"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.

Wednesday, February 3, 2016

42 U.S.C. 1988(b) provides yet another statutory proof that the concept of judicial immunity as to federal judges is illegal

I wrote on this blog that the contents of Judicial Misconduct and Disability Act, 28 U.S.C. 352, exposes illegitimacy of the concept of judicial immunity, because 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", meaning that if that decision or procedural ruling was, very simply, BOUGHT, was made out of PERSONAL REVENGE, or while the judge is DRUNK, no discipline applies.

Yet, judge-created judicial and prosecutorial immunity was declared by the court to be justified SPECIFICALLY by availability of judicial discipline as an alternative to lawsuits against judges for money damages.

And, if discipline in federal courts is not available against judges, immunity for misconduct in office, during court proceedings, or "related to" court proceedings should not be available either.

Here is yet another federal statute, "Proceedings in Vindication of Civil Rights, Attorney Fees", 42 U.S.C. 1988(b):

"(b) Attorney’s fees
In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92–318 [20 U.S.C. 1681 et seq.], the Religious Freedom Restoration Act of 1993 [42 U.S.C. 2000bb et seq.], the Religious Land Use and Institutionalized Persons Act of 2000 [42 U.S.C. 2000cc et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d et seq.], or section 13981 of this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity such officer shall not be held liable for any costs, including attorney’s fees, unless such action was clearly in excess of such officer’s jurisdiction."

The statute clearly enumerates what exactly cannot be charged against a judge:

costs and attorney fees, UNLESS the judge's actions was clearly IN EXCESS of such officer's jurisdiction.

Now, immunity is given to judges - by judges - UNLESS the judges acts in CLEAR ABSENCE OF ALL JURISDICTION, and is routinely awarded for acts in excess of jurisdiction.

If immunity is awarded for acts in excess of jurisdiction and case is dismissed against a judge without reaching the merits, whether the judge acted in excess of jurisdiction, how can costs and attorney fees be awarded in such a situation (which is allowed by 42 U.S.C. 1988(b)?

It is clear that the clumsily cut immunity from costs and attorney fees only (not from money damages, nominal, actual or punitive) was the result of judicial lobbying.

Yet, lobbying did not acquire complete immunity FROM SUIT, OR FROM MONEY DAMAGES, only from costs and attorney fees, and with an important exception that federal courts ignore.

When judges ignore the law that is clear and unambiguous and part of three statutes:

1) Judicial Misconduct and Disability Act, 28 U.S.C. 352 providing for no judicial discipline and thus warranting private lawsuits against judges as an alternative, to obtain a remedy for injuries inflicted on individual through judicial misconduct and/or corruption in the office of federal judges;

2) Attorney fees for vindication of civil rights, 42 U.S.C. 1988(b) that specifically provides for costs and attorney fees for judicial acts in excess of their jurisdiction, a relief that is unavailable if the case is dismissed (as such cases are now) on "jurisdictional grounds" of judicial immunity at the stage when the complaint containing allegations of such excess of jurisdiction was just filed, before the answer, discovery or trial;

3)  The Civil Rights Act, 42 U.S.C. 1983 that provides for a private right to sue "every person" who "under the color of state law" violates an individual's constitutional rights.

By the way, judges recognized that 42 U.S.C. 1983 applies to federal officials, too - through a so-called Bivens Action.

So, a Bivens action should be available against federal judges - under these three statutes, for money damages for their misconduct and/or corruption in office, and especially for acts in excess of jurisdiction, which happens often.


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