SUPPLEMENTAL FILING IN SUPPORT OF PETITION FOR STATEMENT OF INTEREST TO STOP THE VIOLATIONS OF ART. I & ART. VI OF THE VA CONSTITUTION, VA CODE, AND THE VOID AB INITIO ORDER DOCTRINE.

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June 14, 2019

President Donald J. Trump, The White House1600 Pennsylvania Avenue, NWWashington, D.C. 20500
also to Attorney General of the United States and U.S. Attorney John H. Durham

Dear President Trump et al.,

Enclosed are Exhibits 1, 2a, 2b, and 2c, for filing in support of the May 20, 2019 petition for an amicus curie Statement of Interest under 28 U.S.C. § 517 (2014), to the Supreme Court of Virginia in Petition for Appeal in Isidoro Rodriguez v. The General Assembly of the Commonwealth of Virginia, Record No. 190579, and to the Fairfax County Circuit Court for a Writ of Mandamus in Isidoro Rodriguez v. Virginia State Bar Disciplinary Board No. 2018-16433.

These legal actions, as well as the recently filed Motion to Enjoin the Virginia State Bar Disciplinary Board (Exhibit 1), are in response to the summary orders of Hon. U.S. Dist. Judge John A. Gibney, Jr. in Isidoro Rodriguez, Esq., v. Jane/John Does of the Virginia State Bar Disciplinary Board et al., U.S. Dist. Ct. E.D. VA 12 cv 663 JAB (April 12, 2013), aff’d 4th Cir USCA No 13-1638 (Nov. 2013), granting “impunity” and absolute immunity to the Washington D.C./Virginia Oligarchy of Federal/Virginia government attorneys, employees, and judges for their violations of the VA Const., VA Code, and the Void Ab Initio Order Doctrine.

In short, the Hon. Judge Gibney (who has a conflict of interest since his wife is a member of the VSBDB) violated Common Law and 7th Amendment rights to a civil jury trial to obtain accountability and damages for violation of the Void Ab Initio Order Doctrine, and the business conspiracy VA Code § 18.2.499 & 550, by,

[summary dismissing and issuing a nationwide injunction barring me from] filing any lawsuit in any federal court of the United States involving in any way his disbarment or the allegations leading to his disbarment [by the VSBDB, federal courts and Eric Holder et al. for illegal acts during the Clinton, Bush, and Obama Administrations (Exhibit 2a, 2b and 2c)]. The Court further enjoins the plaintiff from filing any lawsuit in any federal court of the United States against any of the defendants in this case, against any judge or retired judge, against any United States Attorney or member of a United States Attorney’s staff, against the Attorney General of Virginia or any past or present member of the Attorney General’s staff, and against the Virginia State Bar or any agents of the Bar. The plaintiff is further enjoined from filing any additional pleadings in the instant case, other than pleadings necessary to perfect and present an appeal. [As well as ordering a prior restraint by requiring Rodriguez to file a motion] in the federal court in which he wishes to file [any other type of suit], for leave of Court to file suit. . ..”

Thus, in addition to the Statement of Interest, I also request to testify before the Special Grand Jury empaneled in the District of Columbia.

I will present evidence, in addition to the Hon Judge Gibney’s surreal grant of “impunity” and absolute immunity, of the systematic denying of access to an impartial court so to permit the Washington D.C./Virginia government attorneys, employees, and judges violations of the limitation and prohibitions under Constitution of the Commonwealth of Virginia.

This cronyism of Washington D.C./Virginia Lobbyists/Attorneys evoke the history of the sorry acts of German judges, lawyers and law school’s violation of the rights of citizens under the German Constitution–which was a crucial part in aiding the inhuman acts of Hitler and National Socialist Party, because,

“[by] the time the gas vans came and the human slaughter factories were built in Auschwitz, and the other death camps, the murder of the six million Jews and other persecuted minorities was done completely within the framework of German law.” Professor Michael Bazyler, The Legacy of the Holocaust and Lessons for Today: Research for a New Textbook Holocaust, Genocide, and the Law.

Thus, the evidence is that a clear and present danger to our Republic exists by a coup d’état of the legal profession in the Beltway and Virginia, of government attorneys and judges.

As James Madison wrote in Federalist No. 48, Feb. 1, 1788,

“[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
Respectfully,

Isidoro Rodriguez

IN THE SUPREME COURT OF VIRGINIA PETITION FOR APPEAL, RECORD NO. ISIDORO RODRIGUEZ, Plaintiff-Petitioner Pro Per, v. The General Assembly of Virginia, The Office of the Governor of Virginia, The Supreme Court of Virginia, The Office of the Attorney General of Virginia, The Virginia State Bar, and The Virginia State Bar Disciplinary Board, Defendants-Respondents.

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ASSIGNMENTS OF ERROR

1. The Circuit Court erred under VA Code § 1-200 (2005) in violation of the Common Law exception to Sovereign Immunity for acts outside the sphere of legislative authority, scope judicial authority, and scope of employment by the defiance of the separation of power under Art. I §§ 5 and Art. VI §§ 1, 5, & 7 Constitution of the Commonwealth of Virginia (“VA Const.), the amending procedure under Art. XII § 1 VA Const., and the prohibition on ex post facto laws under Art. I § 9 VA Const., by enacting VA Code § 54.1 3935 (2017) to retroactively adopt the 1998 court rules issued in violation of VA Code § 54.1 3915 (1950-2017), VA Code § 54.1 3935 (1950-2009), and the Void Ab Initio Order Doctrine, as alleged in Petitioner’s Complaint.

These errors were preserved at pages 17, 20, 21,22, 25, 28, 30, 34, and 36 of the February 21. 2019 transcript, as well as in the signed and objected to Orders of the Circuit Court denying Petitioner’s motions on January 4, February 1, 8, and 22, 2019 and Order dismissing Petitioner’s Complaint on February 21, 2019.

2. The Circuit Court erred by a grave injustice in not impaneling a Special Grand Jury to investigate and report on the evidence of Class 2 & 6 Felony under VA Code §§18.2-481 & 482 to “resist the execution of the laws under color of authority” and misdemeanor business conspiracy under VA Code 18.2-499 & 500, as alleged in Petitioner’s Complaint.

This error was preserved at pages 17, 20, 21,22, 25, 28, 30, 34, and 36 of the February 21. 2019 transcript, as well as in the signed and objected to Orders of the Circuit Court dismissing Petitioner’s Complaint.

3. The Circuit Court erred in violation of the Void Ab Initio Order Doctrine by the use of Res Judicata to dismiss the Complaint.

This error was preserved at pages 17, 20, 21,22, 25, 28, 30, 34, and 36 of the February 21. 2019 transcript, as well as in the signed and objected to Orders of the Circuit Court denying motions on January 4, February 1, 8, and 22, 2019 and dismissing Petitioner’s Complaint on February 21, 2019.

4. The Circuit Court erred in granting Respondent’s Demure based on a misnomer, lack of standing and failure to state a claim.

This error was preserved at pages 17, 20, 21,22, 25, 28, 30, 34, and 36 of the February 21. 2019 transcript, as well as in the signed and objected to Order of the Circuit Court denying motions on January 4, February 1, 8, and 22, 2019 and Order dismissing Petitioner’s Complaint on February 21, 2019.

5. The Circuit Court erred in holding that the General Assembly cannot be served under court-ordered publication VA Code §§ 8.01-316(b) & 318.

This error was preserved at pages 17, 20, 21,22, 25, 28, 30, 34, and 36 of the February 21. 2019 transcript, as well as in the signed and objected to Order of the Circuit Court denying the motion on February 22, 2019, and Order dismissing Petitioner’s Complaint on February 21, 2019.

NATURE OF THE CASE/MATERIAL PROCEEDINGS BELOW

On November 14, 2018, Plaintiff-Petitioner Isidoro Rodriguez (“Rodriguez”) filed in the Circuit Court of Fairfax County a Verified Complaint for Declaratory Judgement seeking equitable and monetary relief under VA Code §§ 8.01-184 et seq., against Respondents, including entities created under Art. IV § 1 & 14, Art. V § 1, and Ar, VI § 1 of the Constitution of the Commonwealth of Virginia (“VA Const.”) respectively the General Assembly of the Commonwealth of Virginia (“General Assembly”), Office of the Governor of Virginia (“Office of the Governor”) and the Supreme Court of Virginia (“Court”), as well as the the Office of the Attorney General of Virginia, the Virginia State Bar, and the Virginia State Bar Disciplinary Board (”VSBDB”).

Rodriguez provided evidence (Plaintiff’s Ex A through V filed with the Complaint and thereafter Supplemental filings), establishing that from 2003 to the present Respondents during the administrations of Governors Mark Warner, Tim Kaine, Bob McDonnell, Terry McAuliffe, and Ralph Northam, acted outside the sphere of their legitimate legislative activity, the scope of judicial authority, and employment to unlawfully expand the power of the Court by violating: (a) the separation power under Art. I § 5 VA Const. and Art. VI §§ 1, 5, & 7 VA Const.; (b) the amending procedures under Art. XII § 1 VA Const.; (c) the prohibition under Art. I § 9 VA Const on the enactment of ex post facto legislation; and, (d) the right to due process under Art. I §§ 11 & 15 VA Const., and the Void Ab Initio Order Doctrine, by a  business conspiracy and Class 2 & 6 felony VA Code §§ 18.2‑481 and 482, to “[resist] the execution of the laws under color of authority.”

In response to Rodriguez’s petitions to the General Assembly for an investigation, and complaints to the OAS and the UN for the surreal grant of “impunity” for acts outside fo legal authority (www.isidororodriguez.com), Respondents in 2017 enacted ex post facto VA Code § 54.1 3935 (2017) to expand the power of the Court by retroactively “conform[ing] the statutory procedure [under VA Code § 54.1 3935 (1932-2009)] for the disciplining of attorneys” to unconstitutional Court Rule Part 6, § IV, 13-6, issued in 1998 that created a “parallel” centralized statewide attorney disciplinary system under the Court’s control, establishment of the VSBDB as a lower court with judicial authority to discipline attorneys and appointing VSBDB members as judges.  The motive for violation of Art. I § 5 VA Const. and VA Code § 54.1‑3915 (1950-2017) restrictions on the Court was to defy the rights of all citizens of the independent decentralized legal profession established in 1932 under VA Code § 54.1 3935 (1950-2009).

All other the Respondents were serviced by the Sheriff on November 28, 2018, but the General Assembly refused to accept service. On December 26, 2018, Rodriguez filed an affidavit under oath that the General Assembly refused to accept service by the Sheriff at the General Assembly Building, Richmond, VA, declined to name an agent for service, and refused all U.S. postal service mail.  On January 2, 2019, the Circuit Court issued an Order of Publication by the Washington Times on January 10, 17, 24, and 31, 2019.  On January 31, 2019, the newspaper filed a Notarized Affidavit of Publication.  Rodriguez filed on February 8, 2019, a motion for Default Judgement against the General Assembly for failure to appear as Ordered.

On January 4, February 1, 8, and 22, 2019, the Circuit Court denied all of Rodriguez’s motions for (1) an injunction of the VSBDB 2006 Void Ab Initio Order unlawfully revoking Rodriguez’s license to practice law for litigating to enforce his statutory property rights and rights as a father; (2) a Writ Quo Warrento against Respondents; (3) an injunction of ex post facto VA Code § 54.1‑3935 (2017); (4) for a Special Grand Jury; and, (5) for Default against the General Assembly for failure to answer/appear pursuant to court-ordered publication.

On February 21, 2019, the Circuit Court held a hearing on Respondents’ Plea to Dismiss based on Sovereign Immunity, Res Judicata and Demurrer.  The Circuit Court dismissed Rodriguez’s Complaint, over specific objections. Rodriguez filed on March 12, 2019, a Notice of Appeal and Notice of Filing of the Transcript.

STATEMENT OF FACTS

The Citizens ratified Art. I § 5 VA Const., to mandate the separation of power between the General Assembly, the Office of the Governor, and the Court.

Based on the open distrust of the motive of individuals in government generally, and the Court expressly of the drafters of the VA Const., the Citizens ratified Art. VI §§ 1, 5 & 7 VA Const., to give only to the General Assembly the power to enact statutes giving judicial authority, establishing lower courts, and appointing judges.  Also, the Citizens ratified Art. XII § 1 VA Const., to reserve to themselves the power to amend the constitutional restrictions on the Court.

In 1932 in response to the holding in Legal Club of Lynchburg v. A.H. Light, 137 Va. 249, at 250, 119 S.E. 55 (1923), citing Fisher’s Case, 6 Leigh (33 Va.) 619 (1835) (“[t]he power to go further and make suspension or revocation of license effective in all other courts of the Commonwealth [this] must be conferred by statute,” (Emphases added), the Acts of Assembly p. 139 (“1932 Act”) (codified as VA Code § 54.1‑3935 (1950-2009), was passed to maintain the separation of power and restrictions on the Court by establishing a decentralized statewide attorney disciplinary system authorizing the judicial power to discipline attorneys only to County Circuit Courts and Courts of Appeal, and explicitly denying the Court power to discipline attorneys directly (VA Code § 54.1‑3934, giving only to the Board of Bar Examiners power to revoke an attorney’s license).

To assure the Court’s compliance with the decentralized attorney disciplinary system, Art. VI § 5 VA Const., and VA Code § 54.1 3915 (1950-2017) prohibited the Court from promulgating court rules or regulations inconsistent with VA Code § 54.1‑3935 (1950-2009). See When Has the Supreme Court of Appeals Original Jurisdiction of Disbarment Proceedings, R.H.C. Virginia Law Review, Vol. 10, No. 3 (Jan. 1924), pp. 246-248; and David Oscar Williams, Jr., The Disciplining of Attorneys in Virginia 2 Wm. & Mary Rev. Va. L. 3 (1954).

However, in defiance of the prohibitions on the Court, the Respondents used legal sophistry to interpret VA Code § 54.1‑3909 & 3910 to issue Rule Part 6, ( IV to establish a “parallel” centralized attorney disciplinary system under the Court’s control by issuing court rules in 1998 to give judicial authority the VSBDB as a “lower court” to discipline attorneys, and to appoint VSBDB members as “judges.” (Respondents Admissions and the Circuit Court order, Transcript of 02/21/2019 hearing pages 33 and 34).

Shortly after that, in retaliation for Rodriguez’s litigations during the Clinton/Bush Administrations Washington D.C./Virginia Lobbyist/Lawyer Oligarchy under the stewardship of Eric Holder undertook a business conspiracy in violation of VA Code 18.2-499 & 500 to damage Rodriguez’s Federal pro hoc vice litigation practice, reputation, profession and property rights.  Washington D.C. Lobbyist/Attorney Eric Holder and Mr. Jack Harbeston (former Managing Partner of Rodriguez’s clients Sea Search Armada and Armada Company (“SSA”) dissolved in 2002) filed in 2003 two fraudulent VSBDB bar complaints against Rodriguez for litigating to enforce his statutory rights: (a) in a Choate Virginia Attorneys’ Lien under VA Code § 54.1-3932 on SSA’s contract claim to 50% of the Treasure Trove (USD 18 Billion) on the sunken Spanish 1707 Galleon San Jose; and, (b) as a father pursuant to Treaty, VA Code, and Joint Custody Agreement (http://www.liamsdad.org/others/isidoro.shtml).

On November 27, 2006, the VSBDB issued a Void Ab Initio Order usurping judicial authority to revoke Rodriguez’s license for litigating to enforce statutory rights. This Court affirmed in violation of the Void Ab Initio Order Doctrine. Isidoro Rodriguez v. Supreme Court of Virginia, (Va. Sup. Ct No. 07-0283, VSB Docket Nos. 04-052-0794 and 04-052-1044), cert denied Nos. 07-A142 and 07A370 (2007).  See also Isidoro Rodriguez v. Supreme Court of Virginia et al., (S. Ct. No. 07-419, November 2, 2007).

Rodriguez filed two administrative claims in 2007 under the common law and Virginia Tort Claims Act VA Code ( 8.01-195 challenging the VSBDB void ab initio order, and filed civil actions seeking damages.

But Respondents systematically denied access to an impartial common law jury trial and courts to deny challenges the VSBDB void ad initio order and to enforce Rodriguez’s Choate Attorney’s Lien.  In violation of their judicial authority, the courts assume away the Common Law exception to the claim of either sovereign immunity, and the Void Ab Initio Order Doctrine bar to the use of res judicata, collateral estoppel, or stare decisis. See Isidoro Rodriguez v. Hon. Leroy Rountree Hassell, Sr., et al., No. 081146 (2008); Fairfax Cir Ct. No CL-2007-1796) (void order holding the VSBDB absolute immune for violation of the VA Const. and VA Code); see Plaintiff’s Ex. G1 filed with the Complaint listing the use of the VSBDB void ab initio order; see also, Isidoro Rodriguez v. John/Jane Doe of the VSBDB et al., (2013) EDVA No. 3:12-cv-00663 (the Hon. Dist. Judge John A. Gibney surreally issued an unpublished nationwide void order granting “impunity” by enjoining and prior restraining the filing future federal litigation challenging the violations of due process, the Void Ab Initio Order Doctrine, VA Const., and VA Code).

In response to Rodriguez’s complaints to the Inter-American Commission on Human Rights of the OAS (P-926-16), and the United Nations Committee on Human Rights, the General Assembly on January 9, 2017, enacted ex post facto VA Code § 54.1 3935 (2017) to expand the power of the Court by retroactively “conform[ing] the statutory procedure [under VA Code § 54.1 3935 (1932-2009)] for the disciplining of attorneys” to the unlawful Court’s rule.

In response Rodriguez’s January 5, 2019 petition, in violation of Art. IV §14 ¶4(18) House Bill No 2111 was introduced on January 9, 2019, as Special Legislation to give immunity from accountability to government attorneys and judges from civil liability for their business conspiracy since 2003 (Supplemental Filing on February 21, 2019).

AUTHORITIES AND ARGUMENT

  1. THE CIRCUIT COURT ERRED IN VIOLATING THE COMMON LAW EXCEPTION TO THE DEFENSE OF SOVEREIGN IMMUNITY. (Assignment of Error No. 1)
  2. The Standard of Review Is De Novo.

“The legal question presented by a circuit court’s decision to sustain a demurrer requires the application of a de novo standard of review.” Cline v. Dunlora South, LLC, 284 Va. 102, 106, 726 S.E.2d 14, 16 (2012) (citing Glazebrook v. Bd. of Supervisors of Spotsylvania County, 266 Va. 550, 544, 587 S.E.2d 589, 591 (2003)). “On appeal, a plaintiff attacking a trial court’s judgment sustaining a demurrer need only show that the court erred, not that the plaintiff would have prevailed on the merits of the case.” Tronfeld v. Nationwide Mut. Ins. Co., 272 Va. 709, 713, 636 S.E.2d 447, 449 (2006).

  1. UNDER THE COMMON LAW THERE IS NO SOVEREIGN IMMUNITY FOR UNLAWFUL ACTS VIOLATING THE VA CONST., VA CODE, AND THE VOID AB INITIO ORDER DOCTRINE.

At the outset, the General Assembly enacted VA Code § 1-200 (2005), to mandate that the,

“The Common Law of England, insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly.  VA. Code § 1-10; 2005. (Emphasis added)

Thus, the English Common Law controls all judicial decisions, except when the General Assembly specifically enacted legislation to change the Common Law rule.

Regarding the defense of Sovereign Immunity, Common Law only permitted its use when a defendant was acting within the legal authority.  This is consistent with the Magna Carta which held officials and judges accountable for acts outside of their legal authority and jurisdiction.  As explained by Sir Edward Coke, 77 Eng. Rep. at 1038‑41,

[W]hen a Court has. . . has no [judicial authority or] jurisdiction of the cause, there the whole proceeding is [not before a person who a judge], and actions will lie against them without any regard of the precept or process . . . (Emphasis added)

The Case of the Marshalsea, 77 Eng. Rep. 1027 (K.B. 1613), held that an action for equitable relief and damages would lie for the conspiracy to issue and enforce a void order as part of a criminal enterprise outside of legal authority, and the facts were to be decided by a common law trial by jury. Thus, the Common Law provided for accountability and removal of officials and judges for acts outside of their jurisdiction and judicial authority, 4 William Blackstone, Commentaries 140 at 141.

The Common Law did not permit the defense of Sovereign Immunity to allow the aiding and abetting of unlawful acts outside of governmental functions.

Regarding the Common Law and the Void Ab Initio Order Doctrine Marbury v. Madison, 1 Cranch 137, 140 (1803), held that,

“[c]ourts are constituted by authority and they cannot beyond the power delegated to them. If they act beyond that authority, and certainly in contravention of it, their judgments and orders are regarded as nullities. They are not just voidable, but simply void, and this even prior to reversal.”

Thus, the Void Ab Initio Order Doctrine mandates when an entity has neither constitutional authority, nor legal power, nor jurisdiction to render any order as a lower court-it is a void ab initio order as a complete nullity from the date of its issuance and may be impeached directly or collaterally at any time, or in any manner. Collins v. Shepherd, 274 Va. 390, 402 (2007); Singh v. Mooney, 261 Va. 48, 51‑52(2001); Barnes v. Am. Fertilizer Co., 144 Va. 692, 705 (1925); Rook v. Rook, 233 Va. 92, 95 (1987).

