Judicial immunity in the times of seditious libel, and in the time of the 1st Amendment/freedom of information laws

Today I published a couple of blog posts about judicial immunity.

Each time I read about the Star Chamber public policy justifications - no joke, policy justifications for judicial immunity did come out of a Star Chamber case (see my blog posts describing how the doctrine of judicial immunity emerged, here and here) - and each time I re-read those same policy justifications re-appear in decisions of modern-time federal courts, I keep wondering if federal judges spawning these justifications actually read the U.S. Constitution that they are all sworn to uphold - or if they care what it says.

In the Star Chamber England, the King was a sovereign and had absolute power.

It was a crime to criticize the King or other members of the government - a crime called "seditious libel", punishable by life in prison.

The crime of seditious libel was established by the same infamous Star Chamber in a case De Libellis Famosis in 1606.

The crime was to criticize the sovereign (King), his heirs, or the established government structure and order and bring the sovereign and government in disrepute, or to advocate for changes in the government.

Seditious libel was deemed a crime by the Star Chamber because criticism of the government tended to undermine respect and confidence in governmental authority.

In a democratic society we have the following differences which should lead courts to reject the policy of establishing absolute judicial immunity, for any acts by a judge, no matter how wrong, done on the bench, for the ultimate goal of maintaining the established order and public respect to authority at all costs:

1. The sovereign in a democratic society and in the U.S. is not a monarch, and not a group of people, it is the ENTIRE PEOPLE of the country.  Of course, I was sanctioned by a federal court for quoting from New York statutory law and from the U.S. and the New York State Constitution that the sovereign in the United States are the People and not the government.  Apparently, federal judges do not and would not know this basic concept of the U.S. governance and democracy.

2. The First Amendment to the U.S. Constitution explicitly guarantees to people their right to criticize the government - which is actually a servant to the people, because people are the sovereign in the United States and in the sovereign states.   This concept still appears foreign to many, if not most judges, prosecutors and other law enforcement officials.

3. Moreover, misconduct of certain public officials which is documented must be disclosed to the public through different access to records statutes.  On the federal level it is the Freedom of Information Act.  On the level of New York State Law, it is Public Officers Law 87 (Freedom of Information Law) and Judiciary Law 255, for judicial records.

Thus, the public policy considerations preventing members of the public from getting access to and then criticizing, members of the government, are long obsolete and inapplicable in a democratic society governed by a Constitution.

Not to mention that, as I amply described in my previous two blog posts, the U.S. Supreme Court, a court of limited jurisdiction under the Article III of the U.S. Constitution, a court without power under the Constitution to create decisions that would be deemed to be Supreme Law of the land, conceded in a case Tower v Glover, 104 S. Ct. 2820, 2826 (1984)  that it has no authority to create immunities based on public policy considerations that would restrict civil rights litigation.

If that is true, the U.S. Supreme Court has no authority to create immunities based on common law out of an institution abolished in the 17th century for its lawlessness (The Star Chamber) which immunities were based on the Star Chamber policy considerations.

Yet, that is what the U.S. Supreme Court did, for judges, prosecutors, police officers and a zillion of other public officials and private parties appointed by public officials, making civil litigation a joke and, in many respects and in relation to many classes of public officials such as judges and prosecutors committing misconduct in office, a waste of time.

Courts do not have authority to give immunities to anyone - but for those belonging to their own class or being too close to that class for comfort?

In my previous blog post today I quoted the U.S. Supreme Court stating the following as to judicial doctrines of immunity to restrict civil rights litigation:

              "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).

That bold pronouncement was made by the U.S. Supreme Court:

• 8 years after that same U.S. Supreme Court gave absolute immunity, even for malicious and corrupt acts, to prosecutors in Imbler v Pachtman, 424 U.S. 409 (1976) based on concepts of public policy, sending the nation into a half-a-century so far of rampant prosecutorial misconduct and wrongful convictions; and

• 6 years after that same U.S. Supreme Court gave absolute immunity for malicious and corrupt acts to judges, Stump v. Sparkman, 435 U.S. 349 (1978), once again, sending the nation into half-a-century of rampant and uncontrolled judicial misconduct, where state (and federal) officials turn a blind eye on judicial misconduct until it hits the fan with a vengeance, such as in cases where judges have sex with litigants in chambers, sell kids for cash into juvenile prisons or have penis pumps during criminal trials.

