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The Quest for a Fair Judiciary Predates Mankind

ONE MAN’S OPINION-As animal psychologists note, animals have a concept of fairness and become upset when the rules are broken.

These observations are not meant to anthropomorphize dogs, cats, chimpanzees, etc. But to deny the similarity of our psycho-social developments would be akin to pretending that humans were the first species to have legs. While we can see the physical attributes of animal evolution, mental and behavioral evolution is harder to discern. Nonetheless, the desire for fairness arises concomitant with any species’ recognition of rules.  

Ironically, any social institution with the power to enforce its rules has set upon the path of abuse because power tends to corrupt. Thus, all societies need to constantly monitor and hold its judiciary accountable. It’s part of being social beings. 

Shelly Hart has been addressing the abusive California court system in her LA Recalls movement and in articles in CityWatch.  Inherent in her observation that lawyers are too afraid to address the topic [as] they need to protect their careers” is the judicial blacklisting of attorneys. 

Shakespeare recognized the need to neutralize attorneys in order to take over the realm when Dick the Butcher said, "The first thing we do, let's kill all the lawyers." (Henry VI, Part 2, Act IV, Scene 2.) Shakespeare’s point was not that lawyers are bad, but that villains need to destroy the rule of law and the first step is to get rid of attorneys whose job it is to fight for the rule of law. The blacklisting of attorneys by judges is a primary tool to subvert the rule of law. 

Judges blacklist attorneys and attorneys know it; otherwise, lawyers would publicly speak out about the vast corruption in the judicial system. There are about 480 superior court judges. Angering one or two judges should have no impact on an attorney’s career. But blacklisting involves a widespread agreement among the judges. 

The Role of Judicial Immunity in Corrupting the Courts 

Because power tends to corrupt, the extra power that absolute judicial immunity confers tends to increase judicial corruption. The term “absolute immunity,” however, is misleading because immunity is limited to the judicial function. A lot of things which judges do are outside the scope of their judicial function. 

But Let’s Look at Judges’ Administrative Functions 

What about judges in their administrative capacity who create a hostile work environment for court staff so that clerks, bailiffs, and court reporters are too fearful to report behind-the-scenes wrongdoing? People overlook the fact that even absolute judicial immunity is limited to the judges’ actual judicial function. Immunity does not attach to his person. When a judge steps off the bench and goes into chambers to telephone a senior partner at a mega law firm to decide how to sabotage a case, that is not part of the judicial function. 

Judicial Immunity Does Not Extend to Administrative Functions 

Judges can be liable for creating a hostile work environment for court staff. Likewise, they should be held accountable for creating a hostile work environment for attorneys who appear in court. Should gay attorneys have to endure mocking? Should Jewish attorneys have to put up with disparagement of their religion and ethnicity? Should Black attorneys have to decline to take on a client when the attorney knows that a racist judge will preside? 

Let’s set aside the foolishness that judicial behavior requires absolute immunity so that the judges may do their jobs. How is racism, religious bigotry and sexism inherent in the judicial function? Why must judges have immunity to trample on the Constitution? The weak link in the armor of judicial immunity is that the rulings from the bench are often based on behind-the-scenes machinations which lack immunity. Similarly, there is no immunity for failure to report bribery income to the I.R.S. Yep. The same way they got Al Capone can be applied to the corrupt judiciary. 

Where Is the Dividing Line Between Judicial and Administrative? 

The judicial-administrative distinction gives us a quadrant of possibilities: #1) administrative and proper, #2) administrative but improper, #3) judicial and proper #4) judicial but improper. Only #2 loses absolute judicial immunity. Cameron v. Seitz, 38 F.3d 264 (6th Cir. 1994) 

The analysis applies to all federal and state judges. Number #2 (administrative but improper) plays a role in the blacklisting attorneys which has frightened thousands of attorneys into silence. How can fostering a hostile work environment for attorneys by judges’ fashioning a behind the scenes blacklist not be outside the judicial function? It should be outside any legitimate administrative function. Hope v. Pelzer, 536 U.S. 730 (2002) 

Ex Parte Communications with Opposing Counsel 

Can a judge’s ex parte discussion with an insurance defense attorney where they discuss how they will sabotage a case be part of the judicial function? Immunity ends the moment the judge steps off the bench. Judges’ secret coordination with other judges or with large law firms falls outside immunity. 

While rulings from the bench fall under judicial immunity, these other confabs lack judicial immunity.  Heretofore, the FBI has not investigated systemic judicial misconduct presumably on the assumption that no matter how egregious the behavior, the judge is immune. But that is a misreading the Supreme Court rulings. As stated, immunity attaches to the judicial function and not the person him/herself. 

Is There Not a Role for the FBI to Investigate Such Non-Immune Behavior? 

There are thousands of potential witnesses working in courthouses across the state, but apparently no one has realized that they are witnesses to crimes which fall outside the scope of judicial immunity. Even secretaries in major law firms know about the illegal contacts between judges and senior partners. 

Here’s a Quirky Situation 

Presiding judges and justice create hostile work environments for other judges and justices who want to uphold the Constitution. The investigation into the hostile work environment which miscreant judges and justices create need not be limited to clerical level employees and attorneys. What if an investigation reveals that the way presiding judges and justices administer their systems intimidates the judges and justices who have less power into acquiescing to criminal behavior such as money laundering? Are judges who receive the alleged “no pay mortgages” exercising their judicial function when they receive these unseen benefits? 

Where There’s a Will, There’s Way

Judicial immunity may not be the ironclad protector of miscreant judges as we’ve been led to believe.   The corrupt judicial system appears vulnerable on its flanks. Of course, there is the logistical problem: Before which court should we haul an entire court system? On the other hand, Shelly Hart reminds us that the U.S. Constitution begins with “We the People” and not with “They the 1%.”

 

(Richard Lee Abrams is a Los Angeles attorney and a CityWatch contributor. He can be reached at: Rickleeabrams@Gmail.com. Abrams views are his own and do not necessarily reflect the views of CityWatch) Photo: Shutterstock  Edited for CityWatch by Linda Abrams.