I mean, think of this: you get hurt in a car accident, you go to the ER. Assuming things are grave, the doc on call is required to treat you, no less than the judge is required to judge you when you turn up in his Court. But if you don’t like the result in the ER, you can sue the doc. Sure, you might not win, but you get your day in Court, and the doc takes a chance every time he makes a medical decision. Lawyers think this is a precious American bulwark against medical incompetence.
What about judicial incompetence? Oh dear, that’s TOTALLY different. Sure is. 'Cause laws are written by lawyers.
One thing in Phil’s description of the case caught my eye:
Jodi or Melin (if either of you are still following this), under what circumstances is a judge allowed to remove the defendant’s lawyer?
Absent a total breach of courtroom ethics by the lawyer, it would seem to me that that in itself would be far outside the judge’s authority or discretion (in which case the judge might be personally liable). But law is not my field, so I’m hoping that one of our J.D.'s will enlighten us on this point.
Well, Libertarian, I don’t really want to get involved in a debate over the morality of abortion or the possible rights of zygotes and creatures with no brain activity; but I do want to note that abortion is still legal in this country, and that sentencing someone on a credit card fraud charge to have a child they intend to abort is probably not provided for in the Ohio Revised Code. It’s nothing short of thuggery–using one’s power as a judge to accomplish a political goal unrelated to the legal charge at hand. Something which it would appear, at face value, you would be opposed to; that is, using force to prevent someone from engaging in a perfectly legal activity.
"I prefer shows of the genre, “World’s Blankiest Blank.”
Waoh, thar, young feller. Debristle just a bit, please.
I wasn’t even talking about abortion; I was talking about responsibility. You said it would be easy for the judge to want the baby to live if she did not have to raise it. I merely wanted to make the point (assuming she wasn’t raped) that that is a matter the mother herself ought to have considered. In other words, if she is having the abortion just because raising a baby is hard to do (and believe me, it is), then she could have saved her own body a lot of trauma had she been more responsible from the get-go.
Okay?
“It is lucky for rulers that men do not think.” — Adolf Hitler
I’m staying out of the abortion debate – been there and done that. I will simply note that while Phil is no doubt exactly correct that the Ohio Revised Statutes do not provide for the use of force to prevent someone from having an abortion, I’m willing to bet that they DO give the judge the power to impose a jail term for this offense, as well as offer the option of immediate probation. The judge was “stupid” in voicing the reason for her sentencing, of course – if she had merely imposed the jail term without stating why it was done we wouldn’t be having this discussion.
As for firing the lawyer, I imagine it was a court-appointed attorney. Clearly the judge could not fire a privately retained attorney under these circumstances, and actually I wonder where she gets the authority to fire a court-appointed one, too, over the defendant’s objections (which I’m assuming were made, or at least existed). There are all kinds of right-to-counsel and due process arguments here, based just on this. At a minimum, the court should, after firing the one attorney, have ordered a continuance to allow time for new counsel to be appointed.
Immunity does not extend simply to judges, it also extends to all branches of government – “sovereign immunity.” There are exceptions, of course, but generally the sovereign must consent to being sued before it can be. And I’m sorry, but I totally agree with the idea of judicial immunity, even though there are times when I have wished it were otherwise. It does still happen, there are indeed times when judges can be sued, at least in some states, but in nearly every case I have seen it has been either a pro per plaintiff (who are usually obsessed by this time, and who can’t find a lawyer to take their case), or somebody with malevolent intent.
Do you have any idea how much it costs to defend a suit like that? There was an article in the local legal paper I read just the other day, where the proceedings involving Justice Kline, which I discussed in an earlier post, cost him $30,000 in attorney’s fees. For reasons of ethics a sitting judge cannot accept free representation by an attorney, and for the same reason s/he cannot accept contributions towards a defense fund from the general public or attorneys. What happened in this case was that another judge took up a collection strictly amongst currently sitting and retired judges, and raised the entire amount that way. And I have to tell you that $30,000 was cheap – we’re not talking about a trial, discovery, etc. Professional malpractice cases are generally expensive to defend.
Any idea what malpractice insurance would cost? That’s a cost the taxpayers would have to pick up, and I’ll bet it would be astounding. Go check out what the rates are for professionals in highly-sued fields – ask an obstetrician or a plastic surgeon, they get sued all the time. And how often do doctors now order tests and procedures strictly as a CYA measure – do we want judges to be doing that, and slow down the system of justice even more than it already is?
And as for Thomas Jefferson – well, I don’t know what his personal views were, offhand, but I note that the U.S. Constitution contains a provision that federal judges can’t be fired, or have their salary reduced. The reasoning behind that was similar to the reasoning behind judicial immunity: we’d rather have judges doing their best to judge a case on its merits, rather than worrying about getting sued by a disgruntled loser, or being fired by an unhappy politico.
