Here you go, Kay

10 thoughts on “Here you go, Kay”

1. Here’s my proposal: The Judicial Accountability Act of 2008 (http://home.earthlin…).

   Excerpts from my analysis:
   

   Why J.A.I.L. failed — and what we can
     learn from that failure
   JAIL was a good idea in concept — holding judges accountable for their actions. But the devil is invariably in the details, and if we are going to have any hope of success, we will have to learn from their failure. Fortunately, South Dakota bar chairman Tom Barnett has given us an effective road map to follow.

   A. JAIL’s Sweep Was Unnecessarily Broad
   While the official target of JAIL was our out-of-control judiciary, it cast an ambitiously wide net — one that a lot of average South Dakotans found themselves under. In turn, this is probably why JAIL wasn’t enacted by virtual acclimation. Barnett reportedly explains:

   While judges might be unpopular, Barnett noted the amendment would have far-reaching impacts. One is that many locally elected officials, including city and county commissioners and school board members, can have judicial duties, and hence be covered under the amendment. So can ordinary residents when they serve on juries — a fact the South Dakota anti-amendment campaign highlighted as ad after ad hammered that criminal defendants would be able to harass or sue jurors.

   Barnett said one poll showed that allowing jurors to be sued was opposed by 86 percent of the voters. “It’s a very, very powerful message,” he said. “That’s why we used that.” […]

   C. Improvements on Colorado’s Amendment 40
   Colorado’s Amendment 40 fared better at the polls, but it was a noble but misguided solution to the problem. Instead of using a legal scalpel to remove the cancerous tumor of corrupt judges, former state senator John Andrews prescribed an amputation: “Ten years and out.” While it did have its merits, this sort of indiscriminate approach opened a door to fair criticism that in effect, we were throwing the baby out with the bathwater. Again, you could easily envision a parade of horribles, and predict a dire effect upon the citizenry. Court dockets would be slowed. A wealth of experience would be lost. The judiciary would become more politicized. What’s more, all of these objections had some intrinsic validity.

   The Judicial Accountability Act creates a scalpel, and targets the tumor with precision. If the problem is not a widespread one, you won’t see a state-wide lynching of judges. Good judges — those who faithfully follow the law to the best of their ability in every case — will have nothing to fear. None of the potential problems associated with Amendment 40 would materialize, but our judges would be put on notice that judicial misconduct would come with a price.

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2. Admittedly a bit long, but it probably has to be.

   Rationales for Judicial Immunity Debunked:

   In his oft-quoted dissent in Pierson v. Ray, Justice Douglas listed policy reasons given for the practice of excluding judges from suit for acts of misconduct on the bench, which he found to be absurdly irrational.

   1. Preventing threat of suit from influencing decision

   England’s Chief Justice Cockburn disposes of this canard thusly:

   I cannot believe that judges … would fail to discharge their duty faithfully and fearlessly according to their oaths and consciences … from any fear of exposing themselves to actions at law. I am persuaded that the number of such actions would be infinitely small and would be easily disposed of. While, on the other hand, I can easily conceive cases in which judicial opportunity might be so perverted and abused for the purpose of injustice as that, on sound principles, the authors of such wrong ought to be responsible to the
   parties wronged.12

   Our own Justice Potter Stewart adds:

   A judge is not free, like a loose cannon, to inflict indiscriminate damage whenever he announces that he is acting in his judicial capacity. … [I]f intimidation would serve to deter [the] recurrence [of lawless conduct], that would surely be in the public interest.13

   While everyone would prefer that judges discharge their duties in accordance with their oaths and consciences, if intimidation would serve to deter lawless judicial conduct, then it is most certainly in the public interest.

   2. Protecting judges from liability for honest mistakes

   The “willful misconduct” standard is placed in the Amendment specifically for the purpose of protecting conscientious judges from liability for “honest mistakes.” Coupled with the aggrieved litigant’s right to appeal and the requirement that a compensable injury be suffered as a condition precedent to relief, it is virtually inconceivable that a reasonably competent judge could ever be exposed to personal liability for an honest mistake.

   3. Relieving judges of the time and expense of defending suits

   Restrictions “upon authority for securing personal liberty, as well as fairness in trial to deprive it, are always inconvenient — to the authority so restricted.” In re Oliver, 333 U.S. 257, 280-81 (1948) (Rutledge, J.,concurring). If Colorado judges are committing acts of willful misconduct on such a pandemic basis that this is a serious objection, it is the strongest conceivable argument for passing this amendment. Rather, it is expected that judges will take care to avoid getting into situations where they would be exposed to litigation, under the same logic that imposes liability on doctors, lawyers, and certified public accountants who act negligently.

   4. Removing an impediment to responsible men entering the judiciary

   The logic of this argument is absurd: “In order to attract responsible men as judges, we have to let them be as irresponsible as they want to be.” James Madison — the father of our Constitution — responds:

   It may be a reflection on human nature that such devices should be necessary to control the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place oblige it to control itself.14

   The basic premise of our Constitution and system of laws is that no one is fit to govern, and after three millenia of recorded human existence, this premise is essentially incorrigible.

   5. Necessity of finality

   This Amendment will not affect the finality of any judgment in any court. Rather, it creates a right of action against the judge for willful disregard of the law of the land — which is something that should never happen in a courtroom, in any event.

