If this topic was on before,forgive me and ignore it,but. Just reading a recap of a local judge’s stupid decision,which happened awhile ago. The one where she purposely sent a woman to jail when she would’ve otherwise gotten probation just so she couldn’t get an abortion! Correct me if I’m wrong,but isn’t this dereliction of duty here? The sad thing is,most of my fellow chrisitnas agreed with this! They think it’s great! As long as it agrees with their agenda,guess its okay.Any christians here feel the same way I do? I know you others do.
Maybe … but I don’t know of any “chrisitnas” that feel the same way. 
oops!I wuz taken over by the spirit of heather 
Well, I agree with OC. IF that was the judge’s only reason for jail, he/she should be subject to whatever review/censure program the Ohio judiciary uses.
(Do keep in mind that there may be other aspects to the case that weren’t as newsworthy as the anti-abortion statement.)
OC has been reading the Free Times.
Here are the specifics of the case:
The defendant was not a resident of Ohio. She was arrested here on a credit-card fraud charge. IIRC, the crime was less than $1,000. Such a charge for a first-time offender nearly always results in probation.
Judge Patricia Cleary, noting the defendant was pregnant and discovering she intended to have an abortion, offered her a deal: Probation if she promised to carry the baby to term and give it up for adoption. Otherwise she was going to jail.
Defendant’s lawyer immediately interjected, saying they refused to even entertain such a line of bargaining. Cleary, on the spot, fired the defendant’s lawyer and appointed another who was standing in the courtroom. She told the defendant from the bench, “There is no way you are having a second term abortion.” (Such abortions are legal in Ohio.) She made it clear she would do whatever necessary to prevent the defendant from having an abortion.
Defendant sued Cleary for violation of her civil rights. By the time all the legal back-and-forth was over, defendant was well into her third trimester and could not get an abortion in Ohio.
Cleary remarked to a local Christian group that, while issuing her “decision,” she prayed. “God, just this one baby, just once.” Easy for her to pray if she doesn’t have to raise it, I suppose. It should also be noted that while she has been on the bench (since 1989), she has had four decisions overturned by the appeals courts for “abuse of discretion.”
“Come on, Phonics Monkey–drum!”
Based on Phil’s post, I’d have to say this is certainly an egregious abuse of power on the judge’s part. If I ever find myself a defendant in court, I’d really prefer my judge were impartial.
-andros-
Can this judge be sued for violating the defendants civil rights? I hope so.
At the very least she should be removed from the bench.
I consider myself pro-life, but please don’t put me on the side of this nutball. Who the fuck does she think she is? People who try to force their morals on someone else should be flogged.
I’m mean can the judge be sued and forced to pay damages in a civil trial?
I mean can the judge be sued and forced to pay damages in a civil trial?
Okay, this is seriously whacked, but I’ll just try to clarify a couple of things.
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“Abuse of discretion” is a legal term of art for the standard of review some appellate courts still use when reviewing lower court cases – that is, the appellate court reviews the case for an abuse of (judicial) discretion and, if it finds one, overturns the decision. Any error by the trial court – factual or legal, intentional or not – may therefore be characterized as an “abuse of discretion” if it forms the basis for the appellate court’s reversal. It doesn’t necessarily mean the judge has been abusing his or her position – though I think it’s pretty clear she did in this case. In general, however, finding “abuse of discretion” just means “we determine the district court was wrong.” (N.B.: Many states, including mine, have rejected the old “abuse of discretion” standard of review as too fuzzy and have moved to a dual standard of review – findings of fact are overturned if clearly erroneous; conclusions of law are overturned if legally incorrect.)
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Judges in almost every state (including I would assume Ohio though I don’t know for sure) are protected by judicial immunity. The theory is that a judge must be able to exercise his or her discretion without fear of suit or retaliation. In my state, judicial immunity is in all cases an absolute defense – show that the judge was acting in the course and scope of his or her duties, and you are barred from recovering anything from him or her. I deal with this a lot, defending judges who are sued by people who don’t like the out-come of their cases. Because of the judicial immunity provisions in our statutes, I file a motion and have the suits tossed out.
The best way to deal with a judge run amok (as this one arguably has) is to refer their actions to the Commission on Practice for the state or, if the judge is elected and people are outraged enough, organize a recall election. In other words, the best remedy is to get her off the bench.
Anyone who would abuse a position of such authority in order to further a personal agenda entirely unrelated to their legal duties has no business being a judge.
Insofar as judicial immunity is concerned, it’s a very strong shield. The U.S. Supreme Court has said:
Stump v. Sparkman (1978) 435 U.S. 349, 361, 98 S.Ct. 1099, 1107. In Stumpthe judge had approved a petition from the mother of a “retarded” 15 year old girl, that the girl be sterilized. Some years later the girl and her husband sued everyone involved in the sterilization procedure.
So long as the judge has been given the power to make the decision – and clearly this judge was – then she is immune from liability for the acts taken. The law vested in this judge the power to sentence the defendant to either probation or jail time. We may be apalled at the reasons as to why the judge chose one over the other of these options, but she clearly had the power to do so, for any reason, or for no reason. Only when the acts of a judge are taken outside of the judicial capacity (for example, here in California a judge is being sued for having told a reporter that a case that he had just had settled in his courtroom was essentially a fraud brought by a dishonest or incompetent attorney and/or litigant) is there the possibility of civil liability. As jodih notes, you gotta either complain to the state agency which has the power to discipline judges or, where judges are elected, vote 'em out of office. But you can’t sue 'em.
