19431Re: [tips_and_tricks] Re: Current § 1983 RE : Suing State Judges
- Jun 1, 2013
If a judge acts in an manner that is unlawful in his official capacity, then he has absolute immunity (it's ridiculous). If the jurisdiction of the court is not invoked, or the judge only has one type of jurisdiction (say probate) but the judge acts as a judge with criminal jurisdiction, then the judge has no absolute immunity.
"(a) A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority, but, rather, he will be subject to liability only when he has acted in the "clear absence of all jurisdiction," Bradley v. Fisher, 13 Wall. 335, 80 U. S. 351. Pp. 435 U. S. 355-357."
"2. Judges of courts of record of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly. A distinction as to their liability made between acts done by them in excess of their jurisdiction and acts done by them in the clear absence of all jurisdiction over the subject matter."
In the present case we have looked into the authorities and are clear, from them, as well as from the principle on which any exemption is maintained, that the qualifying words used were not necessary to a correct statement of the law, and that judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly. A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject matter. Where there is clearly no jurisdiction over
the subject matter any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible. But 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, although upon the correctness of his determination in these particulars the validity of his judgments may depend. Thus, if a probate court, invested only with authority over wills and the settlement of estates of deceased persons, should proceed to try parties for public 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. But if on the other hand a judge of a criminal court, invested with general criminal jurisdiction over offenses committed within a certain district, should hold a particular act to be a public offense, which is not by the law made an offense, and proceed to the arrest and trial of a party charged with such act, or should sentence a party convicted to a greater punishment than that authorized by the law upon its proper construction, no personal liability to civil action for such acts would attach to the judge, although those acts would be in excess of his jurisdiction, or of the jurisdiction of the court held by him, for these are particulars for his judicial consideration, whenever his general jurisdiction over the subject matter is invoked. Indeed some of the most difficult and embarrassing questions which a judicial officer is called upon to consider and determine relate to his jurisdiction, or that of the court held by him, or the manner in which the jurisdiction shall be exercised. And the same principle of exemption from liability which obtains for errors committed in the ordinary prosecution of a suit where there is jurisdiction of both subject and person, applies in cases of this kind, and for the same reasons.
The distinction here made between acts done in excess
of jurisdiction and acts where no jurisdiction whatever over the subject matter exists, was taken by the Court of King's Bench, in Ackerley v. Parkinson. [Footnote 13]"
There is related material in this common law of England text. but for the life
of me I can't seem to find the passages I remember reading before.
One may have to do case name searches that are related to the topic
and cited in cases like Bradley.
One of the case law dissenting opinions that I read seemed the most
honest and reasonable and in it the judge said that absolute immunity
SHOULD NOT cover any judges who are engaged in criminal actions or
coverups. Make note that this was the dissenting opinion and that the
majority decided to extend absolute immunity even to criminal behavior
just as long as the judge had JURISDICTION.
My research on this topic is what led me to make the post a while back
about getting around their absolute immunity. I'll remind everyone who
may have missed it. While dealing with a lower court judge who is
acting outside of their jurisdiction, or perhaps even criminally, one
has the option of writing a petition of writ for mandate and/or prohibition.
I did that. Now I can't sue the appellate division judges who refused
to issue either writ because I gave them jurisdiction via the petition.
Instead of petitioning, one might consider sending a NOTICE to the
appellate division (or what ever division is immediately above the division you're in)
judges, giving notice to the higher level judges of the unlawful actions of the lower
court judge and officials. At that point, the ball is in their court
with out you having given them jurisdiction, via petition, to "hear" any thing on the
matter, and if they fail to intervene you can sue them via 42 USC 1986 for
neglect to prevent wrongs conspired to be done.
It seems like an entirely reasonable solution to help force them to
do what's right or pay the consequences.
--- On Sat, 6/1/13, CarlS <Carl@...> wrote:
From: CarlS <Carl@...>
Subject: [tips_and_tricks] Re: Current § 1983 RE: Suing State Judges
Date: Saturday, June 1, 2013, 9:57 AMMy thoughts exactly. If a judge acts in a manner that is unlawful in his official capacity, he then forfeits judicial immunity and becomes liable for damages as a citizen or individual acting under color of law, correct?
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