# stupid judge **URL:** \ **Category:** Great Debates\ **Created:** [November 18, 1999, 8:01pm UTC](https://boards.straightdope.com/t/stupid-judge/17006 "1999-11-18T20:01:00Z")\ **Posts on this page:** 7\ **Page:** 3
**Author:** ![cgrayce](https://avatars.discourse-cdn.com/v4/letter/c/c5a1d2/32.png) [@cgrayce](https://boards.straightdope.com/u/cgrayce)\ **Post date:** [December 7, 1999, 5:37am UTC](https://boards.straightdope.com/t/stupid-judge/17006/41 "1999-12-07T05:37:00Z")
\ Well, jodih, I thank you for your response, but I can’t find much of use in it. You begin by asserting that ordinary executive decisions are so different from judicial decisions that folks are generally far more pissed off – to the point of foolish action – by the latter. Now, it would’ve seemed to ignorant li’l me that any important decision involving humans, from who gets a raise to who gets the liver transplant, implies that choice among competing interests which you make a judge’s special province. But whether I grant your logic or no, I don’t see empirical evidence for your conclusion. When I open the morning paper I read about people pissed off at big corporations, the WTO, Congress (score one for you), gangs or their ex-spouses. Not judges. Perhaps the broad current of outrage against judicial decisions you perceive is being suppressed? Does judicial immunity function like some kind of vaccine, preventing even its formation? I think your remaining thrust is the assertion that, given this rage, the elimination of judicial immunity would result in pandemonium. Well, maybe. But I cite medicine as an example where pandemonium has hardly resulted from the lack of immunity with respect to decisions that, if I may be so bold, are typically more life-and-death than what a judge hands down in small-claims Court. This entire thread is about serious harm to an innocent woman (abortion not being a crime), arguably made possible by judicial arrogance and unaccountability. Perhaps you have some events to support your position? Some otherwise civilized place where judicial immunity has been compromised and lawlessness broke out? Sure, it’s logical that anger begets angry actions, actions that could bring the legal system to its knees. It’s logical all right, but, alas, far more is logical than true. I can construct an argument based on pure logic and slightly different assumptions that gives the opposite conclusion. Perhaps we should rely less on logic and more on empirical evidence? I believe you mistook my point about the actual need for judicial immunity. I didn’t assert no one would _file_ a lawsuit against a judge, I asserted that hardly anyone would _win_ one. Do you disagree? And, yes, I agree it’s a pain in the ass to run the risk of suit even when you are almost certain to win. Some workers deal with that all the time. But the lawyers who sue us say that this is necessary for accountability. Well, I’m game. But it’s kinda’ fishy that the shoe only fits on one foot. Your general logic was used, without alteration of a syllable, to argue in the 18th century for a hereditary absolute monarchy. I mean, gee, how can a country get good laws if the legislature and executive are worried about being run out of town on a rail, so to speak, in the next election? That’s where Jefferson comes in: he rejected that philosophy in a coupla’ famous documents, and held, strangely enough, that ordinary folks would do just fine if sovereign power was put in their hands. His notions were as radical in his day as the notion of removing the ancient tradition of judicial immunity is for today. The argument of the (un)affordability of judicial accountability is fully representative of a system in which justice is _for sale_. Blech. Surely we’d save even more money by dispensing with ``Gideon,’’ or even the expensive notion of a defense attorney and jury trial altogether. . . Would I raise the cost of the legal system by introducing malpractice insurance for judges, and slow it down with the resulting ``defensive’’ judging? You bet. In a heartbeat. I’ve been to Court and seen how it works, and I’m appalled. Indeed, the general contempt afforded litigants and defendants in the sacred Courtroom would seem to match your response well, in which us reg’lar folks are seen as barbarians at the gate, capable of unbalanced and foolish acts of revenge if given even half a chance. You’re absolutely right about the distinction between lawyers and judges. I hope having confessed my mistake and learned some respect I will be allowed back to the debate. I’ve said my piece and more, and will irritate bystanding ears no longer. \ ---
