Undoing IRS employee de-facto personal immunity

09 Mar
March 9, 2013

The following is a letter to my Representative, Duncan Hunter

Hello Ms. Alden and Rep. Hunter,

I am thrilled that you were asking questions about the details of our dispute with the government. The IRS has gained profound new responsibilities with Obamacare. It is therefore critical that that particular agency operate within the parameters set forth by Congress. With that in mind, I would like to outline the IRS employee immunity issue a little better.

IRS employee de-facto personal immunity:

The taxpayer remedy statute (the only means that a taxpayer may sue the IRS for wrongful acts taken):

26 USC § 7433 – Civil damages for certain unauthorized collection actions

If, in connection with any collection of Federal tax with respect to a taxpayer, any officer or employee of the Internal Revenue Service recklessly or intentionally, or by reason of negligence, disregards any provision of this title, or any regulation promulgated under this title, such taxpayer may bring a civil action for damages against the United States in a district court of the United States. Except as provided in section 7432, such civil action shall be the exclusive remedy for recovering damages resulting from such actions.

You see the red section above? It establishes that § 7433 provides a taxpayer remedy for negligent, reckless, AND intentional violations of title 26 [the Internal Revenue Code]. The next sentence states that the statute gives the taxpayer a right to sue the United States for violations of the Internal Revenue Code under the terms of the § 7433 statute. The final (purple) sentence is the problematic sentence. Here, the statute takes away the ability of the taxpayer to additionally sue the misbehaving individual. Other United States’ statutes establish that you may not sue the United States (the taxpayer) for punitive (deterring) damages. Punitive damages are not ordinarily allowed for negligence. We are fine with that. But, this statute also undoes punitive damages for intentional violations of the law against the individual. We are definitely not OK with that. If intentional violations of the law are not deterred, they will occur more often. Thus, § 7433 set up the environment whereupon a RICO violation could occur (a pattern of lawlessness).

The Internal Revenue Code (IRC) does have statutes punishing “offenses by officers and employees” (26 U.S.C. § 7214), but a punitive (imprisonment, fines, etc.) action by taxpayers cannot be sustained directly by the taxpayer. Note also how the offenses set forth in § 7214 are acts by the employees against the United States and not against the taxpayer. Critically, the § 7214 suit must be filed by the DOJ or United States Attorney in a separate criminal (as opposed to civil) action. Thus, the taxpayer has no punitive ability. It has been our experience that when the federal government benefits from the illegal acts of its employees, it is often loathe to punish or deter the behavior. This is what the United States attorney said in our lawsuit:

‘Even if the Court were to find that plaintiffs had established a constitutional or statutory right that they claimed the IRS Defendants had violated, which they cannot, the actions taken by the IRS Defendants in investigating and collecting outstanding tax liabilities cannot be said to be “clearly unlawful” to a reasonable officer in that situation.’ (United States Attorney Laura Duffy, 10-cv-02105: Dkt. 63);

It seems that now we cannot expect the federal government to police its own ranks where the interests of the United States are concerned. This is the problem.

Here’s what § 7433 should instead state (BOLD section my addition):

26 USC § 7433 – Civil damages for certain unauthorized collection actions

If, in connection with any collection of Federal tax with respect to a taxpayer, any officer or employee of the Internal Revenue Service recklessly or intentionally, or by reason of negligence, disregards any provision of this title, or any regulation promulgated under this title, such taxpayer may bring a civil action for damages against the United States in a district court of the United States. Except as provided in section 7432, such civil action shall be the exclusive remedy for recovering damages resulting from such actions, except when the acts are proved to be acts taken intentionally and are in clear violation of the law whereby the officer or employee is then personally liable to the taxpayer for punitive or deterring damages.

Kind regards, Brian Kenner

Due process is a right. No exceptions.

09 Mar
March 9, 2013

Representative Duncan Hunter of California’s 50th District

The following is the text of an email I sent to my representative, Duncan Hunter.

