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Suing
a Judge |
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This judicial system has become corrupted
by the immunity of judges. No one is
overseeing them and power corrupts.
In time judges actually become worse.
They have no oversight, management,
leadership or even feedback to impove.
Power corrupts and absolute power corrupts
absolutely. There is no better example
of this than judges in the probate and
family court system. It is unbelievable
that in the U.S. this level of abuse
of power and the law occurs. A trained
person can spot a violation of the law
about every 5 to 10 minutes sitting
in a motions hearing courtroom in family
court in Massachusetts. I can not speak
to other courts but the volume of stroies
indicates the same abuse is happening
everywhere. |
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http://www.perkel.com/pbl/immune.htm |
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A
collection of case law Are you thinking
about suing a judge? Before you
do, read this. It is some case snippets
that cover the basics on suing judges.
For more information, look up the
case law yourself.
Frank
BARRETT, Plaintiff-Appellee, v.
Nancy I. HARRINGTON, a/k/a Penny
Harrington, Defendant-Appellant.
No. 96-6207. United States Court
of Appeals Sixth Circuit.
Argued Aug. 5, 1997. Decided Nov.
20, 1997. --- F.3d ---- ------------
Excerpt
from page 1997 WL 721830 (6th Cir.(Tenn.))
(A) Letters to
Prosecutors The discrete issue
presented here is whether a judge's
instigation of a criminal investigation
against a disgruntled litigant,
taken to protect the integrity of
the judicial system, is a "judicial
act" and therefore entitled
to absolute judicial immunity. As
noted above, the Supreme Court has
formulated the two-prong functional
test to determine whether an act
is judicial. The first prong of
the functional approach asks whether
the function is one "normally
performed by a judge." Stump,
435 U.S. at 362. Clearly, the instigation
of a criminal investigation by the
filing of a complaint is not itself
a paradigmatic judicial act, i.e.,
an act which occurs in the context
of resolving disputes between two
parties. Forrester, 484 U.S. at
227. --- F.3d ---- ------------
Excerpt from page 1997 WL 721830,
*10 (6th Cir.(Tenn.)) FN11. In the
following cases, courts have found
that the judges acted in their judicial
capacity and were entitled to immunity:
Mireles v. Waco, 502 U.S. 9, 112
S Ct. 286, 116 L.Ed.2d 9 (1991)(judge's
alleged actions in directing police
officers to bring attorney who was
in the courthouse into his court
were taken in judge's "judicial
capacity" and, thus, judge
was immune from S 1983 suit, even
though judge allegedly directed
officers to carry out order with
excessive force); Burns v. Reed,
500 U.S. 478, 492, 111 S.Ct. 1934,
1942, 114 L.Ed.2d 547 (1991)(issuance
of a search warrant is unquestionably
a judicial act); Stump v. Sparkman,
435 U.S. 349, 98 S.Ct. 1099, 55
L.Ed.2d 331 (1978)(Indiana circuit
court judge performed an act normally
performed by judges in approving
a mother's ex parte petition to
have her 15 year old somewhat retarded"
daughter sterilized); Sheppard v.
Maxwell, 384 U.S. 333, 358, 86 S.Ct.
1507, 1520, 16 L.Ed.2d 600 (1966)(a
judge acts in a judicial capacity
when exercising control of the judge's
courtroom); Ireland v. Tunis 113
F.3d 1435 (6th Cir.1997)(issuance
of an arrest warrant was a judicial
act); Cameron v. Seitz, 38 F.3d
264, 271 (6th Cir.1994)(state probate
court judge's actions of not taking
probate court employee's recommendations
on disposition of juvenile cases,
and barring employee's admittance
into court were judicial acts and
therefore subject to immunity despite
the employee's allegations that
judge made his decisions out of
hostility arising from the employee's
marriage to judge's secretary);
Sparks v. Character and Fitness
Committee of Kentucky, 859 F.2d
428 (6th Cir.1988), cert. denied,
489 U.S. 1011, 109 S.Ct. 1120, 103
L.Ed.2d 183 (1989)(actions taken
by State Supreme Court, and Committee
on Character and Fitness in denying
application for admission to state
bar were judicial acts); Ashelman
v. Pope, 793 F.2d 1072 (9th Cir.1986)(extending
judicial immunity to a judge who
allegedly conspired with a prosecutor
to predetermine outcome of proceeding).
