Embedded Files
Keep this in mind for CHARGES against DEAN MILLION for
Sample motion to recuse motion by RI Attorney General's office here.
Fraud upon the Court
Fraud Upon the Court is where the Judge (who is NOT the "Court") does NOT support or uphold the Judicial Machinery of the Court. The Court is an unbiased, but methodical "creature" which is governed by the Rule of Law... that is, the Rules of Civil Procedure, the Rules of Criminal Procedure and the Rules of Evidence, all which is overseen by Constitutional law. The Court can ONLY be effective, fair and "just" if it is allowed to function as the laws proscribe. The sad fact is that in MOST Courts across the country, from Federal Courts down to local District courts, have judges who are violating their oath of office and are NOT properly following these rules, (as most attorney's do NOT as well, and are usually grossly ignorant of the rules and both judges and attorneys are playing a revised legal game with their own created rules) and THIS is a Fraud upon the Court, immediately removing jurisdiction from that Court, and vitiates (makes ineffective - invalidates) every decision from that point on. Any judge who does such a thing is under mandatory, non-discretionary duty to recuse himself or herself from the case, and this rarely happens unless someone can force them to do so with the evidence of violations of procedure and threat of losing half their pensions for life which is what can take place. In any case, it is illegal, and EVERY case which has had fraud involved can be re-opened AT ANY TIME, because there is no statutes of limitations on fraud. This is a trillion dollar "justice industry" just waiting to be tapped.
"Fraud On The Court By An Officer Of The Court"
And "Disqualification Of Judges, State and Federal"
1. Who is an "officer of the court"?
2. What is "fraud on the court"?
3. What effect does an act of "fraud upon the court" have upon the court proceeding?
4. What causes the "Disqualification of Judges?"
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).
2. What is "fraud on the court"?
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 to "embrace that species of fraud which does, or attempts to, 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."
3. What effect does an act of "fraud upon the court" have upon the court proceeding?
"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 the entire proceeding. The People of the State of Illinois v. Fred E. Sterling, 357 Ill. 354; 192 N.E. 229 (1934) ("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, 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.
4. What causes the "Disqualification of Judges?"
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. 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.
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, 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.
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. Since both treason and the interference with interstate commerce are criminal acts, no judge has immunity to engage in such acts.
Judicial Disqualification in Missouri
Rule 51.05 now provides the procedure by which a party can procure a change of judge in a civil case. Rule 51.05(a) states, in pertinent part, that a “change of judge shall be ordered in any civil action upon the timely filing of a written application therefore by any party.” Thus, like its predecessors, Rule 51.05 offers a civil litigant a virtually unfettered right to disqualify a judge on one occasion; and it is still the case that a Missouri litigant who wishes to remove a judge from presiding over a civil proceeding need not allege any cause in order to obtain judicial disqualification.
Pursuant to that rule, whenever a party properly presents and serves a change of judge application the request for a change of judge must be sustained unless it has already been exercised once, or has been waived by allowing the judge to rule on a substantive matter. Rule 51.05, moreover, neither requires any specific form of application, nor that a motion be filed. It should be noted, however, that Missouri’s present civil judicial disqualification rule, as amended, does represent a substantial departure from prior practice in that it mandates that, for a change of judge to be effective, the procedures set forth in Rule 51.05 must be adhered to. The principal requirement is that the request must be made in a timely manner.
Rule 32.07 et seq. is Missouri’s criminal equivalent to Rule 51.05. Like Rule 51.05, Rule 32.07 provides for a one-time peremptory challenge of a judge without cause, as long as that challenge is timely filed. The rule is also like Rule 51.05 in providing that an untimely application may properly be denied. In addition, under Rule 32.07, as under Rule 51.05, no affidavit is needed to effect a change of judge; rather, a simple request triggers the rule – no discretion lies on the part of the challenged judge, who must promptly sustain the application.
Rule 32.09 applies to a second request for a change of judge in a criminal proceeding. Pursuant to that rule and Missouri decisional law interpreting it, a second or successive disqualification of a trial judge is not authorized on “prejudice” grounds. On the contrary, the only consideration is whether fundamental fairness requires disqualification – a matter that is discretionary with the challenged judge himself. Once a party has exercised its unfettered right to disqualify one judge, Rule 32.10 applies. This provision sets forth specific grounds that are deemed to be sufficient to warrant judicial disqualification for cause; for example, where the challenged judge has a proscribed relationship, is interested in the cause, or was “of counsel” in the case. In addition to peremptory court rules, Missouri has a peremptory disqualification statute, Mo. Rev. Stat. §517.061, which provides the procedures for filing an application for a change of judge before associate circuit judges.
Another Missouri peremptory disqualification statute, §472.060, applies only to probate judges. This statute permits an automatic change of judge if the application includes a written objection, verified by affidavit, that the judge is biased against one of the parties.
In Missouri, a number of different statutes govern various aspects of judicial disqualification. For example, Mo. Rev. Stat. §545.660, which was adopted in response to Jim v. State – a case in which a slave had been charged with murder and his “master” was the judge – prescribes that judges are disqualified from presiding over cases whenever they have an interest in the cause. Missouri courts which have been called upon to decide disqualification motions sometimes look, as well, to the provisions of the Missouri Code of Judicial Conduct. In accordance with the Code, litigants who present their disputes to a Missouri court are entitled to a trial which is not only impartial, but which appears to be so.
Pre-eminent among Missouri’s many disqualification provisions are two court rules of general applicability, Rules 51 and 32. These rules basically control the subject of judicial disqualification in Missouri civil and criminal actions respectively. There are also Missouri court rules that pertain to disqualification in discrete types of cases; such as Missouri Supreme Court Rule 12.06, which provides that a judge is disqualified from acting as a judicial officer while a recommendation to the Supreme Court for his removal or retirement is pending, and Missouri Supreme Court Rule 126.01, which applies only to juvenile court judges.
Missouri courts have consistently held that the right of Missouri litigants to disqualify judges is one of the keystones of Missouri’s administrative edifice.
References:
1. For a 2011 Missouri Court of Appeals decision, which analyzed whether the lower court erred in denying a criminal defendant’s motion for change of judge in Missouri click here
2. For a comprehensive overview of recusal and disqualification law in Missouri which is updated annually see Flamm, R., Judicial Disqualification: Recusal and Disqualification of Judges, §§ 27.9 and 28.27. See also McPherson v. United States Physicians Mut. Risk Retention Group, 99 S.W.3d 462, 489 (Mo. App. W. D. 2003), citing R. Flamm, Judicial Disqualification, § 14.3.3 (1996). To locate Missouri libraries that have the current edition of Judicial Disqualification click here
3. For a 2007 law review article by University of Missouri Law School Professor Rodney Uphoff which deals, among other things, with the subject of “biased judges,” click here, citing R. Flamm, Judicial Disqualification (1st Ed. 1996)
Constitutional case law about judges orders being void not voidable here.
Photo by: Roger Wollstadt
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