Dear Ms. Alden and Representative Hunter,

I have had a couple of days to think about the thoughts the Congressional Research Service (CRC) shared with you by phone. It is not surprising to me that they did not write their observations and conclusions down. I believe their position is dangerous to the republic and unacceptable to the public at large. The CRC would not want to be accountable to them. Their comments reinforce my belief that it is current federal policy to disregard federal law so long as it is in the “best interest” of the federal government. Though I have no problem with the federal government operating in its own best interest, the Constitution constrains the government by providing Americans with due process rights. We have a right to have our peers (a jury) decide if the government’s “best interests” unjustly impinge on our God given rights to life, liberty, and property. Senator Rand Paul was filibustering on the Senate floor this week to protect the same rights. The filibuster wasn’t about drones, it was about due process. Due process is under assault. The comments by CRC staff additionally illustrate it. Attorney General Holder (or any federal employee) does not get to make the decision about whether a person may be killed by a drone (unless the individual poses an immediate threat of harm), without the benefit of first being found guilty of some crime by a jury of his peers.

You related the CRC’s thoughts to me orally so I may have simply misunderstood them. Moreover, your understanding of them could also be in error. Nevertheless, here’s my take-away understanding of their position: (1) CRC staff feels that collection aggressiveness by IRS staff, as it relates to the observance of federal law, is to be expected and encouraged when the IRS must deal with a reluctant tax-paying public. (2) CRC staff additionally expressed skepticism to our particular objection to 26 USC § 7433, because intentional violation of the law by IRS staff has not been a problem thus far. I hope I have provided your office sufficient information to render those positions, if true, doubtful in reality:

The Kenner RICO lawsuit, if proven, would illustrate that intentional violation of the law (for the “best interest” of the federal government) is very much a problem now. Remember, RICO is a crime of systemic lawlessness, and far more serious than just a single violation of the law. Note that I simply could not bring a lawsuit before a federal judge without facts supporting the RICO allegation; I would have been sanctioned for filing a frivolous lawsuit. Federal employees have qualified immunity and thus are entitled to demand that I be specific and detailed in my allegations against them before a lawsuit can go to trial.

We have exceeded that “sufficiency” requirement. Consequently, the federal courts resorted to a flawed jurisdictional argument for dismissal. From the Battaglia dismissal decision (10cv2105 Document 64, pg. 11, ¶3):

“… the [Moskowitz] Court noted that 26 USC § 7433(a) provides the exclusive remedy for recovering damages by a taxpayer against an officer or employee of the Internal Revenue Service for recklessly, intentionally, or negligently disregarding any provision or regulation [the court then disingenuously disregarded the clause of 7433 stating “of this title” (title 26)] The [Moskowitz] Court stated that Plaintiffs may not circumvent this statutory scheme by asserting RICO claims against the IRS or its employees.

Plaintiffs’ allegations fall within 26 USC § 7433(a). … ”

But here’s what the 9th Circuit has to say about the “exclusivity” provision of 26 USC § 7433(a) used by Judges Moskowitz and Battaglia to dismiss the RICO lawsuit:

“Section 7433 creates a private right of action only for tax collection activity that violates some provision of the Revenue Code or the regulations promulgated thereunder. See 26 U.S.C. § 7433(a).” [Emphasis Added]). (See Shwarz v. US, 234 F. 3d 428 (9th Cir. 2000))

The binding precedent above makes the district court’s decision void. The allegations against IRS employees are thus legitimate.

Federal statutes circumscribe our due process protections. These statutes cannot be disobeyed if we are to have our rights to life, liberty, and property protected. Our sufficient RICO allegations establish that there may be a problem with IRS policy as it relates to our rights. If we prove our RICO lawsuit however, then there is proof of a problem within the IRS. Our constitutional lawsuit could additionally prove that, among other things, 26 U.S.C. § 7433(a) and its dues process defeating provisions, is the underlying problem. 26 U.S.C. § 7433(a) defeats due process by defeating deterrence and enabling intentional violation of the law.

