01 Aug

Absolute Judicial Immunity — An existential threat to the rule of law

Supreme Court Justice William O. Douglas took controversial positions on the principles of common law judicial immunity

Federal judges incorrectly rationalize (in case law) their right to possess judicial immunity by asserting that they can only be truly unbiased when they feel no threat of personal liability for “bad” decisions.  

But BAD decisions are one thing.  Intentionally unlawful decisions are entirely another.  Judges have used the same thinking to obtain immunity for both intentional violations of the law as well for bad (and here I assume a mistake) decisions.  For intentional violations of the law, fair and honest reasoning should be precisely the opposite of the thinking presently set forth in existing common law.  When judges have total immunity from personal liability for intentional violation of the law, they may, in fact, be freely influenced by external factors.  There is no check on their dishonest behavior.  External forces (in our case the United States) may correctly argue that there is no negative personal consequence to the judge were he to rule in favor of the most powerful entity in the dispute.  This has happened to us.  A mistake has no father.  An intentional act does.  Bad and intentionally unlawful decisions are plainly different.  A just system must not allow one party to exert its will over another without consequence.

Immunity for intentional violations of the law completely self serving.  In essence, they can be judges in their own cause.  This concept is antithetical to our concept of a just rule of law.

In our Bane Act lawsuit, we sued two federal judges: San Diego district judges Anthony Battaglia and Barry Moskowitz.  We did not sue them personally for damages.  We sued them for declaratory judgement only.  Theoretically federal judges are not protected from declaratory judgement suits.  The United States’ Supreme Court, in a lawsuit against a state judge, found that state judges are liable to declaratory judgement and injunctive relief actions.  The Supreme Court has not yet offered a direct opinion on the declaratory and injunctive relief liability of a federal judge.  There is however, Supreme Court precedent establishing that federal and state judges should be similarly treated.

Our opponents in the Bane Act lawsuit argued that federal judges are different and are broadly immune.  They used a Ninth Circuit case to support their position.

We, in response, argued:

  • Judicial immunity is common law only.
  • Statutes, when they exist, supersede common law.
  • California has, in statute, removed judicial immunity and we sued using California law.
  • That the attorneys for judicial defendants have attempted to make the Ninth Circuit ruling on judicial immunity more broad than it was intended and therefore federal judges are not immune from declaratory and injunctive lawsuits.

I read the cases in detail.  We do not think federal judges are immune from declaratory and injunctive relief lawsuits.  Moreover, we think it is a violation of our due process rights to allow judges to be immune from personal financial liability when they intentionally violate the law.  This final idea has not been tested at the Supreme Court.  We intend to do so.  We filed our Constitutional lawsuit for this purpose.