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stebbinsd

Judicial immunity when appeal is defied

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Ok, so ... the biggest rationalization for why the federal courts recognize judges as being absolutely immune from suit is because ... the ability to have errors corrected on appeal already provides an adequate means of curbing judicial abuse, right? By the Supreme Court's own admission in the case of Pierson v. Ray, 386 US 547 (1967), this is the only thing keeping a judge from simply being above the law. Sure, we also have the ability to remove corrupt judges from the bench through a variety of methods, but that's hardly of any solace to a person who is still serving a life sentence in prison because he was convicted summarily and in absentia without getting any opportunity to tell his side of the story!

 

So ... does the federal judiciary have a plan B when the right of appeal fails? I'm not talking about when the appellate court judges merely affirm the judgment because they're just as corrupt as the trial court (although there's plenty of evidence of THAT happening, constantly). I'm talking about when a Court of Appeal remands the case back to the trial court for further proceedings, and then the judge STILL proceeds to ignore the case on the grounds that the case has already been closed!

 

Does the judiciary have a back-up plan in the event a trial court does that? Because every article and court opinion I have seen on the topic of judicial immunity never even mentions such a contingency. They appear to thing that, once a Court of Appeal reverses an erroneous ruling, the idea of a trial court outright defying the mandate is so impossible and so ludicrous that it's the equivalent of a 19th Century American knowing about the starving children in Africa because he has Google! The idea seems to be just so out there that those who write these court opinions don't even think about covering them!

 

But then again ... it's ridiculous for these people to assume it will never happen. After all, if, by their own admission, it is possible for a judge to act in blatant violation of the statutes or binding precedent, what honestly makes them thing that a similar "sheet of paper" is going to have any more persuasive effect on them? Admitting that judges can purposefully go against some types of laws (the key word being "purposefully") such as statutes and case law but can't purposefully go against other types of laws (namely, appellate court mandates) is absolutely ludicrous!

 

So ... DOES the government have a back-up plan for that?

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17 hours ago, LegalwriterOne said:

If a case is remanded with directions to the trial court and the trial court doesn't act, then a writ of mandate to the appellate court is what needs to be done.  It's not unheard of that a court ignores the directive of a higher court. 

And what if the trial court ignores that, too?!

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8 minutes ago, stebbinsd said:

And what if the trial court ignores that, too?!

 

Then the appeals court may apply whatever sanctions it believes appropriate against the offending judge and the appeals court may order the case reassigned to a different judge to ensure the order is properly carried out.

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On 9/10/2017 at 2:56 AM, Tax_Counsel said:

 

Then the appeals court may apply whatever sanctions it believes appropriate against the offending judge

 

But wait a minute ... I thought the whole argument for judicial immunity was that judges absolutely have to be protected from personal consequences at all costs. That even subjecting them to the possibility of personal consequences, even for the most blatant of violations, would cause the judiciary to collapse in on itself.

 

I'm pretty sure that's the main argument the judiciary gives for why judicial immunity protects even against acts of corruption and malice, and even when the law is clearly established. No consequences, ever, no matter how much they deserve it, otherwise the judiciary self-implodes.

 

Granted, I've never seen even a shred of evidence outside the judiciary's uncorroborated word that this self-implosion would indeed happen, but that's not the point. The point is ... if they are so adamant about the judges being free of any consequences ... no matter what ... then how can they justify sanctions in this, or any, circumstance?

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1 hour ago, stebbinsd said:

 

But wait a minute ... I thought the whole argument for judicial immunity was that judges absolutely have to be protected from personal consequences at all costs. That even subjecting them to the possibility of personal consequences, even for the most blatant of violations, would cause the judiciary to collapse in on itself.

 

That is not the argument made for judicial immunity. And the general rule is that a party to a case may not sue a judge for money damages for the the decisions he/she makes on the bench. The rule does not protect a judge from the consequences of failing to obey a court order directed to him/her from the appeals courts.

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18 hours ago, Tax_Counsel said:

 

That is not the argument made for judicial immunity.

 

"For it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself" Bradley v. Fisher, 80 US 335, 347 (1872). Emphasis added.

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39 minutes ago, ElleMD said:

Which has nothing to do with judges who are corrupt. You are trying to apply the rule to the exception, and it doesn't work that way.

No, I'm referencing the logic behind the rule.

 

Quote

The absolute immunity from suit for alleged deprivation of rights enjoyed by judges is matchless in its protection of judicial power. It shields judges even against allegations of malice or corruption. he rule is tolerated, not because corrupt or malicious judges should be immune from suit, but only because it is recognized that judicial officers in whom discretion is entrusted must be able to exercise discretion vigorously and effectively, without apprehension that they will be subjected to burdensome and vexatious litigation.

http://law.justia.com/cases/federal/appellate-courts/F2/456/1/49074/

 

Judicial immunity is needed, not because it's redundant of other remedies, but on the assertion that a judiciary that can suffer consequences for its actions will implode in on itself. They aren't doing this on the grounds that it's redundant of other remedies; they say it's necessary to prevent total judicial collapse.

 

Quote

But an effective judiciary depends on judges not living in fear that their actions will bring them negative consequences, right?

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Also ....

 

23 minutes ago, LegalwriterOne said:

If a judge is truly corrupt, he/she is subject to prosecution.

No he isn't.

 

https://www.theguardian.com/us-news/2015/oct/18/judge-bias-corrupts-court-cases

Quote

But court critics say that one reason judicial violations are common is because they frequently go unpunished. When litigants ask a judge to back away because of a conflict, they risk being told no, then face possible retaliation, so many don’t bother. If a litigant or an attorney files a complaint with an oversight body, there’s only about a 10% chance that state court authorities will properly investigate the allegation, according to a Contently.org analysis of data from 12 states.

