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Information on Suing Judges

       No. 91-5287(DRD)
     Table Of Authorities
Briscoe v. LaHue, 103 S.Ct. 1108 at 1121 (1983). . . . . . . . 5
Butz v. Economou, 438 US 506,98 S.Ct.2901(1978). . . . . . . . 2
Fireman's Ins. Co. of Newark, N.J. v. Washburn County,
2 Wis.2d 214,85 N.W.2d 840 (1957). . . . . . . . . . . . . . . .3
Hodgson v. Scarlett, 106 Eng. Rep. 86, 91 (K.B. 1818) (Holroyd J.)10
Kendillon v. Maltby 174 Eng. Rep. 562, 566 (N.P. 1842)
(Lord Denman, C.J.). . . . . . . . . . . . . . . . . . . . . . 10
Lake v. Speziale 580 F.Supp. 1318 (1984) . . . . . . . . . . . 9
Martinez v. California, 444 U.S. 227, 284 n.8 (1980) . . . . . 3
McLaughlin v. Tilendis, 398 F.2d 287, 290(7th Cir. 1968) . . . 3
Monell v. Department of Social Services, 436 U.S., at 665. . . 8
Monroe v. Pape, 365 U. S. 167, 172 (1961). . . . . . . . . . . 4
Rabon v. Rowen Memorial Hosp., Inc. 269 NS1, 13, 152 S.E.2d
485, 493 (1967). . . . . . . . . . . . . . . . . . . . . . . . .3
Scheuer v. Rhodes, 416 U.S. 232, 243.  . . . . . . . . . . . . 5
Shore v. Howard, 414F.Supp. 379. . . . . . . . . . . . . . . . 3
Will v. Michigan Dept.,of State Police, 491 U.S. 58, 71. . . 4, 5
     Plaintiff   )    CIVIL ACTION No. 91-5287(DRD)
        )      NEW JERSEY COUNCIL
     Defendants       )
This brief is presented on behalf of New Jersey Council for Children's Rights (NJCCR) which is a statewide, not for profit, tax exempt organization.  NJCCR is a member of the National Council For Children's Rights.  NJCCR has a substantial interest in assuring that claims under the Civil Rights Act asserting the torts done to children and parents by the Superior Court Judges in the state of New Jersey are not thwarted by an act without constitutional authority of the United States Supreme Court.  Only congress has the Constitutional standing to enact law.  Congress has enacted a law that permits redress from state judicial defendants, the Civil Rights Act.        

Plaintiff Babinski's complaint clearly defines and he will prove the tortious capitulation of responsibility and violation of ethics, rules and laws by the judicial officers and other defendants, all acting in conspiracy under color of law.  There are many and frequent other unconstitutional abuses of the terrible swift sword of justice from the family court bench committed against NJCCR members.        

Many NJCCR members, and others, have been denied their constitutional right to redress for these torts committed upon them by the New Jersey Superior Court Judiciary. We wish to argue against judicial immunity.  


1.   Robert J. Mega was a law clerk to Hon. John Boyle during part of the litigation of plaintiff Mark Babinski's divorce.  Judge Boyle was the assigned judge to hear plaintiff Babinski's divorce.  Mr. Mega subsequently left the employ of the court and entered private practice as a member of the firm of Richard H. Kress.  Plaintiff Babinski complained to the defendant judges and Mr. Kress and Mr. Mega. of the violation of rules by the defendants.  Richard H. Kress is the attorney representing plaintiff Babinski's ex-wife, and Mr. Mega personally appeared in court on behalf of plaintiff's adversary in the very same matter he dealt with as a law clerk under Judge Boyle.   Mr. Mega, Mr. Kress, Hon. Renee J. Weeks and Hon. John J. Callahan particularly were in violation of the provisions of the attorney ethics and judicial
ethics rules.  None of the defendants took any action to prevent or stop the unethical activity.  

2.   As a result of this unlawful affiliation between the court and the opposing counsel plaintiff Babinski was denied lawful fair and unbiased treatment by the state court.  As a result he suffered a substantial loss.    