Consistent with the Common Law, VA Code §8.01-195.3, to permit the holding of a judge or government attorney accountable with no immunity from tort suit for acts outside of the scope of employment or judicial authority or jurisdiction (relief from tort liability apply only to actions within “official capacity”).  In Sayers v. Bullar, 180 Va. at 229 and 230, 22 S.E.2d at 12 and 13 (1942), the court held that sovereign immunity applies only when government entities, officials, or employees were “acting legally within the scope of their employment.”  Thus, Respondents cannot claim Sovereign Immunity for:

(A) Acts outside the scope of employment, Katia Gutierrez de Martínez v. Lamagno and DEA, 115 S.Ct. 2227 (1995) (Rehnquist dissenting) (Rodriguez argued/won before the U.S. Supreme Court to reverse to USCA 4th Cir., to obtain the holding that there was a right to a common law evidentiary hearing before a jury on the alleged acts of government employees acts outside the scope of employment); See also Burnam v. West, 681 F. Supp. 1169, 1172 (E.D. Va. 1988).

(B) Grossly negligent conduct, McLenagan v. Karnes, 27 F.3d 1002 (4th Cir. 1994);

(c) intentional torts, Tomlin v. McKenzie, 251 Va. 478, 468 S.E.2d (1996); or,

(4) Acts characterized as bad faith, Tomlin v. McKenzie, 251 Va. 478, 468 S.E.2d 882 (1996).

Rodriguez under the Common Law is only required to prove that Respondents have acted outside the scope of legislative authority, judicial authority, or employment in violation of the VA Const, and VA Code.  Therefore the Circuit Court erred because there is no absolute immunity from equitable and injunctive relief for the acts in violation of the limitations and prohibitions under Art. I § 5 & 9 VA Const., Art. VI §§ 1, 5 & 7 VA Const., and, Art. XII § 1 VA Const.

  1. THE CIRCUIT COURT ERRED IN NOT EMPANELING A SPECIAL GRAND JURY TO INVESTIGATE AND REPORT ON THE EVIDENCE OF WILLFUL ACTS OUTSIDE OF LEGAL AUTHORITY. (Assignment of Error No. 2)

The record confirms that neither courts nor prosecutors have investigated Rodriguez’s criminal complaint (Plaintiff’s Ex. K filed with the Complaint).  But, as explained in U.S. v. Udzuela, 671 F.2d 995 (1982, Ill.),

Strictly speaking, the grand jury is a constitutional fixture in its own right, belonging to neither the executive nor the judicial branch, see United States v. Leverage Funding Systems, Inc., 637 F.2d 645 (9th Cir. 1980), cert. denied; United States v. Chanen, 549 F.2d 1306, 1312-13 (9th Cir.), cert. denied; Nixon v. Sirica, 487 F.2d 700, 712 n.54 (D.C.Cir.1973); In re April 1956 Term Grand Jury, 239 F.2d 263, 268-69 (7th Cir. 1956) (Emphasis added)

The Handbook for Virginia Grand Juries-City of Charlesville, explains that under the Common Law the Special Grand Jury serves as a quality control device on government, or more appropriately, serves as a (watchdog( against the wrongdoing. See Fairfax County Resolves (1774) (Developed the issues that led to the Declaration of Independence).

Under VA Code § 19.2-211, a Special Grand Jury is allowed to investigate wrongdoing and crimes, but not to indict.  Vihko v. Commonwealth, 393 S.E.2d 413 (VA.C. App 1990) (the evidence gathered by the Special Grand Jury is presented to the regular grand jury, which may indict).

Here the evidence is that both the Respondents and the Circuit Court have misinterpreted VA Code § 54.1‑3909 & 3910, to circumvent the prohibitions under Art. VI § 5 VA Const., and  VA Code § 54.1‑3915 (1950-2017) violate the 1932 Act’s decentralized attorney discipline system under VA Code § 54.1‑3935A (1950-2009).

This evidence confirms the ongoing violations of the VA Const., and VA Code, by the Class 2 & 6 felony VA Code §§ 18.2‑481 & 482 to, “[resist] the execution of the laws under color of authority,” and business conspiracy in violation of Va. Code § 18.2-499 & 500.

Under Va. Code §19.2-191 and § 19.2-206, a Special Grand Jury may be convened by the circuit court at any time upon the court’s own motion to investigate and report any condition which involves or tends to promote criminal activity.  Furthermore, the 2007 ed. of the Handbook for Virginia Grand Jurors at page 16, published by Office of the Executive Secretary of the Supreme Court of Virginia, states that ([a]ny Citizen . . . may ask the Circuit Court of a county to convene a Special Grand Jury. (  Therefore, a Circuit judge may impanel a Special Grand Jury to investigate a crime and malfeasance upon the request of a citizen of Virginia.  See 70-71 Va. AG 106A; See also 156 ALR 330.

Finally, under VA Code §§ 8.01-186 and 8.01-188 the Circuit Court was given the power to grant further relief “whenever necessary and proper,” this includes the ability to impanel a Jury or logically a Special Grand Jury–to investigate the Respondents violations of the Common Law, VA Const., VA Code, and the Void Ad Initio Doctrine.  Thus, the Circuit Court erred in permitting the Special Grand Jury to be captured by the Respondents.

III. THE CIRCUIT COURT ERRED BY VIOLATING THE VOID AB INITIO ORDER DOCTRINE RESTRICTION BY ITS USE OF RES JUDICATA.  (Assignment of Error No. 3)

 

It is a fundamental doctrine of due process under the common law, the VA. Const. VA Code, and the U.S. Const., that Rodriguez as the party affected must have his day before a validly constitutionally created impartial court and had an opportunity to a common law trial by a jury of the business conspiracy outside legal authority. Renaud v. Abbott, 116 US 277, 6 S Ct 1194 (1886).

But, the VSBDB and this Court have not issued a valid judgment by their violations of the VA Const., and VA Code limitations, prohibitions and protections of due process. Earle v. McVeigh, 91 US 503 (1876).  See also Restatements, Judgments 4(b).

In violation of the mandates of separation of power and due process under Marbury v. Madison, supra., Art. I §§ 5, 11 & 15 VA Const., and Art. VI §§ 1, 5 & 7 VA Const., VA Code § 54.1‑3915 (1950-2017), and VA Code § 54.1‑3935 (1950-2009) in 2006 the VSBDB issued an unlawful Void Ab Initio Order revoking Rodriguez’s license as an attorney for litigating to enforce his statutory rights.  Compounding this illegal act, this Court issued a void order affirming. However, Pennoyer v. Neff, 95 US 714, 733 (1877), holds that,

Since the adoption of the [VA Const.] and the Fourteenth Amendment to the Federal Constitution, the validity of void judgments may be directly questioned, and their enforcement in the State resisted, on the ground that proceedings in a court of justice to determine the personal rights and obligations of parties over whom that court has no jurisdiction do not constitute due process of law. . . . To give such proceedings any validity, there must be a tribunal competent by its constitution‑‑that is, by the law of its creation‑‑to pass upon the subject‑matter of the suit.” (Emphasis added)

But the record confirms this was never done (Plaintiff’s Exhibit G1).      All of the courts issued void order outside of their jurisdiction and constitutional authority in violation of the common law exception to the claim of sovereign immunity and the Void Ab Initio Order Doctrine to grant government employees and judges “impunity” for violations of the VA Const., and VA Code.  Court records confirm that all of the dismissals were for lack of venue “without prejudice,” or specifically “declined to rule on [Respondents] plea of res judicata,” or and did not address the allegations of a business conspiracy. Isidoro Rodriguez, Esq. v. Editor-in-Chief, Legal Times, et al., DC Dist. Ct. No 07-cv-0975 (PF), DC Ct. App. N. 07-5334enied US Sup Ct. 08-411(2008); see also,  injunction denied SC Ct. No. 07A601, cert. Isidoro Rodriguez, Esq. v. Hon. Hassell et al., Fairfax Circuit Court No. CL-2007-15396, VA S. Ct. No. 081146, cert. denied 08-574 (2008). See petitions for redress to the General Assembly (Plaintiff’s Exhibit D and I), Complaint to the Inter-American Commission on Human Rights (IACHR) (P-926-16), and a Petition with the United Nations Committee on Human Rights for the grant of “impunity” (see  http://www.isidororodriguez.com).

As explained in Collins v. Shepherd, 274 Va. 390 (2007) that held,

(An order that is void ab initio is a complete nullity that may be impeached directly or collaterally by all persons, at any time, or in any manner. ( (quoting Singh v. Mooney, supra.) Furthermore “[a]n order is void ab initio rather than merely voidable, if ‘the character of the judgment was not such as the court had the power to render, or because the mode of procedure employed by the court was such as it might not lawfully adopt'” (quoting Evans v. Smyth‑Wythe Airport Comm’n, 255 Va. 69, 73(1998); Morgan v. Russia and Triangle Assocs., L.L.C., 270 Va. 21, 26‑27 (2005).

The Circuit Court violated the Void Ab Initio Order Doctrine and the Common Law by its use of res judicata.

  1. THE CIRCUIT COURT ERRED IN GRANTING A DEMURE BASED ON LACK OF STANDING, MISNOMER, AND FAILURE TO STATE A CLAIM WHICH RELIEF MAY BE GRANTED. (Assignment of Error No. 4)
  2. Rodriguez has Standing

The Complaint is filed based upon the willful violation of the limitations and prohibitions under Art. I §§ 5, 11 & 15 VA Const, Art. VI §§ 1, 5, & 7 VA Const., Art. XII § 1 VA Const., and the Void Ab Initio Order Doctrine, as well as the particularized damage to Rodriguez’s business, reputation, profession and property rights.

Since 2003 Rodriguez was deprived of his fundamental right to his pro hoc vice law practice, reputation, profession, and property right in his Choate Virginia statutory Attorney’s Lien based the use of unconstitutional Court’s rules.  Since January 2017 the General Assembly enacted ex post facto VA Code § 54.1‑3935 (2017) to retroactively “conform” the statute to the unlawful court rules.

Thus, Rodriguez has standing as a citizen of Virginia and as an attorney injured by the VSBDB void ab initio order under the holding in Howell v. McAuliffe, 788 S.E.2d 706 (Va. 2016), where this Court held that citizens have standing if there is “sufficient interest” and “the parties will be actual adversaries.” Howell, 788 S.E.2d at 713 (quoting Cupp v. Bd. of Supervisors, 318 S.E.2d 407, 411 (Va. 1984)).

To claim standing Rodriguez need only “demonstrate a personal stake in the outcome of the controversy,” to assure a court, “that the issues will be fully and fairly developed.” Goldman v. Landsidle, 262 Va. 364, 371 (2001).

That standard is easily satisfied given the litigation record (Plaintiff’s Ex. G1 filed with the Complaint) and the evidence of the business conspiracy by the violation of legally protected interest mandated by the amending procedure under Art. XII § 1 VA Const., before the separation of power under Art. I § 5 & 9, and Art. VI §§ 1, 5, & 7 VA Const, can be altered between the General Assembly and the Supreme of Virginia.

Also, these injuries are “actual or imminent, not conjectural or hypothetical.” Id. at 460, and both concrete and particularized to Rodriguez given the systematic denial of access to Common Law trial by a jury of the evidence of the violation of the Void Ab Initio Order Doctrine in any Federal court based on the Hon J. Gibbons surreal nationwide prior restraint and injunction.  See Damian Stinnie et al., v. Richard D. Holcomb, in his capacity as the Commissioner of the Virginia Department of Motor Vehicles, Case No. 3:16-CV-00044 US Dist. Ct W.D. VA, Charlottesville (December 21, 2018) (Supplemental Authority filed with the Circuit Court on December 26, 2018).

  1. Misnomer

The Circuit Court dismisses based on “misnomer,” holding that Respondents could not be sued as entities in their respective constitutional titles, but rather must be sued as individuals. (Transcript page 32).

The VA Const., specifically name and empower the General Assembly (not the House of Delegates and Senate), the Governor, and the Court as constitutional entities under Art. I § 5, VI, ( 1, 5, and 7, and Art. XII § 1 VA Const.  Thus, the Circuit Court erred because:

First, the restrictions and the mandate of separation of power under Art. I § 5 VA Const. and Art. § 1, 5 & 7 VA Const. and logic is that the constitutional entities name, not in the individual’s designation of an office holder from 2003 to the present, are to be held accountable for constitutional violations.

The New York Court of Appeals held in Brown v. State, 674 N.E.2d 1129, 1144 (N.Y. 1996), that the entity, as well as the individual, are liable so to deter deprivations of state constitutional rights because no government can sustain itself when the law immunizes official violations of substantive rules leaving victims without any realistic remedy. As constitutional officers, the acts will be a violation of the oath of their respective duties of the office, and grounds for removal from office.  As explained in Clea v. Mayor and City Council of Maryland, 541 A.2d 1303 at 1314 (Md. 1988):

“To accord immunity to the responsible government officials, and leave an individual remediless when his constitutional rights are violated, would be inconsistent with the purpose of the constitutional provisions.”

Second, the evidence is that since 2003 it has been the constitutional entities, not just the individual that held office during the administrations of Governors Mark Warner, Tim Kaine, Bob McDonnell, Terry McAuliffe, and Ralph Northam – who have been involved in the business conspiracy to systemically violate the VA Const., VA Code, and the Void Ab Initio Order Doctrine.

Third, logic dictates that the action for the violation of the VA Const. and VA Code, be against the constitutional entities not restricted to the individual office holders.

Thus, the Circuit Court erred.

  1. Rodriguez has Stated a Cause of Action

The Void Ab Initio Order Doctrine holds that Rodriguez has a right to challenge and attacked in any court at any time, (directly or collaterally.( Rook v. Rook, 233 Va. 92, 95(1987). Thus, Rodriguez has stated a cause of action where relief is to be granted.

  1. THE CIRCUIT COURT ERRED IN HOLDING THAT THE GENERAL ASSEMBLY CANNOT BE SERVED UNDER VA CODE §§ 8.01-316(B) & 318 BY COURT-ORDERED PUBLICATION. (ASSIGNMENT OF ERROR NO. 5)

The General Assembly refused to answer or otherwise defend below-despite repeated notice by Circuit Court order of publication under VA Code § 8.01-318.

Under VA Code § 8.01-317 upon receipt of proof of publication” by the affidavit from the Washington Times on January 31, 2019, the clerk of court must enter a default against the Defaulted General Assembly before or on February 21, 2019. Once the clerk enters default, the Court must take as true the factual allegations in the Complaint for Declaratory Judgement. AME Fin. Corp. v. Kiritsis, 281 Va. 384, 392-93 (2011).  There is no exception to Chapter 8, Process requirements.

In Arizona Legislature v. Arizona Independent Redistricting Commission, 576 U.S. ___ (2015), the U.S. Supreme Court confirmed that as a constitutional entity a state legislature has the standing to sue, and logically be sued.  Thus, subject to service of process under VA Code by the Sheriff or by publication.

Thus, the Circuit Court erred in ordering that the General Assembly cannot be served by publication.

CONCLUSION

For the foregoing reasons, this Court should grant review to correct the errors of the Circuit Court.

Dated: May 2, 2019

Respectfully submitted,

Isidoro Rodríguez, Pro Per, Residence:  2671 Avenir Place, Apt. 2227, Vienna, Virginia 22180, (571) 477-5350/E-mail: business@isidororodriguez.com

 

ISIDORO RODRIGUEZ’S COMMENT (SPEAKER #31) AT THE PUBLIC FORUM ON JAN. 5, 2019 AT 0900hrs. TO THE NOVA GENERAL ASSEMBLY MEMBERS PRIOR TO THE 2019 SESSION

(The hearing was televised live on Fairfax County Television Channel 16 (Channel 1016 in HD on Cox; Channel 16 on Verizon or Comcast), and can also be viewed online through the Channel 16 stream.)

            Good Morning, I am Isidoro Rodriguez.  More than 55 years ago I took the oath to defend our constitutional system under our Republic against all enemies “foreign and domestic.”  That oath never expires.  Thus, I appear before you today not to ask for funds or any government largest, but demand that each of you abide by the oath you took for your office as a member of the General Assembly.

            In that context, my comment prior to all of you prior to the 2019 Session of the General Assembly of Virginia is to bring to the attention of each of you and the citizens of Virginia that each of you who were in office in February 2017 enacted an ex post facto VA Code § 54.1-3935 (2017) in violation of the mandate of separation or power by surreally “conform[ing] the statutory procedure” established in 1931 under VA Code § 54.1-3935 (1950) of a decentralized attorney discipline system to retroactively adopt unconstitutional 1998 Rules of Supreme Court of Virginia (“Court”) creating a centralized attorney discipline system to do away with independent attorneys.

            The evidence is that in February 2017 each of you, and in particular my representatives Senator Richard L. Saslaw and Delegate Marcus B. Simon-acted outside the “sphere of legitimate legislative activity” by violating your oath of office, violating the prohibition under Art. I § 9 VA Const. against ex-post facto law, violating the mandate of separation of power between the General Assembly and the Supreme Court of Virginia (“Court”) under Art. I § 5 VA Const., violating Art. VI § 1, 5, and 7 VA Const., and violating the amending procedure under XII § 1 VA Const.

            In summary:

            First, each of you refused to investigate my past petitions as to the Court’s the violation of the delegated rulemaking authority (See presentations to NOVA members of the General Assembly, https://t.co/sLv7pz3zD5 and https://www.youtube.com/watch?v=VAkEfjcA5sQ) (See also http://www.isidororodriguez.com complaint for the assertion of “impunity” for violation of the U.s. and Virginia constitutions filed with the Inter-American Commission on Human Rights (IACHR) (P-926-16), and the United Nations Committee on Human Rights Complaints), but rather each of you who were in office in February 2017 surreally voted to enact an ex post facto law to retroactively “conform the statutory procedure [under VA Code § 54.1‑3935 (1952)] for the disciplining of attorneys,” to the 1998 unconstitutional Court’s rules.

            Second, each of you who were in office in February 2017 usurped the exclusive amending power of the citizens of Virginia under XII § 1 VA Const. by enacting the ex post facto law expanding in violation of the mandate of separation of power-the Court’s authority retroactively by adopting the 1998 unconstitutional Court rules: (a) that unlawfully establish a centralized statewide attorney disciplinary system under the Court’s control; (b) that unlawfully created the Virginia State Bar Disciplinary Board (VSBDB”) as a lower court with judicial authority to discipline attorneys; and, (b) that unlawfully permitted the Court to appoint VSBDB members as lower court judges.

            Thus, irrespective of being Democrat, Republican or Independent, citizens must take action to assure the separation of power and an independent legal profession not controlled by the Court.  Citizens must compel the General Assembly during this 2019 Session to vacate the ex-post facto law (See www.isidororodriguez.com).[1]

            After that, citizens must take action to compel the General Assembly and the Court’s compliance with the limitations and prohibitions under the VA Const. and VA Code, or if the citizens determine to amend the separation of power established since 1789 under Va Const. between the Legislative and Judicial Branch, citizens can direct the General Assembly to begin the constitutional amending procedures under Art. XII § 1 VA Const.[2]

Date: January 5, 2019

Respectfully,

Isidoro Rodriguez

2671 Avenir Place, Apt 2227

Vienna, Virginia 22180

Mobile phone No. 571.477.5350

E-mail: busness@isidororodriguez.com

            [1] I note from 2010 thru 2017, each of you refused to inquire into my petitions and comments seeking an investigation of the Court’s defiance of the mandated decentralize statewide attorney disciplinary system under Art. IV §§ 1, 5, and 7 VA Const., and VA Code § 54.1‑3915 & § 54.1‑3935 (1952) by the Court’s issuance in 1998 of unconstitutional court rules in “clear absence of all [judicial authority and] jurisdiction” (https://www.youtube.com/watch?v=D9jBOJ34sa8&feature=youtu.be).  Thus, I have filed a Complaint for Declaratory Judgment (Isidoro Rodriguez v. General Assembly of the Commonwealth of Virginia, et al., Fairfax County Cir. Ct., Docket No. CL-2018-0016227, 11/14/2018), and a Petition for Writ of Mandamus (Isidoro Rodriguez v. Virginia State Bar Disciplinary Board, Fairfax County Cir. Ct., Docket No. CL-2018-0016433, 11/19/2018) to challenge the ex post facto law and seek a binding adjudication of my rights under the common law, VA Const. and VA Code by obtaining accountability for acts outside the sphere of legitimate legislative activity by the General Assembly, acts outside scope of employment by the Office of the Governor and Attorney General, and acts outside of judicial authority by the Supreme Court of Virginia et al., by a Class 2 felony VA Code§§ 18.2‑481 & 482 to “[resist] the execution of the laws under color of authority” by their business conspiracy to damage my law practice, reputation, profession, and property rights.