And ultimately, really, if you stop to think about it, you prefer it that way. Being a judge is a thankless job, and pays much less than being even a senior associate in a law firm of any size. The rule is there for the same philosophical reason that the rule exists regarding the firing of federal judges, or adjustment of their salaries: public policy wants judges to be as free from outside intimidation as possible in making their decisions. That means free from the fear of being fired because politicos don’t like their decisions, and free from being sued because litigants don’t like their decisions. There would be hundreds of thousands of cases filed against judges if the rule were otherwise.
-Melin
(Bias disclosure: I sometimes sit as a temporary judge in Los Angeles, and as a mediator for the state Court of Appeal)
::sighing:: Proofreading is such a fun thing.
I garbled my discussion of the Stump case, but essentially the Supreme Court held that the judge who approved the sterilization of the 15 year old girl was immune from liability, because he had acted as a judicial officer and with the authority of law to make the decision which he made. In this case the Supreme Court also discusses the reasons behind judicial immunity, which are as I stated above.
Sorry for the confusion.
-Melin
There was a case in California a few months ago in which a judge got in some sort of trouble for exercising too much discretion - Melin, you remember that surely? What exactly was that all about?
ruadh, help me out! Give me at least a little more info and I’ll see what I can find. Any facts, dates, places, anything at all?
-Melin
I didn’t follow the story too closely. I think it was an appeals court judge. From what I gather, the judge (I’ll be sexist and say “he” though I don’t even remember the gender) was accused of violating precedent and issuing whatever his own opinion dictated. His supporters said he was being persecuted for political reasons. That’s all I can remember. It was within the past year.
In the Stump case didn’t the judge have a precedent for that decision? IIRC, the Carrie Bell case went to the Supreme Court in the 20’s or 30’s and Oliver Wendell Holmes wrote the majority decision stating that since she was probably going to have retarded children, sterilization was OK.
I could be very wrong about this. What I don’t know about law could fill a law library…
Who cares if the judge has immunity? What she did was wrong! Chalk it up to my libertarian values if you want, but that’s taking discretion way too damn far.
Ruadh, now I know what you are referring to. The judge involved is a justice on the Court of Appeal, Justice Kline. He issued a dissent in a case involving a stipulated reversal. The stipulated reversal procedure is a controversial one, and there are many who are critical of it for a variety of reasons. Sometime within the last few years the California Supreme Court okayed it, making it the law in California.
Justice Kline is one of those who think that the procedure is wrong. There is no good way for it to be reviewed, since by definition the parties to the case agree on the outcome, thus the stipulation, and so no way to get it back up to the High Court hoping to get it overturned. Such a case came before the Court of Appeal, on a panel in which Justice Kline was sitting, and the majority of the Court, in accordance with Supreme Court precedent, accepted the stipulated reversal. Justice Kline refused, writing a dissent which criticized the procedure.
The Commission on Judicial Performance instituted an investigation, which itself became highly controversial. In the end, after changes in the Commission, the matter was dropped. Justice Kline faced potential discipline up to and including being removed from office.
Justice Kline is an intelligent and thoughtful person, not a “rogue” judge. His dissent did not prevent the law from being applied in the case at hand, and many defended his actions as being only the latest in a long line of dissenting opinions which, sometimes decades later, become law.
-Melin
Just read an article in a mag about this group,a splinter group of operation rescue,that is a summer camp for teenage anti-abortion protestors.I believe its in California. They go to schools,and cause a ruckus,giving out literature and showing photos of fetuses.They get arrested and all. Some think they are just being used as propaganda,as they’re pretty young to know about raising children.etc. They almost think its a good thing if a clinic is bombed,because it prevents murders(!) oh,its in Teen People(read it for the fashion tips ).
Actually this argument on the ``benefits’’ of judicial immunity to the general public is the purest horseshit. It’s done simply because it can be, because the folks who wrote the laws are lawyers and judges and are in the enviable position of being able to give themselves powers the rest of us lack. The exact same argument can be applied to anyone making important decisions for lots of folks, from air-traffic controllers to pilots of supertankers to school superintendents to the CEO of General Motors approving a new fuel-tank design for the Pinto. But, of course, it isn’t. Those folks are expected to take (sometimes personal) responsibility for their decisions, whether made in the line of their jobs or not. Lawyers, judges and Congressmen are not.
Besides, the premise is unbelievable. I mean, why WOULD a judge need protection from a suit? After all, how likely is it that defendant A, unhappy with the outcome of his trial, is going to prevail in a suit against someone who sits on the bench and knows the whole system inside and out? If the suit is worthless, as is implied in the premise, then it will fail promptly. The judge only seriously needs immunity if, as in this case, a panel of good citizens would be very likely to conclude that the suit is meritorious and judge fucked up.
Nor need we be afraid of judges being harassed by frivolous suits. In civil law the loser of a frivolous suit can be ordered to pay the legal expenses of the defendant. We consider that protection enough for General Motors, it ought to be enough for Judge Judy. Are we worried about penniless, frivolous suit-bringers? Well, leaving aside the question of how they paid someone to file the suit in the first place, we can just have the State pay the cost for the judge’s malpractice insurance as a standard fringe benefit, and that will take care of that ``problem.’’
The real issue here is that judges and lawyers DON’T think the protection offered to ordinary citizens against legal harassment are good enough for them because, of course, they don’t consider themselves in the same category as ordinary citizens.
Where’s Thomas Jefferson when you need him? Sheesh.