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Friday, April 26, 2013

LEADER V. FACEBOOK JUDICIAL MISCONDUCT EXPOSES A CONSTITUTIONAL CRISIS

Leader v. Facebook judicial misconduct exposes a constitutional crisis

The theft of Leader Technologies’ patent by Facebook, and the effective sanctioning of that theft by the federal courts, has exposed a constitutional crisis surrounding "judicial immunity."[1]

John Adams
Fig. 1 – John Adams. Drafter of the Massachusetts Constitution, the model for the U.S. Constitution.
Contributing Writers | OPINION | AMERICANS FOR INNOVATION  | Apr. 26, 2013 | PDF

(Apr. 26, 2013)—The Federal Circuit judges held stock in Facebook during the proceedings (“even the smallest financial interest (e.g., ownership of a single share of stock) requires disqualification.”).[2]

  1. They refused to disclose the Facebook stock holdings of their family members.
  2. They ignored well-settled legal precedents (some they themselves wrote).
  3. They ignored shocking new evidence that Mark Zuckerberg withheld volumes of evidence in the case.
  4. They violated Leader Technologies’ due process rights by creating new arguments and evidence for Facebook in the secrecy of chambers without a hearing.
  5. They failed to disclose personal conflicts of interest.
  6. They collaborated with Facebook’s law firms; even timing their rulings to accommodate Facebook’s media needs.
  7. Their college friends at the U.S. Securities & Exchange Commission issued an exemption from long-standing stock rules in one day that pumped the value of their Facebook holdings in the IPO.

Few Americans know this, but the U.S. Supreme Court decided in 1978 in Stump v. Sparkmen that judges are immune from prosecution for their actions, no matter how incompetent, negligent, malicious such conduct might be, even if the conduct violates the law. Bottom line attorneys are granting special privileges to other attorneys.[3]

The Supreme Court stated in Stump that “Despite the unfairness to litigants that sometimes results, the doctrine of judicial immunity is thought to be in the best interests of ‘the proper administration of justice . . . [, for it allows] a judicial officer, in exercising the authority vested in him [to] be free to act upon his own convictions, without apprehension of personal consequences to himself.’"[4] Note is taken of the wiggle language in Stump like “sometimes results” and “thought to be.” Who thought it to be in the best interest of justice? Other attorneys and judges? It is inconceivable that the average American citizen knows or understands that the legal class in this country has put itself above the U.S. Constitution.

Was this attorney-inspired and attorney-approved exoneration of all sins ever put to a debate among the American people? Not to our knowledge. It appears from the wiggle language that not even the U.S. Supreme Court believed its opinion was just. And yet, the Court has religiously excused fellow judges from misconduct ever since.

Growth of Judicial Corruption since Stump

We believe that Stump has caused the justice system to grow more corrupt with each passing year. Judges and unscrupulous attorneys known that judges can take bribes and then make biased decisions with impunity. Then, if a victim cries foul, they simply run behind the Stump curtain for protection. This is intuitively wrong, so why are we letting them get away with it?

Judicial immunity creates a judicial royal class  that exempts a class of citizens and puts their rights above  the U.S. Constitution

The U.S. Supreme Court in 1978 decided that judges can act outside the bounds of fairness and equity and be immune from prosecution for those acts. What other profession enjoys such immunity? Can a policeman shoot someone maliciously? Can a contractor build negligently? Can a regulator take bribes? Can an engineer be absolved from liability for injury caused by substandard parts? Can a doctor intentionally prescribe harmful medicines? None of these professions are immune. Why then, do judges and attorneys get special treatment and exemption from the Constitution that the rest of us must follow?

The concept of judicial immunity is associated with English common law where judges are the King’s delegates for dispensing justice and the assumption that “the King can do no wrong.”[5]

How would the Framers of the U.S. Constitution view our judges’ exemption from Constitutional mandates?

