IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
Civil Action No. 5:2011-CV-335-H
MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
RULE 56 OF THE F.R.C.P.
I. STATEMENT OF THE CASE
On October 27, 2009, Jacqueline Brewer, acting in absence of all judicial function, convicted Plaintiff of a misdemeanor DWI without her presence, knowledge, consent, right to be heard, and with defective evidence and unlawful procedure, thereby denying all of her due process rights under the 14th amendment.
II. STATEMENT OF FACTS
A probable cause hearing is the only pre-trial proceeding allowed by law in Wake County district court.
On October 27, 2009, Jacqueline Brewer convicted Pilch without a probable cause hearing mandated by NCGS §15A-606, which requires that all defendants demand or waive probable cause hearings in district court.
Per State v. Hudson, 295 N.C. 427, 430 (1978), probable cause hearing is supposed to ensure that defendant will not be unjustifiably put to the trouble and expense of trial if there is no probable cause.
- Per NCGS §7A-196, there shall be no trials in district court.
- Therefore, if Brewer did hold a trial for Pilch on October 27, 2009 in district court and in Pilch’s absence and without her knowledge, it was unlawful and unconstitutional.
- Per North Carolina General Statute §15A-131, except for probable cause hearings, venue for pre-trial and trial proceedings in cases within the original jurisdiction of the superior court lies in the superior court.
- Thus, the only pre-trial proceeding that Brewer could have lawfully presided over in District Court was a probable cause hearing, not a sentencing hearing.
- Brewer therefore should not have completed court forms pertaining to sentencing because a sentencing hearing could not lawfully occur.
- Per North Carolina General Statute §20-179, sentencing hearings are to be held only AFTERa conviction and appeal to superior court. On October 27, 2009, Plaintiff’s case was still in district court and she had not been convicted.
- Brewer should not have convicted Pilch at all, given concrete evidence of perjury by an SBI notary and defective protocol by the SBI misdemeanor serology unit.
- In addition, it is the duty of the superior court clerk to put the costs of a conviction into a sentencing hearing document, not a judge per NCGS §6-7.
- Brewer’s attempt to collect unlawful fines from Pilch is attempted extortion, which are both state and federal offenses.
- Brewer acted in absence of all jurisdiction and violated state and federal law and constitutions.
- By convicting an innocent person Brewer acted in excess of all jurisdiction and violated her oath to honor the American Constitution. In addition, she obstructed justice by using the crime in the SBI ( a notary’s perjury and defective protocol) to convict her. No person is so high above the law that they have immunity from being prosecuted for committing a crime.
IV. LIMITS TO JUDICIAL IMMUNITY
- While a judge performing judicial functions enjoys absolute immunity, denial of constitutional and civil rights are absolutely not a judicial function and conflicts with any definition of a judicial function. Failure to honor the American and state constitutions and statutes makes a judge’s action no longer a judicial act but an individual act as the act represents their own prejudices and goals.
- Case law states that when a judge acts “ultra vires,” beyond his powers, and as a trespasser of law; when a judge does not follow the law, he then loses subject matter jurisdiction and the judge’s orders are void and of no legal force or effect. Yates v. Village of Hoffman Estates, Illinois (1962).
- Convicting an innocent person is clearly acting in excess of all jurisdiction.
- The Supreme Court has rejected applying absolute immunity in circumstances such as when a judge with jurisdiction over criminal matters convicts a defendant of a non-existent crime, the judge has performed a “judicial act” in “excess of his jurisdiction.” Stump v. Sparkman 435 U.S. 349, 364 (1978) and Zarcone v. Perry (1978); and when conspiracy to deprive a person of their constitutional rights occurs, pursuant to 432 Dennis v. Sparks 449 U.S 24 (1980) and Scheur v. Rhodes 416 U.S. 232 (1974). Convicting an innocent person is clearly acting in excess of all jurisdiction.
- The purpose of §1983 is to deter public officials from using the badge of their authority to violate persons’ constitutional rights and to provide compensation and other relief to victims of constitutional deprivations. Carey v. Piphus, 435, US 247, 253 (1978).
- In the case of Mireles v. Waco (1991), the court stated that judicial immunity can be defeated when the judge’s act is not taken in a judicial capacity or though judicial in nature, the act is taken in complete absence of jurisdiction. Convicting an innocent person is clearly acting in excess of all jurisdiction.
- Judicial immunity is not a bar to prospective injunctive relief against a judicial officer per Pulliam v. Allen, 466 U.S. 522 (1984).
- A judge must be acting within his jurisdiction as to subject matter and person to be entitled to immunity from civil action for his acts. Davis v. Burris, 51, Ariz.220, 75 p.2d 689 (1938).
- Per Gonzalez v. Commission on Judicial Performance, (1983) 33Cal. 3d, 359, 371, 374, Acts in excess of judicial authority constitutes misconduct, particularly where a judge deliberately disregards the requirements of fairness and due process. Brewer deliberately disregarded all due process in Pilch’s case.
- No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and they are bound to obey it. United States v. Lee (1882) and Buckles v. King County (Wash.) 1999.
V. FEDERAL QUESTIONS (TITLE 42, §1331)
- As a public officer, it is Brewer’s duty to abide by the U.S. Constitution, as required by North Carolina General Statute §11-7, and covering up evidence of a crime by the North Carolina State Bureau of Investigation violates the law, is morally reprehensible and is repugnant to the Constitution.
- Can Jacqueline Brewer be permitted to continue acting as a judge when she has shown reckless disregard for a Plaintiff’s constitutional rights, and potentially a class of hundreds of others, who were, are and will be similarly situated to Plaintiff?
- Plaintiff asks this court whether it is constitutional for North Carolina Attorney General Roy Cooper to provide a free and easy legal defense for a judicial actor who intentionally covered up a crime by the North Carolina State Bureau of Investigation, which reports to AG Roy Cooper. Isn’t this practice aiding in the obstruction of justice? Isn’t this practice unconstitutional? Shouldn’t judicial actors be held personally accountable for their actions, for future deterrence and retribution, pursuant to the Supreme Court’s criteria for punitive damages set forth in BMW v. Haslip?
VI. CLAIM OF HARM
- Brewer has caused Plaintiff “injury in fact” and is directly responsible for Pilch’s unlawful and unconstitutional misdemeanor DWI conviction.
- Brewer has harmed Plaintiff personally, professionally and financially and the preventable and redressable harm has continued for over three years. The injury is redressable by compensatory and punitive damages.
- The purpose of punitive damages is deterrence and retribution, and Plaintiff asks this court to consider a judgment for $500,000 plus (plus 50% tax for the IRS) against Defendant.
- Plaintiff requests that the costs of this action and all costs related to this action be ordered paid for by the Defendant.