Post by Jim on Jun 5, 2010 11:42:23 GMT -5
Judge is NOT a court, he is only an officer of the court
Each element constitutes fraud upon the court in the U.S., when an officer of the court is found to have fraudulently presented facts to court so that the court is impaired in the impartial performance of its legal task, the act, known as "fraud upon the court", is a crime deemed so severe and fundamentally opposed to the operation of justice that it is not subject to any statute of limitation.
A judge is not a court; he is under law an officer of the court, and he must not engage in any action to deceive the court. Trans Aero Inc. v. LaFuerga Area Boliviana, 24 F.3d 457 (2nd Cir. 1994); Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985) (fraud upon the court exists "where the judge has not performed his judicial duties").
"Fraud upon the court" makes void the orders and judgments of that court. The U.S. Supreme Court has consistently held that a void order is void at all times, does not have to be reversed or vacated by a judge, cannot be made valid by any judge, nor does it gain validity by the passage of time. The order is void ab initio. Vallely v. Northern Fire & Marine Ins. Co., 254 U.S. 348, 41 S.Ct. 116 (1920). “Fraud destroys the validity of everything into which it enters,” Nudd v. Burrows (1875), 91 US 426, 23 Led 286,290; particularly when “a judge himself is a party to the fraud,” Cone v. Harris (Okl. 1924), 230 P. 721, 723. Windsor v. McVeigh (1876), 93 US 276, 23 Led 914, 918.
Judge Anne McDonnell relies on N.J.S.A. 59:3-2(b) which states “A public employee is not liable for legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial nature”.
But since defendant Merlo is conducting evaluation as a Court Psychologist without the proper license, educational requirements pursuant to the “Revised Notice of Vacancy” or the educational requirements of a Doctorate Degree which is law in New Jersey and stated within the educational requirements pursuant to the “Board” which is a criminal violation pursuant to N.J.S.A. 2C:21-17 Impersonation; theft of identity; crime, defendant Merlo stated on her risk assessment that I needed to be medicated which is violation of N.J.S.A. 2C:21-20 Unlicensed practice of medicine, surgery, podiatric medicine, crime of third degree, then the following Tort Claim Act statutes apply; N.J.S.A. 59:2-2(a) Acts By Public Employees: A public entity is liable for any injury proximately caused by an act or omission of a public employee within the scope of his/her employment in the same manner and to the same extent as a private individual under like circumstances. (b) If the public employee is not liable than the public entity is not liable either; N.J.S.A. 59:3-1(a). Liability and Immunity of Public Employees: A public employee is liable for any injuries caused by his acts or omissions to the same extent as a private person, notwithstanding the exception provided by the Act; and N.J.S.A. 59:3-14(a) Public Employee Immunity Exception: Nothing in this act exonerates an employee from liability if it is established that his conduct was outside the scope of his employment or constituted a crime, actual fraud, actual malice or willful misconduct. (b) Nothing in this act shall exonerate a public employee from the full measure of recovery applicable to a person in the private sector if it is established that his conduct was outside the scope of his employment or constituted a crime, actual fraud, actual malice or willful misconduct.
The Tort Claims Act provides for protection of a public employee from liability for injury “resulting from the exercise of judgment or discretion vested in him.” (N.J.S.A. 59:3-2(a)). A public official’s good faith exercise of judgment and discretion in the performance of his duties has been accorded limited immunity by the courts of this State. Burke v. Deiner, 97 N.J. 465, 472-473 (1984); Visidor Corporation v. Borough of Cliffside Park, 48 N.J. 214, 221 (1966).
This protection is circumscribed, however; public employees may not act in complete disregard for the rights of others. There is a public employee immunity exception found in N.J.S.A. 59:3-14. See also, Burke v. Deiner, supra, at 472-473. "Nothing in this act shall exonerate a public employee from the full measure of recovery applicable to a person in the private sector if it is established that his conduct was outside the scope of his employment or constituted a crime, actual fraud, actual malice or willful misconduct."
