Response To Superior Court And Judge Becker's Motion To Dismiss

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA, Atlanta Division JAMES B. STEGEMAN, JANET D. MCDONALD, Plaintiffs

CIVIL ACTION FILE NO: 1:08-CV-1971-WSD

vs. SUPERIOR COURT, et., al., Defendants PLAINTIFFS’ BRIEF IN RESPONSE TO DEFENDANTS SUPERIOR COURT AND JUDGE BECKER’S PRE-ANSWER MOTION TO DISMISS _______________________________ COMES NOW, James Stegeman and Janet McDonald and file their Plaintiffs’ Brief In Response To Defendants’ Superior Court And Judge Becker’s Pre-Answer Motion To Dismiss. FACTS Plaintiffs’ complaint shows the Superior Court action is for an on-going property easement dispute with Georgia Power Company and Georgia Power Company Forestry Department,1 at the time of filing the case at bar, Superior Court Judge Becker had made no final judgment. 2 Referred to hereinafter as “GA Power” Judge Becker as a Defendant, has a personal interest in the Superior Court action, should have, but failed to recuse or disqualify herself. 1 2

MATTERS IRRELEVANT TO THIS CASE Defendant’s Brief In Support Of Motion To Dismiss,3 Superior Court and Judge Becker4 attempts to cloud the issues of this case with remarks wholly irrelevant to the matters at hand: “…another series …Plaintiffs have sought relief from

ongoing

or

concluded

…proceedings

regarding

their

“financial

predicaments.” (MTD pg.1). Plaintiffs response is that any reference to Plaintiffs’ “financial predicaments” are made to bias and prejudice the Court, and should be disregarded as irrelevant and scandalous. Defendants state: “See Stegeman v. Wachovia Bank, …Stegeman v. State of Georgia, …”

Plaintiffs respond that Wachovia Removed that case to District

Court, it was Remanded, continued for another year. Stegeman v. State of Georgia a case in which Stegeman, a disabled adult, was attempting to enforce his Civil and Constitutional Rights.5 Both cases are irrelevant and immaterial to the case at bar. PLAINTIFFS’ ATTEMPTS TO PROTECT THEIR RIGHTS Before Plaintiffs filed the Superior Court action, they attempted to remedy Motion to Dismiss referred to hereinafter as “MTD” Superior Court and Judge Becker are the only Defendants concerned in this Motion to Dismiss and referred to hereinafter as “these defendants”. 5 Should the state of Georgia protect the rights of the disabled, (Georgia receives Federal funding for Legal-Aid programs for disabled) Stegeman as homeowner would have had Georgia’s Legal-Aid Program or a Georgia Bar Pro Bono counsel appointed to protect his property and Rights preventing the necessity of both the Superior Court action and this District Court action 3 4

2

the situation in several ways. First they tried to deal with GA Power directly, that didn’t work. GA Power insisted they had easement rights through an easement agreement, provided a 1937 agreement, 1937 Railway/Power Co.6 pole placement map, and 1941 easement agreement. Neither easement document pertained to Plaintiffs’ property, appeared to be “manufactured” to pacify Plaintiffs. The 1937 map shows power lines cross the street before Plaintiffs’ property. Plaintiffs contacted several GA entities about the situation due to fact that Georgia and Federal Constitutions forbid taking of property without due process and just compensation, they did nothing. Plaintiffs and GA Power Forestry Dept., Manager Nancy Huddleston had written Certified letters back in forth; Plaintiffs informed GA Power there were no easement rights, and criminal charges would be taken out should GA Power trespass and cut their trees. DeKalb County Magistrate Court The day after GA Power trespassed and criminally damaged Plaintiffs’ property, Plaintiffs went to DeKalb County Magistrate Court for criminal charges. The 1937 easement document has the name as then landowner as Dr. R. F. Wells; the 1941 document has the name as R. F. Wells; There was no R. F. Wells in Stone Mountain, ever; neither document had proper both the District and Land Lot and the spelling of the road. The 1937 map shows that A. O. Fields was the landowner of Plaintiffs’ property although the name Dr. R. F. Wells had been penciled in at some time. The problem with that being, there was never a Dr. R. F. Wells in Stone Mountain. 6