Melin - Thanks for answering my question about the judge firing the lawyer.
Is there a point at which public servants move out of the protection of soveriegn immmunity, if their actions clearly exceed the authority of their office?
I don’t know if that would apply here (although I would hope so, between the combination of the judge essentially extorting the defendant into giving up her legal right to an abortion, and arbitrarily dismissing her lawyer in order to do so); I’m just asking about the principle itself.
The bodies that pass laws are legislatures. Don’t like lawyers making laws? Don’t elect them to be your state or federal representative or senator.
Again, horseshit. None of these people are required to listen to arguments presented by parties with diametrically opposed and irreconcilable positions and then decide who is right, almost inevitably pissing off the one determined to be wrong.
Get back to me when you’ve grasped the difference between a lawyer and a judge. Lawyers, who do not generally make rulings between parties, are fully responsible for their professional actions. That’s why most responsible lawyers carry legal malpractice insurance, just as doctors carry medical malpractice insurance.
You will just have to trust me on this, because I am, in all modesty the voice of experience on this issue. It happens all the time. Peope who are unaware of the rules of judicial immunity are only too happy to sue judges who decided against them. Then you, as a taxpayer, have to pay me, as a government lawyer, to go to court and have the suits thrown out. And that’s with the immunity laws in place.
Ha. I can’t decide if you have too little faith in the judicial system or too much.
Judicial immunity prevents the judge from having to deal with a suit at all; it doesn’t merely protect him or her from a possible negative result. Granting immunity to judges assures impartiality, in that judges do not have to worry about a part suing them if the party doesn’t like a ruling, and allows us to have better judges, because only a fool would become a judge with the constant threat of suit hanging over their head.
Many people who are thrilled to file suit against anything or anyone who moves, and would be delighted to sue judges, have no resources to pay costs even if assessed. Prisoner-litigation would be Exhibit A on this point.
General Motors doesn’t have to decide between two competing interests and almost inevitably piss one of them off.
The only thing that has to be paid to file something is a (usually nominal) filing fee. No one has to pay anyone else to file something for them; you can go down and file any piece of crap you want, all on your own. It may be thrown out later, but you can file it. Malpractice insurance usually only covers malpractice – hence the name. What would you do with all the people who would assert that the judge was merely “wrong” and sue him for damages? Reaching a decision not favorable to a particular party is not malpractice, and malpractice insurance would not cover it.
This is such utter bullshit as to hardly merit a response. You seem to be very fond of making gross generalizations with very few facts to back them up.
Far be it for me to disagree with MELIN, but there’s a difference between sovereign immunity (immunity of the State) and judicial immunity (immunity of the judiciary. The public policy rationales for extending each are not the same. Moreover, while states (and the federal government) do have the right to sovereign immunity, most states (and the federal government) have waived that right by statute, at least so far as tort claims are concerned. Judicial immunity preserves the integrity of the judiciary and, as you may have gathered, I think it’s a good idea and a necessary protection.
RTFIREFLY asks:
Yes, and again, I’d like to limit the discussion to judges. Immunity for all public servants is a more complicated issue – some have it, some do not, based on the nature of the jobs that they do. Judicial immunity is an absolute defense, however, and will be extended to all judges acting within the course and scope of their judicial duties. A judge that goes out and hits someone with a car, for example, is not immune from suit, because that has nothing to do with being a judge. For example, a California case dealt with a judge who decided that none of the employees in the clerk of court’s office could speak Spanish while on the job – regardless of whom they were speaking to, or whether they were on break. Some of the clerks sued and the court held that the judge could be sued, because his dictate was not within the course and scope of his judicial duties. (I will gladly take correction if I have the details of this case wrong; I don’t have it in front of me.)
In the case we’ve been talking about here, however, it appears clear that the judge was acting within her judicial authority (ie, as a judge) in sentencing the woman. We may all be able to agree that she abused her discretion in so doing, but she would, in all likelihood, still enjoy judicial immunity for her actions.
Jodi - the judge was within her authority in the fact of sentencing the woman. But surely there are things a judge can sentence a defendant to, and things they can’t - and the latter would constitute exceeding the authority of the office. For instance, suppose I was convicted of assault and battery. If the judge sentenced me to be hung by my thumbs and horsewhipped, I’d consider that to be an abuse of office. Or if the judge was willing to cut me a deal on my sentence if I publicly renounced my faith in Christ, ditto. (I’d consider them to be other things as well, but that’s irrelevant.)
She may have been within her authority to sentence the defendant to jail, but what about her offering to give probation in exchange for promising to carry the beby to term? Was that within her authority?
I absolutely defer to jodih on her discussion of judicial immunity, because that’s her field of expertise. I do understand the difference between that and sovereign immunity, and was generalizing where I shouldn’t have, no doubt.
