Archive for month: September, 2012

Judicial immunity and the Star Chamber

15 Sep
September 15, 2012

The origins of the doctrine of judicial immunity begin with Sir Edward Coke and the Star Chamber (1607).

Here’s what Wikipedia has to say about the star chamber:

“Another function of the Court of Star Chamber was to act like a court of equity, which could impose punishment for actions which were deemed to be morally reprehensible, but not in violation of the letter of the law. This gave the Star Chamber great flexibility as it could punish offenders for any action which the court felt should be illegal even when in fact it was technically legal; however, it also meant that the justice imposed by the Star Chamber could be very arbitrary and subjective, and allowed the court to be used later on in its history as an instrument of oppression rather than for the purpose of justice for which it was intended.”

Yes!  And this is our experience with some federal courts.  Federal judges feel that they may break the law when they believe justice demands it.  The federal courts should take note that Americans have elected legislature.  If the court acts as apparently the Star Chamber did, the legislature, and the will of the people, is undone.

In any event, Lord Coke did in fact establish judicial immunity in the Star Chamber.   See the legal report on the case for Floyd and Barker by Sir Edward Coke.  This particular case from 1607 was cited by the 1868 and 1872 Supreme Court decisions in America establishing judicial immunity here.

But the American courts went too far in their application of judicial immunity using the reasoning of Floyd and Barker.

Absolute judicial immunity is not a forgone conclusion!

13 Sep
September 13, 2012

Judicial immunity dodged a bullet in the 1978 lawsuit Stump v. Sparkman, 435 U.S. 349.

Here’s what happened:  The mother of Linda Kay Spitler Sparkman filed a petition to have her minor daughter sterilized.  The judge, Judge Harold D. Stump, signed Ms. Sparkman’s sterilization petition in a flawed legal process (without due process) and without legal authority.  A lawsuit later came to pass after Ms. Sparkman came of age and couldn’t have children.  Ms. Sparkman subsequently sued Judge Harold Stump for damages.

Unfortunately, Ms. Sparkman did not also challenge the constitutionality of judicial immunity in her lawsuit.  Therefore, the US Supreme Court had no other choice but to apply the judicial immunity doctrine as it had been thus far defined: Judges have absolute immunity when performing judicial acts.

Ms. Sparkman’s attorneys argued that Judge Stump was personally liable because he was operating outside his judicial authority: Judge Stump didn’t provide Ms. Sparkman due process and that he had no statutory authority to perform such an act.  The Supreme Court concluded that although the Judge behaved badly, he was nevertheless performing a judicial act and was therefore operating in his judicial capacity.  Judge Stump had immunity.

There was significant disagreement in the ruling however.  In the dissent, United States Supreme Court Justice Powell stated:

But where a judicial officer acts in a manner that precludes all resort to appellate or other judicial remedies that otherwise would be available, the underlying assumption of the Bradley doctrine is inoperative. See Pierson v. Ray, supra, at 554.

In this case, as MR. JUSTICE STEWART points out, ante, at 369, Judge Stump’s unjudicial conduct insured that “[t]here was and could be no appeal.” The complete absence of normal judicial process foreclosed resort to any of the “numerous remedies” that “the law has provided for private parties.” Bradley, supra,at 354.

Central to the judiciary’s rationale for judicial immunity is the presumption that an aggrieved person may seek redress at appeal when they feel that a judge has made a bad decision.  Again, Justice Powell in the Stump dissent:

Underlying the Bradley immunity, then, is the notion that private rights can be sacrificed in some degree to the achievement of the greater public good deriving from a completely independent judiciary, because there exist alternative forums and methods for vindicating those rights.

Though it was the majority’s position that Judge Stump did enjoy immunity for terrible judicial act, it was Justice Powell’s (and two others–a 5-3 decision) position that when judicial acts defeat due process, the offending judge shall not be immune.  We cannot know if this Court would have found absolute judicial immunity unconstitutional, but the minority emphatically did not like the precedent the case set.  Additionally, the minority found missing the underlying support judicial immunity when the judicial acts defeat due process (the bullet dodged).

We are challenging judicial immunity for intentional acts, because it has been our experience that intentional illegal acts by the judiciary are routinely designed to, or have the practical effect, of defeating due process.

Sowing the seeds of judicial immunity — judicial immunity origins in the United States

09 Sep
September 9, 2012

Judicial immunity in America begins with Randall v. Brigham – 74 U.S. 523 (1868) and Bradley v. Fisher, 80 US 335 (1872).

[Judges] are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, unless perhaps where the acts in excess of jurisdiction are done maliciously or corruptly.  This doctrine is as old as the law, and its maintenance is essential to the impartial administration of justice. Any other doctrine would necessarily lead to the degradation of the judicial authority and the destruction of its usefulness [Argument 1 below].  Unless judges, in administering justice, are uninfluenced by considerations personal to themselves, they can afford little protection to the citizen in his person or property [Argument 2 below]. And uninfluenced by such considerations they cannot be if, whenever they err in judgment as to their jurisdiction, upon the nature and extent of which they are constantly required to pass, they may be subjected to prosecution at the instance of every party imagining himself aggrieved, and be called upon in a civil action in another tribunal, and perhaps before an inferior judge, to vindicate their acts.

Judicial immunity’s actual origins begin much earlier.  This however, will be the subject of a later post.

Justification for judicial immunity is thus summarized as follows:

  1. Americans want judges entrusted with judicial immunity because they want independent judges and they need “to believe” in the justness of judicial authority.  It is argued by many judges that to subject judges to suit would degrade the judiciary.
  2. Judges, in order to be truly independent in thought (and therefore just), must have no personal liability for their decision making.
  3. Any corrupt or malicious decision making by a judge can be remedied by the broader justice system.

