Subpart 4.2 - Actions Against Court Personnel
A. Service of Process/Personal Suits Against Court Personnel
Members of the movement take pride in their ability to make use of the law, both traditional state and federal courts and their own common-law courts. Because of this, it is not uncommon for court personnel to be served with process in both "common-law lawsuits" and lawsuits filed in traditional courts. Examples of such common law documents as Notices to Appear, Common-law Indictments, Orders and Judgments from common-law courts, and warrants issued by such courts have been noted. As well, because members of the movement make use of the conventional court system to validate their false liens, court personnel may find their credit impaired by perfected liens, or that an involuntary bankruptcy has been filed against them.
Court personnel may also find themselves served with process for "real" suits such as actions for violations of federal or constitutional rights under 42 U. S. C. § 1983, § 1985, or § 1986. Suits under state tort law are also filed in traditional courts, as well as the occasional attempt to file a common-law cause in such traditional courts. Finally, as noted above, where a member of the movement has obtained a lien against an official in a common-law court (and often has had it officially sealed, inadvertently, by the clerk of a traditional court) he will often attempt to file an involuntary bankruptcy against the official. Federal Bankruptcy law may allow a creditor of more than $10,775 to file for involuntary bankruptcy against a debtor.[1] Because these bogus liens are often for hundreds of thousands or even millions (and occasionally billions) of dollars, members of the movement often attempt and occasionally succeed in getting such bankruptcy filed.
B. Responses to Service of Process/Personal Suits
1. Avoid Confrontation - It is important that court personnel remain calm and non-confrontational when served with process by a member of the movement.
Because the service may very well be for a "real" case (though often not a legitimate case), such service should be taken seriously. Still, given the possibility of violence by members of the movement, personnel so served should be careful to avoid escalating the situation by confronting members of the movement. Furthermore, because at least some of the process served will deal with cases before "fake courts," and because most of the rest will be frivolous or illegitimate suits, service of process by such groups should be taken with a grain of salt.
2. Notify up Chain of Command - As always, when court personnel encounter members of these movements, the chain of command should be notified. This is so not only because those above on the chain may also find themselves served, but also it allows for a unified strategy in meeting the suits brought against officials. In some cases, for example, it might be of benefit to consolidate the cases filed in "real" courts. That is, the evidence of joint action in filing cases against officials in common law courts may provide the necessary evidence to show a conspiracy for purposes of prosecuting those who file such "suits" to intimidate.
3. Retain Counsel, if Needed - Where court personnel are served with process it is usually advisable that they retain counsel or at least consult some form of attorney. In many places courts will cover legal expenses for those court personnel who are sued for actions occurring in the course of their duties. In any event, it may be of critical importance for such personnel to find out if the case they have been served with is a "real" case, or a common-law case that can be dealt with without litigation, if not ignored entirely.
4. Retaliate - Where "real" suits are clearly frivolous and/or are intended to intimidate or otherwise adversely affect personnel,[2] it may be prudent to file for abuse of process and seek sanctions against the plaintiff. This provides a deterrent both to the individual and the movement in general. There may also be the option of a civil suit against the member of the movement, and perhaps, in some cases, the option of a prosecution for threatening or attempting to intimidate a public official.
C. Additional Authority
1. Personal Liability for Civil Rights Suits - though the law may be in a state of flux regarding state liability and the states' amenity to suits brought under federal law,[3] the possibility exists that judges and court personnel might be named individually in civil rights suits, such as those brought under 42 U.S.C. § 1983. Generally, to be liable, a person must be acting under color of state law in abrogating an individual's federal constitutional or certain statutory rights.
a. Who is a "person" - see, generally, Hafer v. Melo, 502 U.S. 21 (1991) (state officials, sued in personal capacity, are "persons" for purposes of § 1983, including suits for retrospective relief such as money damages).
b. Under color of state law - this generally encompasses the actions of officials and individuals whose conduct amounts to state action within the meaning of the Fourteenth Amendment. The Supreme Court has developed four types of tests to find state action:
i. Symbiotic relationship - see, e.g., Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961). Burton has been significantly narrowed, and may only exist under extremely similar facts.
ii. Public function - see, e.g. Edmonson v. Leesville Concrete Co., Ill S.Ct. 2077 (1991); Blum v. Yaretsky, 457 U.S. 991 (1982).
iii. Close nexus - see, e.g., NCAA v. Tarkanian, 488 U.S. 179 (1988).
iv. Joint Participation - see, e.g., Lugar v. Edmonson Oil Co., 457 U.S. 922 (1982).
c. Immunities -judges and those performing judicial functions generally enjoy absolute immunity. See, e.g.. Stump v. Sparkman, 435 U.S. 349 (1978). This may include attorneys, witnesses and jurors involved in the judicial process. See, e.g., Briscoe v. LaHue, 460 U.S. 325 (1986). Likewise, those performing prosecutorial functions are protected under this doctrine. See, e.g., Imbler v. Pachtman, 424 U.S. 409 (1986).
i. Qualified Immunity - where absolute immunity is not available, qualified immunity often exists for officials performing discretionary duties where the contours of the right in question are not sufficiently defined. For an introduction to this doctrine, see Mitchell v. Forsyth, 472 U.S. 511(1985).