With regard to Senator Paul’s filibuster, Senators McCain, Graham, and others just don’t get it. CRC staff are likewise misguided. The federal government is not entitled to the benefit of the doubt where respect for the rule of law is concerned. Our rights set forth in the Constitution are denied that way. We know, we have experienced it. As for drone use on American soil, it was Attorney General Holder’s earlier statements before congress that raised doubt. We know from past experience and the explicit statements of DOJ personnel, that where ambiguity in the law exists, the federal government uses the ambiguity for its own best interest.

Please help us get to trial. Help us further revise 26 U.S.C. § 7433(a) so that it no longer enables federal employees’ intentional violations of the Internal Revenue Code.

Kind Regards, Brian and Kathleen Kenner


The Kenner family IRS lawsuit update

21 Dec
December 21, 2012

There are three principle lawsuits against the United States.

One is the RICO lawsuit.  Its status has not changed.  It is still pending before the Ninth Circuit.  The court had received the briefs of the appeal over a year ago (12-09-2011).

The second is the one we call the Bane Act lawsuit.  All the required appeal briefs for that lawsuit have just recently been filed.  Our opponents’ defense in this lawsuit is non-existent. I would cover it in detail in this blog, but the arguments are set out out in our final reply.  The United States is petty (and hopelessly without an argument) in their opposition brief to our appeal.  Capital One simply lied in theirs.  The federal judges, by their own reckoning, do not have immunity and are liable.  I thought out RICO lawsuit was good.  This one is even better.  The only reason we are at the court of appeals is because the United States cannot let the case go to trial.  Each time the system acts to subvert justice however, our case gets better.  Why do they do it?

Finally, the third lawsuit is our Constitutional lawsuit challenging federal employee immunities for intentional violation of the law.  It has not yet been dismissed at the district court.  The United States has filed a motion to have it dismissed (we opposed).  That was a few months ago.  The court seems to be slow rolling its decision on the United State’s motion.  It looked like they had some plan tied to the second lawsuit’s appeal.  Anyway, we updated it just a couple of days ago.  Our remedy needed to be improved.

“The law is the safest shield” – so says Edward Coke, the father of judicial immunity

03 Nov
November 3, 2012

Our battle against federal tyranny has been complicated by judicial immunity.  Judicial immunity originates with Edward Coke.  I believe Sir Coke would have stood with us.

Coke has had an enormous influence in America. “The men of the American Revolution were nurtured upon Coke’s writings,” observed constitutional historian Bernard Schwartz. “To them, Coke was the contemporary colossus of the law.”  Coke’s principal gifts to America: the independence of the judiciary and the principle that judges may overturn statutes which are contrary to the Constitution.

Our allegations against Federal Judges Barry (Ted) Moskowitz, Anthony Battaglia, and Roger Benitez are for intentional violations of the law.  I believe Lord Coke would not approve of immunity for intentional acts.

“Sir Edward Coke was made a serjeant at law on the 2oth of June, 16o6; and instead of following the usual course of appearing before the judges at Serjeants’ Inn on one day, and before the Court of Common Pleas on the next, he went through all the ceremonies in a single day. The rings which he presented to the judges he had inscribed with the motto, ‘Lex est tutissima cassis‘ – The Law is the safest shield.”  (1929 Hastings Lyon; Herman Block, Edward Coke – Oracle of the Law 170 1929)

“Coke considered every important public question from the standpoint of the supremacy of the law, from the standpoint that the common law is the heritage of every British subject, who cannot be deprived of the rights it gives him excepting by his own consent manifested through an act of Parliament.”  Id. At 186.

Had Judge Moskowitz, Judge Battaglia, or Judge Benitez merely respected the rule of law, our dispute would have been limited to the consequences of the RICO lawsuit.  These judges would have been righteously protected.  The law is the safest shield after all.

Our judicial immunity appeal brief has been submitted.

29 Oct
October 29, 2012

When a judge ignores the law, they act as lions under the throne.

