"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Wednesday, June 11, 2014

It is in your best interests not to be able to sue that malicious and/or corrupt person who violated your constitutional rights - if that person is a judge

When I began this blog in March of 2014, I have announced that I am preparing some books for publication that I plan to come out in 2014-2015.  One of the books will be on the doctrine of judicial immunity, its legality and its impact on the American society, the economic principles of existence of a publicly funded court system, its efficiency and alternatives, and the necessity to undo the stronghold malicious and corrupt judiciary has on this country.

As a sneak preview, I provide some points from the book.  The book, of course, will contain citations to legal authorities, a bibliography and a detailed analysis of federal civil rights litigation, my own and other people's, showing how justice is stonewalled whenever judicial misconduct of any kind is involved, no matter how egregious constitutional violations were and how badly the victims were hurt.

The book will cover specific examples of how courts disregard the rules they create and the rules set by statutes and the U.S. Constitution in order to protect themselves from liability for malicious and corrupt acts on the bench.

I will argue in the book that there cannot be any legal, moral or constitutional basis for the doctrine of absolute judicial immunity for malicious and corrupt acts.

I will argue in the book that, maybe, the whole idea of dispute resolutions through courts has outlived itself due to the fact that it is a grossly inefficient use of public funds, especially in view of the fact that the majority of issues in state and federal courts are not resolved through trials, on the merits and thus the courts are no better than glorified mediators/arbitrators steering parties into settlements without resolution of issues for purposes of creating precedents in the law.

The book will be in English and in Russian and will be marketed globally, to raise global awareness around the world as to problems in the U.S. with undermining the fundamental democratic principle that any violation of human rights must have an effective remedy.

*     *     *

In 2009 the U.S. District Court for the Middle District of Pennsylvania, Judge A. Richard Caputo, has ruled in a partial decision on liability that, even though Judge Mark Ciavarella, Jr.  was immune for sentencing juveniles to detention, without advising them of their right to counsel or giving them counsel, failed to determine whether pleas of guilty were knowing or voluntary, and did that because he was paid to fill a private juvenile detention center, he was still absolutely immune from suit because what he did constituted "judicial acts".
To give judge Caputo justice which he denied to the victims of Judge Ciavarella, Jr., I must state that in January of 2014 Judge Caputo has ruled that Judge Ciavarella was not immune as to acts in furtherance of the same conspiracy which were not judicial acts.  Yet, in his 2009 decision Judge Caputo, in violation of his own south of office to uphold the U.S. Constitution as the Supreme law of the land, Judge Caputo perpetuated the dangerous tendency of courts to grant judicial immunity for malicious and corrupt acts of judges, based on extremely fuzzy and self-serving legal foundation.
I put the quote from Judge Caputo's 2009 decision granting judicial immunity to Judge Ciavarella, Jr. at the top of this blog, as it defines the disfunction, inefficiency and judicial misconduct permeating the judicial system of the United States, and issue that everybody knows about, but which has not been effectively dealt with because of the lobbying efforts of the judiciary and the power of the judiciary to create self-serving case law.

The entire house of judicial immunity is a sand castle waiting for one authoritative blow or pour to dissolve.  That blow or pour will not happen without public input.   I appeal to the public to apply to their legislative representatives to make the chimera of absolute judicial immunity for malicious and corrupt acts disappear. 
Absolute judicial immunity in the U.S. is based only and entirely on an assumption by the U.S. Supreme court that pre-existing common law principles of immunity (that came from England) are not abrogated by Congress if a statute is silent about those common law principles.

There are several flaws in such an assumption.

Supremacy of constitutional law and rules of statutory construction

U.S. Constitution is the Supreme law of the land and thus trumps inconsistent common law.

When a statute is silent on a certain issue, that issue must be construed according to the general goal of the statute.

The obvious goal of 42 U.S.C. 1983 resulting from its text is to create a private cause of action to give individuals a right to personally hold every person who violates their individual constitutional rights under the color of state law liable for money damages,  and that includes judges.

Statutes enforcing federal and constitutional law must be construed liberally and broadly, to further its legislative intent and purpose.

Any exceptions to such statutes must (1) be clearly defined by the legislature and (2) must be narrowly construed not to undermine the legislative purpose and intent.

That the U.S. Supreme Court suddenly scrapped its own rules of statutory construction to help out its own class, the judiciary, and the fact that judges throughout the country "faithfully" adhere to the principle unfaithfully created by the U.S. Supreme Court is one more example of self-serving intellectual dishonesty of the judiciary and its disdain to the rule of law when it concerns their personal interests.

