"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, October 6, 2015

Task Force/Lobby by the Supreme Court of Ohio: we need extension of immunity to non-judicial acts, because our liability insurance costs too much

After having read about the "military spouse exemption" to attorney licensing introduced by the Ohio Supreme Court, I got interested in the twists and turns of the minds on that court, and started looking if that court produced anything else as interesting in the way of another Task Force recommendations.

It did.

I present to the public a 9-year-old report of the Ohio Supreme Court Joint Task Force On Judicial Liability and Immunity which discusses the cost of insurance premiums for professional liability of judges, a topic I never saw discussed in professional literature or court cases.

Since in most states the numbers reflecting taxpayers' costs of judicial misconduct reflected in litigation and award costs is obscured by the fact that judges are represented by state attorney general's lawyers, and it is unlikely that statistics of specific time sheet assignment per classes of cases is available from State Attorneys General to calculate such expenses, the Joint Task Force report provides an invaluable insight to all taxpayers from all states of the United States, not only from the State of Ohio.

The Task Force was "joint" because it joined the efforts of the 

This public-private venture produced a wonder of a Report in 2006.  This is how it started.

I am not making this up.

A state court consisting of elected public officials is discussing ways of how to protect themselves from liability for their own misconduct against the public, and how to expand that liability, all under the guise of saving money.

It is like telling the taxpayer - yes, I screwed you, and I want to screw you even more, and I want to be forgiven for all the present and future screwing I am doing against you because (1) it is in your best interest to be screwed by me and (2) because it will cost you too much to buy my liability insurance to protect myself against your lawsuit for screwing you.

Because this is EXACTLY what the task force recommendations mean - in a more top-lofty language, of course.

Out of the 10 members of the "Joint Task Force", 9 were judges and the only non-judge was the long-time Administrative Director of the Ohio Supreme Court system who has left the Ohio Court system in 2014 to become the Director of the Ohio Constitutional Modernization Commission.

His main personality advantage is reportedly ability to "serve under" different people and deal with them.  He dealt well enough on the 2006 Joint Task Force, recommended what judges wanted, preserved his good salary (it was $151,856 in 2013):

and left the court system in 2014 for a promotion with an increase in salary by over $20,000, see Steven Hollon's salary listed in 2014 as a "legislative employee" at $172,660.

As New York Chief Judge Lippman said about his promotion to the Chief Judge, "not too shabby".

From the very Introduction to the Report I learnt that, apparently, Ohio taxpayers pay insurance premiums not only to defend judges in lawsuits where judges are sued for misconduct, but also for their representation in disciplinary actions.

Even though the piece claims that the insurance premiums are paid for defense of judges "against the potential award of damages arising from actions taken by the judge in his or her official capacity", such wording covers lawsuits against judges in their individual capacity, and not all of them are covered by absolute JUDICIAL immunity, which is one of the major concerns of the Joint Task Force.

It is absolute unclear why taxpayers who do not have money for their own attorneys must fund attorneys for judges sued for misconduct, but that does not seem to be a concern for judges who "maintained a police for professional liability insurance on behalf of all Ohio judges" for 20 years by 2006.

Apparently, despite vicious application of judicial immunity to any conduct of judges, whether "judicial in nature" or not, people did not stop suing judges, where such lawsuits are often the only way to bring out into the public domain issues of judicial misconduct.

At the very least, judges of the Supreme Court of Ohio acknowledge that over the last several years preceding the report in 2006, insurance premiums for judges' "professional liability insurance" have jumped nearly three times:

This is the revealing and most interesting statistics presented by the Task Force in 2006:

When somebody says "nearly", that usually means "less than".  Here it means the opposite - "more than", as can be calculated from the rest of the numbers.

This piece translates the following way: 79 out of 100 claims submitted to insurance carrier under the judges' "professional liability policy" results from civil rights lawsuits for constitutional violations by judges against litigants.

Yet, this 79% of claims costs only 45% of expenses to defend.

8% of employment discrimination claims resulted in 30% of expenses under the policy.

Out of the remaining 13% of disciplinary complaints, the majority of them were dismissed, but an undisclosed percentage ("a small number") proceeded to trial and took up the remaining 25% of the insurance expenses.

A watchdog report made this vague "majority" number clearer - 90% of the 13% is dismissed, so what is left to defend out of the 13% of disciplinary cases is 1.3% cases which take 25% of expenses.

Here is a summary table of the shares of claims against judges and expenses to defend those claims, by classes:

Share in total number of claims/lawsuits against judges
Share in total expenses to defend  against such lawsuits

Ratios of percentage of expenses used per 1 % of claims of a certain type

Civil rights cases
79.0% (100% -[ 8% employment + 13% disciplinary])

45/79 = 0.57
Employment discrimination cases

30/8 = 3.75
Judicial disciplinary proceedings

25/1.3 =19.23

·   It is clear from the table that 
  • it is 5.128 times more expensive for Ohio taxpayers to fund the defense of a judge in a disciplinary action than in an employment discrimination action;
  • ·      it is 33.74 times more expensive to represent a judge in a disciplinary action than in a civil rights action, and
  • ·      it is 6.58 times more expensive to represent a judge in an employment discrimination action than in a civil rights action.