Our appeal brief has been submitted.  It is distressing.  What usually happens when I produce one of these things is I get smarter.  I have now learned that my arguments surrounding judicial immunity for our lawsuit are somewhat irrelevant.

This is because judges lose their judicial immunity when they lack jurisdiction of a lawsuit.  Well, it turns out that our judges have declared that they do not have jurisdiction.  They did this to defeat the lawsuit.   Though they had jurisdiction, the Ninth Circuit considers a judge’s understanding of the jurisdictional situation to be the defining question.  So.  Our judges are personally liable to damages, because they believed they did not have jurisdiction.

That’s the distressing part.  The “system”, as you might guess, will be justifiably concerned and upset.

Judicial immunity and the Star Chamber

15 Sep
September 15, 2012

The origins of the doctrine of judicial immunity begin with Sir Edward Coke and the Star Chamber (1607).

Here’s what Wikipedia has to say about the star chamber:

“Another function of the Court of Star Chamber was to act like a court of equity, which could impose punishment for actions which were deemed to be morally reprehensible, but not in violation of the letter of the law. This gave the Star Chamber great flexibility as it could punish offenders for any action which the court felt should be illegal even when in fact it was technically legal; however, it also meant that the justice imposed by the Star Chamber could be very arbitrary and subjective, and allowed the court to be used later on in its history as an instrument of oppression rather than for the purpose of justice for which it was intended.”

Yes!  And this is our experience with some federal courts.  Federal judges feel that they may break the law when they believe justice demands it.  The federal courts should take note that Americans have elected legislature.  If the court acts as apparently the Star Chamber did, the legislature, and the will of the people, is undone.

In any event, Lord Coke did in fact establish judicial immunity in the Star Chamber.   See the legal report on the case for Floyd and Barker by Sir Edward Coke.  This particular case from 1607 was cited by the 1868 and 1872 Supreme Court decisions in America establishing judicial immunity here.

But the American courts went too far in their application of judicial immunity using the reasoning of Floyd and Barker.

Absolute judicial immunity is not a forgone conclusion!

13 Sep
September 13, 2012

Judicial immunity dodged a bullet in the 1978 lawsuit Stump v. Sparkman, 435 U.S. 349.

Here’s what happened:  The mother of Linda Kay Spitler Sparkman filed a petition to have her minor daughter sterilized.  The judge, Judge Harold D. Stump, signed Ms. Sparkman’s sterilization petition in a flawed legal process (without due process) and without legal authority.  A lawsuit later came to pass after Ms. Sparkman came of age and couldn’t have children.  Ms. Sparkman subsequently sued Judge Harold Stump for damages.

Unfortunately, Ms. Sparkman did not also challenge the constitutionality of judicial immunity in her lawsuit.  Therefore, the US Supreme Court had no other choice but to apply the judicial immunity doctrine as it had been thus far defined: Judges have absolute immunity when performing judicial acts.

Ms. Sparkman’s attorneys argued that Judge Stump was personally liable because he was operating outside his judicial authority: Judge Stump didn’t provide Ms. Sparkman due process and that he had no statutory authority to perform such an act.  The Supreme Court concluded that although the Judge behaved badly, he was nevertheless performing a judicial act and was therefore operating in his judicial capacity.  Judge Stump had immunity.

There was significant disagreement in the ruling however.  In the dissent, United States Supreme Court Justice Powell stated:

But where a judicial officer acts in a manner that precludes all resort to appellate or other judicial remedies that otherwise would be available, the underlying assumption of the Bradley doctrine is inoperative. See Pierson v. Ray, supra, at 554.

In this case, as MR. JUSTICE STEWART points out, ante, at 369, Judge Stump’s unjudicial conduct insured that “[t]here was and could be no appeal.” The complete absence of normal judicial process foreclosed resort to any of the “numerous remedies” that “the law has provided for private parties.” Bradley, supra,at 354.

