not
                  rate a jail sentence if convicted. I brought up lack of verified complaint,
                  then told not to speak and if I didn't let him enter not guilty I'd be
                  put in
                  jail. Already tested two judges in two counties at this point objecting
                  to them acting in my behalf w/o my permission to have
                  spent time in their two jails. So I guess I'm not worthy of those who
                  get success every time ahead of time. hobot
                • CarlS
                  It has been my experience that trying to stop someone from doing something in a legal arena based on lack of jurisdiction or qualifications is very unlikely.
                  Message 8 of 13 , Jun 3 5:32 AM
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                    It has been my experience that trying to stop someone from doing something in a legal arena based on lack of jurisdiction or qualifications is very unlikely. In a court proceeding, it's important to raise objections for the record, of course, but it's probably for the appeal rather than halting the current hearing. Here in central Florida, with only one exception, I've found the hearing officers in traffic court to be absolutely fair and impartial. If anything, they tend to favor the driver, and they will do everything within their power to do so, providing that the driving record doesn't indicate that they're a danger to other drivers. However, if a driver is on a first-name basis with the court (meaning frequent appearances), he or she can expect the court to do what it can to get the driver to stop endangering everyone else on the highway.

                    I take a different tac in court, and I always come out on top. I always treat the court with respect; I always research the statute that I'm accused of violating, plus related statutes and regulations; I always research the speed measuring device if it's a speeding citation; and I always brush up on the requirements that the device operator must meet, which are many and laborious. I always file a motion for discovery in advance, and review the material thoroughly. That includes the officer's employment record, which can be used to introduce reasonable doubt about the validity of his testimony if there are any disciplinary or substandard performance issues.

                    I never go in with any of the patriot-type arguments, and I always go in with all of my ducks in a row. The hearing officer can immediately see that I'm organized, well prepared, and not trying to argue or waste the court's time. I question the officer in such a manner as to get him to make my case for me with his answers. I have my questions written down in front of me along with any paperwork and documentation that I might need to introduce into evidence. I taught my son to do the same, and once when he was in traffic court, the hearing officer actually complimented him on how well prepared he was and how well he presented his case. The verdice was guilty, but with the minimum fine (as opposed to the maximum as listed on the citation), and no points on his license. We could have appealed in an effort to get a dismissal or not-guilty verdict, but we pick and choose our battles, and we had bigger fish to fry.

                    This particular hearing officer even told those present that he would call the lawyers first so that those who were representing themselves could observe and learn from them something that might apply to their own case.

                    The last time caught us completely by surprise. My son, who is now 26 and married, had an actual judge (as opposed to a hearing officer) in a county known for its corruption. The judge was an older woman with a rotten attitude and a chip on her shoulder. My son could have made several objections, but didn't know to do so, and I think that's why we lost on appeal. Live and learn. It was hard to watch my son being railroaded by a crooked judiciary, but we consider it a few hundred dollars' worth of education.

                    onth I was told my charges did not
                    > rate a jail sentence if convicted. I brought up lack of verified complaint,
                    > then told not to speak and if I didn't let him enter not guilty I'd be
                    > put in
                    > jail. Already tested two judges in two counties at this point objecting
                    > to them acting in my behalf w/o my permission to have
                    > spent time in their two jails. So I guess I'm not worthy of those who
                    > get success every time ahead of time. hobot
                    >
                  • originalfrogfrmr
                    ... You have to do more than state it! But it doesn t surprise me to hear of total lawlessness out there today as the system is totally broken. You must
                    Message 9 of 13 , Jun 3 11:03 AM
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                      > The judge I have been dealing with ignores me when I state she has not
                      > perfected her Oath......IN fact she had me held on contempt she got so
                      > pissed off. They never had me sign anything at the jail nor did they ever
                      > actually charge me but she Ordered $10,000 bond. My case had the same
                      > result as the one mentioned below. They completely missed all of the seven
                      > elements of jurisdiction. This judge did not get the memo either.

                      You have to do more than "state" it!

                      But it doesn't surprise me to hear of total lawlessness out there today as
                      the "system" is totally broken. You must use EVERY tool at your disposal.
                      Make record asking questions they cannot answer. Use the money issue.
                      Thanks for fighting back because if all did that it helps. They only have
                      lies left.

