In my previous blog post today I quoted the U.S. Supreme Court stating the following as to judicial doctrines of immunity to restrict civil rights litigation:
"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).
That bold pronouncement was made by the U.S. Supreme Court:
- 8 years after that same U.S. Supreme Court gave absolute immunity, even for malicious and corrupt acts, to prosecutors in Imbler v Pachtman, 424 U.S. 409 (1976) based on concepts of public policy, sending the nation into a half-a-century so far of rampant prosecutorial misconduct and wrongful convictions; and
- 6 years after that same U.S. Supreme Court gave absolute immunity for malicious and corrupt acts to judges, Stump v. Sparkman, 435 U.S. 349 (1978), once again, sending the nation into half-a-century of rampant and uncontrolled judicial misconduct, where state (and federal) officials turn a blind eye on judicial misconduct until it hits the fan with a vengeance, such as in cases where judges have sex with litigants in chambers, sell kids for cash into juvenile prisons or have penis pumps during criminal trials.
We have generations of judges and prosecutors that came to their offices in this country with knowledge and in reliance upon Imbler v Pachtman and Stump v Sparkman, and since the time when these cases were decided, federal courts have spawned cases that expanded prosecutorial immunity to civil proceedings and judicial immunity to non-judicial personnel.
Yet, Tower v Glover remains on the books of the U.S. Supreme Court, as the court's admission that the bacchanalia of judge-created immunities, deferences, abstentions, comities and other judge-created doctrines that currently blocks access of victims of prosecutorial and judicial misconduct from obtaining their legitimate remedies in civil rights litigation, is absolutely unlawful.
Moreover, a third case on immunities that was decided by the U.S. Supreme Court before its interesting admission in Tower v Glover in 1984, the case named Ferri v Ackerman, 444 U.S. 193, 2014, 100 S.Ct. 402, 409 (1979), was in stark contrast with the other two cases on absolute immunities - Imbler v Pachtman and Stump v Sparkman, cases that gave absolute immunity, even for malicious and corrupt acts, respectively, to prosecutors and judges.
In Ferri v Ackerman, the U.S. Supreme Court actually denied immunity to public defenders and assigned counsel in criminal litigation - guided, or rather, misguided by logic that defied its own logic in Imbler and in Stump.
Ferri v Ackerman indicated that, even though justice is supposed to be blind, it matters for the U.S. Supreme Court to whom it does - or does not - dispense immunities (while acknowledging that dispensing immunities is unlawful and usurpation of Congressional power in the first place - see Tower v Glover).
According to the logic of the U.S. Supreme Court, an assigned counsel and public defenders are not entitled to immunity while their opponents, the prosecutors, and the presiding judges, are, because of the following reasoning:
"The fear that an unsuccessful defense of a criminal charge
will lead to a malpractice claim does not conflict
with performance of that function [representation
in an assigned case - T.N.]. If anything, it provides
the same incentive for appointed and retained counsel
to perform that function competently".
Now, a civil rights lawsuit against a judge and prosecutor, public officials, would prevent them, as a matter of public policy (that the U.S. Supreme Court has no right to spawn - see Tower v. Glover), from doing their duties fearlessly and independently (Imbler v Pachtman, Stump v Sparkman).
But, a civil rights lawsuit against a public defender, also a public official, hired by and paid by the taxpayers, or an assigned counsel standing in the shoes of a public defender and also paid by taxpayers, will actually provide an incentive for such public official to do his work competently (Ferri v Ackerman)?
That means that doing judge's and prosecutor's work fearlessly and independently excludes the requirement of doing it competently or honestly because, due to immunity, judges and prosecutors lack incentives plus character to do their jobs competently, but have a lot of protection to do it corruptly, but fearlessly and independently in that corruption.
And, the doctrine of judicial immunity was stretched by courts to protect non-judicial personnel who, by any plausible logic, cannot possibly be engaged in JUDICIAL ACTS - for the simply reason that they ARE NOT JUDGES.