In the following cases, courts have
found that the judges acted outside
of their judicial capacity and were
not entitled to immunity: Forrester
v. White, 484 U.S. 219, 108 S.Ct.
538, 98 L.Ed.2d 555 (1988)(state
court judge did not have absolute
immunity from damages suit under
S 1983 for his decision to demote
and dismiss a probation officer);
Morrison v. Lipscomb, 877 F.2d 463
(6th Cir.1989)(state court judge
was not entitled to judicial immunity
in connection with order declaring
moratorium on issuance of writs
of restitution from December 15
through January 2, as judge was
acting in administrative and not
judicial capacity); King v. Love,
766 F.2d 962, 968 (6th Cir.), cert.
denied, 474 U.S. 971, 106 S.Ct.
351, 88 L.Ed.2d 320 (1985)(although
setting bond on an arrest warrant
is a judicial act, the act of deliberately
misleading the police officer who
was to execute the warrant about
the identity of the person sought
was nonjudicial); Sevier v. Turner,
742 F.2d 262 (6th Cir.1984)(juvenile
court judge's initiation of criminal
prosecution and civil contempt proceeding
against father for child support
in arrears constituted nonjudicial
acts); New Alaska Development Corporation
v. Guetschow, 869 F.2d 1298 (9th
Cir.1988)(receiver appointed by
state court to manage business assets
of an estate was entitled to absolute
derivative judicial immunity, but
receiver was not absolutely immune
from allegations that he stole assets
or slandered parties, as such alleged
acts were not judicial); Harper
v. Merckle, 638 F.2d 848 (5th Cir.),
cert. denied, 454 U.S 816,
102 S.Ct. 93, 70 L.Ed.2d 85 (1981)(holding
a contempt proceeding and ordering
plaintiff incarcerated were not
judicial acts where controversy
that led to incarceration did not
center around any matter pending
before the judge, but around domestic
problems of plaintiff former wife
who worked at the courthouse); Harris
v. Harvey, 605 F.2d 330 (7th Cir.1979),
cert. denied, 445 U.S. 938, 100
S.Ct. 1331, 63 L.Ed.2d 772 (1980)(allegedly
repeated communications to the press
and city officials which were critical
of police lieutenant, and the improper
instigation of criminal proceedings
against the lieutenant by judge
as part of a racial campaign to
discredit lieutenant were not judicial
acts).
--- F.3d ---- ------------
Excerpt from page 1997 WL 721830,
*18 (6th Cir.(Tenn.)) Gregory JOHNSON;
Albert P. Owens; Robert Lynn Hill;
Eddie Luellen, Plaintiffs-Appellants,
v. Kenneth Austin TURNER, Individually
and in his capacity as elected Juvenile
Court Judge of Memphis and Shelby
County; Herbert Lane; Michael H.
Craig; A.C. Gilless, Individually
and in his capacity as Sheriff of
Memphis and Shelby County; Shelby
County Government, a Home-Ruled
County Governmental Entity Operating
as a Governmental Municipality;
Veronica Coleman, Individually and
in her capacity as Shelby County
Government Attorney-Employee; William
Moore; Virginia Skinner, Individually
and in her capacity as Shelby County
Deputy Sheriff in charge of the
criminal warrant division, Shelby
County Government; Harold Horne,
Individually and in his capacity
as Shelby County Government Attorney-Employee,
Defendants-Appellees, State of Tennessee,
Intervening Defendant-Appellee.
No. 94-5919. United States Court
of Appeals, Sixth Circuit. Argued
Oct. 16, 1995. Decided 125 F.3d
324 Thus, for example, a judge may
be liable for action taken in his
role as employer, Forrester v. White,
484 U.S. 219, 227-30, 108 S.Ct.
538, 544-46, 98 L.Ed.2d 555 (1988)
(demotion and discharge of court
employee is an administrative decision
and not "a judicial act"),
or for an action that is administrative
in nature and that does not alter
the rights and liabilities of the
parties, Morrison v. Lipscomb, 877
F.2d 463, 464-66 (6th Cir.1989).
