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PURPOSE

            Petitioner Isidoro Rodriguez (“Rodriguez”) files this Motion to enforce the federal interest under Art. Four, § 4, Cl. 1 of the United States Constitution to guarantee a “Republican Form of Government” by ensuring that “justice is applied fairly” to all Citizens by the Government of the Commonwealth of Virginia (“Virginia”) by enjoining legislation violating the amending procedure under Art. XII § 1 VA Const. and the prohibition on ex post facto legislation under  Art. I, § 10, cl. 1 of the US Const. and Art. 1 § 9 VA Const.

            Thus, the position of the parties on the disposition of the Motion is unchanged since it seeks on behalf of the Citizens of Virginia compliance by equitable relief with the amending procedure under Art. XII § 1 VA Const. and the prohibition on ex post facto legislation under  Art. I, § 10, cl. 1 of the US Const. and Art. 1 § 9 VA Const., because,

            “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,” Olmsted v. United States, 277 US 438, 451 (1928).

FACTS

In response to Rodriguez’s petitions for grievances (See http://t.co/slv7pz3zd5), in 2017, legislation was enacted to ex post facto amend VA Code § 54.1-3935A (1950 to 2017) in violation Art. VI §§ 1, 5, & 7 VA Const., Art. 1 § 9 VA Const., and Art. XII § 1 of the VA Const., to adopt retroactively the 1998 unconstitutional court rules establishing the Virginia State Bar Disciplinary Board (“VSBDB”) as a “court” and appointing VSBDB members as judges (VA Code § 54.1-3935 (2017)), and, second, legislation was enacted in violation of Act. IV § 14, &3(18) VA Const. as special legislation (VA Code § 8.01-223.2 (2017) and 2019 HB 2111) to grant immunity to the VSBDB as a private association for a business conspiracy.

Thus, this Motion for prospective relief on behalf of all Citizens of Virginia that is distinct from Rodriguez’s underlying petition now before the Court for remand of the Writ of Mandamus and Prohibition to obtain impartial judicial review by a Virginia court of the Virginia State Bar Disciplinary Board’s (“VSBDB”) for issuing in 2006 a Void Ab Initio Order disbarring Rodriguez for litigating to enforce statutory rights by the usurping of judicial authority as a “kangaroo court.”

LEGAL ARGUMENT

To enjoin future “resist[ance] to the execution of the laws under color of authority” by the use of VA Code § 54.1-3935(2017) and VA Code § 8.01-223.2 (2017), the nondispositive prospective Motion seeks equitable relief under the common law[1] and under VA Code §§ 8.01-184 et seq.

The facts confirm there has been the enactment of legislation by the three branches of the Government of Virginia in violation of the amending procedure under Art. XII § 1 VA Const., and the prohibition on ex post facto legislation under  Art. I, § 10, cl. 1 of the US Const., and Art. 1 § 9 VA Const. These amended provisions of Virginia’s Code have been unlawfully enacted to effect in 2017 a retroactive change of the decentralize statewide attorney disciplinary system established since 1932 under VA Code § 54.1‑3935 (2009), by passing VA Code § 54.1‑3935 (2017) to “[c]onform the statutory procedure for the disciplining of attorneys” by adopting in 2017 Supreme Court of Virginia Rule Part 6, § IV, 13-6 issued in 1998 to delegate the General Assembly’s legislative authority unconstitutionally: (a) to retroactivley adopt the Supreme Court of Virginia establishment of a centralized statewide attorney disciplinary system; (b) to retroactivley adopt the Supreme Court of Virginia establishment of the VSBDB as a “kangaroo court” with judicial power to discipline attorneys; and, (c) to retroactivley adopt the Supreme Court of Virginia appointment of  VSBDB members as “judges.

