April 22, 2007

By Jacob Roginsky, Ph.D. (View author info)
Copyright A Matter of Justice

Including a copy of the 6th Circuit decision in Catz v. Chalker.

See also Twenty-two Reasons To Vacate Void Judgment and Void Judgment Citations

When reading this opinion, most folks notice the fact that Catz overcame the Rooker-Feldman and Domestic Relations exceptions, but do not notice that this case was under a different legal theory than most suits seeking to void state court judgments through a federal action. It is not a 42USC1983 action involving the state judge. The courts are extremely hostile to actions involving judges as defendants.

Most of what I am about to say about the Catz v. Chalker philosophy I learned, or believe to have learned by speaking to Robert Catz.. I must caution you, however, not to rely blindly on anything I say in this regard, for some of my understanding could be faulty.

Catz attacked the family court judgment without directly attacking the judge. He filed an In Rem action (See Fn 1 below) targeting the state court judgment itself. Given that his ex wife held the judgment, he named her as a "defendant" (more appropriately to put it, as a party in interest).

The In Rem action filed by Catz is in its nature a state action over which the Constitution did not give the federal courts direct jurisdiction, except ... All federal constitutional rights of citizens are also their state rights via the Supremacy Clause. All states have state procedures, either codified, e.g. similar to Rule 60 (b) of Federal Rules of Civil Procedure (FRCP)), or Common Law -- from which Rule 60 (b) was actually derived, according to Catz -- to attack void state judgments. Blatant deprivation of the 14th Amendment rights that may not be fully reviewed on appeal are prime targets for independent state actions to annul judgments.

It would be a near certainty that Catz would fail in attacking the state judgment in state court because a) the state trial judges are rarely honest enough to declare that a judgment issued by one of their own is void and b) the state appellate judges are even more dishonest and political. The federal courts, although the most dishonest courts, do not usually have as much at stake in allowing an attack on a states court judgment. It was therefore desirable to bring Catz' action in federal court. The fact that the challenge to the validity of the divorce decree was based on the allegation that the process in Catz' case blatantly violated his 14th Amendment rights made it possible, for it created the federal question, "Was Catz deprived of his 14th Amendment Rights by the family court? The need to answer this question gave the Federal Court original jurisdiction over the case under Federal Question Jurisdiction, 28 U.S.C. ? 1331 (See Fn 2).

Ultimately, no law serves us well if our judges are unwilling to respect it. Catz was lucky in that the primary appellate judge in his case was Judge Boggs, someone both brilliant (he understood the novel approach) and reasonably fair to have permitted the action. Most federal judges would instead accept the bogus Rooker-Feldman and Domestic Relations Abstention arguments by the defendant and get rid of the case.

As I had mentioned previously, one of the other important advantages of this approach over the 1983 actions is that no judge is named as a defendant. Otherwise, Catz would face dealing with the infinite resources and considerable pool of attorney talent of the State Attorney General's office. As it is, the resources of the two sides in this matter were comparable. Another advantage is that in most or all states the actions to void judgment have no statutes of limitation. Success in prosecuting such an action results in the establishment that a constitutional tort -- possibly other torts as well -- has occurred, giving rise to grounds for a tort action against the non-judicial participants in the deprivation of rights. In Catz's case such action should lie against the opposing counsel and Chalker, the ex wife of Catz.

INTERESTING QUESTION

Ultimately, at stake for Catz in the state court judgement was much more than $75,000, which is what required for diversity jurisdiction in a garden variety action, if the parties are from different states. However, the fact that his suit really only sought to declare the family court decree void makes it interesting and important for many of us to explore if diversity jurisdiction could be used here (to strengthen position favoring federal jurisdiction in a case like this).

Fn 1. In Rem Proceeding Jon Roland's one-stop shop, www.constitution.org, has the following excerpt from the 1856 edition of Bouvier's Law Dictionary on the In Rem remedies (See http://www.constitution.org/bouv/bouvier_i.htm):

:This technical term is used to designate proceedings or actions instituted against the thing, in contradistinction to personal actions which are said to be in personam. Proceedings in rem include not only judgments of property as forfeited, or as prize in the admiralty, or the English exchequer, but also the decisions of other courts upon the personal status, or relations of the party, such as marriage, divorce, bastardy, settlement, or the like. 1 Greenl. Ev. 525, 541.

2. Courts of admiralty enforce the performance of a contract by seizing into their custody the very subject of hypothecation; for in these case's the parties are not personally bound, and the proceedings are confined to the thing in specie. Bro. Civ. andAdm. Law, 98; and see 2 Gall. R. 200; 3 T. R. 269, 270.

3. There are cases, however, where the remedy is either in personam or in rem. Seamen, for example, may proceed against the ship or cargo for their wages, and this is the most expeditious mode; or they may proceed against the master or owners. 4 Burr. 1944; 2 Bro. C. & A. Law, 396. Vide, generally, 1 Phil. Ev. 254; 1 Stark. Ev. 228; Dane's Ab. h. t.; Serg. Const. Law, 202, 203, 212.

Although the definite might suggest that In Rem proceedings have things as defendants, this is not so. While the legal actions challenge the status of "things," the defendant in such action is really a party in interest. For example, if someone buys at a flee market a golden ring, yet the ring was stolen from another citizen, if the victim finds out about the purchase, he can file an In Rem action seeking to declare that the ring does not belong to the purchaser. Obviously, the purchaser broke no law in acquiring the ring, and committed no torts against the victim, therefore no action lies for the victim against the purchaser. However, the victim can file a suit challenging the status of the ring. Now, confuses some folks into thinking that In Rem proceedings have objects as defendants. In a very limited sense such view

Fn 2 28 U.S.C. Sec. 1331. - Federal question The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.

A disproportionate number of legal questions that come to us -- most are not published to the list -- are inquiries as to what to do about judgements that have been issued in the absence of due process. I think it will be worth our while to discuss this here, not that any law can guarantee lawful and/or just outcome when the judiciary is as dishonest and lawless as our judiciary has become, but learning such law must be part of legal education of a good legal reformer.

LAW THAT IS APPROPRIATE, YET STRONGLY DISFAVORED

Many of us are already familiar with some law that provides for the above-mentioned relief. Direct appellate process is often useful and preferred where a judge denies due process through negligence or ignorance. However, where the denial of due process is through fraud and corruption, independent legal actions are sometimes necessary not only because the record is not developed for the consideration by the court of appeals, but because the courts of appeals -- both state and federal -- have some of the most dishonest judges who will rarely officially accept the notion that a judge can act corruptly.

The suits under 42 USC 1983 against state judges and the Bivens Actions against the federal judges are the best known remedies that exist in theory. The judges are sued for equitable relief, asking the court to declare that the judge denied due process to the litigant, which then under Marbury v. Madison voids the decree issued by the judicial offender. But the courts are louth to allow citizens' suits against judges no matter how terrible the judges are. Another problem for such litigants is that the defendant state and federal judges are represented by the state and federal attorney generals respectively. That means that the judges are protected by vast resources. It is desirable for these reasons to try and identify actions that attack the underlying judgements without attacking directly the corrupt judges.

COMMON LAW ACTION TO VOID JUDGMENT AS AN ATTRACTIVE ALTERNATIVE Most of what I learned about this alternative came from a former law professor who successfully challenged the decree in his divorce proceedings on the basis that egregious improprieties took place. I will communicate to you what I know on this subject in my subsequent e-mails. Contribution from all folks knowledgeable in this area is welcome. BTW, I shared the approach with Dorothy. After she researched the approach using a service similar to WestLaw she found a bunch of case law in its support.