"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.

Tuesday, May 26, 2015

Absolute judicial immunity for malicious and corrupt acts, public policy decisions, Star Chamber and authority of federal courts

The judge-created doctrine of absolute judicial immunity FOR MALICIOUS AND CORRUPT ACTS on the bench is relatively new, dating back only to 1978, Stump v. Sparkman, 435 U.S. 349 (1978).

Yet, the concept of judicial immunity that the U.S. Supreme Court judges so readily crafted to prevent liability of their brethren under the Civil Rights Act, 42 U.S.C. 1983, was created not in a democracy, but in a monarchy, and not in a regular court, but in a Star Chamber.

In the case Floyd and Barker, 77 Eng. Rep. 1305 (Star Chamber 1607), Sir Edward Coke unilaterally established a standard of judicial immunity of a judge "for anything done by him as a judge".

The Barker case was a suit by one named Floyd after a person named William Price was executed on a sentence of death from Judge Barker.  Floyd was suing Judge Barker on a conspiracy theory.

Sir Edward Coke then instantly created a doctrine of immunity from liability for a judge based on the following principles:

  1. finality of judgments - well, there can be nothing more final than an execution of a condemned prisoner, but we know how many people on death row now turn up innocent, and that is with DNA evidence.  There was no DNA evidence in the 17th century England.  Moreover, the triumph of finality over fairness is definitely not and cannot be in compliance with the constitutional concept of due process of law which American courts and especially federal courts dealing with constitutional lawsuits, must deal with and abide by.
  2. immunity is necessary to maintain judicial independence - so, it is necessary to allow judges to do a sloppy job and even to engage in conspiracies to sell their performance - in order for that performance to be independent.  This principle is, once again, worthy of the Star Chamber where it was born, but definitely not of a court in a constitutional democracy.
  3. immunity provides independence of thought and freedom from manipulation - see above, it the same problems flaw this "principle".  Sloppy work and corruption is allowed to slip away in order to allow the judge to maintain "independence of thought" to engage in that same sloppy work and corruption.  Not a concept that belongs in a constitutional democracy.
  4. the necessity "to engender respect and confidence in the judiciary and the government".  That one is really worthy of the Star Chamber and truly does not comport in any way shape or form with a constitutional democracy.  It makes no sense whatsoever to allow a negligent or corrupt judge to escape liability in order to maintain amongst people respect and confidence in the government, because immunity breeds the very opposite of respect and confidence in the government in general and in the integrity of the judiciary specifically.

The Star Chamber was dissembled in England around 1641 as a lawless institution used as a tool of political oppression and has become a symbol of abuse of power.

That the highest court in a nation that emerged by breaking away from that same England because of the king's arbitrary power that the Americans DID NOT WANT TO RESPECT OR HONOR, long after the Star Chamber was dissembled, adopted the principles that came out of a Star Chamber case to restrict rights of litigants established by the U.S. Constitution and by the U.S. Congress by enacting a statute to enforce the U.S. Constitution, is a symbol of abuse of power in the modern times.

Moreover, the four aforementioned principles were created by Sir Edward Coke as a matter of public policy.
You know what the U.S. Supreme Court said about restricting civil rights litigation based on concepts of public policy?

              "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).

This statement in Tower v. Glover was made by the U.S. Supreme Court 6 years after Stump v. Sparkman that is considered the starting point of the judge-created doctrine of the absolute judicial immunity for malicious and corrupt acts in the American jurisprudence.  Truly, the right hand does not know what the left hand is doing with the U.S. Supreme Court.

Yet, federal courts, and the U.S. Supreme Court itself, do not seem to notice what they stated in Tower v Glover and continue to create and apply immunities to Section 1983, in obvious full knowledge that their actions are unlawful and that they are unlawfully usurping Congressional power and depriving victims of governmental misconduct of their legitimate remedy - based on federal judges' personal judgments that civil rights litigation became much too burdensome for federal and state institutions.

So, litigants and attorneys whose countless cases were rejected on the principles of judicial, quasi-judicial, prosecutorial absolute immunity, and qualified immunity for police and social workers - all of those lawsuits were rejected, as the U.S. Supreme Court acknowledges, unlawfully.

And all the sanctions that were imposed, and fees that were ordered to be paid by victims of official misconducts to the perpetrators of such misconducts because perpetrators were allegedly protected by immunities - are admittedly unlawful, and sanctioning civil rights plaintiffs and their attorneys is an ever growing trend in  the U.S. federal courts.

And - the above statement in Tower v. Glover can finally serve as a revelation of the reasons why doctrines of immunities, as well as other "public policy doctrines" such as Rooker-Feldman, comity, federalism, deferences, and a wide range of abstentions, exist - because federal courts unilaterally decide that civil rights litigation is much too burdensome to state and federal institutions and use judge-created barriers to reduce their own caseloads, which is NOT a lawful ground to refuse a remedy to victims of governmental misconduct lawfully exercising their private right of action to sue governmental officials for constitutional violations, a right created by Congressional enactment and that DOES NOT have exceptions for judges, prosecutors and police officers.

Moreover, in Marbury v. Madison, 1 Cranch 137 (1803), a textbook case on constitutional law taught in law schools as the origin of the U.S. Supreme Court's authority to interpret the U.S. Constitution (something that is not found in that same U.S. Constitution), the U.S. Supreme Court has stated the following:
"The very essence of civil liberty certainly consists in the right
of every individual to claim the protection of the laws
when he receives an injury", 1 Cranch 137 at 163 (1803).

This is how the U.S. Supreme Court explained the purpose of the Civil Rights Act in the same year when U.S. Supreme Court established the doctrine of absolute judicial immunity for malicious and corrupt acts for a judge who screwed up royally and issued an ex parte order of secret sterilization of a 15-year old girl on request of her mother because she was allegedly mentally ill and "promiscuous" in Stump v Sparkman:

       "The purpose of the statute was to deter public officials
       from using the badge of their authority to violate persons'
       constitutional rights and to provide compensation and other
       relief to victims of constitutional deprivations when that
       deterrence failed", Carey v Piphus, 435 U.S. 247, 253 (1978).

Yet, what rules in federal courts nowadays is not the U.S. Constitution, not the Civil Rights Act enacted by Congress, but the concept born out of the darkness of the 17th-century Star Chamber ditched by the English in that same 17th Century for unlawfulness.

Long live the rule of law.

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