3.   State Judges are quick to cry "Judicial Immunity" whenever an accusation of this nature lands in their court.  The validity of the complaint is put aside, they only say "I have no responsibility for my actions".  This extent of abuse has been recognized by the courts when it has, on its own merits, been considered.  A finding that the judges were outside their judicial authority was not required.  Judges whose abuse of office is characteristic of the judicial defendants in this case have been held liable for damages. The Supreme Court of the United States said in Butz v. Economou, 438 US 506,98 S.Ct.2901(1978) "The resolution of immunity questions requires a balance between the evils inevitable in any available alternative.  In situations of abuse of office, an action for damages may offer the only realistic avenue for vindication of Constitutional guarantees."  

4.   Even the state Courts have held that State Judges do not have immunity.  It was most eloquently stated in Rabon v. Rowen Memorial Hosp., Inc. 269 NS1, 13, 152 S.E.2d 485, 493 (1967)  that, "Immunity fosters neglect and breeds irresponsibility, while liability promotes care and caution, which caution and care is owed by the Government to its people."  

5.   And in 42 U.S.C.A. 1983 Shore v. Howard, 414F.Supp. 379  the court was definitive in saying, "There is no Judicial immunity to civil actions for equitable relief under the Civil Rights Act of 1871."  

6.   It was decided that, "Government immunity violates the common law maxim that everyone shall have a remedy for an injury done to his person or property." in the case of   Fireman's Ins. Co. of Newark, N.J. v. Washburn County, 2 Wis.2d 214,85 N.W.2d 840 (1957).  

7.   It is well established that a question of immunity to suit under 42 U.S.C. 1983 et seq. raises an issue of Federal law and that state law cannot immunize conduct of state actors which may otherwise violate constitutional rights.  The Supreme Court held in Martinez v. California, 444 U.S. 227, 284 n.

8 (1980) that:"Conduct by persons acting under color of state law which is wrongful under 42 U.S.C.  1983 or 42 U.S.C.  1985 cannot be immunized by state law.  A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise; and the supremacy clause of the Constitution insures that proper construction may be enforced.   See McLaughlin v. Tilendis, 398 F.2d 287, 290(7th Cir. 1968)  "The immunity claim raises a question of federal law. . . ."   8.   If immunity from liability were granted, carte blanche, to anyone or any class of state officials, it would serve to deny the right to redress for wrongs and torts committed under color of law.  The very intent of the civil rights act of 1871 is to insure that these wrongs and torts are actionable.  If there be any truth to the notion that, "Justice Will Be Done,"  Judges and Court officers should be measured by an even more stringent set of rules than ordinary citizens, and by a higher authority.  The terrible swift sword of justice is an awesome weapon when improperly wielded.   

9.   The judicial defendants are properly sued, by plaintiff Babinski, in their individual capacity for tortious acts committed under color of law.  The right to sue turns on the fact that their tortious acts were committed in their official capacity under color of law.  The suit in this case is properly against the judicial defendants in their individual capacity for acts performed in their official capacity and under color of law.  

10.  Through  1983, Congress sought "to give a remedy to parties deprived of constitutional rights, privileges and immunities by an official's abuse of his position." Monroe v. Pape, 365 U. S. 167, 172 (1961).  Accordingly, it authorized suits to redress deprivations of civil rights by persons acting under color of any [state] statute, ordinance, regulation, custom, or usage."   42 U. S. C.  1983.  The requirement of action under color of state law means that the judicial defendants become liable for tortious acts they commit precisely because of their authority as judicial officers.  

11.  The judicial defendants are state judicial officers sued in their individual capacities, and are "persons" within the persons" meaning of  1983.  Unlike official-capacity defendants-who are not "persons"  because they assume the identity of the government that employs them, in Will v. Michigan Dept.,of State Police, 491 U.S. 58, 71, officers sued in their personal capacity come to the court as individuals and thus fit comfortably within the statutory term "person," cf.  491 U.S., at 71, n.10.  Moreover,  1983's authorization of suits to redress deprivations of civil rights by persons acting under color of state law means that judicial defendants may be held liable for the torts committed precisely because of their authority as judicial officials.  That the acts are both within the official's authority and constitute the performance of court functions should not be considered acts of the State that cannot give rise to a personal-capacity action against these defendants.  That contention ignores the Supreme Court's holding that  1983 was enacted to enforce provisions of the Fourteenth Amendment against those who carry a badge of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it.  Scheuer v. Rhodes, 416 U.S. 232, 243.   