**Author:** ![system](https://global.discourse-cdn.com/straightdope/original/2X/e/e489c3b7d8fce19c4b355dd4fc3f88cc39c34b87.png) [@system](https://boards.straightdope.com/u/system)\ **Post date:** [December 7, 1999, 11:02pm UTC](https://boards.straightdope.com/t/stupid-judge/17006/42 "1999-12-07T23:02:00Z")
RYSDAD asks – What does the loony judge do (if the woman has the abortion), have her charged with a probation violation or contempt of court or something? [/quote] Yep, the judge could, because the woman would have been violating the conditions of her conditional release. > [@](#): > > And if the girl is so charged, do you think she could get some sort of a stay or continuance while the “appropriateness” (if not the legality) of the original sentence is appealed? (I know–she originally agreed to the probation and stipulation and shouldn’t therefore be able to appeal it.) You’ve put your finger on the problem; if a defendant agrees to abide by the conditions of probation, then he or she generally forfeits the right to complain about those conditions. The argument here, however, would be that the defendant was foreclosed the ability to complain because she knew doing so would result in jail-time and prevent her from having the abortion – at least, that’s the argument I would have made as her attorney. The way a person tries to get out of jail held illegally (or subject to illegal conditions) is by filing an emergency writ of habeas corpus with the court superior to the one throwing the person in jail. I don’t know why that wasn’t done in this case. > [@](#): > > Wouldn’t a higher court review it and scrap the original sentence? Eventually, yes, but the problem with _this_ case is that by the time the higher court did so, it was too late for the woman to have the abortion. > [@](#): > > I hope you understand what I’m getting at. The original options would have required the girl to agree to forfeit a right to something totally unrelated to the crime she was charged with. Sort of like sentencing litterbug to not drink alcohol for a year. The two aren’t related any more than having an abortion is related to credit card fraud. Correct, correct, a thousand times, correct. > [@](#): > > In other words, could the girl thumb her nose at the judge, get the abortion anyway, and have a higher judicial authority say, in effect, “Yep, the judge overstepped her bounds. Here’s you Get Out Of Jail Free card.”? Yes, but I hope you appreciate what a gamble that would be. I mean, I’d take that gamble in _this_ case, under the argument that the only way to preserve the right to be infringed upon (ie, the right to have a legal abortion) was to place myself in contempt of court – and that _is_ contempt of court. In 99 out of 100 cases, however, that would not be a good idea. CGRAYCE says – > [@](#): > > You begin by asserting that ordinary executive decisions are so different from judicial decisions that folks are generally far more pissed off – to the point of foolish action – by the latter. What I said was, the day-to-day function of a judge involves making rulings on irreconcilable competing interests to an extent not found in any other profession that I can think of. > [@](#): > > But whether I grant your logic or no, I don’t see empirical evidence for your conclusion. When I open the morning paper I read about people pissed off at big corporations, the WTO, Congress (score one for you), gangs or their ex-spouses. Not judges. That’s because judges have immunity. Get it? You argue that immunity laws are not necessary based upon the dearth of litigation against judges – the very result obtained by the laws you perport to argue against. > [@](#): > > Perhaps the broad current of outrage against judicial decisions you perceive is being suppressed? Does judicial immunity function like some kind of vaccine, preventing even its formation? The formation of outrage, or the formation of suits against judges? It obviously prevents the latter; it probably does little to prevent the former. > [@](#): > > I think your remaining thrust is the assertion that, given this rage, the elimination of judicial immunity would result in pandemonium. Did I say that? What I said was that judicial immunity ensures the even-handed and unbiased dispensation of justice because judges are not swayed by people who will or may sue them, and it assists in the obtainment of good judges, as only a fool would act as a judge knowing that he or she could be sued for the proper execution of his or her professional duties. > [@](#): > > But I cite medicine as an example where pandemonium has hardly resulted from the lack of immunity with respect to decisions that, if I may be so bold, are typically more life-and-death than what a judge hands down in small-claims Court. You’ll have to be a little more specific here. What life and death decisions are you referring to? Who gets a donor heart? I’ve got news for you – you generally can’t sue over that decision, either. > [@](#): > > This entire thread is about serious harm to an innocent woman (abortion not being a crime), arguably made possible by judicial arrogance and unaccountability. I agree. Your last post, however, had little to do with the thread, but was instead simply an attack upon judicial immunity, which you characterized as “horseshit.” > [@](#): > > Perhaps you have some events to support your position? Some otherwise civilized place where judicial immunity has been compromised and lawlessness broke out? _My_ argument is that immunity laws should remain in effect because they are