[2] However, I note and stress that it was Patrick Henry in 1988, as well as the other original drafter of the both the VA and U.S. Constitutions who mandated the separation of power, because they observed,

[p]ower is the great evil with which we are contending. We have divided power between three branches of government and erected checks and balances to prevent abuse of power. However, where is the check on the power of the judiciary? If we fail to check the power of the judiciary, I predict that we will eventually live under judicial tyranny.” (Emphasis added)

 

VERIFIED PETITION FOR WRIT OF MANDAMUS TO COMMAND THE VIRGINIA STATE BAR DISCIPLINARY BOARD TO STATE UNDER WHAT PROVISIONS OF THE VA CONST. AND VA CODE THEY WERE GIVEN JUDICIAL AUTHORITY TO ACT AS A LOWER COURT

            Under VA Code § 8.01-644, and the common law,[1] Plaintiff, Isidoro Rodriguez (“Rodriguez”), respectfully petition this Court based upon Art. I § 1, 5, 11 & 15, and Art. VI §§ 1, 5 & 7 of the Constitutions of Virginia (“VA. Const.”), and  VA Code § 54.1‑3935A (2009) for the issuance of writs of mandamus to Respondent/Defendant Virginia State Bar Disciplinary Board (“VSBDB”), and for grounds in support thereof states:

  1. THE RELIEF SOUGHT

            Rodriguez seeks entry of a writ of Mandamus[2] commanding the respondent/defendant VSBDB to cite the provisions of VA Const. and VA Code under which the Supreme Court of Virginia (“Court”) gave it judicial authority as a lower court and appoint its members as judges to discipline attorneys?

  1. WRIT OF MANDAMUS

           The writ of Mandamus “orders a person, usually some official of the executive branch of the government, or the judge of a lower court, to carry out some affirmative action.”   In re Grant, 635 F.3d 1227 (D.C. Cir. 2011).  For a writ of mandamus to issue, “[1] there must be a clear right in the petitioner to the relief sought, [2] there must be a legal duty on the part of the respondent/defendant to perform the act which the petitioner seeks to compel, and [3] there must be no adequate remedy at law.” Board of City. Supervisors of Prince William City. v. Hylton Enters., Inc., 216 Va. 582, 584 (1976).  “Mandamus is the proper remedy to compel performance of a purely ministerial duty, but it does not lie to compel the performance of a discretionary duty.” Supra.

  • THE FACTS NECESSARY TO UNDERSTAND THE ISSUES PRESENTED

             The Citizens of Virginia ratified Art. I § 5 VA Const. to mandate separation of power between the General Assembly, the Court and the Executive Branch of government.

            The Citizens of Virginia ratified Art. VI §§ 1,[3] & 7[4] VA Const. to authorize only the General Assembly to enact legislation to give judicial authority, to establish lower courts to the Court, and to appoint lower court judges.  These constitutional powers/restrictions which the citizens ratified can neither be delegated nor circumvented.

            The Citizens of Virginia ratified Art. VI, ‘ 5[5] VA Const. prohibited the Court from promulgating court rules that would conflict with statutory rights.

            The Citizens of Virginia ratified Art. XII § 1 VA Const. to give only to themselves the power to amend these constitutional restrictions on the General Assembly and the prohibitions on the judicial authority and jurisdiction of the Court.

            Therefore, under Art. 1, 5, and 7 VA Const., and the controlling president of Fisher’s Case, 6 Leigh (33 Va.) 619 (1835) and Legal Club of Lynchburg v. A.H. Light, 13249, 430, 119 S.E. 55 (1923), only the General Assembly has the exclusive legislative powers to establish by statute a statewide attorney disciplinary system by making suspension or revocation of an attorneys license in a particular circuit court effective in all other courts of Virginia.

            Based upon that holding in Legal Club of Lynchburg v. A.H. Light, 13249, 430, 119 S.E. 55 (1923), the General Assembly enacted in 1932 the Acts of Assembly p. 139 (“1932 Act”) (codified as VA Code § 54.1‑3935 (1950), to establish a statewide decentralized attorney disciplinary system to give judicial authority and jurisdiction to discipline attorneys only to each County Circuit Court established/appointed by the General Assembly.[6]

            Consistent with the original constitutional draftsmen open distrust of the motive of individuals in government generally, and the Court specifically, [7] as well as the prohibition under Art. VI § 5 VA Const., the 1932 Act delegated to the Court only limited authority to prescribe, adopt, promulgate and amend rules of unprofessional conduct, but specifically prohibited the Court from Apromulgating rules or regulations prescribing a code of ethics governing the professional conduct of attorneys which are inconsistent with any statute@ i.e. VA Code § 54.1‑3935 (1950). See VA Code § 54.1‑3915 (1988).

            For more than eighty-nine (89) years, from 1932 until 2017, the General Assembly did not amend the 1932 Act’s decentralized statewide attorney disciplinary system, see VA Code 54.1-3935 (1932 thru 2009), to enact legislation augmenting the Court authority to issue court rules to create the VSBDB as a lower court to discipline attorneys or appoint VSBDB members as judges.

            A review of the legislative history to the 1998 amendment to VA Code § 54.1‑3935 (1998) (Plaintiff’s Exhibit B2 filed with the Complaint for Declaratory Judgement) confirms that the entire General Assembly rejected any change and only accepted and ratified the Senate bill which did not delegate any expanded new rulemaking power to the Court.

The legislative history to the 1998 amendment confirms that the entire General Assembly specifically rejected the House bill (Plaintiff’s Exhibit B4 filed with the Complaint for Declaratory Judgement) proposal to delegate expanded rulemaking power to the Court, thereby rebuffing Court’s rules: (a) creating a centralized attorney disciplinary system under the control of the Court; (b) giving judicial power to discipline attorneys to the VSBDB as a “lower court;” and, (c) permitting the Court and Defendant Virginia State Bar (“VSB”) to appoint VSBDB members as “lower court” judges.

However, in defiance of the General Assembly’s rejection of the House proposal, in 1998 the Court still put into effect Rule Part 6, ‘ IV (Plaintiff’s Ex. C) to establish a centralized statewide attorney disciplinary system under the Court’s control, created the VSBDB as a “lower court” with judicial power to discipline attorneys, and appointed VSBDB members as “judges.”

            In 2004, in violation of VA Code §§ 18.2-499 a business conspiracy was commenced by Washington D.C. Lobbyist/former U.S. Attorney General Eric Holder and the Managing Partner of Rodriguez’s dissolve client, to injure Rodriguez’s international law business, reputation, profession, statutory property rights by their filing two fraudulent VSBDB complaints against Rodriguez for litigating to enforce his Choate Virginia Attorney’s Lien on the client’s claim to a 50% share to $18 Billion USD of treasure trove and for Rodriguez litigating to enforce his rights as a father right pursuant to the Hague Convention, VA Code, and Joint Custody Agreement (http://www.liamsdad.org/others/isidoro.shtml).

            On November 27, 2006, based only on unconstitutional Court Rule Part 6, ‘ IV  surreally giving the VSBDB judicial authority and jurisdiction to discipline an attorney, the VSBDB issued a Void Ab Initio Order disbarring Rodriguez for litigating to enforce statutory rights  (http://www.vsb.org/docs/Final_Order_Rodr_11-28-06.pdf).

            To challenge the unconstitutional Court’s rule and the VSBDB void ad initio order, Rodriguez filed two administrative claims under the common law and Virginia Tort Claims Act VA Code ‘ 8.01-195 by Certified Mail respectively on June 8, 2005, and November 8, 2007, No. 7004-1350-0001-7098-4500, and No. 7004-0750-0000-8170-5576. (Plaintiff’s Ex. E)

            In response, in violation of Art. I §§ 5, 11 & 15 VA Const., Art. VI §§ 1, 5, & 7 VA Const., the 5th, 7th, and 14th Amend. U.S. Const., and the common law,[8] Defendant Attorney General of Virginia abused and misstated the doctrine of sovereign immunity under the common law (Plaintiff’s Ex. H3) so to deny access to a common law jury trial[9] on the issue of acts outside of judicial authority to block any meaningful adjudication by an impartial court by filing motions for summary judgment to dismiss Rodriguez’s challenges to the Court’s unconstitutional court rules and VSBDB void ad initio order, Isidoro Rodriguez v. Hon. Leroy Rountree Hassell, Sr., et al., No. 081146 (2008); Fairfax Cir Ct. No CL-2007-1796) (surreal void order issued in defiance of the common law to declare absolute immunity and unaccountability for violation of the VA Const. and VA Code). (Plaintiff’s Ex. F and G)

            Subsequently, Rodriguez was again deprived of due process by the summary disbarring from Federal practice based on the refusal to review the Court’s unconstitutional court rules and the VSBDB void ad initio order (Plaintiff’s Ex. G1, list of void ab initio orders) (See Plaintiff’s Ex. G2, relevant parts of the United States Tax Court void disbarment order use of legal sophistry to disregard the prohibitions under Art. VI §§ 1, 5 & & VA Const., VA Code, and the Void Ab Initio Order Doctrine).

            Based upon this evidence of willful violations of the common law and VA Const./VA Code by systematically denying Rodriguez of access to an impartial court and a common law trial by jury to challenge the Court’s rule and the VSBDB void ab initio order, Rodriguez’s filed a federal action under the common law and federal civil rights statutes,[10] Isidoro Rodriguez v. John/Jane Doe of the VSBDB et al., (2013) EDVA No. 3:12-cv-00663. (Plaintiff’s Ex. H1 and H2)

            In response, in 2011 Defendant Office of Attorney General again violated the common law, VA Const/VA Code, and the 5th, 7th, and 14th Amend. U.S. Const. by misuse of sovereign immunity to file a motion for summary judgment and monetary sanctions (Plaintiff’s Ex. H3).

            In violation of the Void Ab Initio Order Doctrine, VA Const., and VA Code, the Hon. Dist. Judge John A. Gibney used stare decisis/res judicata to issue an unpublished void order (https://casetext.com/case/rodriguez-v-doe-5), in 2013 to enjoin and prior restrain Rodriguez from filing future federal litigation challenging the Court’s unconstitutional court rules and the VSBDB void ab initio order (aff’d https://www.gpo.gov/fdsys/pkg/USCOURTS-ca4-13-01638/pdf/USCOURTS-ca4-13-01638-0.pdf).

            In response to this surreal federal court’s void order issued in defiance of the common law granting impunity and unaccountability for the violations of Art. I §§ 11 & 15, and Art. VI §§ 1, 5, & 7 VA Const., and the 5th, 7th, & 14th Amend. U.S. Const., Rodriguez petitioned for redress the General Assembly (Plaintiff’s Exhibit D and I) (See http://www.isidororodriguez.com) (See also presentation in 2010 to NOVA General Assembly members https://t.co/sLv7pz3zD5), the Inter-American Commission on Human Rights (IACHR) (P-926-16), and the United Nations Committee on Human Rights (see  http://www.isidororodriguez.com).

            The General Assembly’s reaction in January 2017 was as follows:

  • To violate the prohibition under Art. I § 1, 5 & 9 VA Const. by enacting in 2017 an ex post facto alteration to the decentralize statewide attorney disciplinary system established, instituted and unchanged for more than 85 years in the Commonwealth since 1932 under VA Code § 54.1‑3935 (2098), by enacting VA Code § 54.1‑3935 (2017) to unconstitutionally retroactively “[c]onform the statutory procedure for the disciplining of attorneys” by adopting Court Rule Part 6, § IV, 13-6; and,
  • To violate the citizen’s mandate of separation of power and the citizen’s control of amending the Constitution of Virginia under Art. VI § 1, 5 & 7 and XII § 1 VA Const. by retroactively adopting in 2017 Court Rule Part 6, § IV, 13-6: (a) to surreptitiously establish under the Court’s control a centralized statewide attorney disciplinary system; (b) to surreptitiously establish VSBDB as a lower court with judicial authority to discipline attorneys; and, (c) to surreptitiously adopt the Court’s appointment of VSBDB members as

I. PETITIONER IS ENTITLED TO A WRIT

A.        Petitioner Has a Clear Right to the Relief Sought.

When the legislature delegates authority to the Court to promulgate regulations, those regulations must neither exceed the scope of the authority delegated nor be inconsistent with the limitations and prohibitions under the VA Const., and VA Code. See, e.g., Brown v. United Airlines, Inc., 34 Va. App. 273, 276, 540 S.E.2d 521, 522 (2001) (legislative enactment which delegates to authority to adopt rules does not permit adoption of inconsistent and illegal rules). [11]

Furthermore, “delegations of legislative power are valid only if they establish specific policies and fix definite standards to guide the official. . .. Delegations of legislative power which lack such policies and standards are unconstitutional and void.Ames v. Town of Painter, 239 Va. 343, 349, 389 S.E.2d 702, 705 (1990) (Emphasis added).

            Thus, given Art. I § 5 and Art. VI §§ 1, 5, & 7 VA Const. grant and prohibition of power only to the General Assembly to enact legislation to confer judicial authority, to create the lower courts, and to appoint lower court judges, the question which the VSBDB has systematically refused to address and answer since 2003 during the past fifteen years, is:

UNDER WHAT PROVISIONS OF THE VA CONST. AND VA CODE DID THE COURT HAVE LEGAL POWER TO GIVE JUDICIAL AUTHORITY TO THE VSBDB TO ACT AS A LOWER COURT, AND VSBDB MEMBERS TO ACT AS JUDGES WITH THE JUDICIAL AUTHORITY TO DISCIPLINE ATTORNEYS?

            The obvious answer is that since the VSBDB is an entity only created sometime in 1998 under unconstitutional Court Rule Part 6, ‘ IV (Plaintiff’s Ex. C), the VSBDB does not have any constitutional judicial authority, judicial power, or jurisdiction to render any order to discipline an attorney.  Therefore, based on the Void Ab Initio Order Doctrine, the VSBDB order is void ab initio–and may be impeached directly or collaterally by all persons, at any time, or in any manner as a complete nullity from its issuance.  Collins v. Shepherd, 274 Va. 390, 402, (2007); Singh v. Mooney, 261 Va. 48, 51‑52(2001); Barnes v. Am. Fertilizer Co., 144 Va. 692, 705 (1925).  Thus, the 2006 VSBDB void ab initio order disbarring Rodriguez for litigating to enforce his statutory rights was invalid at the moment of issuance.

            The benchmark on the right of Rodriguez to challenge the VSBDB void ab initio order is the U.S. Supreme Court decision in Pennoyer v. Neff, 95 US 714, 733 (1877), holding,

Since the adoption of the Fourteenth Amendment to the Federal Constitution, the validity of such judgments may be directly questioned, and their enforcement in the State resisted, on the ground that proceedings in a court of justice to determine the personal rights and obligations of parties over whom that court has no jurisdiction do not constitute due process of law. . . . To give such proceedings any validity, there must be a tribunal competent by its constitution‑‑that is, by the law of its creation‑‑to pass upon the subject‑matter of the suit.” (Emphasis added).

            Therefore, Rodriguez has a right to a Writ of Mandamus to command the respondent/defendant VSBDB to explain under what law it has and is acting as a lower court with judicial authority.

  1. Petitioner Has a Right to Question the VSBDB Legal Authority.

            As the Court has explained in Clay v. Ballard, 87 Va. 787, 13 S.E. 262, 263 (1891), “where the object is to enforce obedience to a public statute it has been invariably held that the writ is demandable of right.”  Thus, notwithstanding the holding in Messina v. Burden, 228 Va. 301, 307 (1984),[12] consistent with the common law at the time of the ratifying of the VA Const., sovereign immunity does not make the VSBDB immune from a Writ of Mandamus seeking equitable relief.

              Dating back to 1613, under the common law there is no absolute judicial and ministerial immunity for acts outside of scope of employment and jurisdiction, and action for equitable relief and damages will lie for the conspiracy to issue and enforce a void order as part of an illegal enterprise, The Case of the Marshalsea, 77 Eng. Rep. 1027 (K.B. 1613).[13]  It was Blackstone who first discussed various English common law statutes that provided for accountability and removal of judges for misbehavior and acts outside of the jurisdiction and judicial authority.  4 William Blackstone, Commentaries 140 at 141.  Thus, common law held that a right without a remedy is no right at all.[14]  To enforce the limitation and prohibitions, as well as their constitutional rights against the government, including the Court,[15] under the Common law, citizens can bring a civil suit for declarative and equitable relief in Virginia against the government or government officials for acts outside the scope of employment, legislative authority, and judicial authority in violation of the VA Const. and VA Code.

            Regarding quasi-judicial immunity for the VSBDB, it extends: (1) only if they are performing judicial functions, (2) only if acting within their jurisdiction; and (3) only if acting in good faith “acting within the scope of their duties.” Imbler v. Pachtman, 424 U.S. 409, 422-23 (1976); Andrews v. Ring, 266 Va. 311 at 321, 585 S.E.2d 780 (2003) (the court explicitly declined to grant blanket immunity to non-prosecutorial conduct, stating, “We do not decide in this case whether actions of a prosecutor in the role of investigator or administrator are entitled to absolute immunity.”)    See Hueston v. Kizer, 2008 Va. Cir. LEXIS 280, 36-37 (Va. Cir. Ct. May 29, 2008) (court denied absolute immunity).[16]

            The VSBDB has legal duty to perform the act of responding to the Writ of Mandamus which Rodrigues seeks to compel.  The record confirms the systematic denial of access to an impartial court and common law jury trial to challenge the Court’s unconstitutional court rules, the VSBDB void ad initio order, and the alleged collusion to since 2003 to “resist the execution of the laws under color of authority,”[17] Board of City Supervisors of Prince William City. v. Hylton Enters., Inc., 216 Va. 582, 584 (1976).

  1. Petitioner Has No Adequate Remedy at Law.

Rodriguez seeks to enforce obedience to the VA Const., and VA Code by the VSBDB.  Rodriguez is authorized to seek that relief in this Court via mandamus.  The inquiry here is not only whether there is any alternative remedy, but also whether there is an “adequate” alternative remedy “at law” given the business conspiracy to damage Rodriguez’s law practice, reputation, profession, and property rights.

The record confirms that Rodriguez has no alternative to this Writ of Mandamus given the past 15 years of systematic denial of access to an impartial court and common law trial by a jury of the VSBDB acts outside the scope of employment and acts outside of judicial authority.  This is confirmed by the enacting of VA Code § 54.1‑3935 (2017) outside of the ‘sphere of legitimate legislative activity” by an ex post facto change to the decentralize statewide attorney disciplinary system established since 1932 to surreally retroactively “conform the statutory procedure for the disciplining of attorneys” to unconstitutional Court Rule Part 6, § IV, 13-6.

Respondent/Defendant VSBDB would not suffer any prejudice for complying with VA Const. and VA Code if this Court were to resolve this controversy via mandamus. Mandamus relief is appropriate where “[n]o prejudice was suffered by any party, and harm rather than good would result from sending the parties back to try the same issue, to be raised by different pleadings.” May v. Whitlow, 201 Va. 533, 538 (1960).

In this case, all parties benefit from having this Court immediately and authoritatively decide the important constitutional questions presented in this case particularly based on the record of the General Assembly enacting ex-post-facto legislation in response to Rodriguez petitions since 2008 challenging the unconstitutional Court rules and the VSBDB void order, thus forcing Petitioners to seek mandamus.

            Finally, “the extraordinary nature of this litigation cannot be ignored as a factor in the overall decision.” Abelesz v. OTP Bank, 692 F.3d 638, 652 (7th Cir. 2012). It is imperative that access to an impartial court be provided to permit review and consideration of the validity of the Court rules and the VSBDB void ab Initio Order issued in violation of VA Const. and VA Code.

II.  PETITIONER IS ENTITLED TO A WRIT OF PROHIBITION.

          For substantially all of the preceding reasons, Rodriguez is also entitled to a writ of prohibition. The writ of prohibition “commands the person to whom it is directed not to do something which . . . the court is informed he is about to do.” In re Commonwealth, 278 Va. 1, 17 (2009) (quotation marks omitted). A writ of prohibition may serve to “suspend all action, and to prevent any further proceeding in the prohibited direction.” Id. (quotation marks omitted). The writ is used to restrain a government actor “either when he has no jurisdiction or when he exceeds his jurisdiction . . ..” In re Commonwealth, 222 Va. 454, 461 (1981).

          Here the limitations and prohibitions under the VA Const. And VA Code is clear.  Thus, by “exceeding the scope of [their] authority,” Respondent/Defendant VSBDB is acting ultra vires—that is, without judicial authority and “jurisdiction” of a court. City of Arlington v. FCC, 133 S. Ct. 1863, 1870 (2013).

           It settled that “a party must establish . . . irreparable harm and lack of an adequate remedy at law, before a request for injunctive relief, will be sustained.” Levisa Coal Co. v. Consolidation Coal Co., 276 Va. 44, 61 (2008) (quotation marks omitted) (See Motion for Injunctive Relief filed 11/14/18). An action for injunctive relief plainly cannot be an “adequate remedy at law” when an injunction does not issue unless the movant establishes the “lack of an adequate remedy at law.” Id.  Here the record of the systematic denial of access to an impartial court and common law trial by a jury shows no adequate remedy at law.  Also, there is no adequate remedy because Petitioner who at almost 73 years old cannot be compensated for the injury to his health and shorten lifespan due to his heart attack caused by the stress of being unlawfully disbarred and unemploy as an attorney since 2006.