The cheapest to defend is, obviously, a civil rights action, and the most expensive is the a judicial disciplinary action.

In none of these actions the judge SHOULD be represented at taxpayers’ expense, because such lawsuits are brought when a judge violated his oath of office, and thus cannot be presumed to have been acting in his “official capacity”.
It is very obvious that the most expensive cases to litigate are disciplinary cases.

There is no reason whatsoever to have taxpayers pay for these expenses.

For example, attorneys always pay their own expenses in defending in disciplinary actions, and in many states (New York is one of them) representation in a disciplinary proceedings is out of the judge's own pocket.

After all, if the judicial commission appointed by judges, run by judges and dismissing 9 out of 10 complaints (and that number seems very "conservative" to me, in fact, most if not almost all complaints are dismissed) finds that a case is egregious enough to proceed to trial, the judge should be made to pay for defending himself out of his own pocket, especially that any judge is a trained attorney and can represent himself for free, in all of such actions.

The explanation as to why civil rights cases are so cheap to defend is easy - most civil rights claims against judges (which are 3 times more in number than employment discrimination claims) are dismissed without reaching the merits, often without even a necessity for judges to appear, on judicial immunity grounds, and the ever increasing (unlawful) use of sanctions against civil rights plaintiffs and their attorneys, which is contrary to the legislative intent of the fee-shifting provision of 42 U.S.C. 1988, discourages ever more plaintiffs and civil rights attorneys from such litigation.

Also, it is no longer a secret that disciplinary authorities target civil rights attorneys for disciplinary violations, making that specialty of litigation much too risky to consider for many lawyers.

It is not so easy to dismiss a civil rights discrimination or wrongful termination claim by an employee.

Not only judicial immunity does not apply to employee discrimination cases, but employees are also insiders of much of judicial misconduct that judges do not want to come out in public hearings, and such cases, thus, settle for large amounts of money, where taxpayers'  money is used to buy the former employee's silence as to judicial misconduct while those same taxpayers continue to suffer from that misconduct without a possibility of recourse and without availability of free legal representation in civil rights lawsuits.

For example, a discrimination lawsuit by a court employee Bobette Morin in New York against New York judge James Tormey lasted 4.5 years and required defense in the district court, on an interlocutory appeal and back in the district court, up to a trial when the case was settled right before trial.

After providing the statistics that I put into tables above, the Joint Task Force made the following astounding statement:

So, judges met with the insurance provider and discussed, to express their doublespeak into plain English, what can be done so that judicial immunity should cover more claims (which would result in more victims remaining without a legal remedy for judicial misconduct) and how to make costs of litigation cheaper.

Yet, the focus on judicial immunity clearly showed that the Joint Task Force was not going to address the most expensive portion of litigation covered by insurance policy - disciplinary actions against judges, where immunity does not apply.

Most likely, what was discussed by judges WITH THE INSURANCE AGENT is how to make judicial immunity cover non-judicial acts so that more cases would result in dismissals.

Moreover, representatives of the Joint Task Force where 9 out of 10 members were judges subject to judicial discipline, 

Imagine an attorney "meeting with Disciplinary Counsel" to discuss how to reduce the risk of investigation and prosecution against himself - it is unthinkable.  But, for the current generation of judges who were covered by absolute judicial immunity for MALICIOUS and CORRUPT acts on the bench, who also acknowledge that civil rights cases are the cheapest to defend (because they are tossed by their judicial brethren in droves) and that the majority of disciplinary complaints against judges get tossed, too, nothing appears inappropriate, unethical, impossible or morally reprehensible.

This is the first and most important finding of the Joint Task Force:

Bold font, in blocks - this is screaming of importance.

We are not immune enough.  We are immune only for judicial acts, now give us immunity for non-judicial acts, too.

Of course, when asking for such an extension, the judiciary completely lost its face and forgot WHY judges granted TO THEMSELVES judicial immunity.

Not to maintain independence of employee hiring, not to maintain independence of sitting on boards, not to maintain independence of doing anything else and certainly not to save money - only to maintain independence of the judicial decision-making ON THE BENCH, during judicial proceedings, as part of the job that the public elects or appoints the judge to do.

When judges asked in 2006 to please-please-please EXPAND judicial immunity to non-judicial acts, there were no arguments any longer of a "revered principle" "rooted in common law" in order to "maintain independence of judicial decisions in court".