I think argument #1 is easy to rebut.  I suspect that the above quoted court feels that if judges are not brought up before tribunals, then Americans will perceive that the judiciary is just.  I, on the other hand, believe that Americans will be quite frustrated with the judiciary when it eventually becomes clear that their perception of the court and justice does not comport with reality.  Moreover, judicial immunity creates the circumstances under which reality rapidly and dramatically departs from the perception of just system.  This is not a good argument.

Later, in the case law, concurring judges argue that argument #2 is true because judges must be free to vote their conscience.  I argue, that judges can only vote their conscience when there can be no other external factors potentially affecting their decision making.  If, on the other hand, one can imagine that external forces always exist to influence the decision making of a judge, it is impossible for a judge to truly vote their conscience.

I believe in the broader justice system.  However, federal judges share the same employer.  Furthermore, it is possible to deny access to a litigant to the broader justice system.

Judges should rely on the same justice system we Americans rely on when they are accused of a crime.  This reliance on the system may close the gap between reality and perception of justice.

The justice system’s justice gyro

03 Sep
September 3, 2012

The American justice system is a remarkable thing.

We accuse IRS employees of RICO (a horrible crime originally created to go after the mafia) in our lawsuit.  Later, we accused some federal judges of wrong-doing to protect the same federal employees.  It is such a horrific allegation that one would think we would be denied due process instantly.  God knows that the affected federal employees tried.  But we survive.  And that’s the part that makes me proud to be an American.

I believe in the justice system.  I think you should too.  Our new found faith in the system is not because we have won or are winning.  It is instead because we have not lost.  This is a critical distinction.  The RICO lawsuit is so catastrophic to the government that one would think that an instant denial of justice would occur so that the government could protect itself.  Yet each justice denying act by specific employees has made the circumstances of the lawsuits worse.  I see now that the rule of law, as applied within our system of justice, cannot readily depart from a path of true justice without serious consequences to both the perpetrators and the system itself.

The miracle of our justice system is that justice is not obtained from an individual (a single judge for example).  It is instead the system itself.  Justice is obtained by the numerous and intricate parts of the system working together.  I recently learned of a new motorcycle that keeps itself upright, even when struck by another vehicle.  It maintains its stability through an internal gyro.  The American justice system has its own internal justice gyro: the fact that the rules applied to one must also be equally applied to all.  This feedback result is achieved through the court of appeals and the Supreme Court.  Though district courts can (and do) depart from justice, the appeals courts cannot so easily follow them because their decisions will later affect the lawsuits of others.

The justice system is complicated.  It is not surprising to find areas of the system enabling individuals within the system to temporarily defeat a persons due process or other right.  The RICO lawsuit seems to have drawn out these various tricks: jurisdiction ruse, minute orders, and total immunity.  But in another miracle of the American justice system, a citizen can and should challenge the statutes in a court (requirements for a Constitutional lawsuit).

Thus, one cannot obtain justice without a willingness to use the entire system.  Justice is achieved by motivated Americans committed to insuring that the entire justice system exploited.  Our RICO lawsuit has clearly challenged “the system.”  So far, bias in the system has not been able to permanently deny us justice.  Our ability to survive has been as a result of the broader system’s built in whirring justice gyro.  It’s extraordinary.  This internal gyro, against the will of many powerful federal participants, forcefully keeps the system on course.

I once thought that the RICO lawsuit illustrated what a mess the justice system has become.  I now see that the RICO lawsuit, with its potential catastrophic consequences, is still unable to unbalance it.  God bless the justice system.

Constitutional lawsuits must meet simple requirements

01 Sep
September 1, 2012

Constitutional lawsuits are easy to file. More importantly, they are essential for liberty.

Figuring out what was required to file a lawsuit challenging the constitutionality of federal laws was harder than it should be.  Hence, this post.  I hope this simple list of requirements for constitutional lawsuits helps others pursue their rights.

I believe three things are required for constitutional lawsuits:

Federal jurisdiction is established using the same jurisdiction statutes as used for any other other federal lawsuit.  Specifically, the federal courts have jurisdiction if the plaintiff is challenging a federal statute (federal question jurisdiction).  Sovereign immunity is easily overcome in lawsuits attacking the constitutionality of statutes using the United States citizen’s statutory right of review (5 USC § 702).  Finally, the plaintiff must establish standing.   Standing is a requirement originating in the constitution.  The standing requirement is essential to keep the courts from becoming all powerful and legislators in their own right (God bless the founders).  The court has no authority to sit in judgment of any statute unless there is an actual controversy between real parties.

Standing requirements are as follows:

‘First the plaintiff must have suffered an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized, see id., at 756; Warth v. Seldin, 422 U. S. 490, 508 (1975)Sierra Club v. Morton, 405 U. S. 727, 740-741, n. 16 (1972);[1] and (b) “actual or imminent, not `conjectural’ or `hypothetical,’ ” Whitmore, supra, at 155 (quoting Los Angeles v.Lyons, 461 U. S. 95, 102 (1983)). Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be “fairly. . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.” Simon v. Eastern Ky. Welfare  Rights Organization, 426 U. S. 26, 41-42 (1976). Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” Id., at 38, 43’

Lujan v. Defenders of Wildlife, 504 US 555 (S. Ct. 1992).

Constitutional lawsuits are therefore simple to create.  I believe it is our civic duty to challenge an overreaching federal agency or employee.