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COMMENT: I’ve been contemplating the problems of whether or not the affirmative protection of certified and different immunity defenses are or should not obtainable to workers of states and cities if the grievance seeks solely equitable aid and never cash damages, and whether or not such defendants can avail themselves of the immunity defenses if they’re sued of their official capacities and never their private capacities. The essential rule of most Circuits, together with the Fifth, is that should you sue a public worker their official capability, and the grievance seeks solely equitable aid and never financial damages, the general public worker defendant can not assert immunity defenses.
Petition for Writ of Certiorari: Baraka v. McGreevey_Writ Application_U.S. Sup. Ct.
I as soon as adopted the Third Circuit case of Bakara v. McGreevey 481 F.3d 187 (third Cir 2007) that concerned these points, and I obtained a duplicate of the Petition for Writ of Certiorari filed in SCOTUS. See connected. That petition talks in regards to the break up within the Circuits on the time and addresses stated points. I concluded that choices of the Second, Third, and Eleventh Circuits are very complicated on the stated points, and I used to be glad I used to be within the Fifth Circuit. The dialogue within the stated Petition for Writ of Certiorari in Bakara v. McGreevey should, in fact, be delivered to date on the problems, however assuming there’s nonetheless a break up within the Circuits that would “open a door,” the next strikes made by the defendants in New York v. Trump, et al might shut down the Hochul, Engoron and James fiasco, particularly any proceedings to execute on the judgment based mostly on the decision:
FILE A COMPLAINT towards Hochul, Engoron and James IN THEIR OFFICIAL CAPACITIES, NOT IN THEIR PERSONAL CAPACITIES. The grievance would allege that the eighth Modification was violated in New York v. Trump, et al. The grievance would search ONLY EQUITABLE RELIEF as follows:
(1) A declaratory judgment stating
(a) the definition of “restitution” and “damages” as set forth in New York Government Legislation § 63(12),(b) the formulation the courtroom used, or ought to use, to calculate the quantity of the decision/judgment, and(c) whether or not what known as “damages and restitution” within the statute is known as a advantageous, penalty or some hybrid type of damages;
(2) potential injunctive aid, i.e., a TRO [Temporary Restraining Order], a preliminary injunction, and a everlasting injunction towards Hochul, Engoron, and James of their official capacities prohibiting them from taking any motion sooner or later to implement the judgment. Looking for solely equitable aid and never damages might imply that Hochul, Engoron and James can not plead the protection of certified and different immunities. Legal professionals all the time need to embrace a deep pocket defendant to get a cash judgment, so that they shoot themselves within the foot by searching for private cash judgments towards workers of a municipality or a state. There are various instances on such a grievance, however I’m conversant in two the place the plaintiff’s attorneys sought ONLY equitable aid and never damages towards public workers of their official capacities. See Gorby v. Davis and Heart for Organic Variety v. Ken Sakazar
{Plaintiffs in Gorby v. Davis filed motion towards Inside and FWS to put aside FWS’s discovering that the desert bald eagle doesn’t qualify as a definite inhabitants section (“DPS”) entitled to safety beneath the Endangered Species Act (“ESA”). Plaintiff’s motions for abstract judgment was granted. The Court docket discovered that FWS’ 12–month discovering was based mostly on the 2007 delisting rule, which didn’t comport with the discover, remark, and session necessities of the ESA. The Court docket put aside the 12–month discovering as an abuse of discretion.}
THE VENUE WOULD BE the U.S. District Court docket for the Northern District of New York situated within the James T. Foley U.S. Courthouse, Suite 509, 445 Broadway, Albany, NY 12207. Hochul is domiciled within the New York State Government Mansion, the official residence of the governor of New York. The Government Mansion is situated at 138 Eagle Avenue in Albany, New York, close to the state capital. The Government Mansion has housed governors and their households since 1875. This avoids submitting within the U.S. District Court docket for the Southern District of New York.