3

Although Magistrate Judge Whiteman did not issue warrants for arrest, she set a hearing to show cause. Judge Whiteman did not preside over the hearing, the presiding Judge refused to look at any documents. GA Power swore under penalty of perjury that they had a legal easement rights, the pole next door to Plaintiffs had not been moved since 1941-42. They perjured themselves. Even after having to appear for a hearing to show cause for criminal charges, GA Power still refused to take the matter into the Courts for Declaratory Judgement, as was suggested by the Magistrate Judge. Open Records Act On or around September 14, 2007, through Georgia’s Open Records Act, Plaintiffs received the results from the internal investigation conducted after Plaintiffs formal complaint with Georgia State Patrol. Plaintiffs found that the State Patrol Senior Troopers Mathis and Slappy had been hired as “personal security”; GA Power supervisor “Matt Goff” had told the Troopers that the homeowners said they “would kill” him should he come to the property to enforce GA Power’s easement rights, Matt Goff also told the Troopers that GA Power had the proper legal court documents to cut the trees. Both statements are untrue. Plaintiffs were forced to file the Superior Court action because of Matt Goff’s allegations to the State Patrol Troopers. Plaintiffs have discussed the matter

4

with law enforcement personnel, who assured them that should anything happen to Matt Goff, Plaintiffs would be the major suspect; should there be no other suspects, Plaintiffs would be prosecuted. Plaintiffs’ did seek redress for State and Federal Constitutional violations within the Superior Court the Court refused to address the violations. ARGUMENT AND CITATION OF AUTHORITY The due process clause of the Fourteenth Amendment guarantees “an impartial and disinterested tribunal”. Marshall v. Jerrico, Inc., 466 U.S. 238, 242 (1980); “an absence of actual bias” In Re Murchison, 349 U.S. 133, 136 (1955). “Redress for such a violation is available under 42 U.S.C. §1983 when the constitutional right is violated under color of state law. A private attorney who conspires with a state judge is with §1983’s purview.”

Casa Marie, Inc. v.

Superior Court, 988 F. 2d 252, 258-89 (1st Cir. 1993). Superior Court’s Dismissal With Prejudice The record shows that Plaintiffs filed this action in District Court on June 9, 2008. Judge Becker was served with Summons and Complaint @ 9:47 a.m. June 10, 2008. The Superior Court was served through Georgia’s Attorney General, Thurbert E. Baker with Summons and Complaint on June 10, 2008 @ 1:48 p.m. It is well established law that a Judge with a personal interest in a case must

5

disqualify themselves from the case; being a defendant in Federal Court was cause to disqualify. June 11, 2008 Judge Becker, again with no hearing, signed an Order Dismissing Plaintiffs’ Complaint with Prejudice. It was an act of retaliation for Plaintiffs attempting to protect, enforce their Constitutional Rights. Judicial Impeachment Judge Becker in an act of retaliation, the day after being served with Summons and Complaint, Dismissed With Prejudice, as to Plaintiffs only, the Superior Court action. Judge Becker has shown a blatant disregard for both the State of Georgia and United States Constitutions, Plaintiffs’ Civil and Constitutional Rights, prejudice, bias and retaliation. Judge Becker as a Defendant, had a personal interest, she was thereby disqualified to rule in the Superior Court action, such are grounds for impeachment under Georgia Law. See O.C.G.A. §15-6-13 which states: O.C.G.A. §15-6-3 “(a) When from any cause a judge of the superior court is disqualified…he shall procure the services of another superior court judge… (b) Failure of a judge to comply….is a ground for impeachment.” Further, every ruling by Judge Becker has been held without notifying Plaintiffs, the Order Dismissing Plaintiffs’ case was held for ten days by Judge Becker’s Court until Saturday, June 21, 2008, before being mailed to Plaintiffs, as 6