          Nor would a Circuit Court injunction remedy be “adequate.” A remedy is “adequate” only if it is “equally as convenient, beneficial, and effective as the proceeding by mandamus.” Cartwright v. Commonwealth Transp. Comm’r of Va., 270 Va. 58, 64 (2005) (quotation marks omitted). To be adequate, a remedy “must reach the whole mischief, and secure the whole right of the party in a perfect manner, at the present time and in the future, otherwise equity will interfere and give such relief and aid as the particular case may require.” McClaugherty v. McClaugherty, 180 Va. 51, 68 (1942) (emphasis added) (quotation marks omitted). And in determining whether to issue the writ, “[c]onsideration must be given to the urgency that prompts the exercise of the discretion, the public interest, and interest of other persons, the results that will occur if the writ is denied, and the promotion of substantial justice.” Goldman v. Landsidle, 262 Va. 364, 370–71 (2001).

          Time is of the essence.  This is apparent based upon the ex-post facto change to the decentralize statewide attorney disciplinary system by retroactively enacting in 2017 VA Code § 54.1‑3935 (2017).  This retroactive delegation of legislative power to the Court to “[c]onform the statutory procedure for the disciplining of attorneys” to unconstitutional Court Rule Part 6, § IV, 13-6, obfuscates the issues by (a) accepting the Court’s control of a centralized statewide attorney disciplinary system; (b) accepting as a lower court theVSBDB with judicial authority; and, (c) accept as  judges” VSBDB members appointed by the Court.

CONCLUSION

            For the preceding reason, all factors strongly support Rodriguez’s request.

 Respectfully submitted,

Isidoro Rodríguez, Residence:  2671 Avenir Place, Apt. 2227, Vienna, Virginia 22180

(571) 477-5350/E-mail: business@isidororodriguez.com

                [1] VA Code § 1-200, states “The common law of England, insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly.  VA Code § 1-10 (2005)

                [2] See Isidoro Rodriguez v. General Assembly of the Commonwealth of Virginia et al., Fairfax Cir. Ct. CL-2018-0016227, 11/14/198, Complaint for Declaratory Judgement, Plaintiff’s Exhibits A through M, and filed Motions.

[3] Article VI, § 1 VA Const., states in relevant part that judicial power shall be vested in courts of original or appellate jurisdiction “as the General Assembly may from time to time establish.” (Emphasis added)

[4] Article VI, § 7 VA Const., states in relevant part that justices of the Court, and, “all other courts of record shall be chosen by . . .  the General Assembly. . .. (Emphasis added)

[5] Art. VI § 5 VA Const., states in relevant part that the Court shall have the authority to make rules, “but such rules shall not be in conflict with the general law” enacted by the General Assembly. (Emphasis added).

                [6] See When Has the Supreme Court of Appeals Original Jurisdiction of Disbarment Proceedings, R.H.C. Virginia Law Review, Vol. 10, No. 3 (Jan. 1924), pp. 246-248; and David Oscar Williams, Jr., The Disciplining of Attorneys in Virginia 2 Wm. & Mary Rev. Va. L. 3 (1954).

            [7] It was Patrick Henry who wrote, “[p]ower is the great evil with which we are contending. We have divided power between three branches of government and erected checks and balances to prevent abuse of power. However, where is the check on the power of the judiciary? If we fail to check the power of the judiciary, I predict that we will eventually live under judicial tyranny.” (Emphasis added)

                [8] Consistent with the common law, which the laws of Virginia are grounded, the General Assembly enacted the English Rule in Va. Code §8.01-195.3(3), to hold that a judge or government attorney had no immunity from suit for acts outside of his judicial capacity or jurisdiction.

[9] As Thomas Jefferson wrote in a letter to Thomas Paine in 1789: “I consider trial by jury as the only anchor ever yet imagined by men, by which the government can be held to the principles of its constitution.”

(Emphasis added) See Martinez v. Lamagno and DEA, 515 U.S. 417 (1995) (Rodriguez argued and won before the United States Supreme Court to reverse the USCA for the 4th Circuit, to order a common law evidentiary hearing before a jury for acts outside the scope of employment.

            [10] The language of Section 1983 makes no mention of immunity.  But the Supreme Court held in Pierson v. Ray, 386 U.S. 547, 555 (1967), that under this federal statute enacted in 1871 Congress did intend to incorporate only the existing common law immunities under the state constitution for lawful acts within the scope of employment, legislative and judicial authority-however, acts outside legal authority has no immunity. See Robert Craig Waters, “Liability of Judicial Officers under Section 1983” 79 Yale L. J. (December 1969), pp. 326-27 and nn. 29-30).

                [11] Regarding the limits on the judicial authority of courts, Marbury v. Madison, 1 Crunch 137, 140 (1803), held that “[c]ourts are constituted by authority, and they cannot act beyond the power delegated to them. If they act beyond that authority, and certainly in contravention of it, their judgments and orders are regarded as nullities. They are not voidable but simply void, and this even prior to reversal.” Vallely v. Northern Fire & Marine Ins. Co., 254 U.S. 348, 353, 41 S. Ct. 116 (1920).

                [12] “[T]he doctrine of sovereign immunity is ‘alive and well’ in Virginia.” Niese v. City of Alexandria, 264 Va. 230, 238, 564 S.E.2d 127, 132 (2002) (quoting Messina v. Burden).  “Sovereign immunity is a rule of social policy, which protects the state from burdensome interference with the performance of its governmental functions and preserves its control over state funds, property, and instrumentalities.” City of Virginia Beach v. Carmichael Dev. Co., 259 Va. 493, 499, 527 S.E.2d 778, 781 (2000); City of Chesapeake v. Cunningham, 604 S.E.2d 420, 426 (2004).

[13] Sir Edward Coke found that Article 39 of the Magna Carta restricted the power of judges to act outside of their jurisdiction such proceedings would be void, and actionable,

[W]hen a Court has (a) jurisdiction of the cause, and proceeds inverso ordine or erroneously, there the party who sues, or the officer or minister of the Court who executes the precept or process of the Court, no action lies against them. But (b) when the Court has no jurisdiction of the cause, there the whole proceeding is [before a person who is not a judge], and actions will lie against them without any regard of the precept or process . . .  Id. 77 Eng. Rep. at 1038‑41. (Emphasis added)

                [14] Consistent with the common law, which the laws of Virginia are grounded, the General Assembly enacted the English Rule in Va. Code §8.01-195.3(3), to hold that a judge or government attorney had no immunity from suit for acts outside of his judicial capacity or jurisdiction.  See also Robert Craig Waters, “Liability of Judicial Officers under Section 1983” 79 Yale L. J. (December 1969), pp. 326-27 and nn. 29-30).

            [15] At common law the doctrine of sovereign immunity does not apply for: (A) acts outside the scope of employment, Burnam v. West, 681 F. Supp. 1169, 1172 (E.D. Va. 1988); Tomlin v. McKenzie, 251 Va. 478, 468 S.E.2d 882 (1996); Fox v. Deese, 234 Va. 412, 422-25, 362 S.E.2d 699, 706 (1987); Messina v. Burden, 228 Va. 301, 321 S.E.2d 657 (1984); Crabbe v. School Bd., 209 Va. 356, 164 S.E.2d 639 (1968); Sayers v. Bullar, 180 Va. 222, 22 S.E.2d 9 (1942); Deeds v. DiMercurio, 30 Va. Cir. 532 (Albemarle County, 1991); (B) grossly negligent conduct, McLenagan v. Karnes, 27 F.3d 1002 (4th Cir. 1994); Glasco v. Ballard, 249 Va. 61, 452 S.E.2d 854 (1995); Meagher v. Johnson, 239 Va. 380, 389 S.E.2d 310 (1990); Messina v. Burden, 228 Va. 301, 310, 321 S.E.2d 657, 662 (1984); Frazier v. City of Norfolk, 234 Va. 388, 362 S.E.2d 688 (1987); Bowers v. Commonwealth, 225 Va. 245, 253, 302 S.E.2d 511 (1983); James v. Jane, 221 Va. 43, 53 (1980); (c) intentional torts, Tomlin v. McKenzie, 251 Va. 478, 468 S.E.2d (1996); Fox v. Deese, 234 Va. 412, 362 S.E.2d 699 (1987); Elder v. Holland, 208 Va. 15, 155 S.E.2d 369 (1967); Agyeman v. Pierce, 26 Va. Cir. 140 (Richmond 1991.; or (4) acts characterized as bad faith, Tomlin v. McKenzie, 251 Va. 478, 468 S.E.2d 882 (1996); Schnupp v. Smith, 249 Va. 353, 457 S.E.2d 42 (1995) (immunity lost by showing of malice in a slander action); Harlow v. Clatterbuck. 230 Va. 490, 339 S.E.2d 181 (1986).

                [16] See Katia Gutierrez de Martínez v. Lamagno and DEA, 115 S.Ct. 2227 (1995) (Rehnquist dissenting) (Mr. Rodriguez argued and won a common law action before the U.S. Supreme Court holding that there was a right to an evidentiary hearing before a jury on the alleged acts of federal government employees outside the scope of employment (https://www.oyez.org/advocates/isidoro_rodriguez).

[17] VA Code §§ 18.2‑481 and 482, makes it a Class 2 felony for, “[r]esisting the execution of the laws under color of authority,” and the common law confirms that is no immunity for acts outside of authority or jurisdiction.

NOTICE OF FILING OF SUPPLEMENTAL AUTHORITY IN SUPPORT OF PETITION FOR DECLARATORY JUDGEMENT AND PRELIMINARY/ PERMANENT INJUNCTION

            The undersign Plaintiff at this moment provides in support of Complaint for Declaratory Judgment under VA Code §§ 8.01-184 et seq. the following supplemental authority:[1]

The Honorable Senior United States District JUDGE NORMAN K. MOON, Memorandum Opinion, and Order Granting a Preliminary Injunction Order of Injunction Unconstitutional VA Code, in Damian Stinnie, et al., v. Richard D. Holcomb, in his capacity as the Commissioner of the Virginia Department of Moter Vehicles, Case No. 3:16-CV-00044 United State District Court for the Western District of Virginia, Charlottesville Division (December 21, 2018).

            Regarding the granting of a Declaratory Judgement and a preliminary injunction in the instant action to enjoin an unconstitutional ex post facto and retroactive provision of the Virginia Code, the opinion and order of the Hon. Senior District Judge Norman K Moon which is on point and relevant in the instant action to be considered by the Circuit Court.  This supplemental authority governs the issuance of an injunction based upon the controlling precedent of the four-part test under Winter v. Nat. Resources Def. Council, Inc., 555 U.S. 7 (2008) and Centro Tepeyac v. Montgomery Cty., 722 F.3d 184, 188 (4th Cir. 2013).

            As a benchmark for the Circuit Court of the Complaint for Declaratory Judgemwent and the Motion for Injuction to be heard on January 4, 2019 at 0830, the Hon. Senior Judge Norman K Moon wrote at page 22 of in his Memorandum Opinion:

Other Winter Factors

The remaining factors governing a request for a preliminary injunction—irreparable harm, the balance of equities, and the public interest—weigh in favor of Plaintiffs. First, where Plaintiffs’ constitutional rights are being violated, there is a presumption of irreparable harm. Davis v. District of Columbia, 158 F.3d 1342, 1343 (4th Cir. 1998) (citing Ross v. Meese, 818 F.2d 1132, 1135 (4th Cir. 1987)) …. As for the remaining factors, the balancing of the equities and public interest, Fourth Circuit precedent “counsels that ‘a state is in no way harmed by issuance of a preliminary injunction which prevents the state from enforcing restrictions likely to be found unconstitutional. If anything, the system is improved by such an injunction.’” Centro Tepeyac v. Montgomery Cty., 722 F.3d 184, 191 (4th Cir. 2013) (citing Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 521 (4th Cir. 2002)). (Emphasis added)

[1] Isidoro Rodriguez v. General Assembly of the Commonwealth of Virginia, et al., Fairfax County Circuit Court, Docket No. CL-2018-0016227, filed November 14, 2018.  Affidavit to serve on the by publication filed on 12/19/18.

Respectfully submitted,

Isidoro Rodríguez

Residence:  2671 Avenir Place, Apt. 2227

Vienna, Virginia 22180

(571) 477-5350/E-mail: business@isidororodriguez.com

RESPONSE IN OPPOSITION TO DEFENDANTS’ PLEAS OF SOVEREIGN IMMUNITY, RES JUDICATA, AND DEMURE, AS WELL AS MEMORANDUM OF LAW IN SUPPORT OF AN ORDER TO DIRECT FILING OF AN ANSWER: Filed on December 26, 2018 with the Fairfax Circuit Court

            Isidoro Rodriguez (“Rodriguez”) filed under VA Code §§ 8.01-184 et seq. a Complaint for Declaratory Judgment to seek a “binding adjudication” of his rights under the Common Law of the Commonwealth of Virginia (“Virginia”),[1] Art. I § 5 & 9, Art VI §§ 1, 5 & 7, and Art. XII § 1 of the Constitution of the Commonwealth of Virginia (“VA Const.”) and VA Code §§ 54.1‑3915 & 3935 (1998).  The action seeks no monetary damages, but rather equitable relief under VA. Code § 8.01-186 and VA Code § 18.2-499 & 500 from unlawful act outside the scope of legal authority, based on the evidence and record that for more than fifteen (15) years Rodriguez has been systematically denied access to an impartial court and Common Law trial by jury to secure accountability for the violation of Art. VI § 1, 5, & 7 VA Const., VA Code §§ 54.1‑3915 & 3935 (1998), and the Void Ab Initio Order Doctrine.[2] Rodriguez also filed under VA Code § 8.01-644 a Petition for Writ of Mandamus to command Defendant/Respondent Virginia State Bar Disciplinary Board (“VSBDB”) to provide the provisions of VA Const. and VA Code giving it judicial authority as a lower court and its members as judges to discipline attorneys in Virginia.[3]

            In summary, the evidence is that in January 2017:

  • The Defendant General Assembly of Virginia (“General Assembly”), Defendant Office of the Governor of Virginia (“Governor”), and Defendant Office of the Attorney General of Virginia (“VA Attorney General”) willful violated the mandate of separation of power under I § 5 & 9 VA Const. to enact an ex post facto change to the decentralize statewide attorney disciplinary system established since 1932 under VA Code § 54.1‑3935 (1998-2009) (Plaintiff’s Ex. A and B),[4] to retroactively delegate authority to “[c]onform the statutory procedure for the disciplining of attorneys” to the Defendant Supreme Court of Virginia (“Court”) unconstitutional Rule Part 6, § IV, 13-6 issued sometime in 1998 (Plaintiff’s Exhibit C) (VA Code § 54.1‑3935 (2017) (Plaintiff’s Ex. J);
  • The General Assembly, Governor, and VA Attorney General violated XII § 1 VA Const.[5] restricting only to the voters the power to amend the VA Const., by “[resisting] the execution of the laws under color of authority” to unconstitutionally delegate legislative authority to the Court in violation of Art. VI §§ 1,[6] 5,[7] & 7[8] VA Const., and VA Code § 54.1‑3935 (2009) (Plaintiff’s Ex. A and B) by adopting unlawful Court Rule Part 6, § IV, 13-6 (1998): (i) to retroactively give judicial authority to the VSBDB as the keystone of an illegal centralized statewide attorney disciplinary system under Court’s control; (ii) to retroactively establish the VSBDB as a “lower court” with jurisdiction and judicial authority to discipline attorneys; and, (iii) to retroactively permit the Court to appoint VSBDB members as “judges.”

            However, rather than either filing an Answer to the Complaint under the Common Law (incorporated herein is Plaintiff’s Ex L filed on 11/14/18) or addressing the gravamen of the action seeking accountability for acts outside of legal authority in violation of the VA Const., the VA Attorney General in his filing continues to seek to avoid accountability under the Common Law by obfuscation and misuse the Doctrine of Sovereign Immunity by legal sophistry (See ¶ 4 and Plaintiff’s Ex. H3), as well as the use of political influence[9] and cronyism within the legal profession.  Thus, Defendants disregard specific statutory under VA Code § 801-184 and § 801-191 given to the Circuit Court to issue declaratory judgments “to be liberally interpreted and administered with a view to making the courts more serviceable to the people.” To this end, the Circuit Court has the power: first, under VA Code § 801-186 to give “further relief” whenever necessary or proper, i.e., filed on 11/14/18 the Motion to Empanel a Special Grand Jury, the Motion for an Injunction under VA Code § 18.2-500 to enjoin an ongoing business conspiracy by government employees ouotside of the scope of legal authority, and the Motion Quo Warranto (hearing set for January 4, 2019); second, consistent with the Common Law under VA Code § 801-188 the Circuit Court is authorized to submit to a jury the alleged acts outside the sphere of legal, legislative authority, judicial authority, or scope of employment to issue a general verdict or not; and third, under VA Code § 8.01-189 and VA Code §§ 18.2-499 & 500 to enjoin legislation issued outside the sphere of legitimate legislative activity, enjoin government attorneys acts outside scope of employment, enjoin the unlawful functioning of the VSBDB as a lower court, and enjoin the VSBDB and Court’s void ab initio orders issued outside of judicial authority as part of a businss conspiracy and a Class 2 felony VA Code§§ 18.2‑481 & 482 to damage Rodriguez’s international pro hoc vice  civil litigation practice, reputation, profession, and property rights in a Choate Virginia Attorney Lien.

  1. UNDER THE COMMON LAW THERE IS NO SOVEREIGN IMMUNITY FOR ACTS VIOLATING THE VA CONST. BY EX POST FACTO LEGISLATION ADOPTING UNCONSTITUTIONAL COURT RULES

            Under Virginia Common Law dating back to 1613, there is no absolute judicial and ministerial immunity based upon sovereign immunity for acts outside of jurisdiction, and action for equitable relief and damages will lie for the conspiracy to issue and enforce a void order as part of an illegal enterprise, The Case of the Marshalsea, 77 Eng. Rep. 1027 (K.B. 1613).[10]

            Under the Common Law citizens of Virginia have a way of enforcing rights, limitation, and prohibitions under the VA Const. against the government, including the Court.[11] Consistent with the Common Law at the time of the ratifying of the VA Const., sovereign immunity does not invalidate all claims; it only makes a defendant immune from suit and the relief to which the immunity applies when acting within legal authority under the VA Const[12]-this notwithstanding the holding in Messina v. Burden, 228 Va. 301, 307 (1984).[13]   The Common Law in Virginia specifically permits Rodriguez to bring the above civil suit for declarative and equitable relief against the government or government officials for acts outside the scope of employment, legislative authority, and judicial authority in violation of the VA Const.[14]

            Under the Common Law sovereign immunity does not protect government actors when either in their individual or official capacities, they commit an intentional tort or commit: (1) acts outside the ‘the sphere of legitimate legislative activity” by enacting ex-post-facto legislation and disregard the amending procedure of the VA Const. to retroactively delegate legislative authority to the Court, Tenney v. Brandhove, 341 U.S. 367 at 376 (1951); (2) acts in “clear absence of all jurisdiction” and judicial authority by the issuing and using unconstitutional Court rules,  Bradley v. Fisher, 13 Wall. 335, 80 U. S. 351. Pp. 435 U. S. 355-357; Johnston v. Moorman, 80 Va. 131, 142 (1885); Stump v. Sparkman, 435 U.S. 349 (1978); and, (3) acts outside of the scope of their employment to “resist the execution of the laws under color of authority.”

            Consistent with the Common Law the Court in Fox v. Deese, 234 Va. 412, 423-24 (1987), reversed the decision of the trial court’s grant of sovereign immunity from the tort claims by underscoring that a Common Law trial by jury is required because,[15]

 “[t]he tort counts not only allege that these defendants committed intentional torts, but that they were acting outside the scope of their employment as well. Resolution of these allegations requires an evidentiary hearing.  The defendants are not immune if the evidence establishes that (1) they committed intentional torts, irrespective of whether they acted within or without the scope of their employment, Elder v. Holland, 208 Va. 15, 19, 155 S.E.2d 369, 372_73 (1967), or (2) they acted outside the scope of their employment, see Messina v. Burden, 228 Va. 301, 311, 321 S.E.2d 657, 662 (1984).”

            Under the Common Law, when the action seeks to restrain or compel state officials to perform their duties under the VA Const. and VA Code the action for declaratory judgment is not against the state for purposes of sovereign immunity-but for acts outside the scope of employment, legislative functions, jurisdiction, or judicial authority. [16]  Under the Common Law in both England and Virginia as one of the colonies, it was in ordinary courts in either civil or criminal trials -before a jury trial-which determined whether government officers, including judges, were to be held accountable for misbehavior.  Prakash and Smith, How to Remove a Federal Judge, 116 Yale L. J. 72 at 74 (2006);  See, e.g., R. V. Gaskin, (1799) 1001 Eng. Rep. 1349 (K.B.) (reinstating a parish-clerk upon his demand that his employer shows cause for firing him); James Bragg’s Case (1616) 77 Eng. Rep. 1271, 1278-81 (K.B.)(reinstating a Burgess for lack of cause to remove him).