Greatest regards.
EGM
REPLY: I believe your evaluation speaks to this very problem of the perversion of legislation. On condition that the eighth Modification prohibits merciless and strange punishment, I miss out on how courts can create immunity to violate the Structure they swear to uphold. In that case, the Third Circuit’s choice prolonged legislative immunity far past the bounds of the Structure, successfully conferring absolute legislative immunity on any exercise by government officers with even a slight connection to the legislative course of.
The Supreme Court docket simply heard an oral argument in SEC v Jaresy (22-859) on November twenty ninth, 2023, which might additionally affect the Trump Case. The Dodd-Frank Act handed within the aftermath of the 2007 Crash vested the SEC with the authority to sue “any particular person” for violations of the securities acts, together with anti-fraud claims, in its personal inside administrative tribunals. That was, for my part, unconstitutional. This Act circumvented the Seventh Modification and the fitting to a jury trial.
The Seventh Modification ensures the fitting to trial by jury in “fits at widespread legislation,” encompassing authorized, versus equitable, claims for penalties. The Supreme Court docket had lengthy held that the touchstone for the applicability of Seventh Modification rights was the follow of the courts of England in 1791 when the Seventh Modification was ratified. Subsequently, that historical past establishes that eighteenth-century English courts afforded jury trial rights that included civil enforcement actions prosecuted by the Crown every time the fitting of personal property was at stake, as in fits for penalties.
All of us might know that the Magna Carta established rights that had been compelled on King John (1166–1216) to signal on June 15, 1215, on the calls for of the elite barons. The explanation for that was quite necessary – the widespread man was not taxed, solely the wealthy. A tax revolt over authorities abuse was on the core of this complete problem. The abuse was so profound that a part of the demand included the fitting to trial by jury as a result of the King would advantageous you no matter he happy to essentially elevate cash.
On the time, it was stated that there was hardly an Englishman who had not been amerced at the least yearly. An amercement is a monetary penalty in English legislation. It was an abuse the place the king made income from fines through the Center Ages. The noun “amercement” is derived from the verb “amerce,” which suggests the king amerces his topic, who offended some legislation that goes again to Anglo-Norman origin, actually that means “being on the mercy of” your sovereign.
Subsequently, in forming this nation, there was a contest between the Federalists of Hamilton, who wished immense energy for the federal government, and the Anti-Federalists. It might shock many, however Patrick Henry, who each college little one was taught in his memorable 1775 declaration, “Give me liberty or give me demise,” refused to signal the Structure as a result of there was no Invoice of Rights.
The king was circumventing your proper to a jury trial after the Magna Carta by charging you in vice-admiralty courts the place there was no proper to a jury. The draft structure’s omission of a typical legislation jury trial proper was the first objection that almost scuttled ratification. The Anti-Federalists carried the day in pushing by means of the Seventh Modification, largely to guarantee that the federal government couldn’t put residents to trial for penalties with out the intervention of a jury.
That’s exactly what NYC did to Trump, they usually did that to me as properly. It’s a vile place the place no person of their proper thoughts ought to do enterprise. Will they should go after anybody with a mortgage and argue they overvalued their property even after repaying it to show this was not a political hit on solely Trump? Even the New York Occasions defined that this statute has by no means earlier than been utilized in a case that was not felony fraud.
Right here, we have now a statute the place the penalty was within the choose’s arms — there was no jury — and it gave him huge discretion to do exactly what the Eighth Modification was to forestall. That is supposed to bankrupt Trump to intrude within the 2024 election. The final time states did this to ban a candidate from the poll was in 1860 and the ban towards Abraham Lincoln. That led to civil struggle. Democrats in Washington are already saying if Trump is elected, they’ll REFUSE to adjust to any of his orders. That is the tip of america, and the Civil Unrest coming post-2024, as forecasted by our laptop, is now turning into extra comprehensible.
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