We have generations of judges and prosecutors that came to their offices in this country with knowledge and in reliance upon Imbler v Pachtman and Stump v Sparkman, and since the time when these cases were decided, federal courts have spawned cases that expanded prosecutorial immunity to civil proceedings and judicial immunity to non-judicial personnel.

Yet, Tower v Glover remains on the books of the U.S. Supreme Court, as the court's admission that the bacchanalia of judge-created immunities, deferences, abstentions, comities and other judge-created doctrines that currently blocks access of victims of prosecutorial and judicial misconduct from obtaining their legitimate remedies in civil rights litigation, is absolutely unlawful.

Moreover, a third case on immunities that was decided by the U.S. Supreme Court before its interesting admission in Tower v Glover in 1984, the case named  Ferri v Ackerman, 444 U.S. 193, 2014, 100 S.Ct. 402, 409 (1979),  was in stark contrast with the other two cases on absolute immunities - Imbler v Pachtman and Stump v Sparkman, cases that gave absolute immunity, even for malicious and corrupt acts, respectively, to prosecutors and judges.

In Ferri v Ackerman, the U.S. Supreme Court actually denied immunity to public defenders and assigned counsel in criminal litigation - guided, or rather, misguided by logic that defied its own logic in Imbler and in Stump.

Ferri v Ackerman indicated that, even though justice is supposed to be blind, it matters for the U.S. Supreme Court to whom it does - or does not - dispense immunities (while acknowledging that dispensing immunities is unlawful and usurpation of Congressional power in the first place - see Tower v Glover).

According to the logic of the U.S. Supreme Court, an assigned counsel and public defenders are not entitled to immunity while their opponents, the prosecutors, and the presiding judges, are, because of the following reasoning:

        "The fear that an unsuccessful defense of a criminal charge
        will lead to a malpractice claim does not conflict
        with performance of that function [representation
        in an assigned case - T.N.].  If anything, it provides
        the same incentive for appointed and retained counsel
        to perform that function competently".

Now, a civil rights lawsuit against a judge and prosecutor, public officials, would prevent them, as a matter of public policy (that the U.S. Supreme Court has no right to spawn - see Tower v. Glover), from doing their duties fearlessly and independently (Imbler v Pachtman, Stump v Sparkman).

But, a civil rights lawsuit against a public defender, also a public official, hired by and paid by the taxpayers, or an assigned counsel standing in the shoes of a public defender and also paid by taxpayers, will actually provide an incentive for such public official to do his work competently (Ferri v Ackerman)?

That means that doing judge's and prosecutor's work fearlessly and independently excludes the requirement of doing it competently or honestly because, due to immunity, judges and prosecutors lack incentives plus character to do their jobs competently, but have a lot of protection to do it corruptly, but fearlessly and independently in that corruption.

And, the doctrine of judicial immunity was stretched by courts to protect non-judicial personnel who, by any plausible logic, cannot possibly be engaged in JUDICIAL ACTS - for the simply reason that they ARE NOT JUDGES.


The law review article by Professor Margaret Z. Johns, "A Black Robe Is Not a Big Tent: The Improper Expansion of Absolute Judicial Immunity to Non-Judges in Civil Rights Cases"  that I have interlinked above and that I quote below, features on its very first page the following examples of where absolute judicial immunity was granted for non-judicial acts of non-judicial workers:

1. to a "social worker who falsified the results of a plaintiff's evaluation and omitted positive information from the report", Hughes v. Long, 242 F.3d 121 (3d Cir. 2001);
2. to a "court-appointed commissioner charged with selling property following a divorce ... for defectively advertising the sale, illegally participating in the sale, and lying to the court",  Ashbrook v. Hoffman, 617 F.2d 474 (7th Cir. 1980);
3. to a "court-appointed receiver who was investigating a judgment debtor's assets ... for breaking into the debtor's girlfriend's storage locker and removing an oil painting and family jewelry", Davis v. Bayless, 70 F.3d 367 (5th Cir. 1995). Professor Johns cites numerous cases where judicial immunity is expanded to non-judicial personnel without logic or reason.