The analysis shows that a dozen of these commissions collectively dismissed out of hand 90% of the complaints filed during the last five years, tossing 33,613 of 37,216 grievances without conducting any substantive inquiry. When they did take a look – 3,693 times between 2010 and 2014 – investigators found wrongdoing almost half the time, issuing disciplinary actions in 1,751 cases, about 47%.

The actions taken ranged from a letter of warning to censure, a formal sanction that indicates a judge is guilty of misconduct but does not merit suspension or removal.

Actually removing a judge was a rarity. Just 19 jurists in 12 states were ordered off the bench for malfeasance, which is about three per decade for each state. And even that result is becoming less common, with only one removal in 2014 and three in 2013 among all 12 states.

 

http://www.latimes.com/local/california/la-me-judges-discipline-20150404-story.html

Quote

The vast majority of complaints against judges result in no discipline, and most misconduct is resolved by sending judges private letters.

UC Berkeley law professor Christopher Kutz said a judge's conduct must be extreme before the system metes out discipline. The state has about 1,800 judges, and generally fewer than 50 each year receive some form of reprimand.

"Certainly," Kutz said, judges disparage lawyers and litigants "much more often than the number of disciplinary cases would suggest. There is a lot of latitude for judicial misbehavior."

 

 

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Well I can tell you from personal knowledge, the article's reporting is inaccurate.  I know a judge that was removed from the bench in CA just last year and two others were publicly reprimanded -- they screw  up again and they're gone.  Further, when a judge refuses to recuse themselves, the offended party can seek quick redress in the appellate court.  It happens all the time.  The problem is that pro se litigants don't know what they can do and usually don't know enough to make a record of what is occurring.  Without something on the record, even the appellate court has no basis to do anything. Additionally, when only the people that lost complain and there's no record to back them up, of course, nothing is going to happen.  A local judge was removed about 10 years ago because everything he'd done was on the record. If it's just he said-she said, the overseer's have nothing to hang their hat on.  They need actual evidence, not just a complaint.

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2 hours ago, LegalwriterOne said:

I know a judge that was removed from the bench in CA just last year and two others were publicly reprimanded -- they screw  up again and they're gone.

So only three judges ... over the course of the entire year 2016 ... those are the only three cases you can think of where a judge was either punished or reprimanded?

 

Furthermore, of these three, only one of them actually suffered tangible consequences for their behavior? The other two got a letter saying "shame on you," but no action taken against them?

 

2 hours ago, LegalwriterOne said:

  A local judge was removed about 10 years ago because everything he'd done was on the record.

Only one instance of a judge from 10 years ago? That's the best you've got?

 

Seriously ... how often does this happen? You say it happens "all the time," but the few instances you've given me show the complete opposite - that it only happens once in a blue moon.

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Also ...

 

2 hours ago, LegalwriterOne said:

The problem is that pro se litigants don't know what they can do and usually don't know enough to make a record of what is occurring.

What about the cases where the parties are represented by counsel and even the counsel admits the system is corrupt to the bone with little if any hope of judicial accountability?

 

https://www.theguardian.com/us-news/2015/oct/18/judge-bias-corrupts-court-cases

Quote

“The decorum and bias and the perfectly unethical behavior of the judges is really rampant,” said Amanda Lundergan, a defense attorney in Royal Palm Beach, Florida, who confronted a nest of judicial conflicts in her state’s rapid-fire foreclosure rulings – dubbed the “rocket-docket” – following the housing market collapse. “It’s judicial bullying.”

 

https://www.dailykos.com/stories/2014/7/28/1317251/-Lawyers-Who-Criticize-Judges-Are-Being-Punished-Jonathan-Turley

Quote

“They don’t speak up. The reason is you get targeted and you could lose your license,” said Barbara Kauffman of lawyers who witness judicial misconduct. Last month the California attorney contacted state officials alleging that a family court judge in Marin County tampered with court records.

 

 

https://www.amazon.com/Fraternity-Lawyers-Judges-Collusion/dp/1557788413

Quote

“The once honorable profession of law now fully functions as a bottom-line business, driven by greed and the pursuit of power and wealth, even shaping the laws of the United States outside the elected Congress and state legislatures.”

 

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If counsel doesn't want to step up, then they are part of the problem.  I understand the worry that if you anger the judge in one case, he/she will take it out on a client not only in the case before them but also potentially clients in other case.  That happens but it doesn't happen where I practice because the judge will find him/herself blanket papered with complaints to the presiding judge and the judicial commission.  A judge was removed here years ago when defense counsel got together and the bench around here hasn't forgotten it. 

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10 hours ago, LegalwriterOne said:

If counsel doesn't want to step up, then they are part of the problem.  I understand the worry that if you anger the judge in one case, he/she will take it out on a client not only in the case before them but also potentially clients in other case.  That happens but it doesn't happen where I practice because the judge will find him/herself blanket papered with complaints to the presiding judge and the judicial commission.  A judge was removed here years ago when defense counsel got together and the bench around here hasn't forgotten it. 

You're missing the point. The point is ... judicial accountability might exist on paper, but it only actually happens once in a blue moon.

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Since there are so many ways to challenge a judge's actions, that's not correct.  Further, there are  thousands of courthouses across the country, hundreds of appellate opinions that are issued every day so you don't know that.  You can't paint all judges with a broad brush or assume nothing every happens or happens infrequently.  It happens all the time.

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