efficacious for the reasons given. _Your_ argument is that they are “horseshit.” I suggest you find some authority for _your_ position, since I have already set forth the authority for mine. And, since you apparently missed it, my personal professional experience is that judges get sued all the time, even with immunity laws in place. The expense and inconvenience of allowing such cases to go forward – not to mention their chilling effect on the exercise of judicial discretion – should be self-evident. > [@](#): > > Sure, it’s logical that anger begets angry actions, actions that could bring the legal system to its knees. It’s logical all right, but, alas, far more is logical than true. Says you. I know it’s true because I deal with it every day. Can you say the same? > [@](#): > > I can construct an argument based on pure logic and slightly different assumptions that gives the opposite conclusion. Perhaps we should rely less on logic and more on empirical evidence? The empirical evidence for my position is sitting in piles on my desk. Where is the empirical evidence for yours? > [@](#): > > I believe you mistook my point about the actual need for judicial immunity. I didn’t assert no one would _file_ a lawsuit against a judge, I asserted that hardly anyone would _win_ one. Do you disagree? No. The inconvenience, stress, and expense of a lawsuit, however, is produced by the entire process, not merely by the result. [quote] And, yes, I agree it’s a pain in the ass to run the risk of suit even when you are almost certain to win. Some workers deal with that all the time. But the lawyers who sue us say that this is necessary for accountability. Well, I’m game. But ---
**Author:** ![system](https://global.discourse-cdn.com/straightdope/original/2X/e/e489c3b7d8fce19c4b355dd4fc3f88cc39c34b87.png) [@system](https://boards.straightdope.com/u/system)\ **Post date:** [December 8, 1999, 3:29am UTC](https://boards.straightdope.com/t/stupid-judge/17006/43 "1999-12-08T03:29:00Z")
Go Jodi! -Melin ---
**Author:** ![Rysdad](https://avatars.discourse-cdn.com/v4/letter/r/7cd45c/32.png) [@Rysdad](https://boards.straightdope.com/u/Rysdad)\ **Post date:** [December 8, 1999, 3:51am UTC](https://boards.straightdope.com/t/stupid-judge/17006/44 "1999-12-08T03:51:00Z")
Ok, is there a frinstance where a sitting judge has actually been sued for malfeasance (sp?) or abuse of discretion or whatever you call it _and lost?_ I mean, has a judge actually done something, while actually acting as a judge, so far beyond the pale that judicial immunity didn’t cover the action? I’m trying to relate this to something like the Rodney King cops that were tried in civil court. They were supposedly acting under the color of authority, and found not guilty of the criminal charges, but Mr. King won the civil suit. Has anything like that happened to a judge? ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [December 8, 1999, 4:02pm UTC](https://boards.straightdope.com/t/stupid-judge/17006/45 "1999-12-08T16:02:00Z")
Nice post, Jodi. Although I feel uncomfortable with giving _anybody_ immunity, you’ve nailed the essential point: while some people may be in jobs that _occasionally_ put them in a position where being on the receiving end of a lawsuit is a possibility, that would be the case with judges _every single day_, absent the protection of immunity. Besides judges (and others who routinely make decisions on behalf of the government), hardly anyone else would have that level of exposure. Immunity is the only way to deal with it. We may have a screwy judicial system - the sheer cost of defending oneself against even a bad lawsuit, which both you and cgrayce have referred to, is a flaw that can and routinely has made the judicial system a weapon of the powerful against the powerless - but that’s a whole 'nother topic; stripping judges of immunity wouldn’t fix that in the least. * * * “Living in this complex world of the future is not unlike having bees live inside your head.” - Firesign Theatre ---
**Author:** ![Jodi](https://avatars.discourse-cdn.com/v4/letter/j/7feea3/32.png) [@Jodi](https://boards.straightdope.com/u/Jodi)\ **Post date:** [December 8, 1999, 4:34pm UTC](https://boards.straightdope.com/t/stupid-judge/17006/46 "1999-12-08T16:34:00Z")
RYSDAD – Judicial immunity only extends to actions that are truly judicial – and judges do many things, both personally and professionally, that do not involve the exercise of _judicial_ discretion. In such cases, immunity does not shield them. The best U.S. Supreme Court case on the issue of the parameters of judicial immunity is probably Forrester v. White\*, 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988). In it the Supreme Court reiterated the need for judicial immunity: > [@](#): > > The purposes served by judicial immunity from liability in damages have been variously described. (This Court has)emphasized that the nature of the adjudicative function requires a judge frequently to disappoint some of the most intense and ungovernable desires that people can have. . . . If judges were personally liable for erroneous