Tuesday, December 18, 2007

Judges are committing malicious acts at will

Why should they be immune from civil and criminal liability?

JUDICIAL IMMUNITY VS. DUE PROCESS: WHEN
SHOULD A JUDGE BE SUBJECT TO SUIT? [pdf found here]

Robert Craig Waters

Introduction

In the American judicial system, few more serious threats to individual
liberty can be imagined than a corrupt judge.

Clothed with
the power of the state and authorized to pass judgment on the most
basic aspects of everyday life, a judge can deprive citizens of liberty
and property in complete disregard of the Constitution. The injuries
inflicted may be severe and enduring.

Yet the recent expansion of a
judge-made exception to the landmark Civil Rights Act of 1871, chief
vehicle for redress ofcivil rights violations, has rendered state judges
immune from suit even for the most bizarre, corrupt, or abusive of
judicial acts.’ In the last decade this “doctrine ofjudicial immunity”
has led to adisturbing series of legal precedents that effectively deny
citizens any redress for injuries, embarrassment, and unjust imprisonment
caused by errantjudges.

Consider the following examples.
• In 1978, the Supreme Court in Stump v. Sparkman2 held that
the doctrine forbade a suit against an Indiana judge who had
authorized the sterilization of a slightly retarded 15-year-old girl
under the guise of an appendectomy. The judge had approved
the operation without a hearing when the mother alleged that
the girl was promiscuous. After her marriage two years later, the
girl discovered she was sterile.

Cato Journal, Vol.7, No.2 (Fall 1987). Copyright © Cato Institute. All rights reserved.
The author is Judicial Clerk to Justice Rosemary Barkett of the Florida Supreme
Court.

‘The doctrine ofjudicial immunity from federal civil rights suits dates only from the
1967 Supreme Court decision in Pierson v. Ray, 386 U.S. 547 (1967), which found a
Mississippijustice ofthe peace immune from a civil rights suit when he triedto enforce
illegal segregation laws. Until this time, several courts had concluded that Congress
never intended to immunize state-court judges from federal civil rights suits. See, for
example, McShane v. Moldovan, 172 F.2d 1016 (6th Cir. 1949).
2435 U.S. 349 (1978).

461

CATO JOURNAL

• In 1980, the Seventh Circuit Court of Appeals in Lopez v.
Vanderwater’ held a judge partially immune from suit for personally
arresting a tenant who was in arrears on rent owed the
judge’s business associates. At the police station, the judge had
arraigned the tenant, waived the right to trial by jury, and sentenced
him to 240 days in prison. Six days ofthis sentence were
served before another judge intervened. The Seventh Circuit
found the judge immune for arraigning, convicting, and sentencing
the tenant but not for conducting the arrest and
“prosecution.”

• In 1985, the Eleventh Circuit Court of Appeals held in Dykes v.
Hosemann

4 that the immunity doctrine required dismissal of a
suit against a Floridajudge who had awarded custody of a child
to its father, himself the sonof a fellow judge. This “emergency”
order had been entered without notice to the mother or a proper
hearing when the father tookthe boy to Florida from their Pennsylvania
home after a series of marital disputes.

• In 1985, the Tenth Circuit Court of Appeals in Martinez v.
Winner’ held a federal judge immune who, during a trial, had
conducted a secret meeting with prosecutors without notifying
the defendant or his attorneys. Expressing concern that the jury
would be “intimidated” into a not-guilty verdict, the judge agreed
to declare a mistrial after the defense had presented its case so
the government could prosecute anew with full knowledge of
the defense’s strategies.

In just 20 years, these precedents and others like them have established
near-total judicial immunity as a settled feature of American
law. Under the current doctrine, any act performed in a “judicial
capacity” is shielded from suit.

6 Thus, the simple expedient of disguising
a corrupt act as a routine judicial function guarantees immunity
from suit. In no other area of American life are public officials
granted such license to engage in abuse of power and intentional
disregard of the Constitution and laws they are sworn to defend.

Those who are harmed, no matter how extensive and irreparable the
injury, are deprived of any method of obtaining compensation. They
are confined to disciplinary actions that only rarely result in the
judge’s removal from office despite the troubling frequency of judicial
abuses (see Alschuler 1972).

2 Comments:

Anonymous Anonymous said...

In my CT. court case Luna vs Dobson. I was deprived of my rights and had to fight long and hard against retaliation! I have to say that if I did not go through it myself, I would never believe that the courts could ever be this corrupt. Sorta like gangsters! Tools like(cps and police)are used to ruin your chance at a fair day in court! It can really destroy your life for a long time! I will never trust a family court again! Too many have suffered! I am hearing horror stories everyday. How can I ever forget how they tortured me with threats and injury for almost a decade!

Saturday, December 06, 2008 7:21:00 PM  
Anonymous Anonymous said...

I am going through a custody case and child support case with a x-wife that has a trust fund for over a million dollars. She has the $ and the power to destroy me. I now have supervised visitation with my 3 children with not one piece of evidence to prove anything but a judge who allowed this and continues to postpone court dates to allow my defense.

Sunday, May 05, 2013 12:03:00 AM  

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