evidenced by the postmark on the envelope. Plaintiffs have attached the envelope and Order hereto as “Exhibit A”. Georgia’s Civil Practice Act and The Federal Rules of Civil Procedure are almost identical. Fed. R. Civ. P. Rule 59(b), (d), and (e) provides only 10 days within entry of judgment, whether by Motion or the Court’s own initiative, may a judgment may be altered or amended. Holding the Order for exactly ten days guaranteed that Plaintiffs would not be allowed to file Motion For New Hearing or Motion For Reconsideration. 7 For this reason, and due to denying Plaintiffs the opportunity to be heard, before Dismissing the case, the Order should be considered “Void On It’s Face”. In violation of O.C.G.A. §15-6-21(b),(c),(d) Judge Becker has consistently refused to rule on Plaintiffs’ Motions; 8 the motions that have been ruled on were Defendants’ Motions, as evidenced by Exhibits attached to the complaint and “Exhibit A” attached hereto, shows Judge Becker refused to send the Orders to Plaintiffs until such time as would be too late for Plaintiffs to timely respond. O.C.G.A. §15-6-21 (b) “In all counties … it shall be the duty of the judge of the superior, …within in 90 days…motions of any nature.” (c) “When her or she has so decided, it shall be the duty of Georgia, like Federal Court, only allows ten days to file Motion For Reconsideration after an Order is filed. 8 The only Motion of Plaintiffs that was ruled on “Motion to Recuse” was denied. 7

7

the judge… to notify…” (d) “If any judge fails or refuses, …to obey the provisions of subsections (a) through (c)…, or if any judge repeatedly or persistently fails or refuses to decide the various motions,… such conduct shall be grounds for impeachment and the penalty therefore shall be removal from office.” Judge Becker, refused to rule on Plaintiffs’ Motion to Strike Answers filed 03/12/20089, Plaintiffs’ Motion to Stay Discovery…filed 03/20/ 2008; Defendants’ Motion For Continuance filed 03/28/2008; without ruling on any of these Motions, Judge Becker jumped to Defendant’s Motion to Compel filed 03/31/2008 10 and their second Motion to Compel filed 04/15/2008, with no hearing scheduled and denying Plaintiffs their Rights of due process, ruled on both Motions in the same Order, in favor of Defendants on May 05/28/2008, then didn’t notify Plaintiffs of the decision Georgia Legislature created law making Judge Becker’s acts prohibited, impeachable offenses. It must further be noted that Defendant’s Motion to Dismiss Plaintiffs mailed the Motion U.S.P.S. Priority, Certified Mail, the Court received the Motion on March 8, 2008 but held without filing until March 12th and didn’t mail back Plaintiffs’ copy although there was postage pre-paid, self-addressed envelope to do so; no explanation was given. 10 Attorney Watt and Judge Becker’s Law Clerk and Calendar Clerk, with Judge Becker’s permission, attempted to have a “phone hearing” which was arranged on March 31, 2008 without Plaintiffs’ knowledge and set for April 1, 2008 at 9:30 a.m. Attorney Watt left Plaintiffs a voice message sometime after 6:00 p.m. on March 31st about the hearing, Plaintiffs did not receive the message until past noon April 1st. 9

8

with the Order attached for Judge Becker to sign was filed June 5, 2008, there was not a hearing before she signed the Dismissal on June 11, 2008, mailed to Plaintiffs Saturday, June 21, 2008. Plaintiffs were denied their Right to respond to the Motion to Dismiss as well as other Motions and there was no hearing beforehand. Direct violations of due process of law, “under color of law” or “color of authority”. The Dismissal Order contains no citations or authorities, it is the Order written by GA Power’s counsel and submitted with Motion to Dismiss. Surely, these acts are beyond Judge Becker’s jurisdiction and/or discretion, clearly violated Plaintiffs’ Federal Constitutional Rights. The Superior Court refused to address Plaintiffs’ constitutional violations claims and the Court itself violated Plaintiffs’ Rights. The Order was held ten days, and there were no hearings before Order Compelling Discovery and/or Dismissal. “It is well established that judges may be enjoined from interfering with citizens rights.” Bramlett v. Peterson (1967) 386 U.S. 547. STAY OF ENFORCEMENT OF JUDGMENT In light of Superior Court Judge Becker’s actions of Dismissing With Prejudice Plaintiffs’ Superior Court case, and without jurisdiction.

Plaintiffs

MOVE this Honorable Court for a Stay of Superior Court’s Order to preserve the

9

“status quo” and prevent further violations of Plaintiffs’ Rights under the 4th, 5th, and 14th Amendments to The United States Constitution.