Central to the judiciary’s rationale for judicial immunity is the presumption that an aggrieved person may seek redress at appeal when they feel that a judge has made a bad decision.  Again, Justice Powell in the Stump dissent:

Underlying the Bradley immunity, then, is the notion that private rights can be sacrificed in some degree to the achievement of the greater public good deriving from a completely independent judiciary, because there exist alternative forums and methods for vindicating those rights.

Though it was the majority’s position that Judge Stump did enjoy immunity for terrible judicial act, it was Justice Powell’s (and two others–a 5-3 decision) position that when judicial acts defeat due process, the offending judge shall not be immune.  We cannot know if this Court would have found absolute judicial immunity unconstitutional, but the minority emphatically did not like the precedent the case set.  Additionally, the minority found missing the underlying support judicial immunity when the judicial acts defeat due process (the bullet dodged).

We are challenging judicial immunity for intentional acts, because it has been our experience that intentional illegal acts by the judiciary are routinely designed to, or have the practical effect, of defeating due process.

Sowing the seeds of judicial immunity — judicial immunity origins in the United States

09 Sep
September 9, 2012

Judicial immunity in America begins with Randall v. Brigham – 74 U.S. 523 (1868) and Bradley v. Fisher, 80 US 335 (1872).

[Judges] are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, unless perhaps where the acts in excess of jurisdiction are done maliciously or corruptly.  This doctrine is as old as the law, and its maintenance is essential to the impartial administration of justice. Any other doctrine would necessarily lead to the degradation of the judicial authority and the destruction of its usefulness [Argument 1 below].  Unless judges, in administering justice, are uninfluenced by considerations personal to themselves, they can afford little protection to the citizen in his person or property [Argument 2 below]. And uninfluenced by such considerations they cannot be if, whenever they err in judgment as to their jurisdiction, upon the nature and extent of which they are constantly required to pass, they may be subjected to prosecution at the instance of every party imagining himself aggrieved, and be called upon in a civil action in another tribunal, and perhaps before an inferior judge, to vindicate their acts.

Judicial immunity’s actual origins begin much earlier.  This however, will be the subject of a later post.

Justification for judicial immunity is thus summarized as follows:

  1. Americans want judges entrusted with judicial immunity because they want independent judges and they need “to believe” in the justness of judicial authority.  It is argued by many judges that to subject judges to suit would degrade the judiciary.
  2. Judges, in order to be truly independent in thought (and therefore just), must have no personal liability for their decision making.
  3. Any corrupt or malicious decision making by a judge can be remedied by the broader justice system.

I think argument #1 is easy to rebut.  I suspect that the above quoted court feels that if judges are not brought up before tribunals, then Americans will perceive that the judiciary is just.  I, on the other hand, believe that Americans will be quite frustrated with the judiciary when it eventually becomes clear that their perception of the court and justice does not comport with reality.  Moreover, judicial immunity creates the circumstances under which reality rapidly and dramatically departs from the perception of just system.  This is not a good argument.

Later, in the case law, concurring judges argue that argument #2 is true because judges must be free to vote their conscience.  I argue, that judges can only vote their conscience when there can be no other external factors potentially affecting their decision making.  If, on the other hand, one can imagine that external forces always exist to influence the decision making of a judge, it is impossible for a judge to truly vote their conscience.

I believe in the broader justice system.  However, federal judges share the same employer.  Furthermore, it is possible to deny access to a litigant to the broader justice system.

Judges should rely on the same justice system we Americans rely on when they are accused of a crime.  This reliance on the system may close the gap between reality and perception of justice.

The justice system’s justice gyro

03 Sep
September 3, 2012

The American justice system is a remarkable thing.

We accuse IRS employees of RICO (a horrible crime originally created to go after the mafia) in our lawsuit.  Later, we accused some federal judges of wrong-doing to protect the same federal employees.  It is such a horrific allegation that one would think we would be denied due process instantly.  God knows that the affected federal employees tried.  But we survive.  And that’s the part that makes me proud to be an American.

