I hope to cover this topic in some detail on one of my upcoming talk shows (Radio Station WALE 990 am from Providence, Rhode Island, Wednesday evenings 7 to 8). There are a number of technical issues. For example, has the recent Internet case recognized that there are areas of free speech where the local standards are no longer appropriate. However, a much larger issue now looms in the problems that have been visited upon President Clinton and the reactions in Congress, the main stream press and throughout Television and in how sex is so casually treated throughout the television realm. It appears that we have now so politicized sex in this country that, at least sexual acts between consenting adults, it must be considered as entitled to the widest possible freedom of speech. The old law dealing with prurient interests violating community standards of decency comes from a lost world of my youth where sex was not discussed in polite or mixed company. Now it is not only openly discussed, but even the way it is done is discussed, even as it has been alleged to have been done in the oval office, and some Congress members have even been heard to assert the word impeachment related to these sexual tales. It is ironic that those who might clamor to impeach President Clinton succeed in so politicizing sex that pornography, at least between consenting adults, could no longer be censored or regulated as that would offend political speech. Reminds me of the saying back in the days when Kansas was dry. The only support for referendum ballots to repeal the prohibition and keep Kansas dry was from the bootleggers and the WCTU (Women's Christian Temperance Union for you youngsters). Are the only ones supporting the restrictions on pornography the pronographers and some of the religious right?

WARNING LABELS ON BOOZE

Speaking of the WCTU, I recall that about twenty years ago it was the only organization that supported me when I tried to bring a class action on behalf of all persons damaged because of ingestion of alcoholic beverages against the State of Washington for selling Booze without a warning label on the bottle. The State liquor stores sold all of the hard liquor one could buy in bottles in the state. The State of Washington allowed itself to be sued for the same sort of tortuous conduct that a private individual could be sued over. The state did not require warning labels on any of the booze it sold. I reasoned there was a prima facie products liability case against the State for selling a dangerous drug without a label. I felt I had a slam dunk case because the Federal Food and Drug act at the time required that substances that were sold that were listed as a drug in the U.S. Pharmacopeia had to have the appropriate label warning of the contraindications for use and alcohol had been listed as a drug in every issue of the U. S. Pharmacopeia since it was first issued. I reasoned the state had to deal with me as it dealt with all others suing it for tortuous conduct or it would violate the equal protection clause of the fourteenth amendment to the U.S. Constitution.

Some difficulties arose before I could buy my tropical island and plan my long retirement. The first hearing was before a judge with whom I may have shared a glass or two and so I felt that I stood a fair chance. The State moved and my friendly judge could see appreciate the ingenuity of my legal action so he took the case under advice to consider it more carefully. He dismissed it. I tried to take it to the State Supreme Court under the theory that it involved issues of fundamental importance. That body shifted it to the Court of Appeals which dismissed the appeal in an unpublished opinion and the State Supreme Court refused to consider the case, as did the United States Supreme Court under the fourteenth amendment argument. I often wonder how much suffering and death all these very learned judicial officers might have avoided if they had not quietly dismissed this case in unpublished opinions. Unpublished opinions are those that have no judicial value as res judicata unless you are up against a large firm that has one in its favor. They are also the great burial ground of noble causes and poorly reasoned opinions. I may still have copies of the briefs, were there any interest in this Don Quixote endeavor.

UNCONSTITUTIONAL GOVERNMENTAL GRANTS OF IMMUNITY

The following arguments are taken from my petition for a writ of certiorari to the United States Supreme Court filed in the October, 1996 term in the case of Camille Fjetland, et al v. Lone Star et al. I believe my immunity argument goes much further than merely covering conduct of members of the judiciary as argued in this case. I believe it creates a fundamental limit to the grants of privilege beyond which our governments are prohibited from going. While the governments may go a long way through theories of indemnification to provide relief from assumption of public responsibilities, it is prohibited from favoring one subject's unlawful conduct at the expense of others, no matter what public good that person may supposedly do or what trappings of office cloth that person's actions.

Immunity Unconstitutional

When the District Court ventured into the case against Mr. Marshall, it went beyond its prior ruling on standing and dismissal without prejudice and entered the substantive area of the plaintiff's case at a time when the Plaintiffs no longer had any right to argue the substantive nature of that case. Thus the plaintiff was denied the full opportunity to respond to the argument of Commissioner Marshall that he should have been dismissed because of his judicial immunity. Had we had such an opportunity, we would have further argued that such a creation of judicial immunity to clothe the subject with the immunity of the sovereign is a clear violation of Article 1 Section 9 of the United States Constitution prohibiting the United States from granting any Titles of Nobility.

