JUDICIAL IMMUNITY (See Filing Here)
The doctrine of the Divine Right of Kings has been rejected in this country in its entirety. If it were not so there would have been no Revolution, Declaration of Independence, Constitution, or United States of America. However, the doctrine of absolute judicial immunity directly descends from that same line of reasoning in the English common law that supported the Divine Right of Kings. Initially, royal sovereign immunity shielded judges from suit as the judge was the servant acting in the name of the king, and the king could not be sued. The same Divine Right of Kings language was used to justify judicial immunity as was used to justify the unassailablity of divinely chosen infallible kings. Robert J. Reinstein & Harvey A. Silverglate, Legislative Privilege and the Separation of Powers, 86 HARV. L. REV. 1113, 1122–23 (1973) (“The judicial privilege was a corollary of sovereign immunity: the personal delegates of the King were answerable only to him for their official conduct.”); H. Laski, Foundations of Sovereignty 103 (1931)(a judge is “incapable of doing wrong … even thinking wrong … in him is no folly or weakness.”).
Under the English common law the king and his judges were above the law, but American law and values dictate that no one is above the law. Butz v. Economou, 438 U.S. 478, 506 (1978); citing United States v. Lee, 106 U.S. 196 (1882)(“No man in this country is so high that he is above the law”). The concept that the sovereign is above the law was left on a distant shore and left alien to American law and thought. Seminole Tribe v. Florida, 517 U.S. 44 f/n 2 (1996)(“it is clear that the idea of the sovereign, or any part of it, being above the law in this sense has not survived in American law.”). Absolute judicial immunity is anathema to our entire system of laws and unconstitutional. Because no one is above the law Defendants must be accountable for their own actions.
The doctrine of absolute judicial immunity is directly in conflict with the Constitution’s plain language. The doctrine of judicial immunity is not a creature of statute or the Constitution. The Constitution speaks to immunity for the legislature but not for judges or justices. U.S. Const. art. I § 6. As the concept of immunity was clearly understood by the drafters of the Constitution it must be assumed that the failure to include judicial immunity within the text of Article III was no oversight. US ex rel. Williams v. NEC Corp., 931 F. 2d 1493 (11th Cir. 1991)(“where a statute explicitly enumerates certain exceptions to a general grant of power, courts should be reluctant to imply additional exceptions in the absence of a clear legislative intent to the contrary.”). Further, the doctrine of absolute immunity for judges is in conflict with language which was included in the Constitution. Id. at 1502 (“any interpretation which renders parts or words in a statute inoperative or superfluous is to be avoided.”). Absolute judicial immunity has become so broad that a noble class of judges has been created. Absolute judicial immunity is so broad that judges are thereby immune even when knowingly violating the Constitution or undertaking malicious acts. Stump v.
Sparkman, 435 U.S. 349, 566-357 (1978)(“This immunity applies even when a judge’s acts are in error, malicious, or were in excess of his or her jurisdiction”). This creation of a class of persons above the law is contrary to U.S. Const. art. I § 9 cl. 8 which states “No title of nobility shall be granted by the United States”. This clause clearly precludes the creation of a class of persons 10 that are above the
law.11
The founders of the nation thought it sufficiently important to the preservation of our republic to include this clause. America was founded on the principles of an equal and just society. Thomas Paine decried titles of nobility as they had the effect of forbidding inquiry into the character of the possessor, much as absolute judicial immunity would preclude inquiry into acts of malice and corruption.12 The Court on which the Defendants sit has clearly stated that no one ought to be 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 officers of the government, from the highest to the least, are creatures of the law, and are bound to obey it. Butz v. Economou, 438 U.S. 478, 506 (1978); citing United States v. Lee, 106 U.S. 196 (1882).
Whether you call it nobility, royal sovereignty, or judicial immunity, it is all the same. They all work to but one end: a nation ruled by men and not laws. The arguments for absolute judicial immunity sound eerily like the protests of Charles I who refused to answer to any authority. The patriots threw tea into Boston Harbor as a token of their rejection of royal sovereignty. Thomas Jefferson penned and others signed the Declaration of Independence pledging their lives and sacred honor against the tyranny of a government of men. And later the Constitution was drafted to perfect our union and, of primary importance, establish justice – under law and not men. U.S. Const. Preamble. The drafters of the Constitution were well
aware of the dangers of royal sovereignty (the Divine Right of Kings) and a privileged class that operated above the law; they faced it, fought it, and rejected it. Had they embraced the common law doctrine of royal sovereignty and its appendage, judicial immunity, they surely would have included it in the Constitution.
The doctrine of absolute judicial immunity is far too broad. The executive and legislative branches of government have a measure of immunity, but their immunity is humble in comparison to judicial immunity.13 Neither the executive nor the legislative is immune for acts of corruption and malice.14 The justification for the breadth of judicial immunity previously offered by its proponents is not sufficient.15
The Court has stated that the justification for absolute judicial immunity lies in the need for a judge to act “upon his own convictions, without apprehension of personal consequences”. Stump v. Sparkman, 435 U.S. 349, 363-364 (1978). However, the personal convictions of the Defendants are directly at odds with the Constitution. Defendants must not be allowed to act on personal convictions that place the Constitution in jeopardy. Defendants have followed the shameful example of their predecessors in the Dred Scott decision where the court rationalized away unalienable rights by disregarding both historical facts and the plain language of the Constitution. The dissent from Scott gives this Court wise guidance:
[W]hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean. Scott v. Sandford, 60 U.S. (19 How.) 393, 621, 15 L.Ed. 691 (1857) (Curtis, J., dissenting)(emphasis added).
The oath of office entered into by Defendants acts as a limit on personal convictions. Defendants are not permitted to rule on the basis of personal convictions that are contrary to the plain language of the Constitution.16 Any justification for judicial immunity is crippled by an examination of the origins of the doctrine. The doctrine and all of its justifications sprang solely from the courts’ own pronouncements. Over the years the justifications for the doctrine have shifted. Initial arguments proclaimed the infallibility of judges, later arguments claimed that protecting judges from any liability protected the system itself and brought finality to disputes. However, these arguments lose credibility when we consider that absolute judicial immunity is a creature of the courts themselves; that judges are immune simply because they say so. They have proclaimed themselves above the law.
Judicial immunity is a doctrine that admittedly results in injustice. Under this doctrine acts of malice are protected. Stump v. Sparkman, 435 U.S. 349, 566-357 (1978). Judicial immunity foolishly proposes that injustice is a viable tool in the pursuit of justice. However, for justice to be had, justice must be done. Justice will never be had by intentionally protecting acts of injustice from consequences…See Filing Here
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