"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.

Monday, October 5, 2015

Judicial Misconduct and Disability Act, 28 USC 352, undermines the claims by federal judges of absolute judicial immunity for misconduct on the bench

Federal Judicial Misconduct and Disability Act, 28 USC 352(b)(I)(A)(ii) provides for a dismissal of any complaint against a judge which is "directly related to the merits of a decision or procedural ruling".

In other words, federal courts which "self-regulate" and review complaints against their colleagues, cannot be disciplined for anything they did during a judicial proceedings, even if their decision in a case was corrupt or if the judge in question had a personal interest in deciding the case, had to recuse, but didn't, causing severe detriment to the complainant.

At the very same time, federal judges continue to claim for themselves their self-gift of absolute judicial immunity for malicious and corrupt on the bench, which they claim is justified because - guess what - allegedly judicial discipline for acts on the bench is available.

28 USC 352(b)(I)(A)(ii) clearly indicates that it is not so.

Yet, any cloud has a silver lining.

The silver lining that appears here is - Judicial Misconduct and Disability Act is clear evidence that the judge-created doctrine of absolute judicial immunity for malicious and corrupt acts on the bench is illegal and unconstitutional legislating from the bench.

 If the U.S. Congress prohibited discipline of judges for acts on the bench, absolute judicial immunity cannot be "read into" or "imputed" into the Bivens actions, federal counterparts of a civil rights action against a state official.

The U.S. Congress, which is supposedly not an insane group of people, cannot be "deemed" to have "implied" something in 42 U.S.C. 1983 that it absolutely ruled out by enacting Judicial Misconduct and Disability Act, 28 USC 352(b)(I)(A)(ii), and that argument is valid to invalidate the concept of absolute judicial immunity for both federal and state judges, because the rationale is the same.

The U.S. Congress could not possibly "mean"

  1. when enacting 42 U.S.C. 1983 that "any person" against whom a civil rights action can be brought is "any person", but judges because judges are entitled to absolute immunity for actions on the bench in view of availability of discipline for misconduct;
  2. while at the same time enacting 28 USC 352(b)(I)(A)(ii) where it clearly prohibited discipline against judges for their acts on the bench.

Currently, "almost all" complaints about federal judges under 28 U.S.C. 352 are dismissed - according to the frank admission of the U.S. Court of Appeals for the 9th Circuit:

Situation with dismissals of practically all judicial complaints by the "brethren" of the subjects of those complaints is reportedly the same in other federal circuits, and that is according to the federal courts' own official statistics.

At the same time, all lawsuits against federal judges are dismissed on grounds of absolute judicial immunity, without reaching the merits and often with sanctions against civil rights plaintiffs and their attorneys.
Yet, in view of the above discrepancy between what courts read into 42 U.S.C. 1983 as Congressional intent to provide an exception of absolute judicial immunity because judicial discipline is available, and Congressional enactment of Judicial Misconduct and Disability act that does not allow such discipline for acts on the bench, a challenge can be properly made that the claim of absolute judicial immunity is unlawful because of this discrepancy.

State and federal courts routinely punish for frivolous conduct parties and attorneys for maintaining inconsistent or diametrically opposite positions in litigation.

Yet, position of judges as to their own self-interest, the issue of absolute judicial immunity, appears to be nothing but frivolous, because it necessarily requires to accuse generations of U.S. Congressmen of insanity in enacting two diametrically opposite statutes, one that "impliedly" provides for judicial discipline for acts on the bench, and the other, which prohibits it.

Yet, of course, "freedom is not free", and the entrenched judiciary will not let go of its baby, the absolute judicial immunity, without a bitter fight against challengers.

We will see how the illegal "legal doctrine" of absolute judicial immunity for malicious and corrupt acts on the bench will develop in our Internet age.

Stay tuned for further coverage of the issue.


No comments:

Post a Comment