12.  The Eleventh Amendment does not bar  1983 personal-capacity suits against state officials in federal court.  Id., at 237, 238.  Will's language concerning suits against state officials cannot be read as establishing the limits of liability under the Amendment.  Although imposing personal liability on state judicial officers may hamper their performance of public duties, such concerns pale compared to the damage done in a judicial immunity environment.  

13.  Supreme Court Justice Marshall's opinion in Briscoe v. LaHue, 103 S.Ct. 1108 at 1121 (1983), contains the following dissertation on immunity based on congressional intent when the Civil Rights Act was enacted:       

At petitioners' urging, the Court has extensively examined the legislative history of 2 of the 1871 Ku Klux Klan Act, 17 Stat. 13, now codified as 42 U.S.C.  1985(3).  However, the forerunner of  1983 was 1 of the 1871 Act, not 2.  As the majority points out, ante, at 12, 16, the two sections differ significantly in their language and purpose. It is thus      hardly surprising that debates over 2 shed little light on 1.  In my view the inquiry should focus on the history of 1.  Only by examining the genesis of that provision can it be determined whether Congress intended to abrogate certain common-law immunities.  

The origin of 1 is not open to serious question.  The language and concept of the provision were derived in large part from 2 of the Civil Rights Act of 1866, 14 Stat.  27.  The author of 1 clearly stated the relationship between the two acts in introducing the 1871 measure: "My first inquiry as to the warrant which we have for enacting such a section as this [1 of the 1871 Act].  The model for it will be found in the second section of the act of April 9, 1866, known as the `Civil 

Rights Act.'  THAT SECTION PROVIDES A CRIMINAL PROCEEDING IN IDENTICALLY THE SAME CASE AS THIS ONE PROVIDES A CIVIL REMEDY FOR, except that the deprivation under color of State law must, under the Civil Rights Act, have been on account of race, color, of former slavery.  This section of the bill, ON THE SAME STATE OF FACTS, not only provides a civil remedy for persons whose former condition may have been that of slaves, but to all people where, under color of State law, they or any of them may be deprived of rights to which they are entitled under the Constitution by reason and virtue of their national citizenship."   Cong. Globe, 42nd Cong., 1st Sess. at App. 689(1871)(emphasis added)   Because the two provisions are so intimately connected, a full examination of the      history of 1 must begin with 2 of the 1866 Act.  

The Civil Rights Act of 1866 was the first federal statute to provide broad protection in the field of civil rights. . .   The liability of judicial officials and all official participants in state judicial proceedings under 2 was explicitly and repeatedly affirmed.  The notion of immunity for such was thoroughly discredited.  The Senate sponsor of the Act deemed the idea "akin to the maxim of the English law that the King can do no wrong.  It places officials above  the law.  It is the very doctrine out of which the rebellion [the Civil War] was hatched."  Cong. Globe, 39th Cong., 1st Sess. 1758(1866)(Sen.Trumbull).  Id., at 1155(Rep.Eldridge).  See also Id.,at 1778(Sen. Johnson, member of the Senate Judiciary Committee)(2 of the 1866 Act "strikes at the judicial department of the governments of the States").  

Two unsuccessful efforts were made to amend 2.  First, Representative Miller introduced an amendment to exempt state judges from criminal liability.  Id., at 1156. Second, and of particular significance, Representative Bingham introduced an      amendment to substitute a civil action for criminal sanctions contained in the proposal. Id.,at 1266, 1271-1272. The sponsor of the 1866 Act, Representative Wilson, opposed  the amendment largely on the ground that it would place the financial burden of protecting civil rights on poor individuals instead of government. Id., at 1295. At the same time he stressed that there was "no difference in the principal involved" between a civil remedy and a criminal sanction.  