RTFirefly, the sentences you present as hypotheticals would not be lawful, as I am sure they are not within the choices which the Ohio Revised Statutes provide to a judge who must sentence a criminal defendant. Probation is a lawful choice, and so is a jail term.
I am troubled by this case, no question, and by the hypothetical raised by RoboDude. Certainly there are remedies: likely an appellate court would intervene – earlier we discussed abuse of discretion, and if the statute leaves to the judge the discretion to sentence to jail or probation, and the judge abused her discretion in making a decision, the appellate court will reverse and remand with instructions on doing it right. Also each state has a Commission on Judicial Performance or its equivalent, whose function is to investigate and discipline, or recommend for discipline, erring judges. I’ve seen judges be removed from the bench – and lose their pension rights – for misconduct. Federal judges must be impeached.
Thanks, Melin. One of the reasons I chose those examples was that they both involved Constitutional rights - of freedom of religion, in one example, and from cruel and unusual punishment, in the other. Since the right to an abortion has been interpreted as a Constitutional right, that sort of thing seemed like the appropriate standard of comparison.
It seems that we don’t have a judge who’s a reg on this board - that’s a shame, because that would be a person who could contribute a lot in many different areas.
I have sat as a temporary judge in Los Angeles, presiding over small claims cases (value up to $5,000). I also act as a mediator for cases in the Second District Court of Appeal, State of California. I do these things pro bono, as public service (meaning I do not get paid).
It’s an awesome thing to be a judge, and to have the power to decide something affecting somebody’s life, even so “trivial” things as come into Small Claims. Parties there must represent themselves; they cannot have a lawyer, and they are usually very passionate in their search for justice. It’s very difficult to decide, sometimes.
This temporary judge program saves Los Angeles millions of dollars a year, and results in more speedy access to the courts for thousands of people. And I absolutely guarantee that I would not do it if I had to be afraid of getting sued by somebody who didn’t like my decision. Even assuming that the City would pick up the tab to defend me, the stress of litigation is more than just the money – though I don’t downplay that aspect at all. There’d be discovery involved, and the need to report the litigation everytime I applied for credit, or for malpractice insurance of my own as an attorney, negative publicity, damage to my professional repuation, etc. Nope nope nope, wouldn’t do it. Wouldn’t be worth it.
And, while I realize that judges get paid much more than the average working person, in comparison to those in the legal profession they are underpaid. There’s already some difficulty in getting good people for the judiciary, since the good ones can usually be making significantly more in private practice, and by significant I mean at a minimum twice as much money and not-unlikely, for a talented person, six or seven times as much. People do it for the prestige, no doubt, but prestige isn’t worth a couple of hundred thousand dollars a year for most people. And people really do do it from a sense of obligation to public service. It’s already a thankless job, let’s not burden it any further.
I found Jodi and Melin’s posts most informative. A couple of comments:
> In New York, any “fulltime” judge must be a lawyer. Justices of the Peace for villages and towns are elective part-time positions and usually not lawyers. In North Carolina, it appears that all judges (as opposed to magistrates who merely arraign) are lawyers. Do you have experience with non-lawyer judges? What is your view of their judicial capacity?
> Supposing you (as a lawyer) have a case before a judge who appears to be acting contrary to proper judicial behavior. How do you act to protest this error? I’m aware you will perfect an appeal, but what steps might you take to prevent the necessity for one?
> My experience in counseling people (including kids in trouble) leads me to understand that there is a very wide range of discretion in imposing conditions for probation and what in New York is called a conditional discharge. The name appears to vary in other states, but the concept is, “Your guilty plea to this minor offense is accepted. Now go away, keep out of trouble for a year, and do the following - e.g., make restitution - within X reasonable time.” This is not strictly a suspended sentence; it is a sentence in itself, and violation of it is a separate charge.
POLYCARP – In Montana, as in New York, Justices of the Peace do not need to be lawyers (and often are not), regardless of whether they are full- or part-time judges. All district court judges, water court judges, and supreme court justices must be lawyers, however. Sorry I didn’t make that distinction.
The judge makes the rules in his or her courtroom, so if you think that he or she is doing something wrong, all you can do is object to it – sometimes vehemently. Once you are on the record, you have preserved your right to appeal the judge’s ruling, but that ruling stands until reviewed on appeal.
In California you can also make a complaint to the Commission on Judicial Performance. This is not going to do you any good in the particular case you are working on, but it will possible help down the road with either getting the judge removed, or at least admonished about what is and is not acceptable behavior.
Let’s say the girl agreed to the probation with the no-abortion stipulation. Then she has the abortion anyway.
What does the loony judge do, have her charged with a probation violation or contempt of court or something? 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.) Wouldn’t a higher court review it and scrap the original sentence?
It seems to me that, if the original sentence was arbitrary, capricious, or just downright foolhardy, then failure to adhere to a ridiculous probation requirement would be nullified by a higher court.
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.
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.”?