            However, under Art. VI §§ 1 & 7 VA Const., the judicial power to revoke a license to practice law is governed by statute, not court rules.  Ex Parte Fisher, 6 Leigh (33 Va.) 619 (1835) 624-25 (1835).  See In re Johathan A. Moseley, Sup Ct. VA No 061237 (2007).  Thus, in response to the holding in Legal Club of Lynchburg v. AH Light, 137 Va. 249 at 250, 119 SE 55 (1923), citing Fisher‘s Case, supra. (See Footnote 2), the General Assembly enacted in 1932 the Acts of Assembly p. 139 to establish a decentralized statewide attorney disciplinary system to give statewide effect to a lower court’s discipline of an attorney.  To this end, the General Assembly only delegated judicial authority to each County circuit court to discipline attorneys. See When Has the Supreme Court of Appeals Original Jurisdiction of Disbarment Proceedings, RHC. 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).  Only after the issuance of a rule against an attorney, filed with the county clerk’s office of the county court having jurisdiction. See Campbell v. Third District Committee of Virginia State Bar, 179 Va. 244, 18 S.B.2d 883 (1942).

            The citizens ratified Art. I § 5 and Art. VI §§ 1, 5, & 7 VA Const. granting power only to the General Assembly to enact legislation to give judicial authority, to create “court” and appoint “judges.” Under the amending procedure of Art. XII § 1 VA Const., and the prohibition on ex post facto legislation under  Art. I, § 10, cl. 1 of the US Const. and Art. 1 § 9 VA Const., only the Citizens of Virginia can amend the Constitution of Virginia to modify their gridwork of separation of power between the three branches of the Government of Virginia.

            Consequently, based on the logic under the Void Ab Initio Order Doctrine, the unlawful enactment of VA Code § 54.1-3935(2017) and VA Code § 8.01-223.2 (2017) demands that these sections be enjoined complete nullity from their 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 US Supreme Court decision in Pennoyer v. Neff, 95 US 714, 733 (1877), established the benchmark on the right of Rodriguez to challenge the VSBDB void ab initio order, by 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).

A. IRREPARABLE HARM

            Consistent with the doctrine of separation of power, the citizens ratified Art. I § 5 and Art. VI §§ 1, 5, & 7 VA Const. and granted power only to the General Assembly: (1) to enact legislation giving judicial authority; (2) to enact legislation to create lower and appellate courts to the Supreme Court of Virginia; and (3) to appoint “judges.”

QUERY, UNDER WHAT PROVISIONS OF THE VA CONST. WAS ENACTED THE RETROACTIVE 2017 VA SECTIONS TO ADOPT COURT RULES GIVING JUDICIAL AUTHORITY TO THE VSBDB AS A LOWER COURT AND MAKING VSBDB MEMBERS AS JUDGES?

            The obvious answer is that there has been a willful violation of the separation of power under Art. I § 5, Art. VI §§ 1, 5, & 7 VA Const., and VA Code §§ 54.1‑3915 & 54.1‑3935 (2009) to conceal the VSBDB was acting as a “kangaroo court” and issuing Void Ab Initio Order.[2]

            Therefore, Rodriguez has a “legal interest” that has been irreparably harmed by the business conspiracy damaging his law business, reputation, profession, and property rights, and the injunction is mandated.  See Radin v. Crestar Bank, 249 Va. 440, 442, 457 S.E.2d 65, 66 (1995).  This evidence must be viewed as true to establish ongoing irreparable harm. See Virginia Marine Res. Comm’n v. Clark, 281 Va. 679, 686-87, 709 S.E.2d. 150, 154-55 (2011).

B. INADEQUATE REMEDY AT LAW

             Based on the record of the systemic denial of access to an impartial court and trial by jury,[3] to secure compliance with the limitations and prohibitions under the Constitution of Virginia, there is no amount of monetary relief at law or legal remedy is appropriate or available that will compensate the Citizens for the unlawful enactments in 2017.