                      Regards,

                      FF
                    • originalfrogfrmr
                      ... It is not a mere objection made too late. You MUST disqualify EVERY act by EVERY imposter! You must make all objections right from the IMOC Initial
                      Message 10 of 13 , Jun 3 11:15 AM
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                        > I have often wondered about that myself, if they just ignore your
                        > objection and go forward, what is your relief? If no one has taken the
                        > proper oath, who could even hear your complaint?

                        It is not a mere objection made too late. You MUST disqualify EVERY act
                        by EVERY imposter! You must make all objections right from the IMOC
                        Initial Moment Of Confrontation! You must involve co-conspirators and
                        have witnesses. "THEY" only become "THEY" after you link them, as there is
                        no "they" otherwise. It is assumed everyone is doing the right thing.
                        When you make it obvious that a crime is committed, few will want to sign
                        on as accomplices. Nobody will help you, and you must fight everyone
                        arrayed against you. Being nice does not help at all.

                        Regards,

                        FF
                      • originalfrogfrmr
                        ... Based upon these two paragraphs, traffic tickets were accepted (they waive many rights). At the arrests, immediate appearances before magistrates do not
                        Message 11 of 13 , Jun 3 12:09 PM
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                          > On 6/2/2013 4:04 PM, jai mann wrote:
                          >> I disqualified the Judge on a lack of a constitutional oath but she
                          >> went forward any way. Every thing is on the record and she lacked any
                          >> jurisdiction to act at any point even if she had a valid oath. If
                          >> getting them to step aside was so easy then perhaps this judge didn't
                          >> get the memo.
                          >
                          > Alas this has been my experience on last 4 traffic court encounters -even
                          > to
                          > point of objecting to 'judge' presenting States case when prosecutor shown
                          > to have not oath then thrown in jail for objecting while specially
                          > appearing.

                          Based upon these two paragraphs, traffic tickets were accepted (they waive
                          many rights). At the arrests, immediate appearances before magistrates do
                          not appear to have been demanded. The right to a real court via rejection
                          of the infraction process (and election to have the case tried as a
                          misdemeanor) and acceptance of the "traffic court" may have something to
                          do with the outcome. The lack of a separate disqualification proceeding
                          with another judge and subsequent appeals may give a clue to the results.

                          > Its depressing to present proper pleadings on jurisdiction elements and
                          > due
                          > process breakdowns being rail roaded over in courts and then get flak by
                          > posters we were too ignorant or backed down too easy. One interesting
                          > thing I discovered on last two traffic ct face off was 'judge-magistrate'
                          > will not and does not look at anything you may have recorded in record
                          > before arraignment - Only the docket sheet.

                          This proves that the first time the magistrate was seen was at
                          arraignment, so rights were already waived. Were all required elements of
                          the arraignment present? It's hard to get that here in California.

                          > I asked two judges about
                          > that and both said until arraignment gotten they did not have reason or
                          > duty [jurisdiction] too. Twice last month I was told my charges did not
                          > rate a jail sentence if convicted.

                          That is proof of the infraction process. to get full rights, you agree
                          to a possible jail sentence and treatment as a misdemeanor. It's in our
                          state codes. What state has a different process?

                          > I brought up lack of verified
                          > complaint,

                          ...which is waived by acceptance of a notice to appear or "traffic ticket".
                          The real verified complaint if it ever could exist could have been made to
                          appear if an immediate appearance before the magistrate had been required
                          and the complaint demanded then and there IF the arresting impersonator
                          could have fooled the magistrate (impersonator).

                          > then told not to speak and if I didn't let him enter not guilty I'd be
                          > put in jail.

                          In California, the accused can demand time to answer, up to seven days. I
                          explain my need to have this time to show the fake arraignment documents
                          to an attorney and ask his opinion as to how I should plead to them in
                          light of the other missing arraignment components. Sometimes I'm jealous
                          of all you folks in states where everything is done according to the law,
                          where judges and cops have oaths, and arraignments have the required
                          elements, where complaints are verified and signed (which never gets
                          revealed if a ticket is accepted first).