Plaintiffs Civil,

Constitutional and Human Rights will be irreparably harmed without a Stay. Judge Becker’s Order Dismissing Plaintiffs’ Complaint: 1. When Judge Becker was served with Summons and Complaint June 9, 2008, she had a duty to disqualify herself from Plaintiffs Superior Court case. 2. Judge Becker’s Ruling was signed June 11, 2008, after she was served with Summons and Complaint in violation of O.C.G.A. 15-6-13 3. There was no hearing before Dismissal, thereby denying Plaintiffs Due process of law, the right to be heard and meaningful access to the courts. 4. Judge Becker’s Dismissal of Plaintiffs’ case with prejudice was an act of retaliation against Plaintiffs 5. Dismissal of Plaintiffs’ case was also an act of retaliation against Plaintiffs for attempting to enforce their Civil and Constitutional Rights which Superior Court was refusing to address the Federal Constitutional Rights violations against them. Plaintiffs showed Superior Court that Defendants had knowingly and with intent, used a fraudulent document, made false representation to the Court, perjured themselves, created a fictional Discovery dispute in order to have the case dismissed. It is factual that there was a conspiracy against Plaintiffs’ Rights. GA Power’s Verified Answers and Counterclaim in Superior Court had attached the 1941 easement document. When Plaintiffs challenged the document, they refused to meet the challenge or address the fraudulent document, filed 10

Motion for Continuance claiming to need more time to investigate.11 GA Power’s request for “Reformation” of the document, in essence was a Judicial Admission, cognovit actionem,

implied color, direct confession thereby Plaintiffs were

entitled to and requested Judgment in their favor. Superior Court’s Dismissed the case with Prejudice as to Plaintiffs complaint only. *******It must be noted that GA Power’s First Amended Answers never amended their Verified answers in which they insisted to have a legal easement document and easement rights. Their Amendment only was to add Motion for Reformation and what they wanted the new document to say; all of their sworn to answers remained the same. GA Power never had easement rights, thereby making all of their answers and Verification perjury and fraud. These Defendants comment that Plaintiffs seek an injunction by this Court to prevent an illegal reformation of a fraudulent easement document, it is a true statement. Georgia Law mandates that the act of reformation would be illegal for several reasons.

Plaintiffs attach hereto pertinent GA Laws and cases on

Reformation as “Exhibit B”. Plaintiffs have met and talked with Ms. Wright, curator for the Stone Plaintiffs showed to Superior Court that GA Power had continually used that same document, providing it to Plaintiffs numerous times over the past three years, Plaintiffs had continually told GA Power the document did not pertain to their property. 11

11

Mountain Historic Society, housed within the “Wells-Brown” House on Ridge Avenue in Stone Mountain. According to the “Wells Family Tree”, there was never a “R. F. Wells”. The only Dr. Wells was “James A. Wells” who died 1933. His father George Riley Wells, buried in Confederate Cemetery, Stone Mountain City, died Jan. 5, 1919. “Exhibit C”. George Riley Wells was the one who had owned land in Stone Mountain, but not as far down as Sheppard Road. Because Plaintiffs and their private property will be irreparably harmed 12 by Superior Court’s Dismissal With Prejudice, and allowing the Counterclaim against them to continue, Plaintiffs Move this Honorable Court For a Stay of Enforcement of the State Court’s Judgment under “LR 83.3, NDGa”. THE ROOKER-FELDMAN DOCTRINE 1.Does Not Qualify for Dismissal Under Rooker-Feldman13 The Rooker-Feldman Doctrine bars lower federal jurisdiction where four The document GA Power seeks to have a “Reformation” on does not specify the amount of property, GA Power has told Plaintiffs in the past that they have a Right to any and all of Plaintiffs’ property. As it is, they have illegally taken roughly 55’ x 100’ without compensation. Further Georgia Law prohibits a “Reformation” of the document and the Federal Constitution prohibits taking of land without just compensation (5th Amendment) and seizure without due process of law (5th and 14th Amendments). 13 Defendants’ MTD pg. 2: “…ask this Court to intervene in a pending action….”; “…since (per the complaint) they lost in state court...asking this Court to entertain an appeal…” NOTE: When this case was filed, there had been no final Order; Plaintiffs’ complaint never stated “lost in state court”; have asked no rulings be overturned; or asked this Court for an appeal. 12

