#128, Drano Series
   
 
John Smith's
Nonconforming Letter-Petition for "Rehearing" of
Petition for a Writ of Certiorari
from the Court of Appeals
for the First Circuit
to the 
United States Supreme Court

About "Good Behavior" and Judicial Immunity
and
the Eleventh Amendment

All three documents -- the Petition, 
the Judgment from the First Circuit Court of Appeals, and
and the Memorandum and Order from the United States District Court at Boston -- are in 
Drano Series #120
On June 28, 2004, Smith's Certiorari was denied.
 


Rule 44. Rehearing

         2. Any petition for the rehearing of an order denying a
petition for a writ of certiorari or extraordinary writ shall
be filed within 25 days after the date of the order of denial
and shall comply with all the form and filing requirements of
paragraph 1 of this Rule, including the payment of the filing
fee if required, but its grounds shall be limited to intervening
circumstances of a substantial or controlling effect or to
other substantial grounds not previously presented.The
petition shall be presented together with certification of
counsel (or of a party unrepresented by counsel) that it is
restricted to the grounds specified in this paragraph and that
it is presented in good faith and not for delay; one copy of
the certificate shall bear the signature of counsel (or of a
party unrepresented by counsel). The certificate shall be
bound with each copy of the petition. The Clerk will not file
a petition without a certificate. The petition is not subject
to oral argument.

       6. If the Clerk determines that a petition for rehearing
submitted timely and in good faith is in a form that does not
comply with the Rule or Rule 33 or Rule 34, the Clerk will
return it with a letter indicating the deficiency. A corrected
petition for rehearing received no more than 15 days after
the date of the Clerk’s letter will be deemed timely.


Barbara C. Johnson
Attorney at Law
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833       FAX 978-474-1833
email: barbaracjohnson@worldnet.att.net

23 July 2004

William K. Suter, Clerk
Supreme Court of the United States
U.S. Supreme Court Bldg.
1 First St. N.E., 
Washington, DC 20543

Re: John Smith v. The Honorable Nancy M. Gould, The Honorable Sean Dunphy,
       The Honorable John J. Irwin, Jr., The Honorable Barbara A. Dortch-Okara, 
       Trial Court of the Commonwealth of Massachusetts, Commonwealth of 
       Massachusetts 
      Docket No. 03-____, conferenced 6/24/2004 and announced on the website 
       Tuesday, 6/29/04

Dear Mr. Suter:

I have been representing [John Smith] openly in Massachusetts since January 2001.  I was unable to put my name on his cert petition because I am not a member of the Supreme Court Bar.  I had intended to submit my application if the petition were to have been granted cert.  For the reasons set forth in my letter-petition, I am stepping forward now.

Please accept my NONconforming Petition for Rehearing of my client.  The content is self-explanatory as to why it is nonconforming.

Technicalities that I ran into are not so self-explanatory.  Let me just list them:

The local printers did not have 65-pound TAN cover sheets.
The local printers did not have 60-pound TAN cover sheets.
A local printer did have ALMOST TAN 60-pound cover sheets.
I used these.   I chuckled to myself when I thought, Well, they will  be able to pick the runt out rather quickly from the litter, ... assuming, of course, that you let the justices see this very important letter-petition, notwithstanding its nonconformance with Rule 44.

I did not include a check for $200 for the letter-petition for rehearing, since it is something other than a conforming rehearing petition.   I did spend $300 to file originally but I did not even get a reason for denial.  I have come to know that this is the practice of the Court, but it is a practice with which I quite seriously and heartily disagree on principle.

Sincerely and respectfully submitted,

Barbara C. Johnson, Esq.
Counsel for [John Smith].
Enclosures: 40 copies of the letter-petition with Rule 44 Certification and Certificate of Service

cc:  Robert L. Quinan, Esq. 
       [John Smith]
 


Barbara C. Johnson
Attorney at Law
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833       FAX 978-474-1833
email: barbaracjohnson@worldnet.att.net


22 July 2004

The Honorable Justices William H. Rehnquist, 
Stephen G. Breyer,  Ruth Bader Ginsburg, 
Anthony M. Kennedy, Sandra Day O’Connor, 
Antonin Scalia, David H. Souter, 
John Paul Stevens, Clarence Thomas
Supreme Court of the United States
U.S. Supreme Court Bldg.
1 First St. N.E., 
Washington, DC 20543

Re: John Smith v. The Honorable Nancy M. Gould, The Honorable Sean Dunphy,
       The Honorable John J. Irwin, Jr., The Honorable Barbara A. Dortch-Okara, 
       Trial Court of the Commonwealth of Massachusetts, Commonwealth of 
       Massachusetts 
      Docket No. 03-____, conferenced 6/24/2004 and announced on the website 
       Tuesday, 6/29/04

Dear Justices:

With profound sadness, I learned that the Petition for Writ of Certiorari I pre- pared\1/ for John Smith, my client, was denied certification. 

