"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.

Saturday, June 6, 2015

Judicial immunity has been rendered illegal by congressional enactment - and courts pretend not to notice while protecting their own?

It has been bothering me, as a civil rights attorney, that civil rights litigation involving ongoing, clear and egregious constitutional violations by judges are given a runaround by courts.

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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