"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

Courts do not have authority to give immunities to anyone - but for those belonging to their own class or being too close to that class for comfort?

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:

  1. 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);
  2. 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);
  3. 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?







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