It is the intent of this provision that a public employee guilty of outrageous conduct cannot avail himself of the limitations as to liability and damages contained in this act. (Emphasis added).
This 1972 Task Force Commentary contained in N.J.S.A. 59:3-14 represents a clear and unambiguous expression of legislative intent that a public employee should be deprived of any benefits such as TCA limitations on liability and damages for their “outrageous” conduct.
Courts have found such “outrageous” conduct, thereby removing the TCA defenses from public employees, in a multitude of circumstances, including claims for (1) assault and battery, Velez, supra; (2) malicious prosecution, James v. Price, 602 F. Supp. 843 (D. N. J. 1985); (3) knowing violation of drug prescription regulations, Taglieri v. Moss, 367 N.J. Super. 184 (App. Div. 2004); (4) false arrest, Dela Cruz v. Borough of Hillside, 365 N.J. Super. 127 (App. Div. 2004); and (5) torts based on reckless conduct, Jobes v. Evangelista, 2004 WL 1170507 (App. Div. 2004) and Alston v. City of Camden, 168 N.J. 170 (2001).
“Willful misconduct” has been defined as falling somewhere between simple negligence and the intentional infliction of harm. Alston v. City of Camden, 168 N.J. 170, 185 (2001). For example, the Supreme Court of New Jersey in Fielder v. Stonack, 141 N.J. 101, 123-127 (1995), defined “willful misconduct” as a knowing failure to follow specific orders. In Fielder, the court stated that “willful misconduct is ordinarily limited to a knowing violation of a specific command by a superior, or a standing order …” Id. at 125 (Emphasis added).
In Taglieri v. Moss, 367 N.J. Super. 184, 187 (App. Div. 2004), the court held that a physician’s knowing violation of regulations that controlled prescription drugs constituted “willful misconduct” as contemplated by N.J.S.A. 59:3-14, and therefore the verbal threshold provision of the TCA did not bar claims against the physician. The defendant argued that even if his conduct was “willful” as defined in N.J.S.A. 59:3-14, the verbal threshold barred recovery because the claimant could not establish a “permanent loss of bodily function, permanent disfigurement or dismemberment.” Id. at 195-96. The Appellate Division rejected this argument and stated that, “N.J.S.A. 59:3-14(b) plainly states that “nothing” in this act “shall exonerate a public employee from the full measure of recovery applicable to a person in the private sector” if the employee has committed acts of “willful misconduct.” Thus, N.J.S.A. 59:9-2(d) does not protect [the defendant], and … the verbal threshold [is] inapplicable...” Id. at 197-98. (Emphasis added).
“Reckless conduct” also deprives Defendants of any protections under the TCA, specifically its verbal threshold. In Dunlea v. Township of Belleville, 349 N.J. Super. 506, 512, 513 (App. Div. 2002), the Court held that, in order to defeat a claim of good faith immunity, it is sufficient that the plaintiff shows the defendant acted recklessly. (Emphasis added). In addition, in Alston v. City of Camden, 168 N.J. 170, 185 (2001), the Supreme Court of New Jersey articulated that “willful misconduct is the equivalent of reckless disregard for safety, which is more than an absence of good faith.” (Emphasis added).
According to Prosser & Keeton on the Law of Torts, “reckless conduct” is defined as follows: "n actor acts recklessly when he or she intentionally commits an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences." §34 at 212 (5th Ed. 1984).
However, a lack of stated damages will not bar a claim if the damages are not known at the time the claim is presented. Dambro v. Union Cty. Pk. Comm., 130 N.J. Super 450, 458 (Law Div. 1986).
Judge Anne McDonnell Tort Claim Act fails here.
See Levine v. Wiss & Co., 97 N.J. 242, 478 A.2d 397 (1984) (holding that immunity would not protect an expert witness-accountant from a claim of negligent compilation of an appraisal for a judicial proceeding).