12

criteria are met, see Storck v. City of Coral Springs, 354 F.3d 1307, 1310 n.1 (11th Cir. 2003): “(1) the party in federal court is the same as the party in state court; (2) the prior state court ruling was a final or conclusive judgment on the merits; (3) the party seeking relief in federal court had a reasonable opportunity to raise its federal claims in the state court proceeding; (4) the issue before the federal court was either adjudicated by the state court or was inextricably intertwined with the state court’s judgment.” The parties are not the same, there was no adjudication within the State Court as to the merits of Plaintiffs complaint, Plaintiffs were deprived of the right to be heard, when filing of the case at bar there had been no final order, and Plaintiffs brought the denial of their Federally protected Civil and Constitutional Rights before the Superior Court which was ignored, therefore seek redress within this Court. Much like the claim made by Trust in Weis Builders, Inc. v. Kay S. Brown Living Trust, 263 F. Supp. 2d 1197, 1202, 1204 (D. Colo. 2002) which appealed that the Rooker-Feldman doctrine did not apply so as to deprive the district court of subject matter jurisdiction, and that dismissal should be denied, The appellate Court went on to explain:

13

“…Rooker-Feldman does not apply because these state court orders are separable from and collateral to the federal complaint, and the federal court is not being asked to sit in appellate review of either state court ruling. Weis, 236 F. Supp. 2d at 1200-02.” “There are however, significant limitations on the scope of the doctrine. ‘If the purpose of federal action is separable from and collateral to a state court judgment, then the claim is not ‘inextricably intertwined’ merely because the action necessitates some consideration of the merits of the state court judgment.” Kiowa, 150 F.3d at 1170 (quotation omitted). We have cautioned that “Supreme Court jurisprudence … compel[s] a narrow reading of the ‘inextricably intertwined’ test.” Id at 1169.” “The court in the TBL Action did not order …until after Weis had filed his complaint in federal court. See Weis, 236 F. Supp. 2d at 1200 (noting that Weis could not be seeking review of the order…the federal action was filed before the state court ruled).” “…the state court did not actually decide the issue presented…” B.

THE ABSTENTION DOCTRINE OF YOUNGER

1.Fundamental Role of States “In congressional contemplation, the pendency of state civil proceedings was to be wholly irrelevant. The very purpose of §1983 was to interpose the federal courts between the States and the people, as guardian of the people’s federal rights (quoting Mitchum v. Foster, 407 U.S. 225, 407 U.S. 242 (1972)” see Justice Brennan dissenting, Pennzoil v. Texaco, Inc. 481 U.S. 1 (1987), page 481 at 19.

14

The issue in Superior Court between Plaintiffs and GA Power concerned an on-going easement dispute, Plaintiffs complaint showed that GA Power had no easement document, GA Power claimed to have one. several claims about great state interests

14

The Defendants make

although they never state what interests

are involved concerning an easement dispute. The Defendants have failed to show even mild “state interest”.

They

reference “regulation of utilities”, and “real property”, but GA Power has been granted the right of condemnation, the real property is private property belonging to Plaintiffs and the property was taken by fraudulent means and without just compensation. As for regulation of utilities, it is well known that Georgia Power is “self-regulated” especially when it comes to easements and condition of their poles, Georgia Public Service Commission regulates for attachments to the poles and the prices GA Power charges for other companies’ attachments to the poles only. Should there have been a great interest in the judicial proceedings, Plaintiffs did file in Superior Court and to Judge Becker a “Statement For The Record” pointing out many violations of Plaintiffs’ State and Federal Constitutional Rights, which was ignored.

14

See MTD pg. 4, 5, 15

Neither Younger nor any of its progeny controls this case, Plaintiffs do not seek to enjoin state criminal proceedings, “quasi-criminal proceedings, proceedings in aid of the criminal law, proceedings initiated by the state in its sovereign capacity, or proceedings brought to vindicate a vital state interest. Rather Plaintiffs invoke the federal district court’s jurisdiction under §1983 ti restrain the state judiciary from conducting private tort litigation in a way that threaten to violate their constitutional rights. Miofsky v. Superior Court, et., al., 703 F.2d 332 (Ninth Cir. 1983) “Unless “vital state interests” are at stake, federal district courts are not proscribed from interfering with ongoing state civil proceedings when necessary to vindicate federally protected civil rights.” Middlesex, 102 S.Ct. at 2521. These Defendants have no interest at all the Superior Court action; unless GA Power has secretly been made a branch of The State of Georgia Government. These defendants’ claims are without merit. "The abstention doctrine instructs federal courts to abstain from exercising jurisdiction if applicable state law,… (… pendency of an action in state court will not ordinarily cause a federal court to abstain,…”)…” Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976); Will v. Calvert Fire Insurance Co., 437 U.S. 655 (1978); Arizona v. San Carlos Apache Tribe, 463 U.S. 545 (1983).” “Abstention is not proper, however, where the relevant state law is settled, …. City of Chicago v. Atchison, T. & S.F.R. 16