John Adams is considered the father of the American Constitution. The U.S. Constitution was written in 1787 using as its model the Massachusetts Constitution of 1780 which Adams drafted him himself.[6]

Regarding the accountability of the citizenry (including judges) to the Constitution, Adams’ Article VI is clear:

"No man . . . [shall] have any other title to obtain advantages, or particular and exclusive privileges, distinct from those of the community. (emphasis added)

Strike one against judicial immunity. Judges are not to be given special privileges outside those needed to do their jobs. And even so, those privileges cannot be a license to perform malicious and illegal acts with impunity.
Regarding the ultimate authority to bestow special privileges, such authority rests with the people alone, and not with the U.S. Supreme Court. Adams’ Article V states:

"All power residing originally in the people, and being derived from them, the several magistrates and officers of government, vested with authority, whether legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them." (emphasis added)

Strike two against judicial immunity.The responsibility to establish judicial immunity rests with the people (legislatures) and not with the courts.  Here’s the rub: 42% of all Congresspersons and Senators are lawyers.[7] Due to this conflict of interest, when this matter comes to a vote, these attorneys should be required to recuse themselves from voting on this subject.

Interestingly, while Congressional perspectives today are skewed toward attorneys, this was not so true in the 1780’s. The Framers were a much more diverse group of professions. Such diversity would naturally be more reflective of the actual sentiments of the people and help to avoid this evident conflict of interest that exists today.

Strike three against judicial immunity.The idea of a privileged legal class is abhorrent.

Regarding the notion of privilege and exemption from accountability, John Adams’ Article VII states:

"Government is instituted for the common good; for the protection, safety, prosperity and happiness of the people; and not for the profit, honor, or private interest of any one man, family, or class of men." (emphasis added)

Today’s constitutions continue to reflect John Adams’ principles

The fundamental principles of equity and fairness before the law pervade American constitutions at all levels of government. Accountability to the people is a sacred principle. So, how does the U.S. Supreme Court in Stump get away with permitting judges to make unfair decisions with impunity? Is that not a right that violates Adams’ Article VI?

According to John Adams ALL decisions are the people’s alone. They are not to be the decisions of a privileged legal class who borrow from rejected notions of English royal privilege and proclaim themselves immune. Ostensibly, we left such monarchical structures behind in the American Revolution. Or did we? However, it does not appear that the Federal Circuit in Leader v. Facebook received that memo.

U.S. Congress should take up the question of judicial immunity immediately using Leader v. Facebook  as a test case

Adams’ Article VI says judges are accountable to the public for impartiality. It “prohibits the improper use of State power for private interests.” Commonwealth v. Ellis, 429 Mass. 362 at 371. Officers of the court “must not appear to be influenced, in his or her exercise of discretion, either by his or her personal interest or by a person or entity to whom the prosecution . . .  will bring significant benefit.” Id. at 372.

The Facebook stock held by Leader v. Facebook judges and judicial employees is prima facie evidence that the federal courts made decisions favorable to Facebook and in their private interest.

Secret judicial loyalty racket violates the Constitutional ban on privilege

Shielding judges from irrational litigants is reasonable. However, judges who hide behind this privilege to mask self-aggrandizing, malicious and criminal acts is abhorrent to our most fundamental tenants of American democracy. No constitutional authority gives judges the right to take actions outside the law which the rest of us in the community must follow.

Federal Circuit stepped outside judicial immunity by holding stock in Facebook

Even the Stump decision says "a judge is entitled to judicial immunity if he has not acted in clear absence of all jurisdiction and if the act was a judicial one."

At least two of the Leader v. Facebook three-judge panel held stock in Facebook. Nothing in the Statutes, Rules or Codes of Conduct gives a judge jurisdiction to hold stock in a litigant. In fact, the Code of Conduct states that judges are required to withdraw from a case even with “ownership of a single share of stock.”[8]

Therefore, by (a) holding the Facebook stock without disclosing it, and the (b) ruling in Facebook’s favor anyway, the judges awarded themselves privileges above the community.