Each element constitutes fraud upon the court in the U.S., when an officer of the court is found to have fraudulently presented facts to court so that the court is impaired in the impartial performance of its legal task, the act, known as "fraud upon the court", is a crime deemed so severe and fundamentally opposed to the operation of justice that it is not subject to any statute of limitation.
A judge is not a court; he is under law an officer of the court, and he must not engage in any action to deceive the court. Trans Aero Inc. v. LaFuerga Area Boliviana, 24 F.3d 457 (2nd Cir. 1994); Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985) (fraud upon the court exists "where the judge has not performed his judicial duties").
"Fraud upon the court" makes void the orders and judgments of that court. The U.S. Supreme Court has consistently held that a void order is void at all times, does not have to be reversed or vacated by a judge, cannot be made valid by any judge, nor does it gain validity by the passage of time. The order is void ab initio. Vallely v. Northern Fire & Marine Ins. Co., 254 U.S. 348, 41 S.Ct. 116 (1920). “Fraud destroys the validity of everything into which it enters,” Nudd v. Burrows (1875), 91 US 426, 23 Led 286,290; particularly when “a judge himself is a party to the fraud,” Cone v. Harris (Okl. 1924), 230 P. 721, 723. Windsor v. McVeigh (1876), 93 US 276, 23 Led 914, 918.
Judge Anne McDonnell relies on N.J.S.A. 59:3-2(b) which states “A public employee is not liable for legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial nature”.
But since defendant Merlo is conducting evaluation as a Court Psychologist without the proper license, educational requirements pursuant to the “Revised Notice of Vacancy” or the educational requirements of a Doctorate Degree which is law in New Jersey and stated within the educational requirements pursuant to the “Board” which is a criminal violation pursuant to N.J.S.A. 2C:21-17 Impersonation; theft of identity; crime, defendant Merlo stated on her risk assessment that I needed to be medicated which is violation of N.J.S.A. 2C:21-20 Unlicensed practice of medicine, surgery, podiatric medicine, crime of third degree, then the following Tort Claim Act statutes apply; N.J.S.A. 59:2-2(a) Acts By Public Employees: A public entity is liable for any injury proximately caused by an act or omission of a public employee within the scope of his/her employment in the same manner and to the same extent as a private individual under like circumstances. (b) If the public employee is not liable than the public entity is not liable either; N.J.S.A. 59:3-1(a). Liability and Immunity of Public Employees: A public employee is liable for any injuries caused by his acts or omissions to the same extent as a private person, notwithstanding the exception provided by the Act; and N.J.S.A. 59:3-14(a) Public Employee Immunity Exception: Nothing in this act exonerates an employee from liability if it is established that his conduct was outside the scope of his employment or constituted a crime, actual fraud, actual malice or willful misconduct. (b) Nothing in this act shall exonerate a public employee from the full measure of recovery applicable to a person in the private sector if it is established that his conduct was outside the scope of his employment or constituted a crime, actual fraud, actual malice or willful misconduct.
The Tort Claims Act provides for protection of a public employee from liability for injury “resulting from the exercise of judgment or discretion vested in him.” (N.J.S.A. 59:3-2(a)). A public official’s good faith exercise of judgment and discretion in the performance of his duties has been accorded limited immunity by the courts of this State. Burke v. Deiner, 97 N.J. 465, 472-473 (1984); Visidor Corporation v. Borough of Cliffside Park, 48 N.J. 214, 221 (1966).
This protection is circumscribed, however; public employees may not act in complete disregard for the rights of others. There is a public employee immunity exception found in N.J.S.A. 59:3-14. See also, Burke v. Deiner, supra, at 472-473. "Nothing in this act shall exonerate a public employee from the full measure of recovery applicable to a person in the private sector if it is established that his conduct was outside the scope of his employment or constituted a crime, actual fraud, actual malice or willful misconduct."