Co., 357 U.S. 77 (1958); Zwickler v. Koota, 389 U.S. 241, 249–251 (1967). See Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 306 (1979) (quoting Harman v. Forssenius, 380 U.S. 528, 534–535 (1965)).”15 2.Contrary To Defendant’s Claims As was the case in Miofsky v. Superior Court of California, 703 F.2d 332, (9th Cir. 1983), Plaintiffs seek the enforcement of that which The United States Constitution guarantees them and that which GA Power, Superior Court Judge Becker along with her Law Clerk and Calendar Clerk, acting under color of state law threaten to deny them. There are no grounds for exempting from the broad reach of §1983 actions taken by persons acting under color of state law in judicial proceedings, whether they are judges or others acting on behalf of the court. “…we know of no ground for exempting from the broad reach of Sec. 1983 actions taken by persons acting under color of state law in judicial proceedings, whether those persons are judges or others appointed by judges to act on behalf of the court.” Miofsky v. Superior Court of California, 703 F.2d 332, (9th Cir. 1983): “However, civil rights actions under Sec. 1983 are among the exceptions … that have been "expressly authorized by Act of Congress," id. See Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972).” “Thus, as Mitchum makes clear, Congress has not rendered federal courts impotent in the face of an infringement of constitutional rights by the judicial arm of state government. 15

http://www.law.cornell.edu/anncon/html/art3frag56_user.html#fnb1162 17

As the Court said in Mitchum, "[t]he very purpose of Sec. 1983 was to interpose the federal courts between the States and the people, as guardians of the people's federal rights--to protect the people from unconstitutional action under color of state law, 'whether that action be executive, legislative, or judicial.' " 407 U.S. at 242, 92 S.Ct. at 2162 (quoting Ex parte Virginia, 100 U.S. 339, 346, 25 L.Ed. 676 (1879) (emphasis added)).” “In light of Mitchum, we conclude that district courts have subject matter jurisdiction over suits brought under Sec. 1983 even when the state action allegedly violating plaintiff's federally protected rights takes the form of state court proceedings. 3 Accordingly, we hold that the district court erred in dismissing Miofsky's claim …” C. JUDICIAL IMMUNITY The Judicial Immunity Doctrine does not reach suits for purely equitable relief.

Bramlett v. Patterson, 307 F.Supp. 1131 (D.C. Fla. 1969).

Judicial

Immunity also would not prevent from petitioning for the appropriate direct or collateral relief whereby Constitutional Rights might be vindicated as a matter of public record. Jacobson v. Schaefer, 441 F.2d 127 (Seventh Cir. 1971). Further, Article VI of the United States Constitution declares that “the Judges in every state shall be bound” by the Federal Constitution, laws, and treaties. 42 USC 1985, (3) “ ...In any case of conspiracy set forth in this section, if one or more persons engaged herein do, or cause conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured 18

or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.” (Civil law) “Judicial definition that misuse of power possessed by virtue of state law and made possible only because wrong-doer is clothed with authority of state law is action taken under color of state law within this section is applicable to judge.” Duke v. State of Texas, DC Tex. 1971, 327 F.Sup. 1218. “An conspiracy is actionable under 42 USC 1985, when there has been an "actual of denial of due process."” (Civil Rights) Jennings v. Nester (1954, Ca. 7 Ill.) 217, F.2d 153, CERT DEN 349 U.S. 958, 99 L.Ed. 1281, 75 S.Ct. 888. "Liability in damages for unconstitutional or otherwise illegal conduct has the very desirable effect of deterring such conduct. indeed, this was precisely the proposition upon which 42 USC section 1983 was enacted." ... "Judges may be punished criminally for willful deprivations of constitutional right on the strength of 18 USC Section 242." (Civil Rights) (Imbler vs Pachtman, U.S. 47 L.Ed. 2nd 128, 96 S.Ct.) “Legislative history makes evident that congress clearly conceived that it was altering the relationship between the states and the nation with respect to the protection of federally created rights; it was concerned that state instrumentalities could not protect those rights; it realized that state officers might, in fact, antipathetic to the vindication of those rights; and it believed that these failings extended to state courts.” (Civil Rights) Mitchum v. Foster, 407 U.S. 225, 242. Yale Law Journal, page 328: "On three occasions during the debates, legislators explicitly stated that judge would be liable under the act. (Congressional Globe, 42nd Congress, 1st Session 385, (1871) No one denied the statements." Bauers v. Heisel, 361 F.2d 581, (3rd Cir. 1966). (Civil Rights)