   6. Appellate review is a satisfactory remedy

   Appellate review simply ain’t what it used to be. Most appeals are not, in any material sense, reviewed by judges. Instead, they are often reviewed by fresh-faced kids in their last year of law school; judges rarely read the briefs the lawyers submit, and in many cases, don’t bother reading the opinions issued under their signatures. As Professor Sarah Ricks recently observed in a law review article, even judges openly admit it, as evidenced by this amusing in-court exchange:

   THE COURT: At a conference of the Third Circuit, the Court of Appeals defended their unpublished opinions on the ground that they’re not well reasoned, they don’t give them much thought. So it’s hard to say that that’s a well-reasoned opinion that has any precedential value.
   MR. WINEBRAKE: Well, we concede—
   THE COURT: It’s instructive on what they’ll do without much thought.15 […]

   9. Separation of powers.

   All power flows ultimately from the people. Whereas we ought to protect the judiciary from incursions upon their prerogative by the legislature and the executive, the power of sovereignty lies exclusively in the people. Our state constitution states: “The people of this state have the sole and exclusive right of governing themselves, as a free, sovereign and independent state; and to alter and abolish their constitution and form of government whenever they may deem it necessary to their safety and happiness, provided, such change be not repugnant to the constitution of the United States.” Colo. Const. art. II, § 2. If we have the power to abolish the state constitution, we certainly have the power to amend it to right a manifest wrong.

   As you requested, there are no personal attacks or personal experiences embedded in the text.  Constructive comments are welcomed.  Are there potential problems I may not be seeing, and what do you think they are?

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   1. I’m glad you took the “bait” and this was one of your best posts.  I like how you presented both sides, and the length was understandable.

      I’m still waiting for Kay though…..

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3. Here’s my deal:  I’m still at the stage of trying to accurately identify the problems and I’m nowhere near to offering a solution.  I find problems and I report those problems as I see them.  I accept criticism and I invite others, like Cuervo, Oh-Wilike, my own attorneys, my attorney friends, judges I know (most, but not all, from other states) and friends to inform me and, sometiems, to disabuse me of my false notions.

   That said, Oh-Wilike posted some thoughtful suggestions in a post called, “What’s better,” over on another forum.

   Meanwhile, I’m reading a book by David Luban entitled Lawyers and Justice, which has a variety of suggestions, some based on the German legal system.

   Frankly, Haners, there’s so much debate on what system or implementations might be better, that I just don’t know enough to touch them.  What I do know is that judges and attorneys are not complying with the rules, standards and ethics of the system that we already have and, which I believe is why it’s not working as intended.  Let’s address that problem before we start proposing a replacement system.

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   1. I appreciate the frankness.  I hope my thread didn’t come across as “what system would be better” as much as “what needs to be done to make it better”.  I think overall our system is great, but there are problems, especially with judges. 

      Also, I like that your response gave me a better sense as to what you’re trying to do.  Now it seems that you’re letting people know what you learned in your research and not just complaining.  That’s an important distinction that might set you apart from…say…Kay.

      If you ever have some ideas as to how to make it better, I would be very interested in hearing them

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4. There can be no judicial accountability without meaningful oversight. There can be no meaningful oversight without the involvement of the citizenry.  Self-governance means no governance as corrupt individuals decide their own fate. The Judicial Accountability Act of 2008 poses no threat to honest, lawful, judges but threatens unlawful judges with oversight, accountability, and consequences for their actions.  Who among the citizenry would oppose such a concept? 

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   1. Every judge would be harmed by the so-called JAA because they would be subject to frivolous lawsuits filed by all manner of losing litigants.  As Kay demonstrates, even one nutcase can do a lot of damage.

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      1. Better that an innocent judge suffer through the brief indignation of a frivolous lawsuit, which I’m certain could be summarily dismissed, than a corrupt judge be allowed to continue with impunity.

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         1. …but at least you’ve now admitted that the proposed law could affect ALL judges, not merely the “corrupt” ones.

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      2. First and foremost, the threshold for liability in tort is high, as in most cases, you would have to show that a judge knowingly defied binding precedent.  Second, you would have to show damages, which means that if the legal system works as it is designed, virtually every problem occurring at the trial court level would be corrected on appeal.  Third, this system would give judges an incentive to take care to do their jobs properly, just as the specter of malpractice liability forces architects, beauticians, and chiropractors to do their jobs in a competent manner.

         But even if a stubborn litigant files a truly frivolous suit, the inconvenience to the judges as targeted would be minimal at worst.  What happens in a typical lawsuit?  The parties are served, and they refer the suit to their attorneys — which in this case would be the Tort Division of the Colorado Attorney General’s office.  The AG would file a Rule 12(b)(5) motion, which in the fact situation you suggest would be granted, and that would be the end of the suit.  Even if the matter is appealed, everything goes through the AG; the judge’s involvement would be minimal at best.

         If you wanted to, you could amend Rule 4 to eliminate the judges’ involvement altogether — by declaring that in this class of suit, service by mail to the AG’s office meets the requirements of personal service.  The only cost here is the cost of a defense, which is generally mitigated in cases of manifestly frivolous lawsuits by rules already in place (e.g., Rule 11).

         In short, your objection is in itself frivolous.

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