            At Common Law, absolute immunity is given judges only when they do not act in “clear absence of all jurisdiction over the subject matter.” Bradley v. Fisher, 13 Wall. 335, 80 U. S. 351. Pp. 435 U. S. 355-357 (1871); Stump v. Sparkman, 435 U.S. 349 at 357 (1978); Johnston v. Moorman, 80 Va. 131, 142 (1885).  Judges are liable when they act in ‘clear absence of all jurisdiction.’”  Harlow v. Clatterbuck, 230 Va. 490, 493, 339 S.E.2d 181, 184 (1986) (quoting Johnston v. Moorman, 80 Va. 131, 142 (1885)).  Pursuant to Rankin v. Howard, 633 F.2d 844 (1980), and, Den Zeller v. Rankin, 101 S. Ct. 2020 (1981), whenever a judge acts where he does not have jurisdiction to affirm and use a void ab initio order, the judge is engaged in an act or acts of treason. U.S. v. Will, 449 U.S. 200, 216 (1980); Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404, 5 L. Ed 257 (1821).  In Chandler v. Judicial Council, 398 U.S. 74, at 140 (1970), Chief Justice Berge wrote, “If [judges] break the law, they can be prosecuted.” Also, Justice Black and Douglas in their dissenting opinion agreed, that, “. . . judges, like other people, can be tried, convicted, and punished for crimes . . .”  supra. at 141-142.  Also, in Forrester v. White, 484 U.S. 219 (1988), the Court held:

“This Court has never undertaken to articulate a precise and general definition of the class of acts entitled to immunity. The decided cases, however, suggest an intelligible distinction between judicial acts and the administrative, legislative, or executive functions that judges may on occasion be assigned by law to perform.

            There the U.S. Supreme Court held in action against a State court judge, that under Common Law a state court judge who acts without jurisdiction, or acts in violation of Constitutional, or acts in violation of statutory prohibitions expressly depriving him of jurisdiction or judicial capacity, judicial immunity is lost.  A Virginia judge is immune from suit only if he did not act outside of his judicial capacity and was not performing any act prohibited expressly by constitution and statute, because,

“[n]o man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives.  United States v. Lee, 106 U.S. 196, 220 (1882) (Emphasis added).  See also, Hanson v Denckla, 357 US 235, 2 L Ed 2d 1283, 78 S Ct 1228.”

See Block, Stump v Sparkman and the History of Judicial Immunity, 4980 Duke L.J. 879 (l980).  See Ames E. Pfander, Federal Courts, Jurisdiction-Stripping and the Supreme Court’s Power to Supervise Inferior Tribunals, 78 Tex. L. Rev. 1433 (2000).

            Consequently, at Common Law, absolute immunity from civil liability is given to legislators only when they are engaged “in the sphere of legitimate legislative activity,” and have not “exceeded the bounds of legislative power” by the usurpation of functions exclusively vested in the citizens under clearly stated constitutional limitations and prohibitions. See Tenney v. Brandhove, 341 U.S. 367 at 376 (1951); See also VA Const. Art. IV, § 9 as to immunity of legislators; and, Virginia: Hening’s Stats. at Large, Vol. 9, p. 127.[17]

            Regarding quasi-judicial immunity for VA government attorneys, the Defendant Virginia State Bar,  and the VSBDB, it extends: (1) only if they are performing judicial functions, (2) only if acting within their jurisdiction; and (3) only if acting in good faith.  “The common-law immunity of a prosecutor is based upon the same considerations that underlie the common-law immunities of judges and grand jurors acting within the scope of their duties.” Imbler v. Pachtman, 424 U.S. 409, 422-23 (1976); Andrews v. Ring, 266 Va. 311 at 321, 585 S.E.2d 780 (2003) (the court explicitly declined to grant blanket immunity to non-prosecutorial conduct, stating, “We do not decide in this case whether actions of a prosecutor in the role of investigator or administrator are entitled to absolute immunity.”)    See Hueston v. Kizer, 2008 Va. Cir. LEXIS 280, 36-37 (Va. Cir. Ct. May 29, 2008) (court denied absolute immunity).  Therefore, under the Common Law if a prosecutor’s involvement is not done as a prosecutor but done outside the scope of his employment in his individual capacity, then he would not have any immunity, and if the prosecutor’s role was one of investigator or administrator he again may not be entitled to absolute immunity.  The claim of immunity is a factual determination for a trial by jury under the Common Law.[18]

            In closing, wherein the Circuit Court is asked to declare that government entities have acted outside of their respective legal authority in violation of the VA Const., the VA Attorney General citing federal case law is neither relevant nor dispositive.  The constitutional limitation and violations by these entities flow from Common Law and VA Cosnt. not U.S. Code Section 1983 (See ¶¶ 25 thru 28 of the Complaint and Verified Petition for Writ of Mandamus).[19]

  1. THE SUIT IS BASED UPON THE 2017 EX POST FACT LEGISLATION VIOLATION OF THE VA CONST. THUS RES JUDICTA IS NOT RELEVANT

            The Doctrine of Res Judicata cannot be applied here because: first, the parties and cause of action are different from previous suits; and second, the record of the systematic denial of access to an impartial court to deny any consideration of the merits of Rodriguez challenge to the acts outside the scope of legal authority by the VSBDB and Court’s violation of Art. VI ¶¶ 1, 5, & 7 VA Code, VA Code § 54.1‑3915 & 3935 (1998) (Plaintiffs Ex. G1 and G2).[20]

            To begin, the Void Ab Initio Order Doctrine confirms that Defendants’ Plea of Res Judicata[21] is pure legal sophistry.  Under the holding of the U.S. Supreme Court in Marbury v. Madison, 1 Crunch 137, 140 (1803), that states,

“[c]ourts are constituted by authority and they cannot beyond the power delegated to them. If they act beyond that authority, and certainly in contravention of it, their judgments and orders are regarded as nullities. They are not just voidable, but simply void, and this even prior to reversal.”

           Defendants Court, VSBDB, and VA Attorney General are sued based upon the record of the systematic denial of access to an impartial court and a common law jury trial of the willful violation of the Void Ab Initio Order Doctrine, that holds

“Since the adoption of the [VA Const.] and the Fourteenth Amendment to the Federal Constitution, the validity of a void judgments may be directly questioned, and their enforcement in the State resisted, on the ground that proceedings in a court of justice to determine the personal rights and obligations of parties over whom that court has no jurisdiction do not constitute due process of law. . . . To give such proceedings any validity, there must be a tribunal competent by its constitution‑‑that is, by the law of its creation‑‑to pass upon the subject‑matter of the suit.” (Emphasis added) Pennoyer v. Neff, 95 US 714, 733 (1877).”

            In short, the VSBDB and Court have not issued a valid judgment because they were rendered in violation of constitutional limitations, prohibitions and protections of due process by an unconstitutionally created VSBDB as a lower court. Earle v. McVeigh, 91 US 503 (1876).  See also Restatements, Judgments 4(b). This limitation is inherent in the requirements of due process which extends to all political branches of government-including the Court- so that a judgment may not be issued in violation of the VA Const. Collins v. Shepherd, 274 Va. 390, 402 (2007)[22]Singh v. Mooney, 261 Va. 48, 51‑52(2001); Barnes v. Am. Fertilizer Co., 144 Va. 692, 705 (1925); Rook v. Rook, 233 Va. 92, 95(1987); and Marbury v. Madison, 5 U.S. 137, 1 Cranch 137; 2 L. Ed. 60; 1803 U.S. LEXIS 352 (1803); Hanson v Denckla, 357 US 235, 78 S Ct 1228 (1958).

            The defense of res judicata cannot be used because the VSBDB and Court’s Void Ab Initio Orders are not entitled to the respect accorded a valid adjudication,

“but maybe entirely disregarded, or declared inoperative by any tribunal in which effect is sought to be given to it. It is attended by none of the consequences of a valid adjudication. It has no legal or binding force or efficacy for any purpose or at any place. … It is not entitled to enforcement… All proceedings founded on the void judgment are themselves regarded as invalid.” 30A Am Jur Judgments 44, 45.

            It is a fundamental doctrine of law under the system of justice in Virginia and the United States that Rodriguez as the party affected by a personal judgment must have his day before a validly constitutionally created court, and an opportunity to be heard by an impartial hearing. Renaud v. Abbott, 116 US 277, 6 S Ct 1194 (1886).  But, by the violation of the mandate of separation of power and Art. I § 5 and Art. VI §§ 1, 5 & 7 VA Const. to enact ex post facto legislation makes this impossible.

          Based on the Void Ab Initio Order Doctrine, the VSBDB and the Court’s order are void ab initio—and not subject to either res judicata  or stare decisis since they are void ab initio orders   completely null and void from their issuance and may be impeached directly or collaterally at any time, or in any manner.  The VSBDB and Court’s void ab initio orders may be attacked by Rodriguez in any court at any time, “directly or collaterally.” The VSBDB and Court’s Void Ab Initio Orders have no consequences of a valid adjudication, i.e., stare decisis and res judicata, because the VSBDB void ab initio order cannot be made valid by the Court affirmed by the use of either stare decisis or res judicata.   Collins v. Shepherd, 274 Va. 390, 402, (2007); Singh v. Mooney, 261 Va. 48, 51‑52(2001); Barnes v. Am. Fertilizer Co., 144 Va. 692, 705 (1925).  The VSBDB has neither constitutional authority, nor statutory authority, nor judicial authority, nor jurisdiction to render any act or order on November 27, 2006, and the Court cannot make the order valid by affirming it.  They both Void Ab Initio Orders are a complete nullity from their issuance and may be impeached directly or collaterally by Rodriguez at any time, or in any manner.

III        THE DEMURRER MUST BE DENIED

            Defendants demurrer based on the argument that they cannot be sued in the name of the entity is surreal.[23]  Defendants and their members are constitutional officers established under either Art. IV § 1, or Art. V § 1, or Art. VI § 1 VA Const.  As constitutional officers, the alleged unconstitutional act will at least be a violation of the oath of their respective duties of the office, and therefore grounds for removal from office. As explained above under the Common Law no official immunity or privileges of rank or position survive the commission of unlawful acts. Furthermore, if the violations of the separation of power violate the rights of Rodriguez and all the citizens of Virginia, as alleged it is also a crime (Plaintiff’s Ex. K).  The law obligates anyone aware of such a crime-including the Circuit Court to investigate it, gather evidence for a prosecution, seek an indictment from a grand jury, make an arrest, and prosecute the offenders in a court of law.[24]

            There are different functions served by the common law and the VA Const. vis-à-vis general tort law.  As explained in Clea v. Mayor and City Council of Maryland, 541 A.2d 1303 at 1314 (Md. 1988):

“[T]here are sound reasons to distinguish actions to remedy constitutional violations from ordinary tort suits. The purpose of a negligence or other ordinary tort action is not specifically to protect government officials or to restrain government officials. The purpose of these actions is to protect one individual against another individual… On the other hand, constitutional provisions… are specifically designed to protect citizens against certain types of unlawful acts by government officials. To accord immunity to the responsible government officials, and leave an individual remediless when his constitutional rights are violated, would be inconsistent with the purpose of the constitutional provisions.” (Emphasis added)”

            State courts have identified criteria that support interpreting state constitutions to extend greater liberty to the citizenry than the protection secured by the United States Constitution. See State v, Hunt, 450 A.2d 952 (N.J. 1982).   Where the Circuit Court is asked to declare whether the government has violated the VA Const., the Circuit Court must look only to the Virginia constitutional limitation on official conduct.

            Given the U.S. Supreme Court’s consistent departure from what it has prescribed as the ordinary and desired decision-making process under the 14th Amendment, provides an additional reason why the Circuit Court should not mindlessly follow the VA Attorney General citation to Federal Section 1983 opinions. While the Federal courts avow to be interpreting the intent of the legislature that enacted Section 1983, the hurdles to the application of the Common Law to stop the deprivation of constitutional rights are a product of the U.S. Supreme Court’s legislation through its own rules rather than analysis of accountability under the Common Law.[25]  Therefore the notion that in 2017 the General Assembly can retroactively delegate authority to “conform” a statute to the Court unconstitutional court rules is an oxymoron.  Art. I § 1 & 5 and Art. VI §§ 1, 5, & 7 VA Const. assigns only to the General Assembly the power to legislate to give judicial authority, establish courts, and appoint judges.  If the issue here was the Circuit Court to interpret a valid statute, the Court’s sole role is to carry out the intent of the General Assembly that enacted the law. But the issue before the Circuit Court is to review an ex post facto retroactive legislation delegating power to the Court where the General Assembly lacked the power to enact the statute-this must be struck down (See City of Boerne v. Flores, 521 U.S. 507 (1997).  Based upon the limitation and prohibitions under VA Const. Art. VI, the Court cannot be permitted to substitute its policy preferences for a centralized attorney disciplinary system to the 1932 choice made by the General Assembly, even where the Court vigorously disagrees with the legislative judgment.

         The Complaint is for the 2017 enactment of ex post facto invalid statute as an “ultra vires” act which is “[u]nauthorized; beyond the scope of power allowed or granted Y by law.” Black=s Law Dictionary 1559 (8th ed. 2004); and beyond the powers conferred upon constitutional officer under the VA Const. Khaliq Joshua Burrell V. Commonwealth of Virginia, Fairfax Ct. Cir. Ct. No. 111297 (March 2, 2012); 2000 Op. Va. Att=y Gen. 204, 205.  These ultra virus acts are void ab initio, from the beginning, Id, (defining “ab initio“); see also Op. Va. Att=y Gen.: 1986‑1987 at 315, 316; 1982‑1983 at 66, 67.

       Consistent with the above, the rule of law under our constitutional system of government is that constitutional officers, Aare constituted by authority and they cannot beyond the power delegated to them. If they act beyond that authority, and certainly in contravention of it, their judgments and orders are regarded as nullities. They are not voidable but simply void, and this even prior to reversal.@  Vallely v. Northern Fire & Marine Ins. Co., 254 U.S. 348, 353 (1920).

       The specific limitations and prohibitions on the General Assembly, Governor, VA Attorney General, and the Court are set out in Art. I § 5, VI, ‘ 1, 5, and 7, and Art. XII § 1 VA Const.  Important to note Art. VI, ‘ 5 VA Const., grants limited power to the Court to issue rules, but only those that do not conflict with the general law enacted by the General Assembly.  See AG Op1996 AG 23.

         Thus, the VSBDB is an entity established by unconstitutional Court rules; the VSBDB does not have any constitutional judicial authority, judicial power, or jurisdiction to render any order to discipline an attorney.  Any statute of limitation does not restrict the challenge to the VSBDB Void Ab Initio Order since it may be challenged at any time and in any court because of a judgment obtained by extrinsic or collateral fraud void ab initio. Parrish v. Jesse, 250 Va. 514 (1995), and may be attacked in any court at any time, Adirectly or collaterally.@ Rook v. Rook, 233 Va. 92, 95(1987). Because an order that is void ab initio is a complete nullity, the order may be challenged directly or collaterally Aby all persons, anywhere, at any time, or in any manner.@   Collins, 274 Va. at 402, 649 S.E.2d at 678 (quoting Singh, 261 Va. at 52, 541 S.E.2d at 551); accord Nelson v. Warden, 262 Va. 276, 281, 552 S.E.2d 73, 75 (2001); Parrish v. Jessee, 250 Va. 514, 521, 464 S.E.2d 141, 145 (1995); and, Pennoyer v. Neff, 95 US 714 (1877).  This is because, “when the judgment of a state court is void [ab initio] either because that court lacked jurisdiction of the subject matter or of the parties to the action, or because it entered a judgment which it had no power to enter under the law, that such judgment may be reviewed in a federal court.” Daniels v. Thomas, 225 F.2d 795, 797 (10th Cir. 1955), cert. denied, 350 U.S. 932 (1956).

          This Circuit Court has not only the subject matter jurisdiction but the duty under its oath to provide impartial judicial review of the unconstitutional ex post facto 2017 act, unconstitutional court rules, and the VA Attorney General efforts to give Apreclusive@ legal effect to the VSBDB and Court’s void ab initio orders.  Relevant is the willful violation of separation of power by acts outside the scope of legislative and authority, as well as the scope of employment by willful acts not in the interest of Virginia.

The Constitution does not authorize the judiciary to write laws that the legislature failed to enact or to repeal those that violate no recognizable constitutional principle, or to amend laws that are reasonably adequate but nonetheless can be improved upon. As Thomas Jefferson put it, a judiciary that pushes beyond these limits would place us all under the Adespotism of an oligarchy@ Cone flatly at odds with the democratic principles of our republic.” VSB Journal, Law & Politics: The Imperative of Judicial Self‑Restraint, Hon. D. Arthur Kelsey (2004), p.5

Conclusion 

            Based upon the above, the Circuit Court must deny Defendants Plea of Sovereign Immunity, Plea of Res Judicata, and Demurrer, and order their filing of an Answer to the Complaint for Declaratory Judgment in accordance with Order of Scheduling Conference for February 21, 2019, at 0830 hrs.

 Respectfully submitted,

Isidoro Rodríguez

Residence:  2671 Avenir Place, Apt. 2227

Vienna, Virginia 22180

(571) 477-5350/E-mail: business@isidororodriguez.com

                [1] VA Code § 1-200, states “The Common Law of England, insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly.  VA. Code § 1-10; 2005.

            [2] Isidoro Rodriguez v. General Assembly of the Commonwealth of Virginia, et al., Fairfax County Circuit Court, Docket No. CL-2018-0016227, filed November 14, 2018.  Affidavit filed on 12/20/18 to serve the General Assembly by publication.

                        [3] Isidoro Rodriguez v. Virginia State Bar Disciplinary Board, Fairfax County Circuit Court, Docket No. CL-2018-0016433, filed November 19, 2018.  Affidavit to serve on the VSBDB by publication filed on 12/26/18.

                [4]  The 1932 the Acts of Assembly p. 139 (“1932 Act”) (codified as VA Code § 54.1‑3935 (1950), was enacted in response to the holding in Legal Club of Lynchburg v. A.H. Light, 137 Va. 249, at 250, 119 S.E. 55 (1923), citing Fishers Case, 6 Leigh (33 Va.) 619 (1835) (“[t]he power to go further and make suspension or revocation of license effective in all other court of the Commonwealth [this] must be conferred by statute,” (Emphases added), to establish a decentralize statewide attorney disciplinary system by authorizing judicial power to discipline attorneys only to County Circuit Courts and Courts of Appeal, but denied the Court said power directly.

                [5] Art. XII § 1 VA Const., states that, “Any amendment or amendments to this Constitution may be proposed in the Senate or House of Delegates, . . ., then it shall be the duty of the General Assembly to submit such proposed amendment or amendments to the voters qualified to vote in elections by the people, . . .. If a majority of those voting vote in favor of any amendment, it shall become part of the Constitution . . ..” (Emphasis added)

[6] Art. VI § 1 VA Const., states in relevant part that judicial power in Virginia shall be vested in the Court, and, “in such other courts of original or appellate jurisdiction subordinate to the Supreme Court as the General Assembly may from time to time establish.” (Emphasis added)

[7] Art. VI § 5 VA Const., states in relevant part that the Court shall have the authority to make rules, “but such rules shall not be in conflict with the general law” enacted by the General Assembly. (Emphasis added).

[8] Art. VI § 7 VA Const., states in relevant part that justices of the Court, and, “all other courts of record shall be chosen by . . .  the General Assembly. . .. (Emphasis added)

                [9] Adam Smith, in Of the Expense of Justice, wrote, A[w]hen the judicial is united to the executive power, it is scarce possible that justice should not frequently be sacrificed to what is vulgarly called politics. The persons entrusted with the great interests of the state may even without any corrupt views, sometimes imagine it necessary to sacrifice to those interests the rights of a private man. But upon the impartial administration of justice depends the liberty of every individual, the sense which he has of his own security. In order to make every individual feel himself perfectly secure in the possession of every right which belongs to him, it is not only necessary that the judicial should be separated from the executive power, but that it should be rendered as much as possible independent of that power. . ..@ (Emphasis added)

                [10]  4 William Blackstone, Commentaries 140 at 141, discussing various English Common Law statutes providing for accountability and removal of judges for misbehavior and acts outside of the jurisdiction and judicial authority.