Conclusion: The Federal Circuit judges and their cronies are claiming royalty status in violation of the Constitution. And, even by the standard in Stump, the judges and their families who hold Facebook stock cannot hide behind judicial immunity since holding stock in Facebook has nothing to do with “the proper administration of justice.”[9]

American Citizens must act to dismantle a royal legal class that has emerged that thinks it is not accountable to anyone but themselves

The conduct of the federal courts in Leader v. Facebook is a gift to America. It is a perfect test case since the sins of our judges and Facebook’s unscrupulous law firms are so evident. These judges and their crony friends have awarded themselves monarchical powers in violation of the U.S. and state Constitutions.

Observes of the Leader v. Facebook litigation can only wag their heads in utter disbelief at the haughtiness and arrogance of a judiciary that is breaking the law with impunity. Now we know why. They intended all along to go through the motions of justice, but rule for Facebook no matter what, then rely upon judicial immunity to avoid their day of reckoning.

What they did not predict is that the lay community would not still for this misconduct. The constitutional principle is clear. No class of men and women is above the law or the people. No institution of government is exempt from accountability to the people.

Senator Diane Feinstein was recently asked to investigate the Federal Circuit in Leader v. Facebook. In her response she said that the Senate Judiciary Committee was powerless to investigate under the separation of powers.

Apparently Sen. Feinstein, a member of the Senate Judiciary Committee [10] needs a refresher in Constitutional principles from John Adams, who wrote ““Government is instituted for the common good; for the protection, safety, prosperity and happiness of the people; and not for the profit, honor, or private interest of any one man, family, or class of men.” He further wrote:

"Therefore the people alone have an incontestable, unalienable, and indefeasible right to institute government; and to reform, alter, or totally change the same, when their protection, safety, prosperity and happiness require it.

Our members of Congress need to refresh themselves on the Constitution and their duty to protect it. They need to help us take back our democracy from a self-appointed legal-financial royalty that has hijacked the U.S. Constitution. Facebook and their cronies appear to be leading this dismantling of the Constitution. Leader v. Facebook uncovered the corruption; now let’s get on with the nut cutting."

John Adams is probably rolling in his grave right now.

What are we American citizens going to do about this?

"We have no government armed with power capable of contending with human passions unbridled by morality and religion . . . Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." —John Adams, 1879.

John Adams is a signer of the Declaration of Independence, the Bill of Rights and our second President.

* * *

Footnotes:

[1] Leader Techs, Inc. v. Facebook, Inc. , 770 F.Supp. 2d 686 (D. Del. 2011); Leader Techs, Inc. v. Facebook, Inc., 678 F.3d 1300 (Fed. Cir. 2012); Petition for Writ of Ceriorari Leader Technologies, Inc., v Facebook, Inc., No 12-617 (US Nov., 16, 2012).

[2] “Judicial Disqualification.” Federal Judicial Center, Second Ed., 2010, p. 60. <http://www.fjc.gov/public/pdf.nsf/lookup/judicialdq.pdf/$file/judicialdq.pdf> (“even the smallest financial interest (e.g., ownership of a single share of stock) requires disqualification.”).

[3] “Judicial immunity.” Wikipedia (“Judicial Immunity is a form of legal immunity which protects judges and others employed by the judiciary from lawsuits brought against them for judicial actions, no matter how incompetent, negligent, or malicious such conduct might be, even if this conduct is in violation of statutes.”) <http://en.wikipedia.org/wiki/Judicial_immunity>.

[4] Stump v. Sparkman, 435 US 349 (1978) at 363.

[5] Wikipedia states “Historically, judicial immunity was associated with the English common law idea that ‘the King can do no wrong.’ (Compare Sovereign immunity.) Judges, the King's delegates for dispensing justice, accordingly ‘ought not to be drawn into question for any supposed corruption [for this tends] to the slander of the justice of the King.’

[6] John Adams and the Massachusetts Constitution <http://www.mass.gov/courts/sjc/john-adams-b.html>.

[8] See Judicial Disqualification, supra.

[9] Stump at 365.

[10] U.S. Senate Judiciary Committee <http://www.judiciary.senate.gov/about/members.cfm>.