California Lawyer
Magazine - April 2006 issue
(Page 13 - ESQ.
Edited by Martin Lasden)
Judging the
Judges
By Susan Davis
A grassroots
movement seeks revenge against offending
jurists.
IF GARY ZERMAN
HAS HIS WAY, judges across the
country will soon find themselves
a lot more exposed to angry litigants.
A Valencia-based sole practitioner,
Zerman first got riled up about
judges in the 1990s when he was
representing two plaintiffs in a
legal malpractice suit. When he
got to court, he says, the judge
made him sit down, cutting short
his opening statement, and then
told the jurors to find for the
defense. Zerman pursued the case
all the way up to the California
Supreme Court, but without success.
He then tried to sue the offending
judges in federal court - only to
learn that they are immune from
such suits. "It's like the
judges are the new kings,"
he marvels.
Soon afterward,
Zerman hooked up with Ron Branson,
a military prison guard turned pastor
turned cult investigator, who also
had a negative experience with the
courts. Together they formed Jail4Judges
- a nonprofit that has mounted a
national campaign that looks pretty
quirky but is starting to be taken
seriously.
Most conspicuously,
Zerman's group has been pushing
hard for a constitutional amendment
that would establish 13-member grand
juries to investigate, indict, and
sentence judges who abuse their
power. And though the group failed
three times to secure the required
number of signatures to put a Judicial
Accountability Initiative Law (JAIL)
on the ballot here in California,
this fall voters in South Dakota
will get the chance to vote on one.
Jail4Judges plans to launch a similar
effort in Nevada as well.
Of course, the
judicial immunity that Zerman is
so steamed up about has never been
absolute. It protects judges only
against civil lawsuits, claims of
civil rights abuses, and liability
for judgment calls made within the
confines of their official jurisdictions.
But it doesn't protect them from
charges related to judicial acts
taken outside their jurisdictions
or others arising from non-judicial
acts on the job, such as sexual
harassment. Then, too, all 50 states
plus the District of Columbia have
boards or commissions that hear
and investigate complaints against
judges. In 2004 this state's Commission
on Judicial Performance received
1,114 new complaints about active
and former California judges (see
MCLE, page 45). Eight percent of
those led to staff inquiries and
four percent to investigations.
But that isn't
enough to satisfy Jail4Judges. On
its website, the group blames judicial
immunity for a wide range of ills,
including "ignored laws, ignored
evidence, sophistry, eminent domain
abuse, confiscation of property
without due process, probate fraud,
secret dockets, graft, falsifications
of court records and other abuses."
If nothing else,
Jail4Judges has flair. Cofounder
Branson, for one, refers to himself
as the organization's "Five-Star
National JAIL Commander-In-Chief."
And in Nevada, Jail4Judges member
Steven Dempsey rails not only against
abusive judges but also against
the fluoridation of tap water.
Still, even
at the highest levels, esteemed
members of the judiciary aren't
taking these people lightly. "The
question of judicial immunity has
come up over and over again in the
last 150 years," says the chief
justice of the California Supreme
Court, Ronald M. George. "I
remember as a child the move to
impeach Earl Warren. What's disturbing
about this current effort is that
the attacks seem to be escalating
and gathering momentum. That's worrisome."
--Susan Davis
----- Original
Message -----
Sent: Friday,
April 14, 2006 9:22 AM
Subject: Your
(Susan Davis') April 2006Califorian
Lawyer Piece "Judging the
Judges"
Dear California
Lawyer Editor:
I (along with Ron Branson and our
Judicial Accountability Initiative
Law -
www.jail4judges.org,)
am the subject of "Judging
the Judges - A grassroots movement
seeks revenge against offending
jurists." [April]. Your
first sentence reads: "If
Gary Zerman has his way, judges
across the country will soon find
themselves a lot more exposed to
angry litigants." Contrary
to your assertion, I have always
sought, and still seek, when I (or
anyone) goes to court, to simply
get my (their) day in court:
a fair judge, a proper finding of
the facts, a proper application
of the law and that a
measure of justice be done.
And when that is not done because
of judicial misconduct (or worse),
I do seek to hold those judges accountable.
You want to term that revenge?
I can't stop you. Actually,
revenge is where: in July
of 1993 Giani Luigi Ferri went shooting
his lawyers (and others) at Petit
& Martin in San Francisco, killing
9, wounding 6; in November of 2003
William Strier started shooting
at his new attorney Gerald Curry,
who luckily danced for cover around
the tree at the Van Nuys
courthouse; and, in February 2005
Bart A. Ross lied in wait for federal
Judge Judith Lefkow at her home
in Chicago, after he killed her
husband and mother. See the
essay "The Plague of Violence"
in your August 1993 edition that
predicted something like this.
