The petition to remove would be based on a Petition for a Writ of Mandamus (to compel the "judge" to obey the federal rule concerning disqualification of "judges") filed in a UNITED STATES DISTRICT COURT (the term applied to a district court of the United States by the JRA) pursuant to the following provisions set forth at Fraud-upon-the-court by an Officer of the Court, concerning, obviously, fraud upon the court. This commentary is very good as to the underlying nature of intrinsic fraud upon the court (fraud committed by the "judge" him/herself as, e.g., by showing partiality, e.g., in giving specific legal advice to one side). Note that the opinions cited are, effectively, rules themselves, in addition to the overarching rule of 28 USC 455(a). The bold type is in the original, but I've further highlighted interesting points by underlining them with additional comments in [] brackets. As you've already experienced, these "court" fights are not based upon the facts or the law; however, fighting with a "judge" without these kinds of rules weapons, which must always be assumed to be appropriate in every matter, you've got both hands tied behind your back.
1. Who is an "officer of the court"?
A judge is an officer of the court, as well as are all attorneys. A state judge is a state judicial officer, paid by the State to act impartially and lawfully. A federal judge is a federal judicial officer, paid by the federal government to act impartially and lawfully. State and federal attorneys fall into the same general category and must meet the same requirements. A judge is not the court. People v. Zajic, 88 Ill.App.3d 477, 410 N.E.2d 626 (1980).
Whenever any officer of the court commits fraud during a proceeding in the court, he/she is engaged in "fraud upon the court". In Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985), the court stated "Fraud upon the court is fraud which is directed to the judicial machinery itself and is not fraud between the parties or fraudulent documents, false statements or perjury. ... It is where the court or a member is corrupted or influenced or influence is attempted or where the judge has not performed his judicial function --- thus where the impartial functions of the court have been directly corrupted."
"Fraud upon the court" has been defined by the 7th Circuit Court of Appeals [and, thus, the rule, as applied pursuant to the Supremacy Clause, in the geographical area of the 7th CIRCUIT, Illinois, Wisconsin, Indiana] to "embrace that species of fraud which does, or attempts to [i.e., doesn't even have to succeed], defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication." Kenner v. C.I.R., 387 F.3d 689 (1968); 7 Moore's Federal Practice, 2d ed., p. 512, ¶ 60.23. The 7th Circuit further stated "a decision produced by fraud upon the court is not in essence a decision at all, and never becomes final."[see par. 3, 1st line]
"Fraud upon the court" has been defined by the 7th Circuit Court of Appeals [and, thus, the rule, as applied pursuant to the Supremacy Clause, in the geographical area of the 7th CIRCUIT, Illinois, Wisconsin, Indiana] to "embrace that species of fraud which does, or attempts to [i.e., doesn't even have to succeed], defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication." Kenner v. C.I.R., 387 F.3d 689 (1968); 7 Moore's Federal Practice, 2d ed., p. 512, ¶ 60.23. The 7th Circuit further stated "a decision produced by fraud upon the court is not in essence a decision at all, and never becomes final."[see par. 3, 1st line]
"Fraud upon the court" makes void the orders and judgments of that court.
It is also clear and well-settled Illinois law that any attempt to commit "fraud upon the court" vitiates [erases] the entire proceeding. The People of the State of Illinois v. Fred E. Sterling, 357 Ill. 354; 192 N.E. 229 (1934) [being published in the N.E. reporter gives relative geographical proximity some weight to Illinois decisions in Wisconsin] ("The maxim that fraud vitiates every transaction into which it enters applies to judgments as well as to contracts and other transactions."); Allen F. Moore v. Stanley F. Sievers, 336 Ill. 316; 168 N.E. 259 (1929) ("The maxim that fraud vitiates every transaction into which it enters ..."); In re Village of Willowbrook, 37 Ill.App.2d 393 (1962) ("It is axiomatic that fraud vitiates everything."); Dunham v. Dunham, 57 Ill.App. 475 (1894), affirmed 162 Ill. 589 (1896); Skelly Oil Co. v. Universal Oil Products Co., 338 Ill.App. 79, 86 N.E.2d 875, 883-4 (1949); Thomas Stasel v. The American Home Security Corporation, 362 Ill. 350; 199 N.E. 798 (1935).
