Between my own litigation experience as a civil rights attorney and my husband's pro se litigation experience as to lawsuits against judges, even without any requests for money damages, but simply for declaratory and prospective injunctive relief, it appeared to me that in this country a remedy for a constitutional violation by a judge is simply unavailable.
The concept of judicial immunity is stretched by the courts to cover any conduct of the judge.
Moreover, whenever you ask for prospective injunctive relief for clearest and most egregious constitutional violations, defendant judges, at the very same time, raise two defenses (in addition to others):
1) the defense of absolute judicial immunity which courts now deem to be an absolute jurisdictional bar from suit for any purpose, including declaratory and injunctive relief;
2) statutory, under 42 U.S.C. 1982, as amended and stating that injunctive relief against a judge sued in his official capacity is prohibited "unless a declaratory decree was violated or declaratory relief was unavailable".
What is wrong with the picture of coexistence of absolute judicial immunity, the way it has been created and interpreted nowadays, and the text of the Civil Rights Act, as relatively recently amended by the U.S. Congress?
Everything is wrong with such a co-existence, and illegality of the concept and modern days' application of judicial immunity by state and federal courts becomes apparent from reading the text of the Civil Rights Act and applying to it elementary rules of statutory construction.
The full text of 42 U.S.C. 1983 as it currently exists is as follows:
42 U.S. Code § 1983 - Civil action for deprivation of rights
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
The U.S. Supreme Court unlawfully invented absolute judicial immunity for malicious and corrupt acts on the bench in 1978 (Stump v Sparkman), despite its own claim that it has no authority to set public policy, and that it is a prerogative belonging only to the U.S. Congress:
"We do not have a license to establish immunities from
Section 1983 actiona in the interests of what we judge to
be sound public policy. It is for Congress to determine
whether Section 1983 litigation has become
too burdensome to state or federal institutions and,
if so, what remedial action is appropriate",
Tower v Glover, 104 S. Ct. 2820, 2826 (1984).
(see also my blog about immunities and lack of authority of the U.S. Supreme Court to amend the Civil Rights Act at all, or as a matter of public policy).
The Civil Rights Act, 42 U.S.C. 1983 is mainly a statute allowing private individuals, victims of unconstitutional conduct of public officials, to sue those officials (and governmental entities) mainly for money damages, because injunctions go only into the future and do not redress an injury that was already caused to the victim of unconstitutional conduct.
The Civil Rights Act, as amended by the U.S. Congress, in its current version, prohibits to sue a judicial officer for actions in his judicial capacity "unless a declaratory decree was violated or declaratory relief was unavailable".
As to statutory interpretation, the U.S. Supreme Court already stated that it has no authority to create law based on considerations of public policy - it is the prerogative of the U.S. Congress.
Second, the Civil Rights Act has been enacted under the 14th Amended as the enabling portion of the U.S. Constitution, and as such, must be liberally construed to promote its intended remedies.
Third, since the statute itself must be liberally construed to promote its intended goals and remedies, exceptions to the statute must be, instead, narrowly construed and, if strictly enumerated, those exceptions and no other, should be strictly adhered to.
I have been taught in law school that when a remedial statute has a list of enumerated exceptions, that list is exhaustive, and courts have no authority to legislate and amend the statute and extend its enumerated list of exceptions through "interpretation".
Moreover, federal courts are courts of limited jurisdiction, and Article III of the U.S. Constitution dues not allow federal courts to legislate. Not that the courts care to stick to their restricted authority (and oath of office to protect the U.S. Constitution) when liability of judges is involved.
Unlawful and self-serving amendment of the Civil Rights Act through interpretation is exactly what is happening in civil rights litigation across the country.
If the rules of statutory construction are applied to the text of the Civil Rights Act, quoted above, first, the fact that the U.S. Congress could, but did not include a prohibition on suing judges for money damages, such a prohibition does not exist. The list of statutory exceptions is in the statute and is exhaustive.
Second, the statutory language of 42 U.S.C. 1983 indicates that an action for declaratory relief against a judge is not prohibited in federal court either.
Had the U.S. Congress contemplated a "jurisdictional bar" to all actions against judges, including actions for declaratory relief, the statute would not be even speaking about declaratory decrees or unavailability of declaratory relief as an option that triggers availability of injunctive relief against a judge.
Yet, all courts at this time are treating the unlawful judge created amendment to the Civil Rights Act, the absolute judicial immunity, as a "jurisdictional bar" to civil rights actions against judges as "established law" and sanction attorneys and litigants for as much as even trying to point out the obvious, that the doctrine of absolute judicial immunity is unconstitutional and unconstitutionally applied.
The only reason for such persistent, systematic and concerted unlawful behavior by the country's judiciary, as I see it, is because judges invented the concept of judicial immunity to protect themselves and members of their class - and do not care whether they are breaking the law or not, as long as they are protected by their law-breaking conduct.
And that situation, ladies and gentlemen, needs to be changed.
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