The law review article by Professor Margaret Z. Johns, "A Black Robe Is Not a Big Tent: The Improper Expansion of Absolute Judicial Immunity to Non-Judges in Civil Rights Cases" that I have interlinked above and that I quote below, features on its very first page the following examples of where absolute judicial immunity was granted for non-judicial acts of non-judicial workers:
- to a "social worker who falsified the results of a plaintiff's evaluation and omitted positive information from the report", Hughes v. Long, 242 F.3d 121 (3d Cir. 2001);
- to a "court-appointed commissioner charged with selling property following a divorce ... for defectively advertising the sale, illegally participating in the sale, and lying to the court", Ashbrook v. Hoffman, 617 F.2d 474 (7th Cir. 1980);
- to a "court-appointed receiver who was investigating a judgment debtor's assets ... for breaking into the debtor's girlfriend's storage locker and removing an oil painting and family jewelry", Davis v. Bayless, 70 F.3d 367 (5th Cir. 1995). Professor Johns cites numerous cases where judicial immunity is expanded to non-judicial personnel without logic or reason.
Yet, one case, cited by Professor Johns, stands out because of its reasoning. In Schinner v Strathmann, 711 F.Supp 1143, 1143-44 (D.D.C. 1989) the court granted a court appointed psychiatrist judicial immunity because "defendant was acting in a judicial capacity when he interviewed the plaintiff to assist a judge in evaluating a plaintiff's competency".
So, whoever "assists a judge" in evaluating anything in litigation - is entitled to immunity following this reasoning.
But, a public defender is not entitled to immunity - because a public defender does not assist a judge?
Because a judge does not see what public defender is doing as assisting the court in evaluating the evidence, but rather hindering the court in such evaluation?
So, public defenders are being punished by lack of immunity for their role in providing a defense in criminal prosecutions while DA's offices (the usual breeding grounds of judges) are rewarded? Isn't this a pre-judgment of all criminal cases?
Do you see any logic in any of this?
I don't. But I do see self-serving minds at work. Judges would not allow their own personnel or friends they appoint to serve as "court appointed evaluators", to be sued - so they create for their own an umbrella of protection.
Judges do care about prosecutors - where judges most likely place their children for ascension to their children's own judicial careers - so they give immunities to prosecutors.
Judges do not usually place their children in public defender's offices, such offices are not considered good stepping stones for judicial careers - so public defenders are deemed expendable and immunities are not dispensed to them.
Yet, whether the U.S. Supreme Court reasoning in cases on immunities does or does not have logic is irrelevant because the U.S. Supreme Court admitted in Tower v. Glover in 1984 that it does not have authority to make public policy judgments and to restrict civil rights litigation allowed by Congress.
Not to mention that, according to the Supremacy Clause of the U.S. Constitution, decisions of the U.S. Supreme Court do not have the status of the Supreme law of the land.
So why do federal courts treat them as if they are the Supreme law of the land, and why admittedly unlawfully created immunities - and deferences - and abstentions - and a zillion of other unlawful judge-created doctrines blocking civil rights litigation - continue to restrict access of civil rights litigants to court, prevent them from obtaining their legitimate remedies and be used as grounds for sanctions and attorney fees against victims of governmental misconduct in favor of perpetrators of such misconduct?
Because justice in this country is definitely not blind?
Because judges, in their overwhelming majority, are not spawned out of the public defender's office, but rather out of the prosecutor's office?
Because judges come to the bench not to do their jobs fairly, not to apply existing laws predictably and impartially, but to be in a position of power to make money and let their family and friends make money, to make law favoring themselves, their relatives, their friends, their employees, contributors to their election campaigns, contributors to their "educational" trips to resort locations, contributors to receptions with alcohol and gifts where they are invited - and wield power in favor of their own, leaving everybody else wondering where did the rule of law go?