This court also has held that the
initiation of accusatory processes,
such as criminal prosecutions or
civil contempt proceedings, is a
non-judicial act that may subject
a judge to liability. Sevier v.
Turner, 742 F.2d 262, 272 (6th Cir.1984).
However, recently, in Barnes, we
explained that the exception to
absolute immunity, when a judge
engages in a purely prosecutorial
function, is a narrow one; and,
even if the judge encroaches upon
prosecutorial functions, the *334
broad shield of absolute immunity
is not automatically overcome. 105
F.3d at 1118-119. 125 F.3d 324 ------------
Excerpt from pages
125 F.3d 324, *333-125 F.3d 324,
*334 Johnida W. BARNES, Plaintiff-Appellee,
v. Byron R. WINCHELL, Defendant-Appellant.
No. 95-4008. United States Court
of Appeals, Sixth Circuit. Feb.
3, 1997. 105 F.3d 1111 It is precisely
when an issue facing a judge sparks
intense emotions that the judge's
fidelity to independent and fearless
decision making is of the utmost
importance. See Stump, 435 U.S.
at 364, 98 S Ct. at 1108 (recognizing
that the controversial nature of
the issue "is all the more
reason that [a judge] should be
able to act without fear of suit.")
To render a judge liable to
answer in damages to every litigant
who feels aggrieved during the course
of judicial proceedings, "would
destroy that independence without
which no judiciary can be either
respectable or useful. Bradley,
80 U.S. (13 Wall.) at 347.
Accordingly, we conclude that Judge
Winchell's actions as the presiding
judge in the underlying criminal
prosecutions of Ms. Barnes do not
amount to non- judicial acts stripping
him of the absolute judicial immunity
presumptively available to him.
F. Claim of Absence of All Jurisdiction
[11] Having determined that Judge
Winchell's actions were judicial,
we next consider whether Judge Winchell
acted in complete absence of all
jurisdiction, the second prong of
a judicial immunity inquiry. See
Mireles, 502 U.S. at 12, 112 S.Ct.
at 288. Ms. Barnes claims that Judge
Winchell never properly acquired
jurisdiction over the misdemeanor
charges against her because the
prosecutor had only authorized criminal
trespass actions. The term "jurisdiction"
is to be broadly construed to effectuate
the purposes of judicial immunity.
Stump, 435 U.S. at 356, 98 S.Ct.
at 1104-05. Acts done "in the
clear absence of jurisdiction,"
for which no immunity is afforded,
should be distinguished from actions
in "excess of jurisdiction,"
which fall within the ambit of immunity
protection. Id. at 357 n. 7, 98
S.Ct at 1105 n. 7 (quoting
Bradley, 80 U.S. (13 Wall.) at 351-52).
Thus, for example, a criminal court
judge would be immune from liability
for convicting a defendant of a
nonexistent crime, an act taken
in excess of his jurisdiction, whereas
a probate court judge would not
be immune from liability if he tried
a criminal case because he clearly
lacked all subject matter jurisdiction.
Id. (citing Bradley, 80 U.S. (13
Wall.) at 352). [12] Generally,
where a court has some subject matter
jurisdiction, there is sufficient
jurisdiction for immunity purposes.
Adams, 764 F.2d at 298. In Sevier,
despite the fact that a judge of
limited jurisdiction ordered the
initiation of criminal and contempt
proceedings, this court noted that
the judge was "empowered to
handle Juvenile Court cases ...
[and], therefore, did not act in
the clear absence of all jurisdiction."
Sevier, 742 F.2d at 271; see also
Lopez, 620 F.2d at 1234 (despite
not being assigned to the particular
branch of court, the judge was authorized
by law to hear the kind of case
in which he acted; his actions were
not taken in clear absence of all
jurisdiction).
[13] In this case, Judge Winchell
had jurisdiction over the subject
matter of the underlying actions.