decisions, the resulting avalanche of suits, most of them frivolous but vexatious, would provide powerful incentives for judges to avoid rendering decisions likely to provoke such suits. The resulting timidity would be hard to detect or control, and it would manifestly detract from independent and impartial adjudication. Nor are suits against judges the only available means through which litigants can protect themselves from the consequences of > judicial error. Most judicial mistakes or wrongs are open to correction through ordinary mechanisms of review, which are largely free of the harmful side-effects inevitably associated with exposing judges to personal liability. The Court went on to reiterate the generally accepted parameters for the extension of immunity: > [@](#): > > This Court has never undertaken to articulate a precise and general definition of the class of acts entitled to immunity. The decided cases, however, suggest an intelligible distinction between judicial acts and the administrative, legislative, or executive functions that judges may on occasion be assigned by law to perform. Forrester, 484 U.S. at 226-227, 108 S.Ct. at 544. To give you some “for examples,” the setting of court policy and the choosing of juries are administrative functions; the promulgation of rules of conduct for lawyers is a legislative function; and the hiring and firing of court personnel is an administrative function. A judge would not enjoy immunity for any of these. In fact, the most common type of suit currently pressed against judges is one alleging discrimination in employment or in jury empanelling – judges have no immunity from such suits. And, of course, there is no judicial immunity for any action undertaken by a judge in his or her personal capacity. In other words, the test for immunity is not the person to whom it might attach (the judge) but the nature of the functions undertaken. If they are judicial, then the judge has judicial immunity. In the case we’ve been discussing, it seems pretty clear the judge was actually judging – performing a judicial function – and for that reason I would imagine she would enjoy judicial immunity – no matter how stupid and indefensible the exercise of her judicial discretion. Hope that answers your question. * * * Jodi _Fiat Justitia_ ---
**Author:** ![Rysdad](https://avatars.discourse-cdn.com/v4/letter/r/7cd45c/32.png) [@Rysdad](https://boards.straightdope.com/u/Rysdad)\ **Post date:** [December 8, 1999, 5:11pm UTC](https://boards.straightdope.com/t/stupid-judge/17006/47 "1999-12-08T17:11:00Z")
Why not limited immunity? If the judge’s decisions are based on sound legal principles, then there’s no risk (judicial immunity applies). But if the judge acts on caprice and whim, or outside the law, then they deserve to be sued. (A voice says: Who determines what’s sound and what’s capricious! Some sort of executive judicial review board with both appointed and elected members. We’ll work that out later as soon as the judicial immunity law is modified. Likelihood: .00001%) I see it like this…the judge in the OP offers the girl the two choices: jail or probation w/no-abortion codicil. Girl choses probation and has the abortion anyway. My proposal of limited judicial immunity would’ve prevented the judge from “violating” the girl’s probation…unless the judge was prepared to be sued (and probably lose) based on the prima facie evidence that the probation stipulation was capricious and not in fact based in law but rather on personal prejudices. Some judges are elected. If they aren’t reelected, they go away. But while they’re sitting behind the bench, they’re able to have tremendous impact on the community…part of which springs from their own biases and prejudices. I would rather have judicial opinions rendered based on logic and precedent instead of opinions based on the judge’s views of my religious beliefs/physical appearance/political affiliation/etc. Judges that impress their personal belief system on defendants (like in the OP) are exceeding their authority, IMHO, and _should_ be subject to criminal or civil libaility of some sort. Further, some appointed judges are able to remain on the bench, far into their dotage, even though they’ve lost the capability to make good, well-reasoned logical/ethical/moral/legal decisions. (A voice yells: Who? Cite one! - Well, I can’t. I don’t remember the names, but I’ve seen them in court rooms and I’ve read their rambling decisions.) Maybe a good lawsuit would wake them up or get them to step down. Blanket judicial immunity just goes too far for my liking, but what can I do about it? It’s not too likely that I could persuade my legislators to introduce a bill to limit judicial immunity. After all, _they_ might be appearing in front of Judge Maxtime some day, and they wouldn’t want to to be known as the “representative that sued the judges as won.” But the next time we’re setting up a government, let’s take a closer look at this thing and not paint with such a wide brush, OK? [Previous page](https://boards.straightdope.com/t/stupid-judge/17006.md?page=2)