I believe in the justice system.  I think you should too.  Our new found faith in the system is not because we have won or are winning.  It is instead because we have not lost.  This is a critical distinction.  The RICO lawsuit is so catastrophic to the government that one would think that an instant denial of justice would occur so that the government could protect itself.  Yet each justice denying act by specific employees has made the circumstances of the lawsuits worse.  I see now that the rule of law, as applied within our system of justice, cannot readily depart from a path of true justice without serious consequences to both the perpetrators and the system itself.

The miracle of our justice system is that justice is not obtained from an individual (a single judge for example).  It is instead the system itself.  Justice is obtained by the numerous and intricate parts of the system working together.  I recently learned of a new motorcycle that keeps itself upright, even when struck by another vehicle.  It maintains its stability through an internal gyro.  The American justice system has its own internal justice gyro: the fact that the rules applied to one must also be equally applied to all.  This feedback result is achieved through the court of appeals and the Supreme Court.  Though district courts can (and do) depart from justice, the appeals courts cannot so easily follow them because their decisions will later affect the lawsuits of others.

The justice system is complicated.  It is not surprising to find areas of the system enabling individuals within the system to temporarily defeat a persons due process or other right.  The RICO lawsuit seems to have drawn out these various tricks: jurisdiction ruse, minute orders, and total immunity.  But in another miracle of the American justice system, a citizen can and should challenge the statutes in a court (requirements for a Constitutional lawsuit).

Thus, one cannot obtain justice without a willingness to use the entire system.  Justice is achieved by motivated Americans committed to insuring that the entire justice system exploited.  Our RICO lawsuit has clearly challenged “the system.”  So far, bias in the system has not been able to permanently deny us justice.  Our ability to survive has been as a result of the broader system’s built in whirring justice gyro.  It’s extraordinary.  This internal gyro, against the will of many powerful federal participants, forcefully keeps the system on course.

I once thought that the RICO lawsuit illustrated what a mess the justice system has become.  I now see that the RICO lawsuit, with its potential catastrophic consequences, is still unable to unbalance it.  God bless the justice system.

Constitutional lawsuits must meet simple requirements

01 Sep
September 1, 2012

Constitutional lawsuits are easy to file. More importantly, they are essential for liberty.

Figuring out what was required to file a lawsuit challenging the constitutionality of federal laws was harder than it should be.  Hence, this post.  I hope this simple list of requirements for constitutional lawsuits helps others pursue their rights.

I believe three things are required for constitutional lawsuits:

Federal jurisdiction is established using the same jurisdiction statutes as used for any other other federal lawsuit.  Specifically, the federal courts have jurisdiction if the plaintiff is challenging a federal statute (federal question jurisdiction).  Sovereign immunity is easily overcome in lawsuits attacking the constitutionality of statutes using the United States citizen’s statutory right of review (5 USC § 702).  Finally, the plaintiff must establish standing.   Standing is a requirement originating in the constitution.  The standing requirement is essential to keep the courts from becoming all powerful and legislators in their own right (God bless the founders).  The court has no authority to sit in judgment of any statute unless there is an actual controversy between real parties.

Standing requirements are as follows:

‘First the plaintiff must have suffered an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized, see id., at 756; Warth v. Seldin, 422 U. S. 490, 508 (1975)Sierra Club v. Morton, 405 U. S. 727, 740-741, n. 16 (1972);[1] and (b) “actual or imminent, not `conjectural’ or `hypothetical,’ ” Whitmore, supra, at 155 (quoting Los Angeles v.Lyons, 461 U. S. 95, 102 (1983)). Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be “fairly. . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.” Simon v. Eastern Ky. Welfare  Rights Organization, 426 U. S. 26, 41-42 (1976). Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” Id., at 38, 43’

Lujan v. Defenders of Wildlife, 504 US 555 (S. Ct. 1992).

Constitutional lawsuits are therefore simple to create.  I believe it is our civic duty to challenge an overreaching federal agency or employee.