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Fraud On The Court By An Officer Of The Court - Disqualification Of Judges
Contents
1. Who is an <> "officer of the court"?. 1
2. What is <> "fraud on the court"?. 1
3. How does <> "fraud upon the court" affect court proceedings?. 2
4. What <> causes the "Disqualification of Judges?". 2
1. Who is an "officer of the court"?
A judge is an officer of the court, as well as are all attorneys. 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 meet the same requirements. A judge
is not the court. People v. Zajic, 88 Ill.App.3d 477, 410 N.E.2d 626 (1980).
2. What is "fraud on the court"? People v. Zajic,88Ill.App.3d - Google Search
Whenever any officer of the court commits fraud during a proceeding in the
court, he/she is engaged in "fraud upon the court". In Bulloch 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. ... It is where the court or a member is corrupted or influenced or
influence is attempted or where the judge has not performed his judicial
function --- thus where the impartial functions of the court have been
directly corrupted." Bulloch v. US 763 F.2d 115 - Google Search
"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 its impartial task 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." Kenner v. C.I.R.,387 F.3d 689 - Google Search
3. How does "fraud upon the court" affect court proceedings?
"Fraud upon the court" makes void the orders and judgments of that court.
It is also clear and well-settled Illinois law 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 Ill. 354; 192 N.E. 229 (1934)
The People Ill v. Fred E.Sterling,357 - Google Search
("The maxim that fraud vitiates every transaction into which it enters
applies to judgments as well as to contracts and other transactions.");
Allen F. Moore v. Stanley F. Sievers, 336 Ill. 316; 168 N.E. 259 (1929) Allen F. Moore v. Stanley F. Sievers,336 Ill 316 - Google Search
("The maxim that fraud vitiates every transaction into which it enters
..."); In re Village of Willowbrook, 37 Ill.App.2d 393 (1962)
("It is In re Village of Willowbrok, 37 Ill.App.2d 393 - Google Search
axiomatic that fraud vitiates everything."); Dunham v. Dunham, 57 Ill.App.
475 (1894), affirmed 162 Ill. 589 (1896);Dunham v. Dunham 57 Ill.App.475 (1894) - Google Search
Skelly Oil Co. v. Universal Oil Skelly Oil Co.v.Universal Oil Products Co., 338 Ill.App - Google Search
Products Co., 338 Ill.App. 79, 86 N.E.2d 875, 883-4 (1949); Thomas Stasel v.
The American Home Security Corporation, 362 Ill. 350; 199 N.E. 798 (1935).
Thomas Stasel v. The American Home Security Corp 362 Ill.350 - Google Search
Under Illinois and Federal law, when any officer of the court has committed
"fraud upon the court", the orders and judgment of that court are void, of
no legal force or effect.
4. 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 disqualified." [Emphasis added]. Liteky v. U.S., 114 S.Ct.
1147, 1162 (1994). Liteky v. US 114 S.Ct 1147 - Google Search
Courts have repeatedly held that positive proof of the partiality of a judge
is not a requirement, only the appearance of partiality. Liljeberg v. Health
Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194 (1988)
(what Liljeberg v. Health Services Acquisition Corp., 486 US 847 - Google Search
matters is not the reality of bias or prejudice but its appearance); United
States v. Balistrieri, 779 F.2d 1191 (7th Cir. 1985) US . Balistrieri, 779 F.2d 1191 - Google Search
(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."). Judicial Code, 28 USC 445 - Google Search
That 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).Taylor v. O'Grady, 888 F.2d 1189 - Google Search
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 he
believes that he has received justice." Pfizer Inc. v. Lor,456 F.2d 532 (8thCir) 1972 - Google Search
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),Levine v. US 362 US610 - Google Search
citing Offutt v. United States, 348 U.S. 11, 14,
75 S.Ct. 11, 13 (1954). A judge receiving a bribe from an interested party
over which he is presiding, does not give the appearance of justice. Offutt v. US 348 US 11,14,75 S.Ct.11,13 (1954) - Google Search
"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). Taylor v. O'Grady, 888 F.2d 1189 (7thCir.1989) - Google Search
Further, the judge has a legal duty to disqualify himself even if there is
no motion asking for his disqualification. The Seventh 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. Balistrieri at 1202 - Google Search
Judges do not have discretion not to disqualify themselves. By law, they are
bound to follow the law. Should a judge not disqualify himself as required
by law, then the judge has given another example of his "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 has 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 of no legal force or effect.
Should a judge not disqualify himself, then the judge is violation of the
Due Process Clause of the U.S. Constitution. Due Process US Constitution - Google Search
United States v. Sciuto, 521 United States v. Sciuto 521 F2d 842, - Google Search
F.2d 842, 845 (7th Cir. 1996) ("The right to a tribunal free from bias or
prejudice is based, not on section 144, but on the Due Process Clause.").
Should a judge issue any order after he has been disqualified by law, and if
the party has been denied of any of his / her property, then the judge may
have been engaged in the Federal Crime of "interference with interstate
commerce". The judge has acted in the judge's personal capacity and not in
the judge's judicial capacity. It has been said that this judge, acting in
this manner, has no more lawful authority than someone's next-door neighbor
(provided that he is not a judge).
However some judges may not follow the law.
If you were 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
it 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 for their criminal
acts. Since both treason and the interference with interstate commerce are
criminal acts, no judge has immunity to engage in such acts.
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