"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, August 25, 2015

Digest of Grazzini-Rucki petition for a writ of certiorari to the U.S. Supreme Court, challenging absolute judicial immunity

As promised, here is the digest of what I consider the most important points in the Grazzini-Rucki petition that challenges before the U.S. Supreme Court the concept of absolute judicial immunity (the full text of the petition is available here).

I would divide the analysis in the petition in two parts (the petition does not make a division in parts I and II like I do, division in parts in the petition is different, division in Parts I and II is my division based on my own analysis of the petition).

Part I - challenge to legality of the concept of absolute judicial immunity;

Part II (if argument in Part I fails) - challenge to misapplication or failure to apply by lower courts of "tests" invented by he U.S. Supreme Court to analyze whether absolute judicial immunity applies.

Under Part I, analysis covered the following:

1/ The U.S. Supreme Court, by Article III of the U.S. Constitution, is a court of limited jurisdiction (as all other federal courts) and does not have the power to legislate or amend existing legislation.  Power to enact and amend legislation exclusively belongs, pursuant to Article I of the U.S. Constitution, to the U.S. Congress.

2/ The U.S. Supreme Court gave itself, in the famous case Marbury v. Madison, authority to interpret - not change - the U.S. Constitution or federal statutes.

3/ Statutory interpretation does not include amendment of interpreted statute.

4/ Only ambiguous terms of a statute are subject to interpretation by courts.  If the statute is clear and unambiguous, courts have no authority to interpret the statute, but must apply it "as is".

Having stated these fundamental principles of the law, the petition then applied it to the concept of absolute judicial immunity, with the following results.

1/ 42 U.S.C. 1983, by statutory text, applies to "every person", not to "every person, but judges and people officially connected with judges".  

For that reason, 42 U.S.C. 1983, the scope of Civil Rights Act and its reach to "every person" is not subject to statutory interpretation and infusion of "absolute judicial immunity" (I would add - or other doctrines of immunity or deference invented by federal courts to absolve governmental officials from the reach of the statute).  Nor, by the way, the Civil Rights Act, is restricted by the so-called "state actors" - once again, it applies to "every person" who, under the color of state law, violate people's federally protected statutory and constitutional rights.

2/ Even if the U.S. Supreme Court WOULD have the right to reach behind the clear and unambiguous text (which it does not because it is, once again, clear and unambiguous, which does not give the court authority to interpret it), reasonable interpretation would have resulted in a decision that absolute judicial immunity does not apply to actions brought under the Civil Rights Act because the Civil Rights Act was enacted as a civil twin of a criminal statute that did not have in it absolute judicial immunity, and that it was a civil twin of the criminal statute, and that it does not make exception for judges based on the concept of absolute judicial immunity, is clearly reflected in the Congressional debates prior to enactment of the Civil Rights Act.

3/  The conclusion - "interpreting" absolute judicial immunity for malicious and corrupt acts on the bench as "implied" by Congress in enactment of the Civil Rights Act of 1871 is an unconstitutional act of the U.S. Supreme Court, in excess of its Article III power and in violation of the U.S. Congress's exclusive Article I power.

Part II -  misapplication and failure to apply tests invented by the U.S. Supreme Court in order to determine whether absolute judicial immunity applies (attorneys always provide alternative arguments in case one of them fails).

So, if the argument that the concept of absolute judicial immunity is unconstitutional, the petition then offers a "misapplication" argument.

There is a case by the U.S. Supreme Court and lower courts requiring federal courts to conduct analysis of whether a certain function claimed by the defendant-judge to be protected by the concept of absolute judicial immunity, existed at the time of enactment of the Civil Rights Act, in 1871, was considered a judicial function at that time and was afforded absolute judicial immunity at that time.

The petition points out to cases putting the burden of proof in that issue on the defendant-judge claiming the immunity.

The petition analyzes some cases showing that in the majority of cases where absolute judicial immunity is given, neither defendant-judges even try to analyze the common law in 1871, nor federal courts require such analysis, instead giving absolute judicial immunity for any act that is loosely interpreted as "judicial" NOW.   In other words, the petition points out that lower federal courts do not follow, in the analysis of application of absolute judicial immunity, even the "precedents" of the U.S. Supreme Court requiring federal courts to apply absolute judicial courts only when its applicability is PROVEN to them BY THE DEFENDANT-JUDGE, by analysis of the 1871 common law.

The petition points out that certain courts and certain functions, such as:

  • the so-called "courts of limited jurisdiction" created by statute - family courts, probate courts;
  • function of a court stenographer;
  • function of a social worker - 
did not exist in 1871 and cannot be possibly granted absolute judicial immunity.

In sum, the petition is logical, based on existing case law of the U.S. Supreme Court, on solid references to statutes and Congressional records, and clearly points out that the doctrine of absolute judicial immunity is (1) unconstitutional legislating from the bench of the U.S. Supreme Court, contrary to clear and unambiguous language of a federal civil rights statute;  (2) that the doctrine is applied contrary to the "tests" created for that purpose by the same U.S. Supreme Court, giving blanket immunity to defendant-judges for any conduct, without any inquiry as to whether such conduct was considered judicial and was covered by absolute judicial immunity in 1871, as the U.S. Supreme Court requires defendant-judges to prove and the courts to find before they apply absolute judicial immunity.

In other words, the petition makes it clear (even though it does not say it - it is my personal opinion) that the concept of absolute judicial immunity is not only unconstitutional concept, but a self-serving concept by the judiciary, and it is applied in a self-serving way, to make the absolute judicial immunity absolute in all respects and not subject to any restrictions or tests - which is not and should not be possible in a democratic society, as NOBODY may be given a license to violate the law, and especially the main law of the country, the U.S. Constitution, without providing victims of such violations a remedy.

No comments:

Post a Comment