Deviation from common law

English common law unquestioningly accepted by the U.S. Supreme Court as the basis of its assumption that it still applies to civil rights actions, even though the U.S. Congress did not say so and such language did not appear in the civil rights statute, 42 U.S.C. 1983, did not cover judicial immunity for malicious and corrupt acts, so granting it in reliance on pre-existing common law as an exception is wrong.

Common law gave immunity from suit only to judges of superior courts and courts of general jurisdiction.  In the U.S. the doctrine spread as a forest fire to cover judges of all courts and even of amdinistrative agencies, as well as non-judges that were deemed as "the arm of the court", something that did not exist under the common law which is the whole justification of the doctrine

Common law also had a doctrine of amercement/ liability of judges to those the judges injured, so if common law on the issue of judicial liability should be consulted, both the immunity and the amercement doctrines should be embraced. 

It is my firm belief that ignoring the amercement doctrine while expanding the immunity doctrine beyond the initial scope of its existence under English common law, but in reliance on English common law, is self-serving intellectual dishonesty of the judiciary for purposes of self-preservation and not for public interest.

Self-interest of the decision-makers

When judges decide that they are not immune because of common law principles that are not reflected in the statute, and rule that their identity and their motivation, even a malicious and corrupt motivation, does not even come within the judicial inquiry to decide their own fate and the fate of their class, the mere self-interest of such a decision casts suspicion of its validity.

The identity of the sovereign and inapplicability of 400 year old common law in a democratic society

In England the King was the sovereign, and superior court judges answered to the King.  There was no supremacy of the law over and above the King's will, and that's exactly why pilgrims ran to American and why this country declared independence from England, because of its lawless tyranny. 

Now that lawless tyranny is being revisited upon the American people through the doctrine of absolute judicial immunity for malicious and corrupt acts.

In the U.S. the People are the sovereign, the People established this county in accordance with the U.S. Constitution as the Supreme law of the land, and made all judges swear an oath of office to that U.S. Constitution, and not to a person or a governmental body.

There government is not the sovereign in the United States, the people are.

Courts, in applying the doctrine of judicial immunity, act as if the U.S. Supreme Court is the sovereign of the United States, and that the U.S. Supreme Court decisions prevail over the reasonable interpretation of the text of the U.S. Constitution.  Yet, the U.S. Supreme Court decisions are not part of the Supremacy Clause of the U.S. Constitution and may not constitute the law of the land.

Overbroad construction of jurisdiction for purposes of absolute judicial immunity

In New York, Judiciary Law 14 absolutely disqualifies a judge who has an interest in the outcome of litigation, and decisions by such a judge are void.

The law also disqualifies a judge from re-entering the case from which he recused, and decisions from such a "re-entered" judge are also void.

There are mandatory rules of disqualification existing in New York, and the public will believe that they are mandatory only if they are enforced as mandatory.

Yet, New York courts ruled, and federal courts agree, that the decision on recusal addressing a motion under a mandatory rule of disqualification, is somehow "discretionary", and can be made by the same judge whose misconduct, bias, appearance of impropriety or conflict of interest, are addressed in a motion to recuse, after the judge "searches his/her own conscience".

It is apparent that such an analysis is flawed from the very beginning because:

(1) it is not from the point of view of an objective reasonable observer, and

(2) because it is not transparent or subject to appellate review since it is not possible to clearly establish as a matter of law

          (a) what is conscience,

          (b) whether the particular judge has conscience, 

          (c) whether the particular judge did or did not search his or her conscience, 

          (d) what did the judge's conscience tell the judge, 

          (e) whether the judge truly followed his or her conscience in making the decision (if such a conscience even exists).

Under federal due process of law, a judge cannot preside over "his own case", or where he has a personal interest in the outcome of the case.

A personal interest exists when a judge has a personal vendetta against a litigant or his attorney.

A personal interest exists when a judge was bribed out of court to rule in a certain way in court, whether the bribe was by actual money, by promises of promotions, re-elections or after-retirement perks, or by offering to judges or his family members certain privileges that would not be available to them unless the judge rules in a certain way.

Whenever the rules of disqualification are mandatory, respectfully, they must strip the judge of authority to act, and if the judge acts contrary to those rules, he must suffer the consequences of his actions, as "any person" within the meaning of 42 U.S. C. 1983.

Federal courts should not be able to find jurisdiction in a judge who, by mandatory rules of disqualification, is not allowed to serve in a certain case.  