It is the intent of this provision that a public employee guilty of outrageous conduct cannot avail himself of the limitations as to liability and damages contained in this act. (Emphasis added).
This 1972 Task Force Commentary contained in N.J.S.A. 59:3-14 represents a clear and unambiguous expression of legislative intent that a public employee should be deprived of any benefits such as TCA limitations on liability and damages for their “outrageous” conduct.
Courts have found such “outrageous” conduct, thereby removing the TCA defenses from public employees, in a multitude of circumstances, including claims for (1) assault and battery, Velez, supra; (2) malicious prosecution, James v. Price, 602 F. Supp. 843 (D. N. J. 1985); (3) knowing violation of drug prescription regulations, Taglieri v. Moss, 367 N.J. Super. 184 (App. Div. 2004); (4) false arrest, Dela Cruz v. Borough of Hillside, 365 N.J. Super. 127 (App. Div. 2004); and (5) torts based on reckless conduct, Jobes v. Evangelista, 2004 WL 1170507 (App. Div. 2004) and Alston v. City of Camden, 168 N.J. 170 (2001).
“Willful misconduct” has been defined as falling somewhere between simple negligence and the intentional infliction of harm. Alston v. City of Camden, 168 N.J. 170, 185 (2001). For example, the Supreme Court of New Jersey in Fielder v. Stonack, 141 N.J. 101, 123-127 (1995), defined “willful misconduct” as a knowing failure to follow specific orders. In Fielder, the court stated that “willful misconduct is ordinarily limited to a knowing violation of a specific command by a superior, or a standing order …” Id. at 125 (Emphasis added).
In Taglieri v. Moss, 367 N.J. Super. 184, 187 (App. Div. 2004), the court held that a physician’s knowing violation of regulations that controlled prescription drugs constituted “willful misconduct” as contemplated by N.J.S.A. 59:3-14, and therefore the verbal threshold provision of the TCA did not bar claims against the physician. The defendant argued that even if his conduct was “willful” as defined in N.J.S.A. 59:3-14, the verbal threshold barred recovery because the claimant could not establish a “permanent loss of bodily function, permanent disfigurement or dismemberment.” Id. at 195-96. The Appellate Division rejected this argument and stated that, “N.J.S.A. 59:3-14(b) plainly states that “nothing” in this act “shall exonerate a public employee from the full measure of recovery applicable to a person in the private sector” if the employee has committed acts of “willful misconduct.” Thus, N.J.S.A. 59:9-2(d) does not protect [the defendant], and … the verbal threshold [is] inapplicable...” Id. at 197-98. (Emphasis added).
“Reckless conduct” also deprives Defendants of any protections under the TCA, specifically its verbal threshold. In Dunlea v. Township of Belleville, 349 N.J. Super. 506, 512, 513 (App. Div. 2002), the Court held that, in order to defeat a claim of good faith immunity, it is sufficient that the plaintiff shows the defendant acted recklessly. (Emphasis added). In addition, in Alston v. City of Camden, 168 N.J. 170, 185 (2001), the Supreme Court of New Jersey articulated that “willful misconduct is the equivalent of reckless disregard for safety, which is more than an absence of good faith.” (Emphasis added).
According to Prosser & Keeton on the Law of Torts, “reckless conduct” is defined as follows: "n actor acts recklessly when he or she intentionally commits an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences." §34 at 212 (5th Ed. 1984).
However, a lack of stated damages will not bar a claim if the damages are not known at the time the claim is presented. Dambro v. Union Cty. Pk. Comm., 130 N.J. Super 450, 458 (Law Div. 1986).
Judge Anne McDonnell Tort Claim Act fails here.
See Levine v. Wiss & Co., 97 N.J. 242, 478 A.2d 397 (1984) (holding that immunity would not protect an expert witness-accountant from a claim of negligent compilation of an appraisal for a judicial proceeding).