After discussing with an insurance carrier:

  • SCOPE of immunity as it exists at that time;
  • SCOPE of coverage by insurance as it existed at that time under the insurance policy; and
  • EXCEPTIONS to that coverage - exposing judges to out-of-pocket expenses in litigation for misconduct,
judges asked to expand immunity to satisfy THEIR OWN PERSONAL FINANCIAL NEEDS and protect THEM from liability and not protect the alleged public interest to defend independence of the judiciary for accountability for corruption on the bench.

I am drawing attention of my readers once again that all state-level judges are lawyers and can represent themselves, for free.  

I am also drawing attention of my readers that judges did not call the attention of the insurance carrier to the most expensive class of cases to defend - disciplinary cases - and did not make an offer to take up these RARE cases upon themselves.

Their salaries surely can allow him to afford that.

Yet, judges instead provide THIS argument:

So, there are no "common law roots" any more, it is a blatant request for a continued gift of placing judges even more above the law than they were before, because of a mere IMPLICATION that a judge might need to assume a certain role.

Judges are frivolously putting smoke screens by claiming that "it is unclear, at best, whether judicial immunity extends to a judge's performance of duties that are outside the adjudicatory function", when it is clear as day that such immunity DOES NOT apply to non-adjudicative functions.

What is not considered by judges here is also that immunity given by state legislatures do not translate into similar immunities in federal civil rights actions - being judges, they should have known at least that much.

I looked up the cited examples for which judges asked extension of judicial immunity from state legislatures in federal court - something that state legislatures could not give judges anyway.

Here are the examples.  

1.  Overseeing communist-based correctional facilities, R.C. 2301.51.  It is claimed by the Ohio State Legislature to be a "judicial function", even though it is clearly an administrative function, as it is in running prisons post-sentencing.  

In fact, when judges oversee punishment, and receive "reasonable compensation of expenses" for that, they conflate judicial and executive powers to the point of invalidating criminal felony convictions.  In all states Departments of Corrections are part of executive branch, and no matter how the Legislature may want to deliver a gift to the judiciary, a rose is a rose by any name, and running a correctional facility is an executive function, no matter who and how will call it.

Actually, judges themselves recognized that participation in running of correctional facilities is not a judicial function as being "beyond their traditional adjudicative role".  Nor are advisory councils bearing any attributes of a court proceeding, to allow sitting on them to be called a "judicial function".

Moreover, according to that statute, participating in "advisory judicial councils" in such community-based correctional facilities is not mandated by law, so the judiciary defrauds the public by claiming that it is mandated by law as a basis of extension of judicial immunity.

Children's trust fund boards, R.C.3109.15 was created within the department of job and family services, thus making it an executive function to "serve" on that board, and participation in it by judges is not required.

But the total winner is the third one - county family and children first councils (R.C. 121.37)

Now, whenever you come across something completely incomprehensible, like "county family and children first councils" which is a meaningless word combination, and especially when this meaningless word combination is put together by lawyers, you need to dig.

I did.

Here is what I found.

First, it is definitely a part of the executive branch.


121.37 Ohio family and children first cabinet council.

(1) There is hereby created the Ohio family and children first cabinet council. The council shall be composed of the superintendent of public instruction, the executive director of the opportunities for Ohioans with disabilities agency, the medicaid director, and the directors of youth services, job and family services, mental health and addiction services, health, developmental disabilities, aging, rehabilitation and correction, and budget and management. The chairperson of the council shall be the governor or the governor's designee and shall establish procedures for the council's internal control and management.


Second, "service" of judges on such "councils" IS mandatory, but, 
third, what judges are supposed to do on such councils comes into such an irreconcilable conflict with what they are doing as judges - in juvenile courts no less - that no self-respecting judge will agree to "serve" on such councils, much less ask the State for a reward of extended immunity for such "service".

The county's juvenile court judge senior in service or another judge of the juvenile court designated by the administrative judge or, where there is no administrative judge, by the judge senior in service shall serve as the judicial advisor to the county family and children first council. The judge may advise the county council on the court's utilization of resources, services, or programs provided by the entities represented by the members of the county council and how those resources, services, or programs assist the court in its administration of justice. Service of a judge as a judicial advisor pursuant to this section is a judicial function.

Instead of immediately challenging constitutionality of this statute that imposes on a judge the "obligation" to:

  • unseal juvenile proceedings;
  • engage in ex parte communications with prosecution;
  • engage in providing legal services to a branch of executive government;
  • merge with the prosecution, thus abrogating the judge's oath of office;
  • put himself or herself into a conflicted position as to what he should think about more - discharging justice or seeing how to best "advise the council as to 'utilization of resources'" for court proceedings - after all of that, 
after any semblance of "judicial independence" is DESTROYED by that statute, a judge is to claim IMMUNITY that is a concept invented by judges to allegedly "maintain independence of judicial decisions".  What a BS.

I will continue analysis of the 2006 Report of the Joint Task Force by the Ohio Supreme Court and the Ohio Judicial Conference later in the week.  Stay tuned.

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