MEMORANDUM OF LAW IN SUPPORT OF LITIGATION FOR THE GENERAL ASSEMBLY OF VIRGINIA ET AL., RETROACTIVE ADOPTING IN 2017 THE SUPREME COURT OF VIRGINIA’S UNCONSTITUTIONAL COURT RULES ISSUED IN 1998

          Plaintiff 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 VerifiedPetition for Writ of Mandamus[2] under VA Code §8.01-644 to seek a binding adjudication of his under the common law of theCommonwealth of Virginia (“Virginia”),[3] 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 BarDisciplinary 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) systematicallydenied 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 fromaccountability for a business conspiracy to injureRodriguez’s law practice, reputation, profession, and property right inviolation of VA Code § 18.2.499 and 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 litigatingto 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 or the allegations leading to his disbarment [by the Virginia StateBar Disciplinary Board and the federal courts]. 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 of compounding the above violations of the common law, VA Const., and VA Code, by the General Assembly of Virginia (“GeneralAssembly”) in 2017 in response to Rodriguez’s petitions seeking an investigation of the Court’s unconstitutional court rules and the Hon. U.S. Dist. Judge Gibney et al.’s void ab initio orders granting “impunity”and absolute immunity from accountability in violation of the common law (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 to NOVA members of the GeneralAssembly https://www.youtube.com/watch?v=VAkEfjcA5sQ & https://t.co/sLv7pz3zD5).  In 2017 the General Assembly:

  • Violated the prohibition under Art. I § 1, 5 & 9 VA Const. by 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,
  • Usurped 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 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 to establish by illegal 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 as judges.
  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 ofindividuals 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 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)

            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 bepronounced as the very definition oftyranny.” Federalist No. 47, Washington Square Press, page103 (Emphasis added).

            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.,adopting unconstitutional LegalClub 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 attorney disciplinary system to give statewide effect to 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 VACode § 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 DistrictCommittee 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 anyVSBDB 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 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, 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).

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

UNDER WHAT PROVISIONS OF THE VA CONST. DOES THE COURT HAVE THE POWER TO GIVE JUDICIAL AUTHORITY TO THE VSBDB TO ACT 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 court of the Commonwealth [this] must be conferred by statute,” (Emphases added), and the restriction under Art. I § 5and 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., 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. Judgments44, 45; see also Rook v. Rook,233 Va. 92, 95(1987).

  • The General Assembly cannot delegate its legislative power to the Court to give judicial authority, to establish lowercourts, 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.

            But in response to Rodriguez’ repeated petitions for an investigation of the Court’sunconstitutional rules and the VSBDB void ab initio order, the evidence confirms the General Assembly violated the mandate of separation of power by ex-postfact adopting Court rules defying the restrictions under Art. VI §§ 1, 5, & 7 VA Const., to retroactively delegating of authority to the Court of 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 power,  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’sjudicial authority and jurisdiction can neither be circumvented by enacting in2017 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 cannot delegate its legislative power accompanied only by such a broad statement of general policy. . .. [Delegations 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 orbenefit 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 theirfunctions 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 decisionmaking 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 actionf or 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, Elderv. 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 act in their individual and/or official capacities to 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 do not act in “clear absence of all jurisdiction over the subject matter.” Bradley v. Fisher, 13Wall. 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 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. 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. as to immunity of legislators; and, Virginia: Hening’s Stats. atLarge, Vol. 9, p. 127, because,

[n]o man in this country is so highthat he is above the law. No officer of the law may set that law at defiancewith impunity. All the officers of the government, from the highest to thelowest, are creatures of the law and are bound to obey it. It is the onlysupreme power in our system of government, and every man who by acceptingoffice participates in its functions is only the more strongly bound to submit tothat supremacy, and to observe thelimitations which it imposes upon the exercise of the authority which itgives.  United States v. Lee, 106 U.S. 196, 220 (1882) (Emphasisadded).  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 deniedabsolute 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 immunityRodriguez has been systematically denied access to an impartial court and common law jury trial to challenge the Court’s unconstitutional court rules and VSBDB void ad initio order. This confirms collusion to “resist the execution of the laws under color of authority,”[23] to obstruct accountability and obstruct justice by retroactively adopting the Court’s unlawful court rules in violation of Art. I §§ 5 & 9, VI §§ 1, 5, & 7, Art. XII § 1 VA Const. and VA Code §§ 18.2‑481 and 482 to retroactively enacted an ex-post facto change to VA Code § 54.1‑3935 (2009) by adopting unconstitutionally court rules to delegate to the Court power to give judicial authority to theVSBDB as a lower court and to appoint VSBDB members lower court judges.

            Based upon the above, the Circuit Court must hold those accountable for the willfuldefiance 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 (1932to 2009) based upon the record of the systematic denial of access to animpartial 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).

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