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View Diary: It's not as sexy as waterboarding, but.... (93 comments)

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  •  "Impeachment is a scarecrow" (2+ / 0-)
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    Farugia, eastmt

    and if you think that a district/US attorney is ever going to go after judges who have committed crimes on the bench, you are quite obviously on a psychotropic substance that cannot be obtained at a reputable pharmacy.  Judges could be removed for good cause in England, but even though it is written into our own Constitution, the "good behaviour" clause is a dead letter.

    As for civil immunity, unless you accept that there is a palpable difference between simple error and willful misconduct on the bench and the distinction between the two is easily made, you will never see the need for its abolition for the latter.

      The rule that the State is primarily liable for injuries to the constitutional rights of its citizens has attained jus cogens status as evidenced not only by the ICCPR, but a long strand of Commonwealth (beginning with Maharaj v Attorney-General of Trinidad & Tobago (No. 2) [1979] AC 385) and recent European Union (Case C-224/01, Kobler v Austrian Republic [2003] 3 CMLR 28) precedent. Importantly, these cases hold that it is a claim in public law, as opposed to one sounding in tort, along the line of reasoning offered in Carey v. Piphus, 435 U.S. 247 (1978) (procedural due process violation a separate and distinct injury of constitutional magnitude). Some jurisdictions allow for concurrent liability (e.g., Italy, Spain); others hold that the State is liable alone (e.g., France, Poland). Olowofoyeku, Suing Judges at 158.  In Iran, judges are personally liable in tort for willful misconduct as a matter of constitutional law, and their society hasn't fallen apart.

    •  First of all, there have been judges (1+ / 0-)
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      prosecuted for willful misconduct.  See, e.g., Alcee Hastings.  

      Second, there are plenty of state judges who have been removed from the bench for a variety of misconduct.

      Third, I fail to see what the decisions of a variety of foreign courts have anything to do with our structure of government.  I certainly would not want to cite Iranian jurispudence as precedent for any US decisions.

      Fourth, of course there is a difference between error and willful misconduct, but that misses the point.  Given our liberal pleading rules, it is easy to file a suit.  And given our system of justice almost every aggrieved litigant would be able to file collateral suits against judges who rule against said litigant.  That the suits would not be meritorious is of little consequence, because other judges would have to spend time relitigating the original case to decide whether there was an error in the first place, and if so whether it was "simple" or "willful."  And this chain could go on ad infinitum.

      •  Nonsense on stilts! (1+ / 0-)
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        Braising Kane

        What would happen if such a suit was filed?  It would be sent to the US Attorney's office; if the suit was truly frivolous, the USA would file a successful Rule 12(b)(6) motion, and that would be the end of it.  Besides, people sue judges in their official capacity all the time, and the sky hasn't fallen.  Besides, there is Rule 11 to be considered here.

        By contrast, what do you say to the litigant whose rights have been obliterated by a judge who took a bribe?  "Tough shit; I got mine, and I don't give a damn about you?"  Why, how REPUBLICAN of you, my friend!

        If the number of instances in which legitimate abuse of judicial power is occurring is as high as I believe (with record support) they are, civil liability for judges is the only way to stop it.  OTOH, if what you assert is true, the number of cases that would even survive summary judgment is so small that the effect on judges would be de minimis.

        •  Summary judgment is not a panacea. (1+ / 0-)
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          Summary judgment occurs often YEARS after the lawsuit was filed and after expensive and laborious discovery process.

          Second, FRCP 12(b)(6) would afford no protection, because it is not meant to test sufficiency of the evidence.  Nor is Rule 11 of great help, as it does not mandate sanctions, and to the extent sanctions are imposed they are most often in form of a reprimand.  And of course, they are of little consequence to pro se litigants.  The point is, under your proposed theory, there would never be any end to the litigation, because the aggrieved litigant could sue every judge in the chain who denied his motion.  And he could also sue the US Attorney who opposes said lawsuits.

          Third, it seems that what you call "abuse of power" amounts to nothing more than disagreement with the outcome.  You do not provide any evidence for the assertion that judges routinely take bribes or otherwise act nefariously.  And if all you are unhappy with is the outcome, there is a process called "an appeal."    

          Finally, to the extent that in your case you can show that the opposing party gave a bribe and the judge accepted it, you could probably have the verdict set aside, without resorting to suing the judge.

      •  Federal Judges? Almost Never (1+ / 0-)
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        Braising Kane

        are removed for even the most brazen of misconduct. Recent illustration: Judge Samuel Kent, Southern District of Texas. Kent was reprimanded for sexually harrassment of court personnel by the 5th Circut Court of Appeals. The Court also heard claims "drinking and favoritism" by Kent. His punishment? a four month paid leave of absence and removal from his Galveston, Texas seat to Houston where he, according to the Houston Chronicle, will be in the same building as the woman whose claims led to the reprimand. Cost to the we the taxpayer? I fear far more than monetary.

        •  Kent's case is not over (0+ / 0-)

          He may yet be removed by the House.  Plus, sexual harassment as reprehensible as it may be does not necessarily infect his behaviour on the bench.

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