FN1       I had planned to make application for admittance to this Court’s Bar upon learning certification was granted.  My failure to make application is one of the reasons I did not file a complying petition for rehearing as counsel on behalf of my client.  I am, indeed, however, a member of the Massachusetts and First Circuit Court of Appeals bars, and have been admitted to practice pro hac vice in state courts of New Hampshire and Maine and in the U.S. District Court in Portland, Maine. 
Because Rule 44 of this Court provides no ordinary avenue of relief that he or I could follow, I seek, on Smith’s behalf, that this Court consider this letter to be in the nature of a petition for a rehearing of Smith’s petition for writ of certiorari.  A signed certificate by me, stating that this letter-petition is presented in good faith and not for delay, is included at the bottom of this letter. 

The primary reason Smith cannot comply with Rule 44 is that nothing intervening could or would have happened in the few weeks to alter the predetermined result, for (a)the First Circuit had summarily affirmed the de minimus decision in the district court, (b) the Attorney-General did not even bother to write an opposition to the petition, and (c) both entities knew that waiving the words “Judicial Immunity” and “Eleventh Amendment” would be like waiving magic wands that would do the trick.

By requiring an intervening event, the Rule implies a possible fallacy, to wit, that this Court did not err in denying certification.  The reason for denial is, evidently, by Court policy, secret.  This I learned when I phoned the Clerk’s office to request any document that might have memorialized the reason for the denial of certiorari.   The only document, I was told, that might contain the reason was a Law Clerk’s Memo to the Honorable Justices.  That memo, too, was secret.  Secrecy, of course, fosters distrust.  Had the Justices even read the petition?, I wondered.  Once again I felt profound sadness . . . and that I wasted $300US.  Give me a rational reason for denying a petition filed in conformity with the rules, and I’ll even pay the additional fee of $200US for seeking further review.

The questions that had been presented in the petition\2/ were crisp and critical, critical if the people are to regain the trust and respect they have traditionally held for this Court and this country.  Not only have we come into a new millenium, we have come into a new era of instant communication, by which one stream of news of the follies and abuses by divers courts rapidly flows into another.  The resulting tributary, called Judicial Tyranny, has drowned the entire country with fear that their beloved way of life – whatever it is – is being washed away.

FN2 
1. Whether the judicially-created doctrine that declares judges absolutely immune from suit may bar claims against judges by a person exercising his First Amendment right to petition the Government for a redress of grievances.

2. Whether a judge’s intentional and knowing contravention of existing mandatory, nondiscretionary, statutes violates the “good behavior” clause of the United States constitution and thereby makes the protection of judicial immunity unavailable.

3. Whether a judge’s intentional and knowing contravention of existing mandatory, nondiscretionary, statutes constitutes “bad behavior,” making the award of judicial immunity unavailable. 

4. Whether a judicially-created amendment, the unratified, second prong of the Eleventh Amendment to the federal constitution, may bar money-damage claims against the Petitioner’s State’s judges under 42 U.S.C. §1983, the state and federal constitutions, and common law.

Arbitrary judicial decisions, disdain for petitioning by the citizenry, the denial of remedies even when they are feasible, the foxiness of one-word denials to mask both abuses and the faulty application of laws so that appeals are futile and impractical . . . all are unconscionable and thus unacceptable.

Each of you, as one of the most powerful body in the Union, has an obligation to effect court reform, to effect a change in the way courts across this nation are doing business.

Aware, as you must be, of the distended dockets because of the swelling displeasure of the people with judges as well as lawyers, I strongly suggest that this Court consider again my client’s petition.   (I shy from the word “rehearing” since, to me, a hearing requires my or my client’s presence.)

In fact, you already know – even without reading the petition – that it would be not only fundamentally fair but also wise to define “good” as well as ”bad” judicial behavior and let absolute judicial immunity and its progeny – the quasi-immunities\3/ -- go into the netherworld.   It is also time to say good-bye to the unratified, judicially-created second prong of the Eleventh Amendment.  The people of this country not only want but need accountability, particularly from those who hold the people themselves accountable.

FN3    In family-law courts across this country, because of judicial immunity and the quasi-immunities, the only person required in a courtroom to be accountable is the husband and father.  As a result, due process and equal protection of the laws are literally extinct.
One or two solid cases against judges would surely encourage their brethren across the nation to clean up their acts.  Liposuction of the dockets will occur almost immediately, rather painlessly, and quite cost-effectively.  And the flood of Judicial Tyranny will abate.

For the foregoing reasons, I petition this Court, on behalf of Smith, to issue a writ of certiorari granting a rehearing of his case in order to reverse the holding of the First Circuit with respect to judicial immunity and the Eleventh Amendment. 

Sincerely and respectfully submitted,
 

______________________________
Barbara C. Johnson, Esq.
Counsel for John Smith

cc:  Robert L. Quinan, Esq. 
       John Smith

CERTIFICATION

I, Barbara C. Johnson, hereby certify that I have written and presented this letter both in good faith and not for delay.  Sworn under the pains and penalties of perjury,
 

_________________________________
                                                      Barbara C. Johnson 


CERTIFICATE OF SERVICE

I, Barbara C. Johnson, hereby certify that I have served a true and accurate copy of this letter on Robert L. Quinan, Esq., Office of the Attorney-General, One Ashburton Place, Room 2019, Boston, MA 02108-1698.

_________________________________
                                                      Barbara C. Johnson