Rachel Evens v. David Gilbertson, et al.
DueProcess
What constitutes 'acts in excess of jurisdiction' versus 'the clear absence of subject-matter jurisdiction', with the judges being subject to civil liability in the latter and not granted judicial immunity?
QUESTIONS PRESENTED The U.S. Const. amend. XIV, §1 states that all persons are subject to the jurisdiction of the State wherein they reside. In order to exercise judicial authority over parties, a court must first hold both personal and subject matter jurisdiction as defined by their congress or legislative statutes. Absolute judicial immunity is a common-law doctrine, established since 1871. However, it was clearly defined that judicial immunity would not apply if the judge acted with full knowledge that statutory subject matter jurisdiction was completely absent. Stump v. Sparkman, 435 U.S. : 349, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978).! The United States Court of Appeals for the Eighth Circuit has decided that the U.S. Const. : amend. XIV, §1 and legislature no longer determines jurisdiction, but expanded this common-law principle by deciding that Absolute Judicial Immunity applies to any act performed by a judge in the judicial setting, “which is gauged by... whether it is a function normally performed by a judge”. This ruling directly contradicts both absolute constitutional privileges, longstanding established case law established by this Supreme Court of the United States, being also prohibited by South Dakota and Montana statutes. The Petitioner invoked the Federal Court’s diversity jurisdiction as Rachel and her four minor 1"[T]he necessary inquiry in determining whether a defendant judge is immune from suit is whether at the time he took the challenged action he had jurisdiction over the subject matter before him." Stump v. Sparkman, 435 U.S. 349, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978) ii children are citizens of Montana. The Highth Circuit . Court of Appeals again contradicted the United States Supreme Court and recent Federal Supreme Court’s application of the Younger abstention doctrine and determined that. Younger v. Harris, 401 U.S. 37 (1971) required recusal of the federal court in any proceedings where residents of Montana’s constitutional rights (including four minor children) were being grossly violated by South Dakota justices. This federal application of Younger abstention requires SCOTUS review as it contradicts the majority of federal circuits application. The Questions presented are: 1: What constitutes “acts in excess of jurisdiction” versus “the clear absence of subject-matter juris: diction”, with the judges being subject to civil liability in the latter and not granted judicial immunity? Does absolute judicial immunity apply where exclusive jurisdiction is “conferred by law upon some other court, board, or officer,” and extensive statute or case law prohibits the judge from considering a peti: tion for divorce and custody of minor children who are residents of another state? 2: Does Younger abstention doctrine apply to nullified and voided state proceedings? Or did the circuit court err in determining that abstention was re‘ quired when a South Dakota court is illegally presiding over nullified Montana resident minor custody proceedings? ,