After the 1866 bill passed the Senate and House, President Andrew Johnson vetoed it.  His opposition was based in part on the fact that 2 of the bill "invades the judicial power of the State."  Veto Message, in Id., at 1680.  The President warned that "judges of the State courts...[and]marshals and sheriffs, who should, as ministerial officers, execute processes, sanctioned by the State laws and issued by State judges in execution of their judgements, could be brought before other tribunals and there subjected to fine and imprisonment for the performance of the duties which the State law might impose."  Ibid.  Within two weeks, both the Senate and the House overrode the veto.  Various Congressmen responded to the President's criticisms and freely admitted that 2 of the legislation was aimed at state judicial systems.  As a member of the House Judiciary committee, Representative Lawrence, declared: "I answer it is better to invade the judicial power of the State than to permit it to invade, strike down, and destroy the civil rights of citizens.  A judicial power perverted to such uses should be speedily invaded. The grievance would be insignificant."       Id., at 1837.  See also Id., at 1758  (response of Sen. Trumbull to President's veto message); id., at 1838 (statement of Rep. Clarke).  The bill became law on April 9, 1866  

This Court has from time to time read 1983 against the "background" of common-law tort liability.  Far more pertinent to this case, however, is the background provided by the 1866 Civil Rights Act.  Representative Bingham, who had introduced the amendment to substitute civil liability for criminal liability in the 1866 Act had become chairman of the House Judiciary Committee by the time of the 42d Congress.  Senator Trumbull, the Senate sponsor of the 1866 Act, was chairman of the Senate Judiciary Committee in 1871.  Representative Shellabarger, who had participated in the debates on the 1866 legislation, drafted the 1871 Act.  

Congress was well aware that the "model" for 1 of the 1871 law could be found  in the 1866 Civil Rights act.  Cong. Globe, 42d Cong., 1st Sess. App. 68 (1871) (Rep. Shellabarger).  the manager of the bill in the Senate, George Edmunds, stressed that 1 "gives a civil remedy parallel to the penal provision" in the Civil Rights Act.  "If this penal section is valid, and no one dares controvert it, the civil remedy is legal and unquestionable." Id., at 461.  See also is., at 429 (Rep. McHenry in opposition) ("The first section of the bill is intended as an amendment of the civil rights act"); id., at 3385 (Rep. Arthur in opposition) (1 is "cumulative, as far as it goes, with certain provisions in the civil rights bill.")  

The fact that 2 of the Civil Rights Act was the model for 1 of the 1871 Act explains why the debates in the 42d Congress on 1 were so perfunctory.  Of all the measures in the Ku Klux Klan Act, 1 generated the least controversy since it merely provided a civil counterpart to the far more controversial criminal provision in the 1866 Act.  See id., at 568 (Sen. Edmunds) ("The first section is one that I believe nobody objects to"); id., at 313 (Rep. Burchard) ("To the first section, giving an injured party redress by suit at law in the United States courts in the cases enumerated, I can see no objections.")  Monell v. Department of Social Services, 436 U.S., at 665 (debate on 1 was limited and the section passed without amendment); Developments in the Law -- Section 1983 and Federalism, 90 Harv. L. Rev. 1133, 1155, (1977).  

Opponents of 1 of the 1871 Act repeated the same arguments that had been made against 2 of the 1866 Act.  They warned of the liability for judicial officers that would result from enactment of 1.  Indeed, in portraying the inevitable consequences of the 1871 Act, Senator Thurman pointed to criminal prosecutions of state judicial officers that had already taken place under the 1866 Act.  These statements can hardly be dismissed as exaggerated rhetoric from opponents of the 1871 act. Instead, they simply reflect the fact that the battle over liability for those integral to the judicial process had already been fought in 1866 when Congress adopted the far more serious criminal sanction aimed at state judicial systems."  Section 1, in contrast provided for "the mild remedy of a civil action." Cong. Globe, 42d Cong., 1st Sess. 482 (1871) (Rep. Wilson, member of the House Judiciary Committee).  So it was not surprising that the arguments of the opponents to the 1871 Act would fall on deaf ears.  It is also noteworthy that Rep. Shellabarger, who was hardly reluctant to interrupt speakers who were misconstruing his proposal, never disputed the opponents' characterizations with regard to the liability of state judicial officers.  