Under Illinois and Federal law [cf. the Supremacy Clause], when any officer of the court has committed "fraud upon the court", the orders and judgment of that court are void, of no legal force or effect.
It is also clear and well-settled Illinois law that any attempt to commit "fraud upon the court" vitiates [erases] the entire proceeding. The People of the State of Illinois v. Fred E. Sterling, 357 Ill. 354; 192 N.E. 229 (1934) [being published in the N.E. reporter gives relative geographical proximity some weight to Illinois decisions in Wisconsin] ("The maxim that fraud vitiates every transaction into which it enters applies to judgments as well as to contracts and other transactions."); Allen F. Moore v. Stanley F. Sievers, 336 Ill. 316; 168 N.E. 259 (1929) ("The maxim that fraud vitiates every transaction into which it enters ..."); In re Village of Willowbrook, 37 Ill.App.2d 393 (1962) ("It is axiomatic that fraud vitiates everything."); Dunham v. Dunham, 57 Ill.App. 475 (1894), affirmed 162 Ill. 589 (1896); Skelly Oil Co. v. Universal Oil Products Co., 338 Ill.App. 79, 86 N.E.2d 875, 883-4 (1949); Thomas Stasel v. The American Home Security Corporation, 362 Ill. 350; 199 N.E. 798 (1935).
Under Illinois and Federal law [cf. the Supremacy Clause], when any officer of the court has committed "fraud upon the court", the orders and judgment of that court are void, of no legal force or effect.
Federal law requires the automatic disqualification of a Federal judge under certain circumstances.
In 1994, the U.S. Supreme Court held that "Disqualification is required if an objective observer would entertain reasonable questions about the judge's impartiality. If a judge's attitude or state of mind leads a detached observer to conclude that a fair and impartial hearing is unlikely, the judge must be disqualified." [Emphasis added]. Liteky v. U.S., 114 S.Ct. 1147, 1162 (1994).
Courts have repeatedly held that positive proof of the partiality of a judge is not a requirement, only the appearance of partiality. Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194 (1988) (what matters is not the reality of bias or prejudice but its appearance); United States v. Balistrieri, 779 F.2d 1191 (7th Cir. 1985) (Section 455(a) "is directed against the appearance of partiality, whether or not the judge is actually biased.") ("Section 455(a) of the Judicial Code, 28 U.S.C. §455(a), is not intended to protect litigants from actual bias in their judge but rather to promote public confidence in the impartiality of the judicial process.").
That Court also stated that Section 455(a) "requires a judge to recuse himself in any proceeding in which her impartiality might reasonably be questioned." Taylor v. O'Grady, 888 F.2d 1189 (7th Cir. 1989). In Pfizer Inc. v. Lord, 456 F.2d 532 (8th Cir. 1972), the Court stated that "It is important that the litigant not only actually receive justice, but that he believes that he has received justice."
The Supreme Court has ruled and has reaffirmed the principle that "justice must satisfy the appearance of justice", Levine v. United States, 362 U.S. 610, 80 S.Ct. 1038 (1960), citing Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13 (1954). A judge receiving a bribe from an interested party over which he is presiding, does not give the appearance of justice.
"Recusal under Section 455 is self-executing; a party need not file affidavits in support of recusal and the judge is obligated to recuse herself sua sponte under the stated circumstances." Taylor v. O'Grady, 888 F.2d 1189 (7th Cir. 1989).
Further, the judge has a legal duty to disqualify himself even if there is no motion asking for his disqualification. The Seventh Circuit Court of Appeals further stated that "We think that this language [455(a)] imposes a duty on the judge to act sua sponte, even if no motion or affidavit is filed." Balistrieri, at 1202.