The Chillicothe Municipal Court
has specific statutory jurisdiction
over "the violation of any
misdemeanor committed within the
limits of its territory." Ohio
Rev.Code Ann. S 1901.20(A) (Banks-
Baldwin West 1996). "In any
action or proceeding of which a
municipal court has jurisdiction,"
a municipal court judge is further
authorized "to exercise any
other powers that are necessary
to give effect to the jurisdiction
of the court and to enforce its
judgments, orders, or decrees.
Ohio Rev.Code Ann. S 1901.13
(Banks-Baldwin West 1996). Although
the municipal court is a court of
limited, rather than general, jurisdiction,
we have held that even "judges
of courts of limited jurisdiction
are entitled to absolute immunity
for their judicial acts unless they
act in the clear absence of all
jurisdiction." King v. Love,
766 F.2d 962, 966 (6th Cir.), cert.
denied, 474 U.S. 971, 106 S.Ct.
351, 88 L.Ed.2d 320 (1985). In the
present action, the complaint states
that the local prosecuting authority
had granted Scott and Carolyn Barnes
authorization to initiate criminal
proceedings against Ms. Barnes.
Compl. P 12. Both criminal trespass
and menacing by stalking, the two
*1123 potential crimes at issue
here, constitute misdemeanors over
which the municipal court properly
could maintain jurisdiction. Therefore,
by statute, Judge Winchell was empowered
to preside over the criminal proceedings
that flowed from these misdemeanor
complaints. Even assuming that there
was a procedural problem with respect
to the scope of the prosecutor's
authorization, Judge Winchell was
not wholly without jurisdiction.
Such a situation would more closely
resemble a judge convicting a criminal
of a non-existent crime than a probate
court judge trying a criminal case.
Thus, Judge Winchell's actions were
not taken in the clear absence of
all jurisdiction.
Finally, included in the absolute
judicial immunity balance is the
availability of alternate forums
and methods, apart from a civil
suit for damages, for litigants
to protect themselves from the potential
consequences of actions taken by
a judge. See Forrester, 484 U.S.
at 227, 108 S.Ct. at 544 (emphasizing
that a damages suit is not a litigant's
only recourse: Most judicial mistakes
and wrongs are open to correction
through ordinary mechanisms of review,
which are largely free of the harmful
side-effects inevitably associated
with exposing judges to personal
liability."). If Ms. Barnes
felt that Judge Winchell was exceeding
his authority or taking an inappropriate
personal interest in her cases,
she had at her disposal appropriate
recourse through Ohio appellate
courts, and/or the procedural mechanism
to disqualify a municipal court
judge, Ohio Rev.Code Ann. S 2937
20 (Banks-Baldwin West 1996). In
fact, the complaint details that
Ms. Barnes successfully utilized
the latter method. Compl. P 17.
105 F.3d 1111 ------------
Excerpt from pages 105 F.3d 1111,
*1122-105 F.3d 1111, *1123 Thomas
Martin MALINA and Mrs. Thomas Martin
Malina, Plaintiffs-Appellees, v.
Judge Douglas GONZALES, Defendant-Appellant.
No. 91-3757. United States Court
of Appeals, Fifth Circuit. June
25, 1993. Rehearing Denied Aug.
26, 1993.
994 F.2d 1121 227k36 k. Liabilities
for official acts. C.A.5 (La.),1993.
Judge's actions in stopping motorist
on highway, using police officer
to summon motorist unofficially,
and charging motorist with various
crimes were not judicial acts for
purposes of claiming absolute judicial
immunity. 994 F.2d 1121 RICO Bus.Disp.Guide
8083 Unpublished Disposition NOTICE:
First Circuit Local Rule 36.2(b)6
states unpublished opinions may
be cited only in related cases.
(The decision of the Court is referenced
in a "Table of Decisions Without
Reported Opinions" appearing
in the Federal Reporter.) C.D. Di
GIAMBATTISA, Plaintiff, Appellant,
v. Sheila E. McGOVERN, et al., Defendants,
Appellees. No. 92-1168. United States
Court of Appeals, First Circuit.
September 4, 1992 974 F.2d 1329
(Table) ------------
Excerpt from page 974 F.2d 1329,
1992 WL 214444 (1st Cir.(Mass.))
Federal courts "have proceeded
on the assumption that common-law
principles of legislative and judicial
immunity were incorporated into
our judicial system and that they
should not be abrogated absent clear
legislative intent to do so."