19

“Judges are not immune from criminal sanctions under the Civil Rights Act.” ex parte Virginia (1879), 100 U.S. 339. “When a judge exceeds his jurisdiction and grants or denies that beyond his lawful authority to grant or deny, he has perpetrated a "non-judicial" action.” (Civil Rights) Yates v. Village of Hoffman Estates, Illinois, 209 F. Supp. 757 (N.D. Ill. 1962) The Yates Court also held: “not every action by a Judge is in exercise of his judicial function … it is not a judicial function for a judge to commit an intentional tort even though the tort occurs in the courthouse.” See also Jacobson v. Schaefer, 441 F.2d 127 (7th Cir. 1971): “On the other hand…has held that the doctrine would not apply to the commission of a ‘clearly illegal act on the part of the Judge. Luttrell v. Douglas, 220 F. Supp. 278 (1963). Plaintiffs have asked for no monetary damages, only for declaratory and injunctive relief from these defendants. See Mitchum v. Foster, 407 U.S. 225, 92 S. Ct. 2151, 32 L.Ed.2d 705 (1972). “[t]he very purpose of Sec. 1983 was to interpose the federal courts between the States and the people, as guardians of the people’s federal tights—to protect the people from unconstitutional action under color of state law ‘whether that action be executive, legislative, or judicial.’ ” 407 U.S. at 242, 92 S. Ct. at 2162 (quoting Ex parte Virginia, 100 U.S. 339, 346, 25 L.Ed. 676(1879)(emphasis added)).

20

It is well established law that a judge may not act in any case in which he/she is personally involved or has a personal interest. When a judge is named as a Defendant, the judge acquires a personal interest. D. ELEVENTH AMENDMENT IMMUNITY These Defendants MTD \fn2/ is misguided. Scheuer v. Rhodes, 416 U.S. 237 (1974), “It has been settled that the Eleventh Amendment provides no shield for a state official confronted by a claim that he had deprived another of a federal right under the color of state law. Ex part Young teaches that, when a state officer acts under a state law in a manner violative of the Federal Constitution, he “comes into conflict with the superior authority of that Constitution, and he is, in that case, stripped of his official of representative character, and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States.” Id. at 209 U.S. 159-160 (Emphasis supplied.) Ex part Young, like Sterling v. Constantin, 287 U.S. 378 (1932), … involved a question of the federal courts’ 416 U.S. 238 injunctive power, not a claim for monetary damages. It is clear that the doctrine of Ex parte Young is of no aid to a plaintiff seeking damages from the public treasury, Edelman v. Jordan, supra; Kennecott Cooper Corp. v. State Tax Comm’n, 327 U.S. 573 (1946); Ford Motor Co. v. Dept. of Treasury, 323 U.S. 459 (1945). Damages against individual defendants are a permissible remedy notwithstanding the fact that they hold public office. Myers v. Anderson, 238 U.S. 368 (1915). See generally Monroe v. Pape, 365 U.S. 167 (1961); Moor v. County of Alameda, 411 U.S. 693 (1973). In some situations, a damage remedy can be as effective a redress for

21

the infringement of a constitutional right as injunctive relief might be in another.” E.