Yet, one case, cited by Professor Johns, stands out because of its reasoning.  In Schinner v Strathmann, 711 F.Supp 1143, 1143-44 (D.D.C. 1989) the court granted a court appointed psychiatrist judicial immunity because "defendant was acting in a judicial capacity when he interviewed the plaintiff to assist a judge in evaluating a plaintiff's competency".

So, whoever "assists a judge" in evaluating anything in litigation - is entitled to immunity following this reasoning.

But, a public defender is not entitled to immunity - because a public defender does not assist a judge? 

Because a judge does not see what public defender is doing as assisting the court in evaluating the evidence, but rather hindering the court in such evaluation? 

So, public defenders are being punished by lack of immunity for their role in providing a defense in criminal prosecutions while DA's offices (the usual breeding grounds of judges) are rewarded?  Isn't this a pre-judgment of all criminal cases?

Do you see any logic in any of this?

I don't.  But I do see self-serving minds at work.  Judges would not allow their own personnel or friends they appoint to serve as "court appointed evaluators", to be sued - so they create for their own an umbrella of protection.

Judges do care about prosecutors - where judges most likely place their children for ascension to their children's own judicial careers - so they give immunities to prosecutors.

Judges do not usually place their children in public defender's offices, such offices are not considered good stepping stones for judicial careers - so public defenders are deemed expendable and immunities are not dispensed to them.

Yet, whether the U.S. Supreme Court reasoning in cases on immunities does or does not have logic is irrelevant because the U.S. Supreme Court admitted in Tower v. Glover in 1984 that it does not have authority to make public policy judgments and to restrict civil rights litigation allowed by Congress.

Not to mention that, according to the Supremacy Clause of the U.S. Constitution, decisions of the U.S. Supreme Court do not have the status of the Supreme law of the land.

So why do federal courts treat them as if they are the Supreme law of the land, and why admittedly unlawfully created immunities - and deferences - and abstentions - and a zillion of other unlawful judge-created doctrines blocking civil rights litigation - continue to restrict access of civil rights litigants to court, prevent them from obtaining their legitimate remedies and be used as grounds for sanctions and attorney fees against victims of governmental misconduct in favor of perpetrators of such misconduct?

Because justice in this country is definitely not blind?

Because judges, in their overwhelming majority, are not spawned out of the public defender's office, but rather out of the prosecutor's office?

Because judges come to the bench not to do their jobs fairly, not to apply existing laws predictably and impartially, but to be in a position of power to make money and let their family and friends make money, to make law favoring themselves, their relatives, their friends, their employees, contributors to their election campaigns, contributors to their "educational" trips to resort locations, contributors to receptions with alcohol and gifts where they are invited - and wield power in favor of their own, leaving everybody else wondering where did the rule of law go?

   

 

 

 

 

 

  

Absolute judicial immunity for malicious and corrupt acts, public policy decisions, Star Chamber and authority of federal courts

The judge-created doctrine of absolute judicial immunity FOR MALICIOUS AND CORRUPT ACTS on the bench is relatively new, dating back only to 1978, Stump v. Sparkman, 435 U.S. 349 (1978).

Yet, the concept of judicial immunity that the U.S. Supreme Court judges so readily crafted to prevent liability of their brethren under the Civil Rights Act, 42 U.S.C. 1983, was created not in a democracy, but in a monarchy, and not in a regular court, but in a Star Chamber.

In the case Floyd and Barker, 77 Eng. Rep. 1305 (Star Chamber 1607), Sir Edward Coke unilaterally established a standard of judicial immunity of a judge "for anything done by him as a judge".

The Barker case was a suit by one named Floyd after a person named William Price was executed on a sentence of death from Judge Barker.  Floyd was suing Judge Barker on a conspiracy theory.

