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.
- 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]
- 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 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 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).