Judges do not have discretion not to disqualify themselves. [The alleged theory of absolute judicial immunity only applies in areas where a "judge" is acting pursuant to the ability to rule with discretion; without discretion, the "judge", even by the standard of alleged judicial immunity, becomes subject to lawsuit; see 2 paragraphs down, the underlined portion] By law, they are bound to follow the law. Should a judge not disqualify himself as required by law, then the judge has given another example of his "appearance of partiality" which, possibly, further disqualifies the judge. Should another judge not accept the disqualification of the judge, then the second judge has evidenced an "appearance of partiality" and has possibly disqualified himself/herself. None of the orders issued by any judge who has been disqualified by law would appear to be valid. It would appear that they are void as a matter of law, and are of no legal force or effect. [The charge of barratry goes to this point where, when the "judge" has "poisoned the well of justice" everything that proceeds from that well, thereafter, is also poisoned, also comparable to the fruit of the poisoned tree which knocks out convictions, trials, sentences, indictments, etc., in criminal cases which are founded upon processes in violation of, e.g., Miranda warning requirements.]
Should a judge not disqualify himself, then the judge is violation of the Due Process Clause of the U.S. Constitution. United States v. Sciuto, 521 F.2d 842, 845 (7th Cir. 1996) ("The right to a tribunal free from bias or prejudice is based, not on section 144[the motion for recusal provision], but on the Due Process Clause.").
Should a judge issue any order after he has been disqualified by law, and if the party has been denied of any of his / her property, then the judge may have been engaged in the Federal Crime of "interference with interstate commerce". The judge has acted in the judge's personal capacity and not in the judge's judicial capacity. It has been said that this judge, acting in this manner, has no more lawful authority than someone's next-door neighbor (provided that he is not a judge). However some judges may not follow the law.
If you were a non-represented litigant, and should the court not follow the law as to non-represented litigants, then the judge has expressed an "appearance of partiality" and, under the law, it would seem that he/she has disqualified him/herself.
However, since not all judges keep up to date in the law, and since not all judges follow the law, it is possible that a judge may not know the ruling of the U.S. Supreme Court and the other courts on this subject. Notice that it states "disqualification is required" and that a judge "must be disqualified" under certain circumstances. [This paragraph ignores the presumption, in all areas, that judges, as well as attorneys, know the law and are required to act in pursuance thereof]
[The following are theoretically correct, but stay away!!] The Supreme Court has also held that if a judge wars against the Constitution, or if he acts without jurisdiction, he has engaged in treason to the Constitution. If a judge acts after he has been automatically disqualified by law, then he is acting without jurisdiction, and that suggest that he is then engaging in criminal acts of treason, and may be engaged in extortion and the interference with interstate commerce.
Courts have repeatedly ruled that judges have no immunity for their criminal acts [true, but barratry is a much softer approach which has the advantage of being considered obsolete but can be the opening wedge to a much more serious charge if that becomes a legitimate possibility; this is my sneaky Jap side at work]. Since both treason and the interference with interstate commerce are criminal acts, no judge has immunity to engage in such acts.
In 1994, the U.S. Supreme Court held that "Disqualification is required if an objective observer would entertain reasonable questions about the judge's impartiality. If a judge's attitude or state of mind leads a detached observer to conclude that a fair and impartial hearing is unlikely, the judge must be disqualified." [Emphasis added]. Liteky v. U.S., 114 S.Ct. 1147, 1162 (1994).
Courts have repeatedly held that positive proof of the partiality of a judge is not a requirement, only the appearance of partiality. Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194 (1988) (what matters is not the reality of bias or prejudice but its appearance); United States v. Balistrieri, 779 F.2d 1191 (7th Cir. 1985) (Section 455(a) "is directed against the appearance of partiality, whether or not the judge is actually biased.") ("Section 455(a) of the Judicial Code, 28 U.S.C. §455(a), is not intended to protect litigants from actual bias in their judge but rather to promote public confidence in the impartiality of the judicial process.").