[11] Sir Edward Coke found that the Magna Carta restricted the power of judges from acting outside of their jurisdiction by making such proceedings void, and actionable,

[W]hen a Court has (a) jurisdiction of the cause, and proceeds inverso ordine or erroneously, there the party who sues, or the officer or minister of the Court who executes the precept or process of the Court, no action lies against them. But (b) when the Court has no jurisdiction of the cause, there the whole proceeding is [before a person who is not a judge], and actions will lie against them without any regard of the precept or process . . .  Id. 77 Eng. Rep. at 1038‑41. (Emphasis added)

                [12] At Common Law the doctrine of sovereign immunity does not apply for: (A) acts outside the scope of employment, Burnam v. West, 681 F. Supp. 1169, 1172 (E.D. Va. 1988); Tomlin v. McKenzie, 251 Va. 478, 468 S.E.2d 882 (1996); Fox v. Deese, 234 Va. 412, 422-25, 362 S.E.2d 699, 706 (1987); Messina v. Burden, 228 Va. 301, 321 S.E.2d 657 (1984); Crabbe v. School Bd., 209 Va. 356, 164 S.E.2d 639 (1968); Sayers v. Bullar, 180 Va. 222, 22 S.E.2d 9 (1942); Deeds v. DiMercurio, 30 Va. Cir. 532 (Albemarle County, 1991); (B) grossly negligent conduct, McLenagan v. Karnes, 27 F.3d 1002 (4th Cir. 1994); Glasco v. Ballard, 249 Va. 61, 452 S.E.2d 854 (1995); Meagher v. Johnson, 239 Va. 380, 389 S.E.2d 310 (1990); Messina v. Burden, 228 Va. 301, 310, 321 S.E.2d 657, 662 (1984); Frazier v. City of Norfolk, 234 Va. 388, 362 S.E.2d 688 (1987); Bowers v. Commonwealth, 225 Va. 245, 253, 302 S.E.2d 511 (1983); James v. Jane, 221 Va. 43, 53 (1980); (c) intentional torts, Tomlin v. McKenzie, 251 Va. 478, 468 S.E.2d (1996); Fox v. Deese, 234 Va. 412, 362 S.E.2d 699 (1987); Elder v. Holland, 208 Va. 15, 155 S.E.2d 369 (1967); Agyeman v. Pierce, 26 Va. Cir. 140 (Richmond 1991.; or (4) acts characterized as bad faith, Tomlin v. McKenzie, 251 Va. 478, 468 S.E.2d 882 (1996); Schnupp v. Smith, 249 Va. 353, 457 S.E.2d 42 (1995) (immunity lost by showing of malice in a slander action); Harlow v. Clatterbuck. 230 Va. 490, 339 S.E.2d 181 (1986).

                [13] “[T]he doctrine of sovereign immunity is ‘alive and well’ in Virginia.” Niese v. City of Alexandria, 264 Va. 230, 238, 564 S.E.2d 127, 132 (2002) (quoting Messina v. Burden).  “Sovereign immunity is a rule of social policy, which protects the state from burdensome interference with the performance of its governmental functions and preserves its control over state funds, property, and instrumentalities.” City of Virginia Beach v. Carmichael Dev. Co., 259 Va. 493, 499, 527 S.E.2d 778, 781 (2000); City of Chesapeake v. Cunningham, 604 S.E.2d 420, 426 (2004).

                [14] Consistent with the Common Law, which the laws of Virginia are grounded, there is no immunity from equitable and injunctive relief for acts outside of authority or jurisdiction,  Also, the General Assembly enacted the English Rule in Va. Code §8.01-195.3, to hold that a judge or government attorney had no immunity from tort suit for acts outside of his judicial capacity or jurisdiction (excluding tort relief but only for acts within “official capacity”).  Also, under VA Code §§ 18.2‑481 & 482, there is no immunity for a Class 2 felony to, “[resist] the execution of the laws under color of authority.  See also Robert Craig Waters, “Liability of Judicial Officers under Section 1983” 79 Yale L. J. (December 1969), pp. 326-27 and nn. 29-30).

[15] As Thomas Jefferson wrote in a letter to Thomas Paine in 1789: “I consider trial by jury as the only anchor ever yet imagined by men, by which the government can be held to the principles of its constitution.” (Emphasis added) See Martinez v. Lamagno and DEA, 515 U.S. 417 (1995) (under the Common Law Rodriguez argued and won before the United States Supreme Court reversal of the USCA for the 4th Circuit, to order a Common Law evidentiary hearing before a jury for acts outside the scope of employment.)

                [16] Pennsylvania Academy of Chiropractic Physicians v. Com., Dept of State, Bureau of Professional & Occupational Affairs, 129 Pa. Commw. 12, 564 A.2d 551 (1989) (under the Common Laws the defense of sovereign immunity inapplicable where petitioner sought declaration which would result in restraining state officials”), Franks v. Tucker, 132 Ill. App. 3d 455, 476 N.E.2d 1315 (1st Dist. 1985) (where suit brought under the Common Law against state officials seeks to compel them to perform their duty, it is not action against state).

                [17] Pierson v. Ray, 386 U.S. 547, 553-55 (1967) (holding that only for judicial acts within their jurisdiction do judges have absolute immunity under common law); Tenney v. Brandhove, 341 U.S. 367, 377 (1951) (holding that legislators under common law only have absolute immunity for acts within their legislative foundation). See also Associate Justice Marshal dissent in Briscoe v. Lahue, 460 U.S. 325, 346 (1983) (“The extension of absolute immunity conflicts fundamentally with the language and purpose of the statute. I would therefore be reluctant in any case to conclude that § 1983 incorporates common-law tort immunities that may have existed when Congress enacted the statute in 1871.”).

                [18] See Katia Gutierrez de Martínez v. Lamagno and DEA, 115 S.Ct. 2227 (1995) (Rehnquist dissenting) (Mr. Rodriguez argued and won a Common Law action before the U.S. Supreme Court holding that there was a right to an evidentiary hearing before a jury on the alleged acts of federal government employees outside the scope of employment (https://www.oyez.org/advocates/isidoro_rodriguez).

                [19] The U.S. Supreme Court itself has acknowledged that a state court may grant equitable relief to redress state constitutional rights under circumstances where a federal court must deny injunctive relief. Wood v. Strickland, 420 U.S. 308, 314 n.6 (1975) (“immunity [of public officials] from damages does not ordinarily bar equitable relief as well”); Edelman v. Jordan, 415 U.S. 651 (1974) (eleventh amendment bars suit for accrued monetary liability); Exparte Young, 209 U.S. 123 (1908) (eleventh amendment does not bar prospective injunctive relief).

                [20] In Sayers v. Bullar, 180 Va. at 229 and 230, 22 S.E.2d at 12 and 13 (1942), it was held that sovereign immunity should be extended only whenever government entities, officials, or employees were “acting legally within the scope of their employment.” Thus, relief for Rodriguez would only require proof (and allegation) of some act done by government entities, officials or employee outside the scope of legislative authority, scope of judicial authority, scope of employment in violation of the VA Const.  or some act within the scope of authority but performed so negligently that it can be said that its negligent performance takes him who did it outside the protection of his employment.

                [21] Definition of res judicata: a matter finally decided on its merits by a valid court having constitutional judicial authority and competent jurisdiction, is not subject to litigation again between the same parties. The General Assembly and the Governor have not been previously sued.

[22]In Collins v. Shepherd, 274 Va. 390 (2007), it was held that: AAn order that is void ab initio is a complete nullity that may be impeached directly or collaterally by all persons, at any time, or in any manner.@(quoting Singh v. Mooney, supra.) Furthermore “[a]n order is void ab initio rather than merely voidable, if ‘the character of the judgment was not such as the court had the power to render, or because the mode of procedure employed by the court was such as it might not lawfully adopt'” (quoting Evans v. Smyth‑Wythe Airport Comm’n, 255 Va. 69, 73(1998); Morgan v. Russr and Triangle Assocs., L.L.C., 270 Va. 21, 26‑27 (2005).  The VSBDB lack of judicial authority and jurisdiction to enter an order as a lower court under any of these circumstances renders the order a complete nullity and it may be Aimpeached directly or collaterally by all persons, anywhere, at any time, or in any manner.@  Barnes v. Am. Fertilizer Co., 144 Va. 692, 705 (1925).

                [23] The New York Court of Appeals in Brown v. State, 674 N.E.2d 1129 (N.Y. 1996), reasoned that holding the entity as well as the individual liable would best deter deprivations of state constitutional rights.  The court noted, that the government’s its power is limited by rights enshrined in the state constitution:

                [N]o government can sustain itself, much less flourish, unless it affirms and reinforces the fundamental values that define it by placing the moral and coercive powers of the State behind those values. When the law immunizes official violations of substantive rules because the cost or bother of doing otherwise is too great, thereby leaving victims without any realistic remedy, the integrity of the rules and their underlying public values are called into question.’ Id. At 1144.

                [24] As explained at 16 Am Jur 2d, Sec 177 late 2d, Sec 256:  The general misconception is that any statute passed by legislators bearing the appearance of law constitutes the law of the land. The U.S. Constitution is the supreme law of the land, and any statute, to be valid, must be in agreement. It is impossible for both the Constitution and a law violating it to be valid; one must prevail. This is succinctly stated as follows:

                The General rule is that an unconstitutional statute, though having the form and name of law is, in reality, no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted.

                Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it…  A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the lend, it is superseded thereby.  No one Is bound to obey an unconstitutional law, and no courts are bound to enforce it.

[25]The U.S. Supreme Court’s legislative behavior through rule making is more fully documented in Gary S. Gildin, The Supreme Court’s Legislative Agenda to Free Government from Accountability for Constitutional Deprivations, 114 PENN ST. L. Rev. 1333 (2010).

NOTICE OF ISSUE FOR NOVEMBER 5, 2019 VIRGINIA STATE ELECTION

            The notice is to inform citizens of the willful violation of the limitations and prohibitions under the Constitution of Virginia to deprive citizens of an independent legal profession. Citizens must vote in the 2019 November State Election make their representatives in the General Assembly accountable for unconstitutional legislation in violation of ex post facto laws and the separation of power under Virginia and U.S.Constitution.

            This notice to citizens is based upon the fact that each first Saturday of January since 2009, I as a citizen of Virginia and resident of Fairfax County have petitioned my representative State senator Richard L. Saslaw and State Delegate Marcus B. Simon (See https://www.youtube.com/watch?v=VAkEfjcA5sQand https://t.co/sLv7pz3zD5), to challenge the violations of Art. VI § 1, 5 & 7 VA Const. by government attorneys acts outside the score employment, judges acts outside of judicial authority by use of unconstitutionalSupreme Court of Virginia Rule Part 6, § IV, 13-6 promulgated in 1998, and by the Virginia State Bar Disciplinary Board (“VSBDB”) — an entity illegally created as a lower court by the above-cited unconstitutional court rules – to issue a Void Ab Initio Order [1] in retaliation for my being an independent civil litigator,[2] by damaging my interstate/international pro hoc vice Federal litigation practice,my reputation and my professional standing as a lawyer with more than 45 years of first chair litigation experience, by,

First, denying due process by systematically depriving me of access to an impartial court to challenge the judicial authority of the VSBDB by the misuse stare decision enforce the VSBDB void ab initio order to disbarment as a active litigator before the Supreme Court of Virginia, theUnited States Supreme Court, the United States District Court for the Eastern District of Virginia, the United States Tax Court, the United States Court ofAppeals for the Fourth Circuit, as well as the bar of United States Court ofAppeals for the Second, Third, Eleventh, District of Colombia Circuits, andFederal Circuits;

Second, by violating my common law trial and statutory rights to protect my Choate Virginia Attorney’s Lien from a VA Code §§ 18.2-499 business conspiracy byEric Holder et al., by the Federal courts holding that there was no jurisdiction in Virginia to challenge the fraudulentVSBDB Bar Complaint;

Third, by unlawfully depriving me of my right to employment as an attorney and my right to unemployment compensation by the Virginia Employment Commission based upon the VSBDB void ab initio order;

Fourth, deprive me of my right to deduct business expenses in 2006 by accessing taxes greater then allowed by law by the Internal Revenue Service summarily declaring litigation expenses for challenging the VSBDB void ab initio order as “frivolous” and then denied access to an impartial United States Tax Court given their earlier disbarring me based upon the VSBDB void ab initio order; and,

Fifth, the summary rejection of my application to be a member of the District of Columbia Bar based upon the VSBDB void ab initio order.   

            But, in violation of their respective oath of office to defend the VA Cosnt., neither Senator Saslaw, nor Delegate March, nor their staff responded to my petition for redress and accountability for a business conspiracy in violation of VA Code §§18.2-499 to damage my law practice, reputation, profession, and statutory property right in a Choate Attorney’s Lien.

            Because of my representatives and the GeneralAssembly’s failure to stop the violation Art. VI § 1, 5 & 7 VAConst., and the common law by the granting of government attorneys and judges to themselves “impunity” and absolute immunity from accountability, I filed a Petition to Inter-American Commission onHuman Rights (IACHR) (P-926-16 IACHRPetition and a UnitedNations Complaint to the  Committee on Human Rights (see Memorandum in Support of UN Complaint).

            In response the evidence confirms that in 2017:

            First, my representatives and the GeneralAssembly enacted ex-post-facto legislation outside “the sphere of legitimate legislative activity,Tenney v. Brandhove, 341U.S. 367 at 376 (1951) in violation of the prohibition under Art. I § 1, 5& 9 VA Const. by changing VA Code § 54.1‑3935(1998) to retroactively “conform the statutory procedure [under VA Code § 54.1‑3935 (2017)] for the disciplining of attorneys” to the unconstitutional Supreme Court of Virginia Rule Part 6, §IV, 13-6 issued in 1998; and,

            Second,my representatives and the General Assembly enacted outside the ‘the sphere of legitimate legislative activity”retroactive change to the decentralize statewide attorney disciplinary system in the Commonwealth established in 1932  under VA Code §54.1‑3935 (1998), by usurping the exclusive power to amend the VA Const. of the citizens of Virginia under XII § 1 VA Const. and by violating the mandate of separation of power under Art. VI § 1, 5 & 7 VAConst.,  to delegate legislative authority given only to them by the citizens of Virginia by adopting the unconstitutional Court Rule Part 6, § IV,13-6, issued in 1998 in “clear absence of all jurisdiction.Bradley v. Fisher, 13 Wall. 335, 80 U. S. 351.Pp. 435 U. S. 355-357; Johnston v. Moorman, 80 Va. 131,142 (1885); Stump v. Sparkman, 435 U.S. 349 (1978), to obfuscate the Court’s unlawfully: (a)establishing a centralized statewide attorney disciplinary system under the Court’s control; (b) establishing the VSBDB as a lower court with judicial authority to discipline attorneys; and, (c) appointing VSBDB members as judges.

            Consequently, I filed in November 2018 a Complaint for Declaratory Judgment[1]and a Petition for Writ of Mandamus[2],under the Common Law, Constitution of the Commonwealth of Virginia and VA Code to stop the above unconstitutional acts by a by business conspiracy and by a Class 2 felony to “[resist] the execution of the laws under color of authority”in violation of VA Code§§ 18.2‑481 & 482. I also filed Motion to Empanel a Special Grand Jury (See http://www.isidororodriguez.com).

Date: December 14, 2018

Isidoro Rodriguez

2671 Avenir Place, Apt 2227

Vienna, Virginia 22180

Mobile phone No. 571.477.5350

E-mail: busness@isidororodriguez.com


[1] The Void Ab Initio Order Doctrine mandates that when an entity does not have either constitutional authority, or legal power, or jurisdiction to render any order, said order is void ab initio—therefore not subject stare decisis/res judicata because the order is a complete nullity from its issuance and may be impeached directly or collaterally by all persons, at any time, or in any manner. See Collins v. Shepherd, 274 Va. 390, 402 (2007); Singh v. Mooney,261 Va. 48, 51‑52(2001); Barnes v. Am. Fertilizer Co., 144 Va.692, 705 (1925); Rook v. Rook, 233 Va. 92, 95(1987).

 [2] The evidence confirms that Eric Holder as Deputy Attorney General of the U.S. Dept.of Justice (“DOJ”) during the Clinton Administration, as Washington D.C.Lobbyist/Attorney, and as Attorney General during the Obama Administration,undertook a business conspiracy to damage my international litigation practice in retaliation for representing nonresident Hispanic U.S. and Colombian citizens to challenge the unlawful policies of DOJ: see Martinez v. Lamagno and DEA,515 U.S. 417 (1995)(the Hon. Chief Justice/Circuit Justice for the USCA for theFourth Cir. William Rehnquist dissenting)(I argued and won before the UnitedStates Supreme Court who reversed the USCA for the 4th Circuit, to remand for a common law evidentiary hearing before a jury of the acts outside the scope of employment, rejectingDOJ’s surreal argument that a DEA agent acted within his scope of employment while negligently causing a car accident while having sex and DWI); Cooperativa Multiactiva de Empeados de Distribuidores de Drogas(Coopservir Ltda.” v. Newcomb, et al., D.C. Cir. No 99-5190, S Ct. No 99-1893(2000) (I challenged President Clinton’s Executive Order as a prohibited bill of attainder issued under the War Power Act); Organization JD Ltda. v. Assist U.S. Attorney Arthur P. Hui and DOJ,2nd Cir. No. 93-6019 and 96-6145 (1996) (I argued and won before the USCA 2ndCir to hold accountable DOJ’s Assistant U.S. Attorneys accountable for violation of the Electronic Communications Privacy Act (1978); and, Lopez v. First Union, 129 F3rd. 1186 (11th Cir. 1997) (I argued and won the right to hold DOJ’s Assistant U.S. Attorneys, employees and financial institution accountable for violation of the Right to Financial Privacy Act).

MOTION TO EMPANEL A SPECIAL GRAND JURY FOR VIOLATION OF VA CODE §§ 18.2 481, 482 AND VA CODE § 18.2 499, FOR CLASS 2 FELONY TO “[RESIST] THE EXECUTION OF THE LAWS UNDER COLOR OF AUTHORITY”

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THE COMMONWEALTH OF VIRGINIA:
IN THE CIRCUIT COURT OF FAIRFAX COUNTY
________________________________________________ Case No. CL-2018-0016227
Isidoro Rodriguez                                                   :
                                                                                   :
                                Plaintiff Pro per,                     :
                                                                                    :
                         vs.                                                      :
                                                                                     :
The General Assembly of the                                 :
Commonwealth of Virginia, et al.,                        :
                                                                                      :
Defendants.                                                                :
________________________________________________:

MOTION TO IMPANEL SPECIAL GRAND JURY

     Pursuant VA Code 19.2-191(2) ‘ 19.2-206(A)(I), and ‘ 19.2-211, as well as VA Code § 8.01-184, § 9.01-186, § 8.01-188, and VA Code § 18.2 500B, Plaintiff Isidoro Rodriguez (“Rodriguez”), moves the Circuit Court to impanel a Special Grand Jury, and provide appropriate specialized personnel to investigate and report on the allegations and evidence of a Class 2 felony in violation of VA Code §§ 18.2 481 & 482 and VA Code § 18.2 499, to “[resist] the execution of the laws under color of authority” by a business conspiracy to injure Rodriguez’s business, reputation, profession, and property for litigating to enforce statutory rights. The evidence confirms the willful defiance of the limitation and prohibitions under Art. 1 §§ 5, 9, 11 & 15, Art. VI §§ 1, 5, & 7, and Art. XII § 1 of the Constitution of the Commonwealth of Virginia (VA Const.) to circumvent the mandate of separation of power and the process to amend the VA Const.:

     (i) By the General Assembly of Virginia’s (“General Assembly”) violation of Art. I § 1, 5 & 9 VA Const. prohibitions on ex post facto legislation by changing the decentralize statewide attorney disciplinary system established since 1932 under VA Code § 54.1 3935 (2009) (Plaintiff’s Ex. A), by enacting VA Code § 54.1 3935 (2017) (Plaintiff’s Ex. J) to unconstitutionally delegate legislative authority to the Court to retroactively “[c]onform the statutory procedure for the disciplining of attorneys” instituted since 1932, by adopting in 2017 Supreme Court of Virginia (“Court”) Rule Part 6, § IV, 13-6 issued in 1998 (Plaintiff’s Exhibit C);

     (ii) By the General Assembly’s violation of Art. VI § 1, 5 & 7 and XII § 1 VA Const. amending process by adopting retroactively in 2017 Court Rule Part 6, § IV, 13-6 issued in 1998: (a) to establish a centralized statewide attorney disciplinary system; (b) to establish Defendant Virginia State Bar Disciplinary Board (“VSBDB”) as a lower court with judicial authority to discipline attorneys; and, (c) adopting the Court’s appointment of VSBDB members as judges; and,

     (iii) By the General Assembly, Court, VSBDB’s violation of the right to due process under Art. I § 11 & 15 VA Const. and the Void Ab Initio Order Doctrine,

     Under Art. XII § 1 VA Const. the citizens of Virginia reserved to themselves the power to amend the separation of power under Art. VI § 1, 5 & 7 VA Const. between the Legislative and Judicial Branch. Thus, consistent with the original constitutional draftsmen open distrust of the motive of individuals in government generally, and the Court specifically, the citizens of Virginia gave power only the General Assembly to enact legislation to give judicial authority, to establish “courts,” and to appoint “judges.” This constitutional power cannot be delegated to the Court. Furthermore, the citizens of Virginia ratified Art. VI § 5 VA Const., to prohibit the Court from issuing rules either inconsistent with VA Code §§ 54-1-3935(A) (1932 to 2009) (Plaintiff’s Exhibit A) or to exceed the scope of the authority delegated by the General Assembly, VA Code §§ 54-1-3915 (1950-1988) (the Court cannot legislate).

     VA Code § 54.1 3935 (2017) (Plaintiff’s Ex. J) cannot be circumvent the above restrictions on the Court’s power by retroactively adopting in 2017 the 1998 Court’s unconstitutional rules creating a centralized attorney disciplinary system under the Court’s control, creating the VSBDB as a lower court, and appointing VSBDB members as judges. See, e.g., Brown v. United Airlines, Inc., 34 Va. App. 273, 276, 540 S.E.2d 521, 522 (2001) (legislative enactment which delegates to authority to adopt rules does not permit adoption of inconsistent and illegal rules or regulations).