To assume that congress, which had enacted a criminal sanction directed against state judicial officials, intended sub silentio to exempt those same officials from the civil counterpart approaches the incredible.  Sheriffs and marshalls, while performing a quintessentially judicial function such as serving process, were clearly liable under the 1866 Act, notwithstanding President Johnson's objections.  Because, as Representative Shellabarger stated, 1 of the 1871 Act provided a civil remedy "in identically the same case" or " on the same state of facts" as 2 of the 1866 Act, it obviously overrode whatever immunity many have existed at common law for these participants in the judicial process in 1871.
14.  Congress clearly intended judicial defendants to be responsible for their acts in violation of  1983 et. seq.  The discussions on the congressional floor in 1866 and 1871 were plain that the state judiciary should not be excluded from liability under the Civil Rights Act.  As a member of the House Judiciary committee(see above), Representative Lawrence, declared: " . . .it is better to invade the judicial power of the State than to permit it to invade, strike down, and destroy the civil rights of citizens.  A judicial power perverted to such uses should be speedily invaded.  The grievance would be insignificant."  Congress then passed the bill and it was law.  The law did not grant judicial immunity.  Judicial immunity was then created by the courts.  The courts do not have the constitutional standing to immunize a class of persons to the law.  

15.  There has never been a question of judicial immunity in any action except that judges might be immune from civil liability.  In Lake v. Speziale 580 F.Supp. 1318 (1984)  the Superior Court Judges of the State were maintained as a defendant class.  Since the Civil Rights Act was enacted the courts have at various times upheld or denied judicial immunity and immunity for other court officers.  When judicial immunity was reestablished it was not on the statutes or the Act but by judges acting in defense of their colleagues and based on the common law of our English past.  It was on the doctrine of, "The King can do no wrong," as extended to the king's judges.   

16.  The Civil Rights Act was enacted in 1871 to establish a broad avenue for citizens with civil rights complaints against all state officials to travel to Federal Court.  It is the state courts and enforcement officers that are the specific target of the Act.  It is only the state judicial defendants that  ". . . have the power to prevent . . . the commission of same."   The pendulum is now swinging toward denying judicial immunity and immunity for other court officers.  In Lake Supra, the District Court for the district of Connecticut not only allowed a civil action to proceed against state Superior Court Judges but it maintained the "Superior Court Judges of the state of Connecticut" as the defendant class.  By maintaining the class the Court for all intent and purposes exhibited no concern for mal-feasance, non- feasance and non-judicial acts of the individual judges but made the good and bad judges equally responsible to uphold the laws and Constitution.  This even extends the lack of consideration to qualified immunity.  It demonstrates an unqualified disregard of judicial immunity in Civil Rights actions by the court.  

17.  It is clear that the intent of the Legislators in 1871 was to provide an avenue of redress in which the people could file civil suit against state court officers and Judges.  The concept of liability but only for certain kinds of civil relief is repugnant to the constitution.  That the Federal Court has jurisdiction to proceed against state judicial officials is not at question.  The Federal Court has often granted injunctive relief.  The question is whether the Federal Court trying a case against state judicial defendants may impose only injunctive relief to prevent future wrongs by the state judicial defendants or may grant redress to all negligent or deliberate tortious acts by the state judicial defendants.  It was not the intent of congress to allow injunctive relief and disallow compensatory and punitive relief.  