That Court also stated that Section 455(a) "requires a judge to recuse himself in any proceeding in which her impartiality might reasonably be questioned." Taylor v. O'Grady, 888 F.2d 1189 (7th Cir. 1989). In Pfizer Inc. v. Lord, 456 F.2d 532 (8th Cir. 1972), the Court stated that "It is important that the litigant not only actually receive justice, but that he believes that he has received justice."
The Supreme Court has ruled and has reaffirmed the principle that "justice must satisfy the appearance of justice", Levine v. United States, 362 U.S. 610, 80 S.Ct. 1038 (1960), citing Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13 (1954). A judge receiving a bribe from an interested party over which he is presiding, does not give the appearance of justice.
"Recusal under Section 455 is self-executing; a party need not file affidavits in support of recusal and the judge is obligated to recuse herself sua sponte under the stated circumstances." Taylor v. O'Grady, 888 F.2d 1189 (7th Cir. 1989).
Further, the judge has a legal duty to disqualify himself even if there is no motion asking for his disqualification. The Seventh Circuit Court of Appeals further stated that "We think that this language [455(a)] imposes a duty on the judge to act sua sponte, even if no motion or affidavit is filed." Balistrieri, at 1202.
Judges do not have discretion not to disqualify themselves. [The alleged theory of absolute judicial immunity only applies in areas where a "judge" is acting pursuant to the ability to rule with discretion; without discretion, the "judge", even by the standard of alleged judicial immunity, becomes subject to lawsuit; see 2 paragraphs down, the underlined portion] By law, they are bound to follow the law. Should a judge not disqualify himself as required by law, then the judge has given another example of his "appearance of partiality" which, possibly, further disqualifies the judge. Should another judge not accept the disqualification of the judge, then the second judge has evidenced an "appearance of partiality" and has possibly disqualified himself/herself. None of the orders issued by any judge who has been disqualified by law would appear to be valid. It would appear that they are void as a matter of law, and are of no legal force or effect. [The charge of barratry goes to this point where, when the "judge" has "poisoned the well of justice" everything that proceeds from that well, thereafter, is also poisoned, also comparable to the fruit of the poisoned tree which knocks out convictions, trials, sentences, indictments, etc., in criminal cases which are founded upon processes in violation of, e.g., Miranda warning requirements.]
Should a judge not disqualify himself, then the judge is violation of the Due Process Clause of the U.S. Constitution. United States v. Sciuto, 521 F.2d 842, 845 (7th Cir. 1996) ("The right to a tribunal free from bias or prejudice is based, not on section 144[the motion for recusal provision], but on the Due Process Clause.").
Should a judge issue any order after he has been disqualified by law, and if the party has been denied of any of his / her property, then the judge may have been engaged in the Federal Crime of "interference with interstate commerce". The judge has acted in the judge's personal capacity and not in the judge's judicial capacity. It has been said that this judge, acting in this manner, has no more lawful authority than someone's next-door neighbor (provided that he is not a judge). However some judges may not follow the law.
If you were a non-represented litigant, and should the court not follow the law as to non-represented litigants, then the judge has expressed an "appearance of partiality" and, under the law, it would seem that he/she has disqualified him/herself.
However, since not all judges keep up to date in the law, and since not all judges follow the law, it is possible that a judge may not know the ruling of the U.S. Supreme Court and the other courts on this subject. Notice that it states "disqualification is required" and that a judge "must be disqualified" under certain circumstances. [This paragraph ignores the presumption, in all areas, that judges, as well as attorneys, know the law and are required to act in pursuance thereof]
[The following are theoretically correct, but stay away!!] The Supreme Court has also held that if a judge wars against the Constitution, or if he acts without jurisdiction, he has engaged in treason to the Constitution. If a judge acts after he has been automatically disqualified by law, then he is acting without jurisdiction, and that suggest that he is then engaging in criminal acts of treason, and may be engaged in extortion and the interference with interstate commerce.