CONCLUSION

    Because VA Code § 54.1 3935 (2017) (Plaintiff’s Ex. J1, J2, J3) retroactively adopted Court rules issued in 1998 to “[resist] the execution of the laws under color of authority” by an ex-post facto delegation of legislative authority in violation of constitutional restrictions it is unconstitutional and void.

     The Circuit Court must impanel a Special Grand Jury to investigate: first, the violations of Art. I § 5 & 9, Art. VI, §§ 1, 5, & 7, and Art. XII § 1 VA Const., as well as VA Code §§ 54.1 3915 & 3935 (1950), to resist “the execution of the laws under color of authority” VA Code §§ 18.2 481 & 482; and, second, the business conspiracy in violation of VA Code §§ 18.2 499 & 500.

Respectfully submitted,
Isidoro Rodríguez
Residence: 2671 Avenir Place, Apt. 2227
Vienna, Virginia 22180
(571) 477-5350/E-mail: business@isidororodriguez.com

MEMORANDUM OF LAW IN SUPPORT OF THE ACTION AGAINST THE GENERAL ASSEMBLY OF VIRGINIA ET AL., FOR THE EX POST FACTO RETROACTIVE ADOPTING IN 2017 OF UNCONSTITUTIONAL COURT RULES ISSUED IN 1998 BY THE SUPREME COURT OF VIRGINIA.

              Isidoro Rodriguez (“Rodriguez”) filed in the Fairfax County Circuit Court in November 2018 a Verified Complaint for Declaratory Judgement under VA Code §§ 8.01-184 et seq.,[1] and filed a verified petition for Writ of Mandamus[2] under VA Code §8.01-644 to seek a binding adjudication of his rights under the common law of the Commonwealth of Virginia (“Virginia”),[3] under Art. I § 5 & 9, Art VI §§ 1, 5 & 7, and Art.XII § 1 of the Constitution of the Commonwealth of Virginia (“VA Const.”) and VACode § 54.1‑3935 (1998).

            At the outset, the suit is for the violation of Rodriguez’s right under Virginia common law to hold government attorneys accountable for acts outside the scope of employment and to hold justices/judges accountable for void ab initio orders outside of judicial authority.  The action is filed in the Fairfax Court Court because in 2013 the Hon. U.S. Dist. JudgeJohn A. Gibney, the U.S. Court of Appeals for the Fourth Circuit, and the U.S.Supreme Court in Isidoro Rodriguez, Esq., v. Jane/John Does of the Virginia State Bar Disciplinary Board, et al., U.S. Dist. Ct. E.D. VA 12‑cv‑663‑JAB (April12, 2013), aff’d 4th Cir USCA No13-1638, cert. Denied (Nov. 2013) systematically denied access to impartial court and a common law jury trial under Art. I § 11VA Const., the 5th, 7th & 14th Amend to the U.S. Const., VA Code § 801-336, and controlling common law precedent,[4] by (a)assuming away violation of the common law to grant absolute immunity from accountability for a business conspiracy to injure Rodriguez’s law practice, reputation, profession, and property right in violation of VA Code § 18.2.499 to grant “impunity”from accountability for violation of Art.VI §§ 1, 5, & 7 VA Const., and the VoidAb Initio Order Doctrine[5] by the use of the Supreme Court of Virginia (“Court”)unconstitutional court rules issued in 1998 to discipline Rodriguez for litigating to enforce his statutory property rights and rights as a father; and, (b) enjoining Rodriguez from filing any lawsuit in any federal court of the UnitedStates involving,

“in any way his disbarment [by the VSBDB void ab initio order] or the allegations leading to his disbarment [by the federal courts based upon the VSBDB void ab initio order]. The Court further enjoins [Rodriguez] from filing any lawsuit in any federal court of the United States against any of the defendants in this case, against any judge or retired judge, against any United States Attorney or member of aUnited States Attorney’s staff, against the Attorney General of Virginia or any past or present member of the Attorney General’s staff, and against the Virginia State Bar or any agents of the Bar. [Rodriguez] is further enjoined from filing any additional pleadings in the instant case, other than pleadings necessary to perfect and present an appeal.  [Rodriguez is further prior restrained from filing any other type of suit in the federal court by ordering that Rodriguez first files a motion] for leave of Court to file suit. . ..”

            Finally, the suit is based upon the subsequent evidence that in 2017 of the General Assembly of Virginia (“General Assembly”) compounded the above violations of the common law, VA Const., and VA Code, by disregarding Rodriguez’s petitions seeking an investigation of the Court’s unconstitutional court rules and Judge Gibney.’s violation of Virginia’s common law precedent of accountability for acts outside the scope of judicial authority and employment (Plaintiff’s Ex. I) (See Inter-American Commission on Human Rights Petition (IACHR)(P-926-16 IACHR Petition) and Committee on Human Rights United Nations Complaint) (See also Presentations in January 2010 to NOVA members of the General Assembly https://www.youtube.com/watch?v=VAkEfjcA5sQ & https://t.co/sLv7pz3zD5), by:

  • Violating the prohibition under Art. I § 1, 5 & 9 VA Const. against enacting ex-post-facto legislation outside “the sphere of legitimate legislative activity,Tenney v. Brandhove, 341 U.S. 367 at 376 (1951) to retroactively in2017  “conform the statutory procedure [under VA Code § 54.1‑3935 (1932-2009)] for the disciplining of attorneys” to unconstitutional Supreme Court of Virginia Rule Part 6, § § IV, 13-6 issued in 1998 (Plaintiff’sExhibit C) in “clear absence of all jurisdiction.Bradleyv. Fisher, 13 Wall. 335, 80 U. S. 351. Pp. 435 U. S.355-357; Johnston v. Moorman, 80 Va. 131, 142 (1885); Stump v.Sparkman, 435 U.S. 349 (1978); and,
  • Usurping the power of citizens to amend the VA Const. under Art. XII § 1 VA Const. by violating the citizens’ mandate of separation of power under Art. I § 5, and Art. VI § 1, 5 & 7 VA Const., by retroactively changing the decentralize statewide attorney disciplinary system established since 1932 under VA Code § 54.1‑3935 (1932-2009) (Plaintiff’s Ex. A) to expand the Court’s power by by revising VA Code § 54.1‑3935 (2017)(Plaintiff’s Ex. J) to unlawfully delegate legislative authority by adopting unconstitutional Court Rule Part 6, § IV, 13-6 issued after 1998 established by court rules: (a) a centralized statewide attorney disciplinary system under the Court’s control; (b) the Virginia State Bar Disciplinary Board (“VSBDB”) as a lower court with judicial authority to discipline attorneys; and, (c) VSBDB members asjudges.
  1. THE VIOLATION OF ART. I §§ 5 & 9, ART. VI § 1, 5, & 7, AND ART. XII § 1 VA CONST., BY THE EX POST FACTO DELEGATION OF LEGISLATIVE POWER TO THE COURT.
  1. Decentralize Statewide Attorney Disciplinary System established by the 1932 Act.

            The original constitutional draftsmen of the VA Const. and U.S. Const. openly distrusted the motive of individuals in government generally, and the Court specifically.  As Patrick Henry observed,

“[p]ower is the great evil with which we are contending. We have divided power between threebranches of government and erected checks and balances to prevent abuse ofpower. However, where is the check on the power of the judiciary? If wefail to check the power of the judiciary, I predict that we will eventually liveunder judicial tyranny.” (Emphasis added)

            Thus, under Art. I § 5 VA Const.[6] the citizens of Virginia mandated the separation of power to create a“distribution grids, apportioning authority,” as a constitutional check on the three branches of government.[7]  Separation of power is necessary because as Thomas Jefferson wrote, history has shown, “the violation of the limitation and prohibitions under the VA Const. which define the separation of power would create a despotic government.”  Notes on the State of Virginia 196 1787).  Echoing this James Madison wrote that the U.S. Constitution, consistent with the VAConst. required the separation of power, because

 “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether one, a few, or many, whether hereditary, self-appointed, or elective, may justly be pronounced as the very definition of tyranny.” (Emphasis added).

The Federalist Papers
No. 47, Washington Square Press, page 103

            Consequently, to eliminate the risk of the Court creating a dangerous node of power,[8] the citizens of Virginia ratified Art. VI §§ 1,[9]and 7[10] VA Const. to authorize only the General Assembly to enact legislation giving judicial power, establishing “lower courts,” and appointing “judges” The citizens of Virginia ratified Art. VI § 5[11]VA Const. to prohibit the Court from issuing rules either inconsistent with statutory rights, i.e. VA Code §§ 54-1-3935(A) (1998), or exceeding the scope of the rulemaking authority delegated to the Court by the General Assembly (the Court cannot issue rules to enact legislation), See VA Code §§ 54-1-3915 (2017).[12]  Finally, the citizens of Virginia ratified Art. XII § 1 VA Const. to restrict to themselves the authority to amend these limitations and prohibitions on the Court.[13]

            Under the holding of Ex Parte Fisher,6 Leigh (33 Va.) 619 (1835) 624-25 (1835), under Art. VI §§ 1, 5 & 7 VA Const. the judicial power to revoke a license to practice law is governed by statute, not court rules.  See In re: Johathan A. Moseley, Sup Ct. VA No 061237 (2007).

            Thus, in response to the holding in Ex Parte Fisher, supra., and, Legal Club of Lynchburg v. A.H. Light, 137 Va. 249 at 250, 119 S.E. 55 (1923), citing the General Assembly enacted in 1932 the Acts of Assembly p. 139 (“1932 Act”), to establish a decentralized statewide attorney disciplinary system to give statewide effect to a lower court’s discipline of an attorney. The 1932 Act only delegated judicial authority only to each County circuit court to discipline attorneys. See When Has the Supreme Court of AppealsOriginal Jurisdiction of Disbarment Proceedings, R.H.C. Virginia Law Review, Vol. 10, No. 3 (Jan. 1924), pp. 246-248; and David Oscar Williams, Jr., The Disciplining of Attorneys in Virginia,2 Wm. & Mary Rev. Va. L. 3 (1954).

            The 1932 Act limited the delegated authority to the Court to prescribe, adopt, promulgate and amend rules and regulations of unprofessional conduct. However, under Art. VI § 5 VA Const, the 1932 Act prohibited the Court from issuing rules inconsistent with rights under VA Code § 54.1‑3935 (1932-2009) (Plaintiff’s Exhibit A).  With this limited delegated authority, the Court formed the Virginia State Bar with the only the limited power of investigating complaints against attorneys to be exercised in each county by a Council and Investigating Committee. The function of the Investigating Committee was comparable to that of a grand jury fact-finding and had no power to suspend, reprimand, or disbar an attorney.  Only after the issuance of a rule against an attorney by a Circuit Court, filed with the county clerk’s office of the county court having jurisdiction was the disciplining of an attorney given statewide effect. See Campbell v. Third District Committee of Virginia State Bar, 179 Va. 244, 18 S.B.2d 883 (1942) (The constitutionality of the decentralized statewide attorney disciplinary system upheld because the 1932 Act did not delegate any legislative powers).

            For more than eighty-nine (89) years from 1932 until 2017 there was no significant amendment to the 1932 Act’s decentralized statewide attorney disciplinary system, see VA Code 54.1-3935 (1932 thru 2009). During these 89 years, the General Assembly neither enacted any statute establishing under the control of the Court the VSBDB as a lower court with judicial power nor appointed VSBDB members as lower court judges with the power to discipline attorneys.  It is important to underscore that the legislative history of the 1998 amendment to VA Code § 54.1‑3935 (1998) confirms that the entire General Assembly accepted and ratified the Senate bill which did not delegate any new rulemaking power to the Court (Plaintiff’s Exhibit B2), but specifically rejected the House bill expanding rulemaking power to the Court (Plaintiff’sExhibit B3), because the General Assembly cannot delegate this power to legislate judicial authority, create lower court, and appoint judges.

  • The VSBDB void ab initio order.

            The U.S. Supreme Court established the benchmark on the right of Rodriguez to challenge the VSBDB void ab initio order, holding that,

 [s]ince the adoption of the Fourteenth Amendment to the Federal Constitution, the validity of such judgments may be directly questioned, and their enforcement in the State resisted, on the ground that proceedings in a court of justice to determine the personal rights and obligations of parties over whom that court has no jurisdiction do not constitute due process of law. . . . To give such proceedings any validity, there must be a tribunal competent by its constitution‑‑that is, by the law of its creation‑‑to pass upon thesubject‑matter of the suit.” (Emphasis added).

Pennoyer v. Neff, 95 US 714, 733 (1877)

            Thus, Rodriguez has sought answered the question during the past fifteen years of litigation:

UNDER WHAT PROVISIONS OF THE VA CONST. DID THE COURT HAVE TO ISSUE COURT RULES IN 1998 TO GIVE JUDICIAL AUTHORITY, TO CREATE THE VSBDB AS A LOWER COURT TO DISCIPLINE ATTORNEYS, AND TO APPOINT VSBDB MEMBERS AS JUDGES?

            As discussed above in response to the holding in Legal Club of Lynchburg v. A.H. Light,137 Va. 249, at 250, 119 S.E. 55 (1923), citing Fishers Case, 6 Leigh (33 Va.)619 (1835) (“[t]he power to go further and make suspension or revocation of license effective in all other courts of the Commonwealth [this] must be conferred by statute,” (Emphases added), and the restriction under Art. I § 5 and Art. VI §§ 1, 5, & 7 VA Const. granting power only to the General Assembly to give judicial authority, create “court”and appoint “judges,” the General Assembly enacted the 1932 Act (codified as VA Code § 54.1‑3935(1950), to establish a decentralize statewide attorney disciplinary system by authorizing judicial power to discipline attorneys only to County Circuit Courts and Courts of Appeal.  Therefore, because the VSBDB as an entity created by Court rules, it is obvious that based on the Void Ab Initio Order Doctrine the VSBDB does not have any constitutional and statutory judicial authority, judicial power, or jurisdiction to render any valid order to discipline an attorney in Virginia.  The VSBDB order is void ab initio–as a complete nullity from its issuance and may be impeached directly or collaterally by all persons, at any time, or in any manner.  Collins v. Shepherd, 274 Va. 390,402, (2007); Singh v. Mooney, 261 Va. 48, 51‑52(2001); Barnes v.Am. Fertilizer Co., 144 Va. 692, 705 (1925).

            The 2006 VSBDB void ab initio order disbarring Rodriguez for litigating to enforce his statutory rights (Plaintiff’s Ex. D) was invalid at the moment of issuance.  Furthermore, the VSBDB void ab initio order under the common law may be attacked in any court at any time, “directly or collaterally” because it has none of the consequences of a valid adjudication, i.e. not subject t stare decisis and res judicata. “It has no legal or binding force or efficacy for any purpose or at any place. It is not entitled to enforcement. All proceedings founded on the void judgment are themselves regarded as invalid.” 30A Am Jur. Judgments 44, 45; see also Rook v. Rook, 233 Va. 92, 95(1987).

  • The General Assembly cannot delegate its legislative power given to them by the citizens under Art. I § 5 and Art. VI §§ 1, 5, & 7 VA Const. to the Court to give judicial authority, to establish lower courts, and to appoint lower court judges.

            Separation of power is the benchmark of the constitutional prohibition on the General Assembly’s power to delegate legislative authority to the Court.  The “delegations of legislative power are valid only if they establish specific policies and fix definite standards to guide the [Court] in the exercise of the power. Delegations of legislative power which lack such policies and standards are unconstitutional and void.” Ames v. Town of Painter, 239 Va. 343, 349, 389 S.E.2d 702, 705 (1990). See, e.g., Brown v. United Airlines, Inc., 34 Va. App. 273, 276, 540 S.E.2d 521, 522 (2001) (noting legislative delegation does not permit adoption of inconsistent rules or regulations).

            As explained in Legal Club of Lynchburg v. Light, 137 Va. at 253, 

It must be remembered that “revisors of statutes are presumed not to change the law if the language which they use fairly admits of a construction which makes it consistent with the former statutes; and it is a well-settled rule that in the revision of statutes neither an alteration in phraseology nor the omission or addition of words in the latter statute shall be held necessarily to alter the construction of the former act, excepting where the intent of the legislature to make such change is clear.” 36 Cyc. 1067-8; Harrison & Byrd v. Wissler, 98 Va. 597, 600-601, 36 S.E.982; Keister’s Adm’r v. Keister’s Exor’s, 123 Va.157, 174, 96 S.E. 315, 1 A. L. R. 439.

            Thus, the evidence confirms that the General Assembly violated the mandate of separation of power by enacting in 2017  ex-post fact legislation adopting the 1998 unconstitutional Court rules violating the restrictions under Art. VI §§ 1, 5, & 7 VA Const., to retroactively delegate authority to the Court unbounded discretion in adopting rules in defiance of the specifically defined power that the citizens restricted only to the full General Assembly (i.e., give judicial powers,  to create “lower courts” and appoint “judges”), as well as to adopting unconstitutional Court rules dealing with broad legislative policies to create a centralized statewide attorney disciplinary system.

             But, the constitutional limits on the Court’s judicial authority and jurisdiction can neither be circumvented by enacting in 2017 an ex-post facto legislative amendment to VA Code § 54.1‑3935 (1998) by changing VA Code § 54.1‑3935 (2017) to retroactively adopt Court Rule Part 6, §IV, 13-6, nor circumvented by delegation to retroactively “[c]onform the statutory procedure for the disciplining of attorneys” to Court Rule Part 6, §IV, 13-6.

            The general language of retroactive delegating authority to the Court found in VA Code § 54.1-3935(2017) (Plaintiff’s Exhibit J) is insufficient and unconstitutional. Bell v. Dorey Elec. Co., 248 Va. 378,381, 448 S.E.2d 622, 624 (1994), because “the General Assembly can not delegate its legislative power accompanied only by such a broad statement of general policy. . .. [D]elegations of authority are adequately limited [only] where the terms or phrases employed have a well-understood meaning and prescribe sufficient standards to guide the administrator.” Id. at 381-82, 448 S.E.2d at 624 (citations omitted), and correspondingly said regulations must have “definite standards to guide . . . the exercise of the power.” Ames, 239 Va.at 349, 389 S.E.2d at 705.

            As explained in Pierson v. Ray, 386 U.S. 547, 554-555 (1967) the purpose of sovereign immunity,

“is not for the protection As explained of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.’ . . .

            Here the record confirms that not imposing accountably for acts outside the scope of employment and outside the jurisdiction or judicial authority doesn’t contribute to principled and fearless decision making but rather to “intimidation.” Pierson v. Ray, 386 U.S. 547,554 (1967) (citations omitted).[14]  Seldom has there been evidence of collusion to violate the limitations and prohibitions under the VA Const. and VA Code, by criminal misprision of a felony and a business conspiracy to injure an attorney for litigating to enforce statutory rights and the systematic denying of access to an impartial court and a common law jury trial by the abuse of the doctrine of sovereign immunity.[15]

            II. THERE IS NO IMMUNITY UNDER THE COMMON LAW FOR UNLAWFUL ACTS.

            A right without a remedy is no right at all.  Consequently, under the common law dating back to 1613, there is no absolute judicial and ministerial immunity for acts outside of jurisdiction, and action for equitable relief and damages will lie for the conspiracy to issue and enforce a void order as part of an illegal enterprise, The Case of the Marshalsea, 77 Eng. Rep. 1027(K.B. 1613).[16]  See also4 William Blackstone, Commentaries 140 at 141, discussing various English common law cases that provided for accountability and removal of judges for misbehavior and acts outside of the jurisdiction and judicial authority. 

         Therefore, consistent with the common law at the time of the ratifying of the VA Const., sovereign immunity does not invalidate all claims; it only makes a defendant immune from suit and the relief to which the immunity applies.[17]  Under the common law, notwithstanding the holding in Messina v. Burden,228 Va. 301, 307 (1984), where the Court declared that the doctrine of sovereign immunity is still “alive and well” in the Commonwealth,[18] it is important that citizens of Virginia have a proper way of enforcing the limitation and prohibitions, as well as their constitutional rights against the government, including the Court. [19]  Under the Common law, citizens can bring a civil suit for declarative and equitable relief in Virginia against the government or government officials for acts outside the scope of employment,legislative authority, and judicial authority in violation of the VA Const.[20]

            Consistent with the common law the Court in Fox v. Deese,234 Va. 412, 423-24 (1987), reversed the decision of the trial court’s grant of sovereign immunity from the tort claims by underscoring that acommon law trial by jury required because,[21]

 [t]he tort counts not only allege that these defendants committed intentional torts, but that they were acting outside the scope of their employment as well. Resolution of these allegations requires an evidentiary hearing.  The defendants are not immune if the evidence establishes that (1) they committed intentional torts, irrespective of whether they acted within or without the scope of their employment, Elder v. Holland, 208 Va. 15, 19, 155 S.E.2d 369, 372_73(1967), or (2) they acted outside the scope of their employment, see Messina v. Burden, 228 Va. 301, 311, 321 S.E.2d657, 662 (1984).