                          > Already tested two judges in two counties at this point objecting
                          > to them acting in my behalf w/o my permission to have
                          > spent time in their two jails. So I guess I'm not worthy of those who
                          > get success every time ahead of time. hobot

                          "Testing two judges" implies going through two disqualification processes.
                          See California law at Code of Civil procedure 170.3

                          (c) (1) If a judge who should disqualify himself or herself refuses or
                          fails to do so, any party may file with the clerk a written verified
                          statement objecting to the hearing or trial before the judge and setting
                          forth the facts constituting the grounds for disqualification of the
                          judge. The statement shall be presented at the earliest practicable
                          opportunity after discovery of the facts constituting the ground for
                          disqualification. Copies of the statement shall be served on each party or
                          his or her attorney who has appeared and shall be personally served on the
                          judge alleged to be disqualified, or on his or her clerk, provided that
                          the judge is present in the courthouse or in chambers.


                          (2) Without conceding his or her disqualification, a judge whose
                          impartiality has been challenged by the filing of a written statement may
                          request any other judge agreed upon by the parties to sit and act in his
                          or her place.


                          (3) Within 10 days after the filing or service, whichever is later, the
                          judge may file a consent to disqualification in which case the judge shall
                          notify the presiding judge or the person authorized to appoint a
                          replacement of his or her recusal as provided in subdivision (a), or the
                          judge may file a written verified answer admitting or denying any or all
                          of the allegations contained in the party’s statement and setting forth
                          any additional facts material or relevant to the question of
                          disqualification. The clerk shall forthwith transmit a copy of the judge’s
                          answer to each party or his or her attorney who has appeared in the
                          action.


                          (4) A judge who fails to file a consent or answer within the time allowed
                          shall be deemed to have consented to his or her disqualification and the
                          clerk shall notify the presiding judge or person authorized to appoint a
                          replacement of the recusal as provided in subdivision (a).


                          (5) A judge who refuses to recuse himself or herself shall not pass upon
                          his or her own disqualification or upon the sufficiency in law, fact, or
                          otherwise, of the statement of disqualification filed by a party. In that
                          case, the question of disqualification shall be heard and determined by
                          another judge agreed upon by all the parties who have appeared or, in the
                          event they are unable to agree within five days of notification of the
                          judge’s answer [FF NEVER AGREES!!!], by a judge selected by the
                          chairperson of the Judicial Council, or if the chairperson is unable to
                          act, the vice chairperson. The clerk shall notify the executive officer of
                          the Judicial Council of the need for a selection. The selection shall be
                          made as expeditiously as possible. No challenge pursuant to this
                          subdivision or Section 170.6 may be made against the judge selected to
                          decide the question of disqualification.


                          (6) The judge deciding the question of disqualification may decide the
                          question on the basis of the statement of disqualification and answer and
                          any written arguments as the judge requests, or the judge may set the
                          matter for hearing as promptly as practicable. If a hearing is ordered,
                          the judge shall permit the parties and the judge alleged to be
                          disqualified to argue the question of disqualification and shall for good
                          cause shown hear evidence on any disputed issue of fact. If the judge
                          deciding the question of disqualification determines that the judge is
                          disqualified, the judge hearing the question shall notify the presiding
                          judge or the person having authority to appoint a replacement of the
                          disqualified judge as provided in subdivision (a).


                          (d) The determination of the question of the disqualification of a judge
                          is not an appealable order and may be reviewed only by a writ of mandate
                          from the appropriate court of appeal sought only by the parties to the
                          proceeding. The petition for the writ shall be filed and served within 10
                          days after service of written notice of entry of the court’s order
                          determining the question of disqualification. If the notice of entry is
                          served by mail, that time shall be extended as provided in subdivision (a)
                          of Section 1013.


                          --------

                          and then, if all goes against you, you still have the peremptory
                          challenge, which nobody has mentioned using, by filing the required
                          affidavit listed in section 170.6.

                          It's obvious to me that rights have been waived from the IMOC on. you
                          cannot count on people treating you nice. You must take any step offered
                          to you by the law that helps to derail your prosecution. Failure to take
                          a step may result in outcomes we don't like.

                          If you go through the codes carefully, you might find 100 things you
                          could require them to follow. They know my agenda sheet has over 100
                          lines. They do not want to discuss even a fraction of them. How many
                          steps do you guys plan to take in your next case if they don't release you
                          at the scene of the arrest? Can I guess?

                          1. Accept the ticket
                          2. show up on the date on the ticket
                          3. Make various verbal objections
                          4. Fail to require elements of an arraignment
                          5. Fail to ask for time under section 990 or its equivalent
                          6. Fail to initiate formal disqualification proceedings
                          7. Pay a fine despite claiming to know the money issues

                          Regards,

                          FF
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