Yet, federal courts nevertheless find jurisdiction in the same circumstances because they do not reach the issue of absolute disqualification, are not concerned by the identity of the judge and by his corrupt or vindictive motivation, and are concerned only with two issues: (1) whether the court itself, as an entity, has subject matter jurisdiction and (2) whether the act complained of was, by its nature, a judicial act.

Such a broad construction of a what was supposed to be a narrow exception to application of an act of Congress enforcing the right to a private cause of action against violations of the U.S. Constitution by "any person acting under the color of state law", and especially an exception based on an assumption by the U.S. Supreme Court that the Congress couldn't have meant to abolish common law judicial immunity, even though amendment of a statute by interpretation is outside of the U.S. Supreme Court's authority, cannot be considered the current law of the land.

Since such construction proved to be extremely viable, efforts should be made to legislatively or through state Constitutions, abolish it.

Granting judicial immunity in the hopes that judges are prosecutable for misconduct in by disciplinary authorities and criminal courts could be deemed naïve if it did not come from judges who are personally interested in that doctrine they created to apply to themselves. 

Such disciplinary and criminal prosecutions happen once in a blue moon and the public has no power to appeal non-prosecutions, therefore, disciplinary and criminal proceedings cannot be construed as real and effective remedies against judicial misconduct, and especially against malicious and corrupt acts on the bench. 

The disciplinary process in the Ciavarella (Kids-for-Cash) case in Pennsylvania failed, and due to the fact that several attorneys were disbarred for complaining about judges, attorneys who knew about misconduct of the judge who was openly violating juveniles' rights in the courtroom as a matter of pattern and policy, were afraid to report such misconduct. 

Criminal charges were not brought even by the feds against these judges for selling kids for cash.  Charges were brought only to address the kickbacks, so to a certain degree, that process also failed the public.

The justification of judicial immunity of the necessity that the public should be perpetually duped into trust in the integrity of the judiciary to prevent public unrest to correct the situation is self-serving, unconstitutional and simply morally wrong

The above shows that the claim that the doctrine of absolute judicial immunity somehow protects independence of the judiciary and helps maintain public trust in the integrity of the judiciary is wrong on many levels.  A judge sworn to uphold the U.S. Constitution may not be independent of his oath.   There should be an effective mechanism for the victims of his breach of his oath of office to obtain a real remedy against the judge, especially if the mistake was malicious and corrupt.

Maintaining public faith in the integrity of the judiciary by granting judges immunity for malicious and corrupt acts is maintaining in the public unwarranted illusions in order to prevent legitimate public unrest and outrage in order to change the status quo and establish a truly constitutional system of dispute resolution, whether by courts or by a more advanced method.

It is nonsense to expect the public to presume integrity of any judge when any such judge is immune from civil liability for malicious and corrupt acts on the bench, because, given the culture of non-enforcement of disciplinary rules and criminal law against judges throughout the country, the public can expect any judge to commit exactly the type of misconduct from which he or she is made immune.    In other words, if criminal behavior is not punished, it will get worse, one should not be a wizard to understand that.

The factual non-existence of disciplinary and criminal prosecutions of judges whatever they do on the bench, and the vicious retaliation of the judiciary against whistleblowers of such misconduct show that availability of a private cause of action for money damages against judges is the only real remedy and real deterrent to malicious and corrupt acts of judges on the bench.

The issues of liability for judges whose mistakes are honest can be resolved in federal civil rights lawsuits not through immunity, but through motion practice after full discovery and addressed through liability insurance, as for any other professional providing professional services to the public.

English common law cannot and should not be uncritically transplanted to the U.S. soil, and the doctrine of absolute judicial immunity for malicious and corrupt acts is unconstitutional and should be legislatively abolished since it will not abolish itself in courts due to the self-interest of the judiciary to perpetuate and expand it

This country has been founded on a Declaration of Independence specifically because of lawlessness of English courts and the tyranny of immune English judges who answered only to the King as sovereign, all judges in the U.S. take their office by the oath of loyalty to the U.S. Constitution and not to a body of government.  Instead, all courts uniformly hold themselves loyal to a body of government, the U.S. Supreme court, and its decisions, whether they contradict the letter and/or spirit of the U.S. Constitution or not.

The U.S. Supreme Court derives its authority from the U.S. Constitution, and there is nothing in the U.S. Constitution allowing the U.S. supreme Court to change the Constitution or federal law, or to narrow jurisdiction of federal courts despite clear language of an act of Congress presupposing the broadest possible jurisdiction to prosecute constitutional violations and enforce the U.S. Constitution.  This usurpation of the power of Congress to narrow jurisdiction of federal courts is especially egregious when it is used by judiciary to protect its own class from liability.  


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