While modern case law shows little appreciation of the two clauses that prohibit both the United States and the States from Granting any Titles of Nobility (Art. 1 §§ 9 and 10) these prohibitions are not without impressive antecedents. Alexander Hamilton said that this exclusion coupled with the establishment of the writ of habeas corpus and the prohibition of ex-post-facto laws were greater securities to liberty and republicanism than any contained in the New York constitution of the time. He further observed that:

"Nothing need be said to illustrate the importance of the prohibition of titles of nobility. This may truly be denominated as the cornerstone of republican government; for so long as they...are excluded, there can never be serious danger that the government will be other than that of the people."

No. 84, Federalist Papers, Oliver H. G. Leigh, Ed. 1901 Vol II p. 153. In Downes v. Bidwell, 182 U.S. 244, 277, 45 L.Ed. 1088, 1102, 21 S.Ct. 770 (1901). This court recognized that this clause went to the very root of the government's authority to act and was an absolute prohibition. The second circuit has recognized that the clause refers to more than the mere prohibition on the use of a name, Society Vinole De Champayne v. Mumm, 143 F.2d 240, 62 QSPQ 2 (CCA 2, 1944).

Joel Tiffany observed:

"[T]he general government has no authority to create classes or class distinction among the people; that all its laws shall be enacted upon the hypothesis that all men are created equal, and equally entitled to the hands of their government; that government is an institution of the people, created for the sole and only purpose of administering their authority, to the end that each and all may be secure in the enjoyment of civil liberty; and that equal and exact justice may be administered to all;..."

A Treatise On Government and Constitutional Law (1867) §476, p. 297. While we may have a federal system and within that federal system there may be separation of powers, there is no separation of classes and all the powers derive by, of and from the people. People speak in the judicial branch of the separation of powers as the jury and we cannot create a class of persons by "immunities" that are no longer subject to this review of their actions.

A similar prohibition was considered in the Constitution of the State of Alabama in the case of Horst v. Moses, 48 Ala. 129, 142, Appeal Denied 15 Wal. 387, 21 L.Ed. 176, reheard 52 Ala. 198 (1872). That court observed:

"To confer a title of nobility, is to nominate to an order of persons to whom privileges are granted at the expense of the rest of the people. It is not necessarily hereditary, and the objection to it arises more from the privileges supposed to be attached, than to the otherwise empty title or order. These components are forbidden separately in the terms 'privilege,' 'honor,' and 'emolument,' as they are in the term 'title of nobility.' The prohibition is not affected by any consideration paid or rendered for the grant. Its purpose is to preserve the equality of citizens in respect to their public and private rights."

The prohibition against Titles of Nobility did not just spring into our constitution but was taken directly from the Articles of Confederation and can be found in their infancy in the drafts of these documents prepared between June 17 and July 1, 1776 by both Joshiah Bartlett and John Dickinson, when in the words of Dickinson's draft it was said "Nor shall the Union of any Colony grant any Title of Nobility to any person whatsoever." Bartlett's draft said "...nor shall the [union][United States assembled] or any colony grant any title of nobility (to any person whatsoever)." 4 Letters of Delegates to Congress 1774-1789, 233, 235. In the final adopted draft of the Articles of Confederation, Art. VI, it reads "...nor shall the united states in congress assembled, or any of them, grant any title of nobility." This was adopted directly, without opposition, into the constitution into Article I sections 9 and 10. See generally the four volumes of The Records of The Federal Convention of 1887, edited by Max Farrand (© 1911 and 1937, Yale University Press ©1966 Yale University).

The threat of formation of nobility in this country had been one of the causes of the revolution. John Adams, writing as Novanglus, published this excerpt from intercepted letters of former Massachusetts Governor Francis Bernard on January 30, 1775:

"Although America is not now (and probably will not be for many years to come) ripe enough for an hereditary nobility; yet it is now capable of a nobility for life. A nobility appointed by the King for life, and made independent, would probably give strength and stability to American governments, as effectually as an hereditary nobility does to Great Britain."

Novanglus and Massachusettensis , by John Adams and Jonathan Sewall, 1819 reprint of material first published in Boston (Russell & Russell, 1968) p. 21. See also Meril Jensen, ed. Tracts of The American Revolution, 1763-1776 (1967) p. 314.

Carl Bridenbaugh has brought to our attention that along with the Royal Navy's action in preventing molasses trade at Newport, the second fundamental grievance there centered on the fact that:

"Rumors were rife after 1761 that a faction of foreign born residents, headed by Dr. Thomas Moffatt, Martin Howard, George Rowe, the Harrisons, and the Anglican associates, and supported by Governor Bernard of Massachusetts, who urged the creation of 'a Nobility appointed by the King for Life,' planned an assault on the Rhode Island Charter. "

Cities In Revolt, Urban Life In America 1743-1776 (©1955 Oxford University Press,) p. 309. See also Esmond Wright, Fabric of Freedom 1763-1800. © 1961 (Hill & Wang 7^th printing) p. 76, and R. R. Palmer, The Age of the Democratic Revolution, Vol 1, p. 176 (© 1966 Princeton University Press - Paperback 1969). In a ministerial pamphlet entitled The Address of the People of Great Britain to the Inhabitants of America (London, 1775) Sir John Dalrymple would write "we would even be happy to see you ask for the establishment of a Nobility, and of ranks amongst yourselves." Gordon S. Wood, The Creation of The American Republic 1776-1787, (©1969 University of North Carolina Press) pp. 111-112 and notes 47 and 48.