Sir Edward Coke then instantly created a doctrine of immunity from liability for a judge based on the following principles:

1. finality of judgments - well, there can be nothing more final than an execution of a condemned prisoner, but we know how many people on death row now turn up innocent, and that is with DNA evidence.  There was no DNA evidence in the 17th century England.  Moreover, the triumph of finality over fairness is definitely not and cannot be in compliance with the constitutional concept of due process of law which American courts and especially federal courts dealing with constitutional lawsuits, must deal with and abide by.
2. immunity is necessary to maintain judicial independence - so, it is necessary to allow judges to do a sloppy job and even to engage in conspiracies to sell their performance - in order for that performance to be independent.  This principle is, once again, worthy of the Star Chamber where it was born, but definitely not of a court in a constitutional democracy.
3. immunity provides independence of thought and freedom from manipulation - see above, it the same problems flaw this "principle".  Sloppy work and corruption is allowed to slip away in order to allow the judge to maintain "independence of thought" to engage in that same sloppy work and corruption.  Not a concept that belongs in a constitutional democracy.
4. the necessity "to engender respect and confidence in the judiciary and the government".  That one is really worthy of the Star Chamber and truly does not comport in any way shape or form with a constitutional democracy.  It makes no sense whatsoever to allow a negligent or corrupt judge to escape liability in order to maintain amongst people respect and confidence in the government, because immunity breeds the very opposite of respect and confidence in the government in general and in the integrity of the judiciary specifically.

The Star Chamber was dissembled in England around 1641 as a lawless institution used as a tool of political oppression and has become a symbol of abuse of power.

That the highest court in a nation that emerged by breaking away from that same England because of the king's arbitrary power that the Americans DID NOT WANT TO RESPECT OR HONOR, long after the Star Chamber was dissembled, adopted the principles that came out of a Star Chamber case to restrict rights of litigants established by the U.S. Constitution and by the U.S. Congress by enacting a statute to enforce the U.S. Constitution, is a symbol of abuse of power in the modern times.

Moreover, the four aforementioned principles were created by Sir Edward Coke as a matter of public policy.
 
You know what the U.S. Supreme Court said about restricting civil rights litigation based on concepts of public policy?

              "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).

This statement in Tower v. Glover was made by the U.S. Supreme Court 6 years after Stump v. Sparkman that is considered the starting point of the judge-created doctrine of the absolute judicial immunity for malicious and corrupt acts in the American jurisprudence.  Truly, the right hand does not know what the left hand is doing with the U.S. Supreme Court.

Yet, federal courts, and the U.S. Supreme Court itself, do not seem to notice what they stated in Tower v Glover and continue to create and apply immunities to Section 1983, in obvious full knowledge that their actions are unlawful and that they are unlawfully usurping Congressional power and depriving victims of governmental misconduct of their legitimate remedy - based on federal judges' personal judgments that civil rights litigation became much too burdensome for federal and state institutions.

So, litigants and attorneys whose countless cases were rejected on the principles of judicial, quasi-judicial, prosecutorial absolute immunity, and qualified immunity for police and social workers - all of those lawsuits were rejected, as the U.S. Supreme Court acknowledges, unlawfully.

And all the sanctions that were imposed, and fees that were ordered to be paid by victims of official misconducts to the perpetrators of such misconducts because perpetrators were allegedly protected by immunities - are admittedly unlawful, and sanctioning civil rights plaintiffs and their attorneys is an ever growing trend in  the U.S. federal courts.

And - the above statement in Tower v. Glover can finally serve as a revelation of the reasons why doctrines of immunities, as well as other "public policy doctrines" such as Rooker-Feldman, comity, federalism, deferences, and a wide range of abstentions, exist - because federal courts unilaterally decide that civil rights litigation is much too burdensome to state and federal institutions and use judge-created barriers to reduce their own caseloads, which is NOT a lawful ground to refuse a remedy to victims of governmental misconduct lawfully exercising their private right of action to sue governmental officials for constitutional violations, a right created by Congressional enactment and that DOES NOT have exceptions for judges, prosecutors and police officers.