Ironically, I noted that in your
same April edition, the MCLE self
study article was "Judges Behaving
Badly." It started with
Socrates' famous admonition:
"Four things belong to a judge: to
hear courteously, to answer wisely,
to consider soberly, and to decide
impartially." Conspicuously
absent from Socrates' admonition
was - immunity. Perhaps that
was Plato, who came up with "Philosopher
Kings." But fact is,
there is no Easter Bunny. Nor
are there Philosopher Kings. (Even
if there were, we never wanted them
in America. We fought a revolution
to get rid kings and royalty ruling
over us. Instead we chose
a Republic and the jury system,
albeit today less and less.) Nor
just because you give one the title
"judge" and a $29.00 cloth
robe, does that insure the judge
comes with a halo. In fact
the almost absolute power given
to a judge, can cause just the opposite
condition. See Bracey v. Gramley,
522 U.S. 899 (1997) recapping the
federal sting "Operation Greylord"
in Chicago and learn about "bagmen,"
"bribes" and 14 judges
who went to jail. Why haven't
there been more Operation Greylords?
Typically your piece was slanted,
using biased terms such as "revenge,"
"angry litigants," "so
steamed up about" and "rails
... against," foregoing the
usual pejoratives "disgruntled,"
"vexatious," "gadfly,"
and "pest." Thanks for
that. You did though, in habitual
journalistic favoritism, omit our
core arguments about the doctrine
of absolute judicial immunity (AJI),
that: 1) there is NO
authority in our Constitution giving
immunity to judges (nor do any of
the USSC cases on AJI ever cite
any); 2) judges giving judges AJI
violates the doctrine of separation
of powers - the so-called checks
& balances (nor do any of the
USSC cases mention this);
3) AJI turns the sovereignty of
We the People on its head, by placing
the judiciary over, above and beyond
the People, making the servant the
master; and, 4) why has our USSC
condoned eugenics? See Stump
v. Sparkman, 435 U.S. 349 (1978).
Note, neither Chief Justice Roberts,
nor Justice Alito, were asked any
of these questions at their recent
Senate Judiciary Committee confirmation
hearings. Checks & balances?
Your piece asserted that "...
judicial immunity ... has never
been absolute." Correct
in theory, but almost totally wrong
regarding application. Name
the last judge impeached, federal
or state. (We have a joke
around J.A.I.L. - Impeachment of
judges is like Haley's Comet, it
comes around once every 64 years.)
Judges can be criminally prosecuted,
but in fact seldom, if ever are;
and if they are, still usually get
a break on punishment. See
"L.A. County's Dual Standard
of Justice Marches On," 1/11/98
LA Times, p.M6, by Charles Lindner,
asserting this "insider justice"
happens because of the "closed
fraternity" between judges
and prosecutors.
You citied 2004 Commission on Judicial
Performance statistics: that
of 1,114 complaints received, 8%
led to staff inquiries and 4% to
investigations. Pitiful. A
manufacturing concern handling complaints
in that fashion would be out of
business - pronto. But here
we are dealing with people and their
rights, which calls for greater
integrity than products or services. You
omitted stats for discipline actually
imposed. Review of the 10-Year
Summary of Commission Activity,
notes a grossly inordinate amount
of "0" (goose eggs) and
"<1%" (less than one
percent) tallies for actual discipline.
The federal system is worse, with
over 99% of complaints against federal
judges routinely dismissed.
For example, see 'WITHOUT MERIT:
The Empty Promise of Judicial Discipline,"
by Elena Sassower, Massachusetts
School of Law, The Long Term View,
Vol. 4, No. 1, p.90 (1997),
www.judgewatch.org.
More recent, see "9th Circuit's
Kozinski Blasts L.A. Judge, Majority
in Discipline Case," 10/4/05
The Recorder, by Justin Scheck,
www.law.com,
with the first sentence: "Can
federal judges be trusted to police
themselves? Alex Kozinski
isn't so sure." In re Complaint
of Judicial Misconduct, No. 03-89037,
Judicial Council, 9th Circuit, 9/25/05,
where the complaint was dismissed
for the 3rd and final time (despite
finding the involved judge deliberately
acted without legal authority),
Justice Kozinski wrote in dissent:
"... It does not inspire confidence
in the federal judiciary when we
treat our own so much better than
everybody else." Bingo!
Your piece ends quoting Chief Justice
George: "... What's disturbing
about this current effort is that
the attacks seem to be escalating
and gathering momentum. That's
worrisome." We agree. Meet
with us Chief Justice George and
let's work together to solve these
crucial problems in our judicial
system. Please be a leader. Or will
your reply be "Let them eat
cake." We hope to hear
from you. GLZ.
...