            Under the common law sovereign immunity does not protect government actors when either in their individual and/or official capacities, they commit an intentional torts or commit acts outside of the scope of their employment, or enact ex-post-facto legislation outside the ‘the sphere of legitimate legislative activity,” Tenney v. Brandhove, 341U.S. 367 at 376 (1951), or judicial act in”clear absence of all jurisdiction.” Bradley v. Fisher, 13 Wall. 335, 80 U. S. 351. Pp. 435 U. S.355-357; Johnston v. Moorman, 80 Va. 131, 142 (1885); Stump v. Sparkman, 435 U.S. 349 (1978).

            Under the common law, when the action seeks to restrain or compel state officials to perform their duties under the VA Const. and VA Code the action for declaratory judgment is not against the state for purposes of sovereign immunity-but for acts outside the scope of employment, legislative functions, jurisdiction, or judicial authority. [22]  Under the common law in both England and Virginia as one of the colonies, it was in ordinary courts in either civil or criminal trials -before a jury trial-which determined whether government officers, including judges, were to be held accountable for misbehavior.  Prakash and Smith, How to Remove a Federal Judge, 116 Yale L. J. 72 at 74 (2006);  See, e.g., R.V. Gaskin, (1799) 1001 Eng. Rep. 1349 (K.B.) (reinstating a parish-clerk upon his demand that his employer shows cause for firing him); James Bragg’s Case (1616) 77 Eng. Rep. 1271, 1278-81 (K.B.)(reinstating a Burgess for lack of cause to remove him).

            At common law, absolute immunity is given judges only when they did not act in “clear absence of all jurisdiction over the subject matter.” Bradley v. Fisher13Wall. 335, 80 U. S. 351. Pp. 435 U. S. 355-357 (1871); Stump v. Sparkman, 435 U.S. 349at 357 (1978); Johnston v. Moorman, 80 Va. 131, 142 (1885).  Judges are liable when they act in ‘clear absence of all jurisdiction.’”  Harlow v. Clatterbuck, 230 Va. 490, 493, 339 S.E.2d 181, 184 (1986) (quoting Johnston v. Moorman, 80 Va. 131,142 (1885).  Pursuant to Rankin v. Howard, 633 F.2d 844(1980), and, Den Zeller v. Rankin,101 S. Ct. 2020 (1981), whenever a judge acts where he does not have jurisdiction to affirm and use a void ab initio order, the judge is engaged in an act or acts of treason. U.S. v. Will, 449 U.S. 200, 216 (1980); Cohens v. Virginia, 19 U.S. (6Wheat) 264, 404, 5 L. Ed 257 (1821).  In Chandler v. Judicial Council, 398 U.S. 74, at 140 (1970), Chief Justice Berger wrote, “If [judges] break the law, they can be prosecuted.” Also, Justice Black and Douglas in their dissenting opinion agreed, that, “. . . judges, like other people, can be tried, convicted, and punished for crimes . . .” supra. at 141-142.  Also, in Forrester v. White, 484 U.S. 219 (1988), the Court held: 

This Court has never undertaken to articulate a precise and general definition of the class of acts entitled to immunity.  The decided cases, however, suggest an intelligible distinction between judicial acts and the administrative, legislative, or executive functions that judges may on occasion be assigned by law to perform.

            There the U.S. Supreme Court held in action against a State court judge, that under common law a state court judge who acts without jurisdiction, or acts in violation of Constitutional, or acts in violation of statutory prohibitions expressly depriving him of jurisdiction or judicial capacity, judicial immunity is lost. A Virginia judge is immune from suit only if he did not act outside of his judicial capacity and was not performing any act prohibited expressly by constitution and statute. See Block, Stump v Sparkman and the History of Judicial Immunity, 4980 Duke L.J. 879 (l980).  SeeAmes E. Pfander, Federal Courts, Jurisdiction-Stripping and the Supreme Court’sPower to Supervise Inferior Tribunals, 78 Tex. L. Rev. 1433 (2000).

            Consequently, at common law, absolute immunity from civil liability is given to legislators only when they are engaged “in the sphere of legitimate legislative activity,” and have not “exceeded the bounds of legislative power” by the usurpation of functions exclusively vested in the citizens under clearly stated constitutional limitations and prohibitions. Tenney v. Brandhove, 341 U.S. 367 at 376 (1951); See Art. IV, § 9 VA Const. or judicial to immunity in violation; and, Virginia: Hening’s Stats. at Large, Vol. 9, p. 127, because,

[n]o man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives.  United States v. Lee, 106 U.S. 196, 220 (1882) (Emphasis added).  See also, Hanson v Denckla, 357 US 235, 2 L Ed 2d 1283, 78 S Ct 1228.

            Regarding quasi-judicial immunity for VA government attorneys and the VSBDB, it extends: (1) only if they are performing judicial functions, (2) only if acting within their jurisdiction; and (3) only if acting in good faith.  “The common-law immunity of a prosecutor is based upon the same considerations that underlie the common-law immunities of judges and grand jurors acting within the scope of their duties.” Imbler v. Pachtman, 424 U.S. 409, 422-23 (1976); Andrews v. Ring, 266 Va. 311at 321, 585 S.E.2d 780 (2003) (the court explicitly declined to grant blanket immunity to non-prosecutorial conduct, stating, “We do not decide in this case whether actions of a prosecutor in the role of investigator or administrator are entitled to absolute immunity.”)   See Hueston v. Kizer,2008 Va. Cir. LEXIS 280, 36-37 (Va. Cir. Ct. May 29, 2008) (court denied absolute immunity).

            Therefore, under the common law if a prosecutor’s involvement is not done as a prosecutor but done outside the scope of his employment in his individual capacity, then he would not have any immunity, and if the prosecutor’s role was one of investigator or administrator he again may not be entitled to absolute immunity.  The claim of immunity is a factual determination for a trial by jury under the common law.

Crime is contagious.  If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. 

Olmstad v. United States, 277 U.S. 438, 451 (1928).

            Conclusion

            In defiance of the common law limitation on the use of sovereign immunity Rodriguez has been systematically denied access to an impartial court and common law jury trial to challenge the Court’s unconstitutional court rules andVSBDB void ad initio order. The collusion to “resist the execution of the laws under color of authority,”[23] to obstruct accountability and justice only if adopting the Court’s unlawful court rules is a violation of Art.I §§ 5 & 9, VI §§ 1, 5, & 7, XII § 1 VA Const. and VA Code §§ 18.2‑481and 482.  There has been a retroactive ex-post facto change to VA Code § 54.1‑3935 (2009) to adopt the unconstitutional rules to delegate to the Court power to give judicial authority, crate the VSBDB as a lower court, and to appoint VSBDBmembers lower court judges.

            Based upon the above, the Circuit Court must hold those accountable for the willful defiance of the limitation and prohibitions under Art. I §§ 5 & 9, Art. VI §§ 1, 5, & 7, Art. XII § 1 VA Const., VA Code §§ 54.1-3915 & 3935 (1932 to 2009) based upon the record of the systematic denial of access to an impartial court and common law jury trial. Martinez v. Lamagno and DEA, 515 U.S. 417 (1995).

Respectfully submitted,

Isidoro Rodríguez

Residence:  2671 Avenir Place, Apt. 2227

Vienna, Virginia 22180

(571) 477-5350/E-mail: business@isidororodriguez.com


            [1] Isidoro Rodriguez v. General Assembly of the Commonwealth of Virginia, et al., Fairfax County Circuit Court, Docket No. CL-2018-0016227, filed November 14, 2018.

                        [2] Isidoro Rodriguez v. Virginia State Bar Disciplinary Board, Fairfax County Circuit Court, Docket No. CL-2018-0016433, filed November 19, 2018.

            [3] VA Code § 1-200, states “The common law of England, insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly.  VA. Code § 1-10; 2005.

                [4] See Katia Gutierrez de Martínez v. Lamagno and DEA, 115 S.Ct. 2227 (1995) (Rehnquist dissenting) (Rodriguez argued and won a common law action before the U.S. Supreme Court that held there was a right to an evidentiary hearing before a jury of the acts of government employees outside the scope of employment (https://www.oyez.org/advocates/isidoro_rodriguez).

                [5] The Void Ab Initio Order Doctrine was first discussed in U.S. jurisprudence in Marbury v. Madison, 1 Crunch 137, 140 (1803), wherein the U.S. Supreme Court held that, “[c]ourts are constituted by authority and they cannot beyond the power delegated to them. If they act beyond that authority, and certainly in contravention of it, their judgments and orders are regarded as nullities. They are not just voidable, but simply void, and this even prior to reversal.” Thus, the Void Ab Initio Order Doctrine mandates that when an entity has neither constitutional authority, nor inherent legal power, nor jurisdiction to render any order, said order is void ab initio as a complete nullity from its issuance, and may be impeached directly or collaterally at any time, or in any manner. SeeCollins v. Shepherd, 274 Va. 390, 402 (2007); Singh v. Mooney, 261 Va. 48, 51‑52(2001); Barnes v. Am. Fertilizer Co., 144 Va. 692, 705 (1925); Rook v. Rook, 233 Va. 92, 95(1987).

                [6] Art. I § 5 VA Const., states, “[t]hat the legislative, executive, and judicial departments of the Commonwealth should be separate and distinct; . . ..”  Federalist 47, “[the VA Const.] . . . declares, ‘that the legislative, executive, and judicial departments shall be separate and distinct; so that neither exercise powers properly belonging to the other. . ..” Id p 109.

                [7] D. Arthur Kelsey, The Architecture of Judicial Power: Appellate review & Stare Decisis, Virginia State Bar, Virginia Lawyer October 2004, p. 13.

                [8] “Once certain checks and balances are destroyed, and once certain institutions have been intimidated, the pressure that can turn an open society into a closed one-turn into direct assaults; at that point events tend to occur very rapidly, and a point comes at which there is no easy turning back to the way it used to be.”  Naomi Wolf, The End of America: Letter of Warning to A Young Patriot, p. 14, Chelsea Green Publishing, Vermont, 2007.

[9] Art. VI § 1 VA Const., states in relevant part that judicial power in Virginia shall be vested in the Court, and, “in such other courts of original or appellate jurisdiction subordinate to the Supreme Court as the General Assembly may from time to time establish.” (Emphasis added)

[10] Art. VI § 7 VA Const., states in relevant part that justices of the Court, and, “all other courts of record shall be chosen by . . .  the General Assembly. . .. (Emphasis added)

[11] Art. VI § 5 VA Const., states in relevant part that the Court shall have the authority to make rules, “but such rules shall not be in conflict with the general law” enacted by the General Assembly. (Emphasis added).

[12] VA Code § 54.1‑3915, states in relevant part that the Court shall not issue rules that, “are inconsistent with any statute; nor shall it promulgate any rule or regulation or method of procedure which eliminates the jurisdiction of the courts to deal with the discipline of attorneys.” (Emphasis added) (Plaintiff’s Ex. B7)

                [13] Later history confirmed that the violation of separation of power was required prior to undertaking the overthrow of a Constitutional government, i.e. Nuremberg trials documented the NAZI’s efforts to dismantle the legal framework under fundamental constitution principles of the, “separation of judicial powers, of executive powers and legislative powers.” 6 Trial of the Major War Criminal Before the International Military Tribunal, Nuremberg, 14 November 1945-1 October 1946.  534-35 (Testimony of Van der Essen 4 Feb 1946).

                [14] As James Madison stated in REPORT OF 1799, VIRGINIA. HOUSE OF DELEGATES, “The resolution supposes [the delegation of] dangerous powers, . . . beyond the grant of the Constitution; . . .. However true, . . . that the judicial department, is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve. (Emphasis added)

[15] Chief Justice Marshall wrote Cohens v. Virginia, 6 Wheat, 264, 404 (1816), “We [judges] have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the Constitution. (Emphasis added)

[16] Sir Edward Coke found that Article 39 of the Magna Carta restricted the power of judges to act outside of their jurisdiction such proceedings would be void, and actionable, “when a Court has (a) jurisdiction of the cause, and proceeds inverso ordine or erroneously, there the party who sues, or the officer or minister of the Court who executes the precept or process of the Court, no action lies against them. But (b) when the Court has no jurisdiction of the cause, there the whole proceeding is [before a person who is not a judge], and actions will lie against them without any regard of the precept or process . . .  Id. 77 Eng. Rep. at 1038‑41. (Emphasis added)

                [17] Although the language of Section 1983 makes no mention of immunity, the Supreme Court held that when Sec. 1871 was enacted Congress intended to incorporate then-existing common law immunities to excuse individual state and local officials from liability for damages caused by their violations of the federal constitution. See Pierson v. Ray, 386 U.S. 547, 555 (1967).

                [18] “[T]he doctrine of sovereign immunity is ‘alive and well’ in Virginia.” Niese v. City of Alexandria, 264 Va. 230, 238, 564 S.E.2d 127, 132 (2002) (quoting Messina v. Burden).  “Sovereign immunity is a rule of social policy, which protects the state from burdensome interference with the performance of its governmental functions and preserves its control over state funds, property, and instrumentalities.” City of Virginia Beach v. Carmichael Dev. Co., 259 Va. 493, 499, 527 S.E.2d 778, 781 (2000); City of Chesapeake v. Cunningham, 604 S.E.2d 420, 426 (2004).

                [19] At common law the doctrine of sovereign immunity does not apply for: (A) acts outside the scope of employment, Burnam v. West, 681 F. Supp. 1169, 1172 (E.D. Va. 1988); Tomlin v. McKenzie, 251 Va. 478, 468 S.E.2d 882 (1996); Fox v. Deese, 234 Va. 412, 422-25, 362 S.E.2d 699, 706 (1987); Messina v. Burden, 228 Va. 301, 321 S.E.2d 657 (1984); Crabbe v. School Bd., 209 Va. 356, 164 S.E.2d 639 (1968); Sayers v. Bullar, 180 Va. 222, 22 S.E.2d 9 (1942); Deeds v. DiMercurio, 30 Va. Cir. 532 (Albemarle County, 1991); (B) grossly negligent conduct, McLenagan v. Karnes, 27 F.3d 1002 (4th Cir. 1994); Glasco v. Ballard, 249 Va. 61, 452 S.E.2d 854 (1995); Meagher v. Johnson, 239 Va. 380, 389 S.E.2d 310 (1990); Messina v. Burden, 228 Va. 301, 310, 321 S.E.2d 657, 662 (1984); Frazier v. City of Norfolk, 234 Va. 388, 362 S.E.2d 688 (1987); Bowers v. Commonwealth, 225 Va. 245, 253, 302 S.E.2d 511 (1983); James v. Jane, 221 Va. 43, 53 (1980); (c) intentional torts, Tomlin v. McKenzie, 251 Va. 478, 468 S.E.2d (1996); Fox v. Deese, 234 Va. 412, 362 S.E.2d 699 (1987); Elder v. Holland, 208 Va. 15, 155 S.E.2d 369 (1967); Agyeman v. Pierce, 26 Va. Cir. 140 (Richmond 1991.; or (4) acts characterized as bad faith, Tomlin v. McKenzie, 251 Va. 478, 468 S.E.2d 882 (1996); Schnupp v. Smith, 249 Va. 353, 457 S.E.2d 42 (1995) (immunity lost by showing of malice in a slander action); Harlow v. Clatterbuck. 230 Va. 490, 339 S.E.2d 181 (1986).

                [20] Consistent with the common law, which the laws of Virginia are grounded, the General Assembly enacted the English Rule in Va. Code §8.01-195.3(3), to hold that a judge or government attorney had no immunity from suit for acts outside of his judicial capacity or jurisdiction.  See also Robert Craig Waters, “Liability of Judicial Officers under Section 1983” 79 Yale L. J. (December 1969), pp. 326-27 and nn. 29-30).

[21] As Thomas Jefferson wrote in a letter to Thomas Paine in 1789: “I consider trial by jury as the only anchor ever yet imagined by men, by which the government can be held to the principles of its constitution.” (Emphasis added) See Martinez v. Lamagno and DEA, 515 U.S. 417 (1995) (Rodriguez argued and won before the United States Supreme Court to reverse the USCA for the 4th Circuit, to order a common law evidentiary hearing before a jury for acts outside the scope of employment).

                [22] Pennsylvania Academy of Chiropractic Physicians v. Com., Dept of State, Bureau of Professional & Occupational Affairs, 129 Pa. Commw. 12, 564 A.2d 551 (1989) (under the common laws the defense of sovereign immunity inapplicable where petitioner sought declaration which would result in restraining state officials”), Franks v. Tucker, 132 Ill. App. 3d 455, 476 N.E.2d 1315 (1st Dist. 1985) (where suit brought under the common law against state officials seeks to compel them to perform their duty, it is not action against state).

NOTICE OF FILING OF A COMPLAINT FOR THE RETROACTIVE ADOPTION IN 2017 OF SUP. CT VA UNCONSTITUTIONAL COURT RULES PROMULGATED IN 1998

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The General Assembly of the Commonwealth of Virginia (“General Assembly”), the Supreme Court of Virginia (“Court”), the Office of the Governor of Virginia (“Governor”), the Attorney General of Virginia (“VA AG”), and the Virginia State Bar Disciplinary Board (“VSBDB”) were sued on November 14 and 19, 2018.  Respectively a Complaint for Declaratory Judgment[1] and Petition for Writ of Mandamus[2] were filed under the Common Law and VA Code for acts outside scope of employment of government attorneys, for acts outside the sphere of legitimate legislative activity, and for acts outside of judicial authority by a Class 2 felony  to “[resist] the execution of the laws under color of authority” in violation of VA Code §§ 18.2‑481 & 482 and business conspiracy, evidenced by the:

  • General Assembly’s collusion outside “the sphere of legitimate legislative activity,Tenney v. Brandhove, 341 U.S. 367 at 376 (1951) in violation of the prohibition under Art. I § 1, 5 & 9 VA Const. of ex-post facto legislation in 2017 to retroactively “conform the statutory procedure [under VA Code § 54.1‑3935 (2017)] for the disciplining of attorneys”  to the 1998 unconstitutional Supreme Court of Virginia Rule Part 6, § § IV, 13-6;
  • General Assembly’s collusion outside the ‘the sphere of legitimate legislative activitysupra., by violating the citizens’ exclusive power to amend the VA Const. under Art. XII § 1 VA Const. and by violating the citizens’ the mandate of separation of power under Art. VI § 1, 5 & 7 VA Const., to retroactively change the decentralize statewide attorney disciplinary system that was established in 1932 in the Commonwealth under VA Code § 54.1‑3935 (1998), by unlawfully delegating legislative authority given by the citizens of Virginia by adopting in 2017 unconstitutional Court Rule Part 6, § IV, 13-6, issued in “clear absence of all jurisdiction.Bradley v. Fisher, 13 Wall. 335, 80 U. S. 351. Pp. 435 U. S. 355-357; Johnston v. Moorman, 80 Va. 131, 142 (1885); Stump v. Sparkman, 435 U.S. 349 (1978),[3] thereby obfuscating the Court’s unlawful rules: (a) establishing a centralized statewide attorney disciplinary system under the Court’s control; (b) establishing the VSBDB as a lower court with judicial authority to discipline attorneys; and, (c) appointing VSBDB members as judges; and,
  • the VSBDB, the VA AG and the Court’s from 2003 to the present self-proclaiming  “impunity” from accountability for the unconstitutional violations of Art. VI § 1, 5 & 7 VA Const. (See 2016 Petition to Inter-American Commission on Human Rights (IACHR) (P-926-16 IACHR Petition) (2017 United Nations Complaint to the  Committee on Human Rights, and Memorandum in Support of UN Complaint) (See also presentations to NOVA members of the General Assembly, https://t.co/sLv7pz3zD5 and  https://www.youtube.com/watch?v=VAkEfjcA5sQ,).

Isidoro Rodriguez, 2671 Avenir Place, Apt 2227, Vienna, Virginia 22180

Mobile phone No. 571.477.5350; E-mail: busness@isidororodriguez.com

                [1] See Isidoro Rodriguez v. General Assembly of the Commonwealth of Virginia et al., Fairfax Cir. Ct. CL-2018-0016227, 11/14/198, Complaint for Declaratory Judgement, Plaintiff’s Exhibits A through M, and filed Motions.

                [2] See Isidoro Rodriguez v. Virginia State Bar Disciplinary Board, Fairfax Cir. Ct. CL-2018-0016433, 11/19/198, Petition for Writ of Mandamus.

                [3] In Marbury v. Madison, 1 Crunch 137, 140 (1803), the U.S. Supreme Court held that, “[c]ourts are constituted by authority and they cannot beyond the power delegated to them. If they act beyond that authority, and certainly in contravention of it, their judgments and orders are regarded as nullities. They are not just voidable, but simply void, and this even prior to reversal.” Thus, the Void Ab Initio Order Doctrine mandates that an entity that has neither constitutional authority, nor legal power, nor jurisdiction to render any order, said order is void ab initio as a complete nullity from its issuance and may be impeached directly or collaterally at any time, or in any manner. SeeCollins v. Shepherd, 274 Va. 390, 402 (2007); Singh v. Mooney, 261 Va. 48, 51‑52(2001); Barnes v. Am. Fertilizer Co., 144 Va. 692, 705 (1925); Rook v. Rook, 233 Va. 92, 95(1987).