Moreover, in Marbury v. Madison, 1 Cranch 137 (1803), a textbook case on constitutional law taught in law schools as the origin of the U.S. Supreme Court's authority to interpret the U.S. Constitution (something that is not found in that same U.S. Constitution), the U.S. Supreme Court has stated the following:
 
"The very essence of civil liberty certainly consists in the right
of every individual to claim the protection of the laws
when he receives an injury", 1 Cranch 137 at 163 (1803).
This is how the U.S. Supreme Court explained the purpose of the Civil Rights Act in the same year when U.S. Supreme Court established the doctrine of absolute judicial immunity for malicious and corrupt acts for a judge who screwed up royally and issued an ex parte order of secret sterilization of a 15-year old girl on request of her mother because she was allegedly mentally ill and "promiscuous" in Stump v Sparkman:

       "The purpose of the statute was to deter public officials
       from using the badge of their authority to violate persons'
       constitutional rights and to provide compensation and other
       relief to victims of constitutional deprivations when that
       deterrence failed", Carey v Piphus, 435 U.S. 247, 253 (1978).

Yet, what rules in federal courts nowadays is not the U.S. Constitution, not the Civil Rights Act enacted by Congress, but the concept born out of the darkness of the 17th-century Star Chamber ditched by the English in that same 17th Century for unlawfulness.

Long live the rule of law.

Posted important information for parents charged with child neglect/abuse in my blog dedicated to child protective services

The link is here.

The blog post is about a procedural (unlawful)  trick social services use to coerce parents to talk to social services in child neglect proceedings outside of formal discovery, that allows social services to forgo proper investigation, pleading and discovery and assure their victory in such proceedings.

Judge Guy and Judge Mulvey did not come through with the "amended orders of assignment"

I've written on this blog recently how Judge David H. Guy claimed that the order of his assignment to a Delaware County Supreme Court, removed from the Delaware County Surrogate's Court is one big error (because Judge Guy was caught issuing orders out of Surrogate's court and pointing out to me that my perfectly correct service under the CPLR was incorrect and must be redone in accordance with the Surrogate's Court Procedure Act).

Of course, see, when you are a judge and you are supposed to APPLY the law AS IT IS WRITTEN, but when you, at the same time, know that you are covered by ABSOLUTE JUDICIAL IMMUNITY whatever crap you commit on the bench - negligently or intentionally - that power goes to your head and prevents you from making rational decisions.

So, Judge Guy, when caught red-handed in acting in clear absence of all jurisdiction as a Surrogate's Court judge, advised me and clerks of two courts that the order of his assignment to the SUPREME COURT case is an error and that the case remains and is calendared in the SURROGATE'S COURT to which Judge Guy was never assigned.

I notified of Judge Guy's misconduct the following authorities:  Judge Guy's superior Judge Robert C. Mulvey and the NYS Commission for Judicial Conduct.

Today is May 23, 2015.

The "calendared" date was May 22, 2015.

Judge Guy told Delaware County Supreme Court Kelly Sanfilippo as of May 13, 2015 that it was all big error and his order of assignment will be corrected.

To this day (and today's mail already came, with no new orders of assignment), the only order of assignment for Judge Guy was dated April 4, 2015 and directed him to be assigned to a Delaware County SUPREME COURT case which Judge Guy read as SURROGATE'S COURT case.

I do not know what is Judge Guy's problem - is it the eyesight, perception, lack of reading skills, all of the above?

Yet, as of today, Judge Mulvey did not come to Judge Guy's rescue yet with a new court order of assignment, and I did not submit anything to the Surrogate's Court because it lost jurisdiction over the case as of April 4, 2015, in accordance with Judge Mulvey's order of removal/assignment.

I will hold my breath to learn how Judge Guy will rule on his pretend calendar date in the court he was not assigned to.

When a clerk of the court gives you a directive, it is not "really" a court order - and that is an opinion from the lips of the clerk of an Appellate Court

My disciplinary prosecutor Mary Gasparini charged me, as a prosecutor, witness and alleged victim (it all fits nicely into Gasparini's personal concept of impartial and ethical prosecution), with disobeying orders of court, where several orders of court were letters from a court clerk and a court attorney relating to me what they were allegedly "directed" to tell me by the "court".