Courts have repeatedly ruled that judges have no immunity for their criminal acts [true, but barratry is a much softer approach which has the advantage of being considered obsolete but can be the opening wedge to a much more serious charge if that becomes a legitimate possibility; this is my sneaky Jap side at work]. Since both treason and the interference with interstate commerce are criminal acts, no judge has immunity to engage in such acts.
Finally, during arguments before the US SUPREME COURT "JUSTICES" made their decision in Caperton v. A.T. Massey Coal Company, Inc., et al., the Conference of Chief Justices filed a friend-of-the-court brief, or amicus curiae, in which they said, “The Conference takes the position that, under certain circumstances, the Constitution may require the disqualification of a judge in a particular matter because of extraordinarily out-of-line campaign support from a source that has a substantial stake in the proceedings.” [Caperton v. Massey | Brennan Center for Justice] Actually, there's nothing mandating that the "stake" be "substantial." See, also, the recent decision by a Virginia DISTRICT COURT "judge" who purported to strike down a provision of the recent healthcare reform act, despite having been involved financially and personally with the AG of VA (who brought the suit) in a political group lobbying against that act. While USAG Holder will almost certainly not attempt to "vitiate" this decision based upon the "judge"'s absolute duty to disqualify himself (whiffed on that one already), nevertheless, the decision IS void. Eagerly awaiting the Conference of Chief Justices amicus when this matter gets to the SUPREMEs.
The usage of the word “disqualification” was provocative since, in reading the Federal Rules, the language of the disqualification provision, 28 USC 455 (28 U.S.C. § 455 : US Code - Section 455, is "directed to the judge, rather than the parties, and is self enforcing on the part of the judge." US v Sibla, 624 F.2d 864, (9th Cir 1980)), provides that the act of disqualification is to be self-enforcing, that is, a motion for recusal shouldn’t even be necessary where the prejudicial factor is “extraordinarily out-of-line” as in, “Hey, dumbo, see that Exit sign … need we say more?!!” There isn’t any necessity for this “move the court” stuff. The alleged scholars who panned this decision did so on the basis of the recusal provision, a typical bait-and-switch when the party moving for recusal does so before a "judge" who knows which side of the “versus” his bread has been buttered. So, rather than getting down on your hands and knees in a pretty-pretty-please recuse yourself, serve the "judge" with a Notice of Disqualifying Circumstances and, then, be prepared for an amusing demonstration how to try to wriggle out of the tyranny of the rules. A Notice of Disqualifying Circumstances (in cases where I was the, uh, notifying party) always brings, out of the subject "judge"’s mouth, the verbal dodge-ball, “We’re here today on your motion to recuse me.” Duh. No. We’re not!
The usage of the word “disqualification” was provocative since, in reading the Federal Rules, the language of the disqualification provision, 28 USC 455 (28 U.S.C. § 455 : US Code - Section 455, is "directed to the judge, rather than the parties, and is self enforcing on the part of the judge." US v Sibla, 624 F.2d 864, (9th Cir 1980)), provides that the act of disqualification is to be self-enforcing, that is, a motion for recusal shouldn’t even be necessary where the prejudicial factor is “extraordinarily out-of-line” as in, “Hey, dumbo, see that Exit sign … need we say more?!!” There isn’t any necessity for this “move the court” stuff. The alleged scholars who panned this decision did so on the basis of the recusal provision, a typical bait-and-switch when the party moving for recusal does so before a "judge" who knows which side of the “versus” his bread has been buttered. So, rather than getting down on your hands and knees in a pretty-pretty-please recuse yourself, serve the "judge" with a Notice of Disqualifying Circumstances and, then, be prepared for an amusing demonstration how to try to wriggle out of the tyranny of the rules. A Notice of Disqualifying Circumstances (in cases where I was the, uh, notifying party) always brings, out of the subject "judge"’s mouth, the verbal dodge-ball, “We’re here today on your motion to recuse me.” Duh. No. We’re not!
Stand your ground when the "judge" tries to evade the absolute requirement of self-disqualification upon due notice given of his/her being disabled from proceeding an inch further.
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