18.  The concept of Judicial immunity finds its origin in Common Law of England.  Our system of jurisprudence was created on a foundation of English common law.  There are two mitigating reasons why we should look skeptically at the common law doctrines bequeathed to us.  The first reason is readily apparent; our forefathers didn't like English rule and revolted.  The revolution was successful and we established our own government, constitution and laws.  The doctrine of, "The King can do no wrong" as was extended to the king's judges is not and should not be a part of our legal heritage.  The second reason is that even though we forswear English law as mitigating in the instant case we cannot take English law as the foundation of our laws without accepting the fact that its evolution did not end when our forefathers revolted against England.  After our country was established, English law continued to grow and change.  English jurisprudence has grown to permit civil judicial liability claims.  If the argument for judicial immunity is founded on English Common Law it is founded on axiom that no longer exists.  See Hodgson v. Scarlett, 106 Eng. Rep. 86, 91 (K.B. 1818) (Holroyd J.) and Kendillon v. Maltby 174 Eng. Rep. 562, 566 (N.P. 1842) (Lord Denman, C.J.).
19.  The idea that judicial defendants are not the direct target of the civil rights act is dispelled by the language of  1986:  "EVERY person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of same,  neglects or refuses to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages for such wrongful act, which such person by reasonable diligence could have prevented...." (emphasis added).    The law addresses "EVERY person," it noes not exclude anyone, not even the state judiciary.  The judicial defendants "fit comfortably" in the "EVERY person" description.  If the "person" addressed by  1983 et seq. is not the state judicial officer in court where the wrongs complained of occur who is it?  There is no
one else in the court or anywhere else that has the power to prevent the wrongs described.  The only person that fits the description in  1986 of who "...shall be liable to the party injured..." is the judge.  The language and the intent of the legislators is too clear to circumvent and overrides existent doctrine and precedent.  Since the civil rights act became law it was not amended to exclude judicial defendants.  The only immunity granted was by other judges improperly protecting their state colleagues.  

20.  It is equally incredible to assume that the framers of the Civil Rights Act intended to foreclose jurisdiction in cases relying on diversity of citizenship that fall below the dollar threshold for jurisdiction since diversity jurisdiction has a dollar amount threshold.  If that were the case judicial liability would attach in cases within a state for injunctive relief, but in diversity jurisdiction injunctive relief would also be barred if the claimed amount were insufficient to pass muster.  The amount of damages could not pass muster if the judicial defendants were excused since they are the prime target of civil relief under 1 of the Civil Rights Act of 1871.  This would then bar injunctive relief in cases of diversity jurisdiction.  It was also clearly not the intent of Congress to allow any judicial immunity in Civil Rights Act litigation involving diversity jurisdiction.  It was the expressed intent of the Congress while passing the Civil Rights Act to provide the citizens with the right to litigate for torts and wrongs as civil liability against "any person" including the state judiciary, in the Federal Courts.  

21.  Now that the state judiciary is running amuck on the constitution it is well past time to hold their feet to the fire.  When statements like, "We are setting aside the Constitution for today" issue from the state bench it is past time for the Federal Courts to extinguish this outrageous behavior for all time.  This writer would prefer a judge burn "Old Glory" on his bench than set aside the constitution for even one second.  

22.  The acts by the state judges complained of were committed outside the strict confines of judicial authority.  By acting outside the Constitution and their judicial authority, these perpetrators of Constitutional demise pierced their own veil of judicial immunity if any had heretofore existed.    

23.  Even if the state Judicial defendants successfully evade liability for civil damages by way of judicial immunity the immunity does not extend to a claim for costs under 1988 nor to injunctive relief and they should not be dismissed as defendants.   

24.  The loss of liberty, property and Constitutionally guaranteed civil rights that flowed from these persons operating under color of law, to plaintiff Mark Babinski is therefore actionable under the Civil Rights Act, Title 42 1983, 1985, 1986, 1988 and this court has jurisdiction of all parties pursuant to 28 U.S.C.  1331 and 1343(a).   CONCLUSION

25.  The amicus brief of New Jersey Council For Children's Rights demonstrates that the civil rights act was enacted with the intent of preventing abuses of state power by "persons" acting under color of law, including judges.  

26.  The central purpose of the Civil Rights Act is to guarantee individuals the protections and remedies afforded by the constitution and laws of the United States.  This can only be accomplished by a fair and consistent application of  1983 et seq.  

27.  Accordingly, New Jersey Council For Children's Rights submits that the Judicial Defendants are not entitled to immunity from liability in a suit under the Civil Rights Act, by application of Federal law as written and the clear intent of the legislators who wrote it.  The immunity later granted by a non-legislative organ of government is, therefore, Void Ab Initio. Respectfully Submitted,          
Dated:  December 28, 1991
Bob Vinik
Board of Directors,
New Jersey Council for Children's Rights
271A Route 516
Matawan, New Jersey   07747