I requested, pursuant to Judiciary Law 255, to provide me certified copies of court orders/decisions, with names of judges who made those orders/decisions, with the "directives" to the clerk and court attorney, respectively, to transmit those directives to me or to Gasparini.

The particular letter that was the subject of my Judiciary Law 255 was a directive by Christopher Lindquist, Appellate Court Attorney giving Mary Gasparini how to defeat my request to open court proceedings to the public - which has been done many times, for months and even years, and the law in the state of New York is that attorney disciplinary proceedings MUST be open to the public if the attorney asks for that and waives her privacy, which I did.

Instead, Linquist taught Gasparini that she may simply file an "Affidavit of Opposition", instead of making a motion to close proceedings which are presumed open as soon as I made my request.

So, Lindquist issued an order on behalf of the court that changed rules in favor of Gasparini, and indicated that he was directed by the court to direct Gasparini to file the "Affidavit in Opposition".

I filed a request, pursuant to Judiciary Law 255 (because Freedom of Information Law does not apply to court proceedings) for a certified copy of the order from the court directing Gasparini to do what Lindquist said the court directed  him to direct Gasparini to do.

Here is the response of the clerk of the court to my request for a copy of that order, and for copies of other orders, reflected in other letters of the clerk and the court attorney Lindquist (member of a recently created with much fanfare statewide commission to improve efficiency and fairness of attorney disciplinary proceedings - good luck with that, with Christopher Lindquist on board):

Ladies and gentlemen:

The clerk says by this letter that, even though what she or court attorney express in their letters are "written directions from the Court" (of course, she mischaracterizes blatantly giving legal advice to a party as "directives concerning calendaring and filing deadlines"), those same "written directions from the Court" "do not constitute deliberative 'decisions' or 'orders' of the Court".

So written directives of the court are not orders of the court, to make sure you understand.

So, when you are given a "written directive" by a clerk or a court attorney, it is a directive by the court - but not an order by the court.

I failed to find a legal term "directive by the court" in New York State law.  New York State law only deals with orders, decisions and judgments of the court - and those are made not by court clerks, not by court attorneys, but by judges, elected public officials.

I guess, Ms. Carafell needs re-training - along with the entire Appellate Division 4th Department allowing clerks and court attorneys to run lose, give legal advise under the guise of "court directives" and, when caught red-handed and when the actual court orders as to those "directives" are requested from him, try to clumsily cover their backsides by claiming that "written directives" are not "deliberative decisions or orders" and thus are not really court orders that I am entitled to a copy of.

Good job, Appellate Division, in further messing up.

One more reason why public servants, including the judiciary and its personnel, should be most rigorously subjected to supervision by members of the public - to prevent this circus at public expense from continuing.

Mary Gasparini: violations of constitutional rights are remedied by pleas of mercy

Imagine a prosecutor telling a criminal defendant:  yes, you were not given a trial, and I admit that.

But the decision not to give you a trial (even though you are entitled to it by law) was made, and, therefore, all your claims that you are entitled to a trial are now moot.

And - after all, you have a remedy of addressing the court at sentencing, so you were not deprived of any rights.

===

Sounds insane?

It does.

Yet, here is what my disciplinary prosecutor Mary Gasparini stated to the court in her May 15, 2015 affirmation, under oath:

That is exactly the same as the insane hypothetical above - Mary Gasparini believes that, if a court ordered not a judge, but referee Sirkin, to hold an evidentiary hearing, if Sirkin refused to do that, thus defying a court order and engaging in a crime of contempt of court (with Mary Gasparini's whole-hearted support) - and because Sirkin refused to do what the court ordered him to do, in Mary Gasparini's opinion, the issue of whether I am entitled to the evidentiary hearing and whether the court has authority to proceed when no such court-ordered hearing was held, is somehow "moot".

This is my response to the court to Mary Gasparini's above learned contentions.  I think Mary Gasparini is incompetent, not to mention that her demonstrated willingness to commit fraud upon the court and unwillingness to diligently do her job should forever bar her from wasting taxpayers' money and from any public employment.