Pulliam v. Allen, 466 U.S. 522,
529 (1984). Under the common law,
judges are generally immune from
civil liability for judicial acts,
subject to the conditions described
above, but they do not enjoy immunity
from criminal liability. See O'Shea
v. Littleton, 414 U.S. 488, 503
(1974). Thus, the fact that judges
have been held criminally liable
for violating RICO in no way suggests
that Congress intended to give civil
RICO plaintiffs a remedy not available
to those who sue judges under the
common law. And, as we see no other
indication of Congressional intent,
we decline to deprive these judges
of the immunity to which they are
generally entitled by settled legal
principles.
**2 Mr. Di Giambattista also contends
that the judges here should not
be protected by immunity because
they acted in "the clear absence
of all jurisdiction." The "scope
of ... jurisdiction must be construed
broadly where the issue is the immunity
of the judge," Stump v. Sparkman,
435 U.S. at 356, and a judge will
doff the cloak of immunity only
when he conducts proceedings over
which he lacks any semblance of
subject-matter jurisdiction Thus,
in a classic example offered by
the Supreme Court 120 years ago,
"if a probate court, invested
only with authority over wills and
the settlement of estates of deceased
persons, should proceed to try parties
for [criminal] offenses, jurisdiction
over the subject of offenses being
entirely wanting in the court, and
this being necessarily known to
its judge, his commission would
afford no protection to him in the
exercise of the usurped authority."
Bradley v. Fisher, 80 U.S. 335,
352 (1872). On the other hand, if
a judge in a criminal court convicts
a defendant of even a non-existent
crime, he maintains his immunity,
because "where jurisdiction
over the subject-matter is invested
by law in the judge, or in the court
which he holds, the manner and extent
in which the jurisdiction shall
be exercised are generally as much
questions for his determination
as any other questions involved
in the case...." Id. None of
the acts identified by Mr. Di Giambattista
was actionably extra- jurisdictional
according to this standard. Massachusetts
probate courts have general equity
jurisdiction, M.G.L. c. 215 S 6,
and the removal of a trustee or
executor is an exercise of such
equity jurisdiction. See, e.g.,
Gorman v. Stein, 1 Mass. App. Ct.
244 (1973). Thus, Judge Sullivan's
rulings during the trial, whether
or not correct, fell within his
purview as a probate judge, and
even Judge Highgas, though not the
trial judge, did not act in the
"clear absence of all jurisdiction"
by hearing motions and issuing orders
that affected the case, since "jurisdiction
over the subject-matter [was] invested
by law ... in the court which he
[held]." Bradley v. Fisher,
80 U.S. at 352. 974 F.2d 1329 (Table)
------------
Excerpt from pages 974 F.2d 1329,
1992 WL 214444, **1 (1st Cir.(Mass.))-974
F.2d 1329, 1992 WL 214444, **2 (1st
Cir.(Mass.))
P.S.
Check out our web site for the FREE
handbook on parental rights.
There is also a manual on "reasonable
efforts" with sections for
Attorneys, Judges and Agencies.
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Our analysis of the Board's
immunity begins with a central tenet
of American jurisprudence-no one is
above the law:
No man in this country is so high
that he is above the law. No officer
of the law may set that law at
defiance with impunity. All the
officers of the government from the
highest to the lowest, are creatures
of the law, and are bound to obey
it.
United States v. Lee, 106 U.S.
196, 220, 1 S.Ct. 240,
27 L.Ed. 171 (1882).
Buckles v. King County 191 F.3d
1127, *1133 (C.A.9
(Wash.),1999)
Purpose of statute that mandated
that any person who under color of
law subjected another to deprivation
of his constitutional rights would
be liable to the injured party in an
action at law was not to abolish
immunities available at common law,
but to insure that federal courts
would have jurisdiction of
constitutional claims against state
officials. Act March 3, 1875, 18
Stat. 470.
Butz v. Economou 438 U.S. 478, 98
S.Ct. 2894
(U.S.N.Y.,1978)
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