Cited by :c/users/jeff/internet/The-Matrix/fraud-upon-the-court.html (1 of 4) 7/24/2008 1:17:07 pm
*Red line notations point to alleged violations committed in my case
FRAUD UPON THE COURT – JUDGES ARE BOUND BY THE LAW
Fraud upon the Court is when the Judge (who is NOT the “Court”) does NOT support or uphold the Judicial Machinery of the Court. The Court is an unbiased, but methodical “creature” which is governed by the Rule of Law…that is, the Rules of Civil Procedure, the Rules of Criminal Procedure, and the Rules of Evidence, all which is overseen by Constitutional Law. The Court can ONLY be effective, fair and “just” if it is allowed to function as the laws proscribe. The sad fact is that in MOST Courts across the country, from Federal Courts down to local District courts, the judges are violating their oath of office and NOT properly following those rules (and most attorney’s do NOT as well, and are usually grossly ignorant).
Who is an officer of the court?
Judges and attorneys are officers of the Court. A State judge is a state judicial officer, paid by the state to act impartially and lawfully. A federal judge is a federal judicial officer, paid by the federal government to act impartially and lawfully. State and federal attorneys fall into the same general category and must abide by the rules. A judge is not the court. People v. Azjic, 88 III.App.3d 477,410 N>E.2d 626 (1980).
Fraud upon the court is where the Judge (who is NOT the “Court”) does not support or uphold the Judicial Machinery of the Court.
What is “fraud upon the Court”?
Whenever any officer of the court commits fraud during a proceeding in court, he/she is engaged in “fraud upon the court”. In Bullock v. United states, 763 F.2d 1115, 1121 (10th Cir. 1985), the court stated “Fraud upon the court is fraud which is directed to the judicial machinery itself and is not fraud between the parties or fraudulent documents, false statements or perjury…where a judge has not performed his/her judicial function — thus where the impartial functions of the court have been directly corrupted.”
“Fraud upon the court” has been defined by the 7th Circuit Court of Appeals to “embrace that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner it impartial tasks of adjudging cases that are presented for adjudication. “Kenner v C.I.R., 387 F.3d 689(1968); 7 Moore’s Federal Practice, 2d ed., p. 512, 60:23. The 7th Circuit further stated “a decision produced by fraud upon the court is not in essence a decision at all, and never becomes final.”
What effect does an act of “fraud upon the court” have upon the court proceeding?
“Fraud upon the court” makes void the orders and judgments of that court. It is also clear and well-settled that any attempt to commit “fraud upon the court” vitiates the entire proceeding. The People of the State of Illinois v. Fred E. Sterling, 357 III.354;192 N.E. 229 (1934) (“The maxim that fraud vitiates every transaction into which it enters applies to judgments as well as to contracts and other transactions.”); In re Village of Willowbrook, 37 III. App.2d 393 (1962) (“It is axiomatic that fraud vitiates everything.”).
Under Federal law, when any officer of the court has committed “fraud upon the Court”, the orders and judgment of that court are void or of no legal force or effect.
What causes the “Disqualification of Judges?”
Federal law requires the automatic disqualification of a Federal judge under certain circumstances. In 1994, the U.S. Supreme Court held that “Disqualification is required if an objective observer would entertain reasonable questions about the judge’s impartiality. If a judge’s attitude or state of mind leads a detached observer to conclude that a fair and impartial hearing is unlikely, the judge must be qualified.” Emphasis added. Liteky v. U.S., 114 S.Ct.1147 1162 (1994)
Courts have repeatedly held that positive proof of the impartiality of a judge is not a requirement, only the appearance of impartiality. Liljeberg v. Health Services Acquisitions Corp. 486 U.S. 847, 108 S.Ct.2194(1988) (what matters is not the reality of bias or prejudice but its appearance); United States v. Balistrieri, 779 F.2d 1191 (7th Cir. 1985) (Section 455(a) “is directed against the appearance of partiality, whether or not the judge is actually biased.”) (“Section 455(a) of the Judicial Code, 28 U.S.C. § 455(a), is not intended to protect litigants from actual bias in their judge but rather to promote public confidence in the impartiality of the judicial process.”)
The Court also stated that Section 455(a) “requires a judge to recuse himself in any proceeding in which her impartiality might reasonably be questioned.” Taylor v. O’Grady, 888 F.2d 1189 (7th Cir. 1989). In Pfizer Inc v. Lord, 456 F.2d 532 (8th Cir. 1972), the Court stated that “It is important that the litigant not only actually receive justice, but that the litigant believe that he has received justice.”
IMPORTANT: The Supreme Court has ruled and has reaffirmed the principle that “justice must satisfy the appearance of justice”, Levine v. United States, 362 U.S. 610, 80 S.Ct. 1038 (1960), citing Offutt v. Untied States, 348 U.S. 11, 14, 75 S.Ct. 11,13 (1954).
“Recusal under Section 455 is self -executing; a party need not file affidavits in support of recusal and the judge is obligated to recuse herself sua sponte under the stated circumstances. “Taylor v. O’Grady, 888 F.2d 1189 (7th Cir. 1989).
Further, the judge has a legal duty to disqualify himself even if there is no motion asking for his disqualification. The Seventy Circuit Court of Appeals further stated that “We think that this language (455(a)) imposes a duty on the judge to act sua sponte, even if no motion or affidavit is filed. “Balistrieri, at 1202.
Judges do not have the discretion not to disqualify themselves. By law, they are bound to the follow the law. Should the judge not disqualify himself as required by law, then the judge has given another example of this “appearance of partiality”, which, possibly, further disqualifies the judge. Should another judge not accept the disqualification of the judge, then the second judge has evidenced an “appearance of partiality” and possibly disqualified himself/herself. None of the orders issued by any judge who has been disqualified by law would appear to be valid. It would appear that they are void as a matter of law, and are no legal force or effect.
If you are a non-represented litigant, and should the court not follow the law as to non-represented litigants, then the judge has expressed an “appearance of partiality” and, under the law it would seem that he/she has disqualified him/herself.
However, since not all judges keep up to date in the law, and since not all judges follow the law, it is possible that a judge may not know the ruling of the U.S. Supreme Court and the other courts on this subject. Notice that is states “disqualification is required” and that a judge “must be disqualified” under certain circumstances.
The Supreme Court has also held that if a judge wars against the Constitution, or if he acts without jurisdiction, he has engaged in treason to the Constitution. If a judge acts after he has been automatically disqualified by law, then he is acting without jurisdiction, and that suggest that he is then engaging in criminal acts of treason, and may be engaged in extortion and the interference with interstate commerce.
Courts have repeatedly ruled that judges have no immunity from their criminal acts. Since both treason and the interference with interstate commerce are criminal acts; no judge has immunity to engage in such acts.
cited: Case 6:09-cv-01984
SUPPRESSION OF TRUTH AND FALSE INFORMATION
Fraud includes the suppression of the truth, as well as the presentation of false information (In re Witt (1191) 145 Ill.2d 380, 583 N.E. 2d 526, 531, 164 Ill. Dec. 610). See also In re Frederick Edward Strufe, Disciplinary case no. 93 SH 100,
“Where the Court stated that fraud has been broadly defined as anything calculated to deceive. It should be noted that the definition of fraud applies to everything an attorney may be engaged in, whether in court, or in his office.”
It is well established in law that any attempt by an attorney, to deceive is considered fraud, and when the attempt to deceive occurs in a judicial proceeding, it is “fraud upon the Court.”
Please see Rules of Professional Conduct Rule 8.4.