Judicial privilege was associated in the minds of the founders with Nobility at the time the formation of our nation. Lords had their own courts and even though some might have wished to abandon them because of the expense, in Austria there was a decree in 1786 that they should retain and exercise their judicial roles. These seignioral judicial rights were not finally assumed by the imperial government until 1845. Jerome Blum, The End of The Old Order in Rural Europe, p. 91 (Princeton University Press ©1978). At p.90:

"Peasants in France, Germany, and as mentioned earlier, Austria, could appeal decisions of the seignioral court to higher jurisdictions, and could appear in these courts as plaintiffs in actions against their seigniors. The process, however, was costly and time-consuming, and the members of the higher courts and bureaus to which they could appeal usually belonged to the seignioral order and were disinclined to side with peasants against their fellow lords. For many peasants, then, the right of complaint and appeal must have seemed illusory, though some were undaunted, for appeals were frequently made. In Russia, the Baltic lands, and Poland, peasants did not possess these rights. For these unfortunates the lord's tribunal served as the court of first and last instance. The law ordered that those who dared to enter complaints with authorities against their seigniors were to be beaten and even sentenced to imprisonment at hard labor."

Michael Bush has pointed out that it would be wrong to regard seigneural justice as a medieval creation that withered away in modern times. Private justice was "briskly extended in the sixteenth and seventeenth centuries." Noble Privilege, p. 162, ©1983 (Holmes & Meier Publishers, Inc.). The survivor of the European Seigneural court systems was the English manorial court that lasted until 1926. Ibid. p. 163. Private justice had remained useful to lords as a means of tenant control and the nobility's identity as the ruling class was heavily dependent upon its right to dispense seigneural justice.

In England the nobility exclusively enjoyed, until 1869 when it was extended to commoners, the right of freedom from imprisonment for debt, ibid p. 71, (which was one of the main ways of enforcing collection in England at the time of our revolution). Bush advises us that elsewhere in Europe that:

"Besides enjoying freedom from arrest prior to conviction, Hungarian and Polish nobles could deny public officials entry to their households until found guilty. Furthermore, in neither case could commoners bring actions and evidence against nobles in court. In Poland these rights were a victim of the partition. In Hungary they were retained until 1848."

Ibid, 69. Austrian nobles were immune to various writs enforcing appearance in court. In viewing all of European nobility Bush observed, p. 69:

"Of the European nobilities, those of Poland and Lithuania possessed the most extensive judicial privileges, enjoying immunity from the death penalty for the murder of commoners, trial by peerage in civil and criminal matters, personal and household inviolability, and freedom from the actions or evidence directly brought by commoners."

Judicial immunity may certainly be challenged under the nobility restrictions of the United States Constitution. Certainly our founders were familiar with conditions in Europe. Hamilton discussed Poland on June 18, 1787 in the Federal Convention (Ferrand, Records, supra Vol. 1 p. 290) as he reviewed the history of the states of Europe from the German Confederacy, Swiss cantons, Holland, Russia, France, and England, ibid 282-293. Madison also discussed Poland on June 28^th ibid p. 459 and July 25, ibid Vol II, p. 109. Mr. Wilson discussed Polish nobles on July 17^th as did Gouvenor Morris, ibid Vol. II p. 30-31. Looking through the records of the Federal Convention one is struck with the vast knowledge many of the participants had of the governments and societies of their time.

When we founded this nation, we sought to free ourselves from the oppressive weight of privilege that many feared would prevail if we continued our allegiance to the British monarchy. We guaranteed this freedom in our fundamental constitutions. Later, when it was seen that limiting privilege was not enough, we passed the fourteenth amendment guaranteeing a minimal equality of rights. Between these levels the basic legal foundations of our nation bid us to create and enjoy our homes and society. None shall be so poor as to forfeit all rights to life, liberty and the pursuit of happiness while none shall rise so high that he or she may harm other members of society with impunity through his or her willful or negligent acts or omissions.

Judicial Immunity in the courts

Judges enjoy absolute immunity whenever they preform judicial or adjudicatory tasks, no matter how badly they perform them. Forester v. White, 484 U.S. 219 (1988); Pierson v. Ray, 386 U.S. 547, 553-54 (1967); and that judicial immunity only disappears when the judge acts in the "complete absence of all jurisdiction", that is there is no conceivable whay he could have had any right to control the subject and the person before him, Mireles v. Waco, 502 U.S. 9, 12, (1991); Stump v. Sparkman, 435 U.S. 349, 356-57 (1978).