C. ADVERSE IMPACT ON DEFENDANT

            The damage to the Citizens of the Commonwealth is evident.  Any potential harm from the injunction to compel the compliance with the amending procedure of Art. XII § 1 VA Const., and the prohibition on ex post facto legislation under  Art. I, § 10, cl. 1 of the US Const., and Art. 1 § 9 VA Const., is nonexistent.

D. LIKELIHOOD OF SUCCESS ON THE MERITS OF THE CLAIMS

            The Citizens placed under Art. I § 5 VA Const. and Art. VI §§ 1, 5, & 7 VA Const., the power exclusively with the General Assembly to enact legislation to give judicial authority, to create courts, and to appoint judges.  This constitutional power granted by the Citizens of Virginia may not be delegated.  When the General Assembly does delegate authority to promulgate rules, the rules must neither exceed the scope of the authority delegated nor be inconsistent with it (Brown v. United Airlines, Inc., 34 Va. App. 273, 276, 540 S.E.2d 521, 522 (2001).  Also, the “[d]elegations 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).

            Under the common law, there is no absolute immunity for acts outside legal authority, and this includes legislators that engage in acts outside ‘the sphere of legitimate legislative activity,” Tenney v. Brandhove, 341 US 367 at 376 (1951), and judges acting without judicial authority 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, these issues require a jury trial.[4]

            Rodriguez’s Motion for a preliminary/permanent injunction is to enjoin prospectively the enactment of unlawful legislation to prevent the “the execution of the laws under color of authority” Injunctive relief is appropriate when the Court is “satisfied of the plaintiff’s equity” based on the record of the systemic denial of access to an impartial court and statutory/Common law jury trial.

            Rodriguez has demonstrated “irreparable harm and lack of an adequate remedy at law,” Levisa Coal Co. v. Consolidation Coal Co., 276 Va. 44, 46 (2008), based upon the violation of VA Code §§ 18.2.499 and 500B & VA Code § 8.01-628.

            The Court “will give due weight to the adverse effect of the injunction being granted on the defendant.” supra. Also, the likelihood of success on the merits of the claim is to be considered in deciding to award an injunction.  Wings, LLC v. Capitol Leather, LLC, 88 Va. Cir. 83, 89 (Fairfax Co., 2014).  Finally, irreparable harm does not mean that there be no “possibility of repairing the injury. All that is meant is that the injury would be a grievous one, or at least a material one, and not adequately reparable in damages.” Callaway v. Webster, 98 Va. 790 (1990).

            All the above factors strongly support Rodriguez’s complaint and arguments to enjoin VSBDB void ab initio order.[5]

CONCLUSION

             This Motion is filed under the common law because of the enactment of unlawful legislation that has violated VI §§ 1, 5, & 7 VA Const., and VA Code §§ 54.1‑3915 & 54.1‑3935 (2009), and there has been a systemic denial of access to an impartial court to compel compliance with the above-cited provisions of the Constitution of Virginia.  For the above reasons, Rodriguez respectfully requests that this Court grant the Motion.

 Respectfully submitted,

         Isidoro Rodríguez 

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]The Void Ab Initio Order Doctrine, mandates that when an entity such as the VSBDB has neither constitutional authority, nor statutory authority, not legal power, nor jurisdiction to render any act or order, said act or order is void ab initio—because they are a complete nullity from their 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); and Marbury v. Madison, 5 U.S. 137, 1 Cranch 137; 2 L. Ed. 60; 1803 U.S. LEXIS 352 (1803).

                [3]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)

                [4]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.  In Fox v. Deese, 234 Va. 412, 423-24 (1987). The court held “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).”

                [5]In 2017 the violation of the Void Ab Initio Order Doctrine was compounded by the passage of an unconstitutional ex post facto change to the decentralize statewide attorney disciplinary system established since 1932 under VA Code § 54.1‑3935 (2009), to retroactively “[c]onform the statutory procedure for the disciplining of attorneys” by adopting the Supreme Court of Virginia’s unconstitutional Rule Part 6, § IV, 13-6. See VA Code § 54.1‑3935 (2017).