& F. PERSONS AND SOVEREIGN IMMUNITY

Plaintiffs claims against Judge Becker and/or Superior Court are not intended to be construed as within GTCA, Plaintiffs have not asked for monetary damages, and violating Federally protected Constitutional Rights is not within the “scope of” the official duties. The Court in Yates v. Village of Hoffman Estates, 209 F.Supp. 757 (N.D. Ill 1962) held that “not every action by a judge is in exercise of his judicial function…” “When a judge exceeds his jurisdiction and grants or denies that beyond his lawful authority to grant or deny, he has perpetrated a "non-judicial" action.” Yates v. Village of Hoffman Estates., 209 F. Supp. 757 (N.D. Ill. 1962): “…when a state officer acts under a state law in a manner violative of the Federal Constitution, he comes into conflict with the superior authority of that Constitution, and he is stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States.” [Emphasis supplied in the original]. By law, a judge is a state officer. The judge then acts not as a judge, but as a private individual (in his person).” O'Shea v. Littleton, 414 U.S. 488 (1974):

22

414 U.S. 503: “Nor is it true that, unless the injunction sought is available, federal law will exercise no deterrent effect in these circumstances. Judges who would willfully discriminate on the ground of race or otherwise would willfully deprive the citizen of his constitutional rights, as this complaint alleges, must take account of 18 U.S.C. § 242. See Greenwood v. Peacock, supra, at 384 U. S. 830; United States v. Price, 383 U. S. 787, 383 U. S. 793-794 (1966); United States v. Guest, 383 U. S. 745, 383 U. S. 753-754 (1966); Screws v. United States, 325 U. S. 91, 325 U. S. 101-106 (1945); United States v. Classic, 313 U. S. 299 (1941). Cf. Monroe v. Pape, 365 U. S. 167, 365 U. S. 187 (1961). That section provides: "Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State . . . to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined . . . or imprisoned. . . ." Whatever may be the case with respect to civil liability generally, see Pierson v. Ray, 386 U. S. 547 (1967), or civil liability for willful corruption, see Alzua v. Johnson, 231 U. S. 106, 231 U. S. 110-111 (1913); 80 U. S. 347, 80 U. S. 350, 80 U. S. 354 (1872), we have never held that the performance of the duties of judicial, legislative, or executive officers, requires or contemplates the immunization of otherwise criminal deprivations of constitutional rights. Cf. Ex parte Virginia, 100 U. S. 339 (1880). On the contrary, the judicially fashioned doctrine of official immunity does not reach "so far as to immunize criminal conduct proscribed by an Act of Congress. . . ." Gravel v. United States,@ 408 U. S. 606, 408 U. S. 627 (1972).

23

CONCLUSION & PRAYER Plaintiffs have shown this Court that their Federally protected Constitutional Rights violations have been submitted before the Superior Court. The Superior Court ignored and aided in the violations. Plaintiffs have shown why Younger Abstention, Rooker-Feldman as well as the immunities fail as a reason for Dismissal, and Plaintiffs have shown why the case at bar should not and must not be dismissed. Plaintiffs Pray this Court will review their brief and thereby find that Plaintiffs have shown this civil case should not be dismissed.

Respectfully Submitted, this 30th day of June, 2008

By: ______________________________ JAMES B. STEGEMAN, Pro Se 821 Sheppard RD Stone Mountain, GA 30083 (770) 879-8737

By: ______________________________ JANET D. MCDONALD, Pro Se 821 Sheppard Rd Stone Mountain, GA 30083 (770) 879-8737 24

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA, Atlanta Division JAMES B. STEGEMAN, JANET D. MCDONALD, Plaintiffs

CIVIL ACTION FILE NO: 1:08-CV-1971-WSD

vs. SUPERIOR COURT, et., al., Defendants CERTIFICATE OF SERVICE I Certify that I have this 30th day of June, 2008, served a true and correct copy of the foregoing PLAINTIFFS’ BRIEF IN RESPONSE TO DEFENDANTS SUPERIOR COURT AND JUDGE BECKER’S PRE-ANSWER MOTION TO DISMISS upon Defendants, through their attorney on file if known, by causing to be deposited with U.S.P.S., First Class Mail, proper postage affixed thereto addressed as follows: Devon Orland State of Georgia Dept. of Law 40 Capitol Square, S.W. Atlanta, GA 30334-1300

Terry Hodges, Registered Agent Georgia Power Company 241 Ralph McGill Blvd Atlanta, GA 30308

Brian P. Watt Troutman Sanders, LLP 600 Peachtree Street, Suite 5200 Atlanta, GA 30308

Scott A. Farrow Troutman Sanders, LLP 600 Peachtree Street, Suite 5000 Atlanta, GA 30308

__________________________ JAMES B. STEGEMAN, Pro Se JANET D. MCDONALD, Pro Se 821 Sheppard Rd Stone Mountain, GA 30083 25