If a person subjected to this unconstitutional practice files suit against the judge, the judge will not be given judicial immunity and, upon losing the case, will be forced to pay the p
Trang 1Should Judges Have Absolute
or Qualified Immunity?
The U.S Supreme Court has made
clear that when judges perform
judicial acts within their jurisdiction, they
are absolutely immune from money
damages lawsuits When judges act
out-side their judicial function, such as in
supervising their employees, they do not
have absolute immunity The Court’s
upholding of absolute immunity has
troubled some legal commentators, who
believe that in appropriate circumstances
judges should be held personally
account-able for judicial actions that are unlawful
Defenders of absolute immunity
claim that it is required for the benefit
of the public, not for the protection of
MALICIOUS or corrupt judges The
legiti-macy of U.S courts rests on the public’s
belief that judges have the freedom to act
independently, without fear of the
con-sequences Absolute immunity provides
the buffer needed for a judge to act
In the adversarial process, one party
wins, and the other party loses Losing
parties are inevitably disappointed, and
some seek ways of venting their
frustra-tion at the legal system Some file
complaints with lawyer discipline boards,
alleging ethical misconduct by the
oppos-ing party’s attorney or their own attorney
Some file complaints with a judicial
conduct board, claiming that the trial
judge violated a canon of judicial conduct
Though these types of complaints do not
result in the relitigation of a lawsuit, they
do illustrate theVEXATIOUS LITIGATION that
faces attorneys and judges Allowing
parties to sue a judge for a judicial act
would invite a torrent of meritless suits
that would impede the judicial system
Defenders of absolute immunity note
that a flood of litigation would not be the
only consequence of relaxing the immunity
standard They say that once judges became
liable for damages suits, self-interest would
lead them to avoid making decisions likely
to provoke such suits The resulting
over-cautiousness and timidity might be hard
to detect, but it would impair independent
and impartial adjudication
Judges do make honest mistakes during the course of trial The law is complex, and judges cannot call a recess
of court to research every motion before making a decision If a judge could be sued for damages, another judge might have to rule that theDEFENDANTjudge was liable for injuries due to an erroneous decision or procedural flaw Having judges judge one another could erode the integrity of the courts and undermine public confidence
Defenders of absolute immunity also point out that appellate review is a viable remedy for correcting judicial conduct
In addition, if a judge has violated the canons of judicial conduct, judicial conduct boards may issue sanctions, including a recommendation of removal from the bench A judge can be prose-cuted for criminal acts In some states judges may be impeached, and most state court judges must stand for election periodically All these options serve as checks on judicial behavior and provide protection to the public
Those who criticize absolute immu-nity recognize that judicial independence must be preserved Nevertheless, they claim that in certain situations the only way to protect the public is to allow personal lawsuits against judges By totally insulating judges from personal responsibility for their actions, the judi-cial system allows a small number of judges to escape the consequences of unlawful and outrageous behavior The public loses respect when it sees a judge
“beat the system,” while the victim loses the chance to be made whole for the injuries flowing from the judicial act
These critics believe that a qualified immunity standard would protect judges from meritless lawsuits and guarantee victims of unlawful judicial conduct their opportunity to seek damages Qualified immunity is a lesser form of immunity that may be granted by a court if the judge demonstrates that the law was not clear on the subject in which the judge’s
actions occurred They point out that the executive branch is governed by qualified immunity There is no indication that the administration of government has ground to a halt, or that the executive branch cannot attract high-quality indi-viduals to government service A well-articulated qualified immunity standard would allow a lawsuit against a judge to
be dismissed if it could be established that the judge was operating within accepted judicial authority
The critics note that the alternative remedies offered by the defenders of absolute immunity do not address the type of conduct that would be the focus
of a PERSONAL INJURY lawsuit against a judge For example, in Stump v Spark-man, 435 U.S 349, 98 S Ct 1099, 55 L
Ed 2d 331 (1978), the judge issued an order to sterilize a teenage girl without the order’s ever having been filed with the clerk of court Because there was no record of a case filing or decision, the order could not be reviewed by an appellate court The judge could be sanctioned by the judicial conduct board, but that would not compensate the victim of the illegal sterilization Absolute immunity allowed the court to dismiss the girl’s claim because the “judicial act” was one normally performed by a judge and was within the judge’s judicial capacity
Supporters of qualified immunity discount the assumption that it would precipitate a flood of litigation They maintain that decisions that judges typi-cally make will seldom be litigated, as appellate review will satisfy most litigants However, in the rare circumstances where a judge abuses her authority and someone is injured, these supporters contend, it is only fair to qualify a judge’s personal immunity They argue that the removal of absolute immunity would, over time, deter judicial abuse: Judges would not be intimidated, but they would
be more careful to safeguard the rights of all parties
68 JUDICIAL IMMUNITY
Trang 2result of the order At trial, Bradley attempted to
introduce evidence in his favor, but Fisher’s
attorney objected to each item, and the judge
excluded each item After three failed attempts
to present evidence, the trial court directed the
jury to deliver a verdict in favor of Fisher
On appeal by Bradley, the U.S Supreme
Court affirmed the trial court’s decision Judges
could be reached for theirMALICIOUSacts, but only
through IMPEACHMENT, or removal from office
Thus, the facts of the case were irrelevant Even if
Fisher had exceeded his jurisdiction in
single-handedly banning Bradley from the court, Fisher
was justified in his actions According to the
Court,“A judge who should pass over in silence
an offence of such gravity would soon find
himself a subject of pity rather than respect.”
Since Bradley, the U.S Supreme Court has
identified some exceptions to judicial immunity
Judges do not receive immunity for their
administrative decisions, such as in hiring and
firing court employees (Forrester v White, 484
U.S 219, 108 S Ct 538, 98 L Ed 2d 555[1988])
Judges also are not immune from declaratory and injunctive relief These forms of relief differ from monetary relief Generally they require parties to do or refrain from doing a certain thing If a judge loses a suit for DECLARATORY JUDGMENTor injunctive relief, he or she may not
be forced to pay money damages, but may be forced to pay the court costs and attorneys’ fees
of the winning party For example, assume that a judge requires the posting of bail by persons charged in criminal court with offenses for which they cannot be jailed If a person subjected to this unconstitutional practice files suit against the judge, the judge will not be given judicial immunity and, upon losing the case, will be forced to pay the plaintiff’s attorney’s fees and court costs (Pulliam v Allen, 466 U.S 522, 104
S Ct 1970, 80 L Ed 2d 565[1984])
The Court held in Pulliam that a judge could be forced to pay the plaintiff’s attorney’s fees and court costs under the 1976CIVIL RIGHTS
Stump v Sparkman
T
B
he U.S Supreme Court has consistently upheld
absolute immunity for judges performing
judi-cial acts, even when those acts violate clearly
established judicial procedures In Stump v
Sparkman, 435 U.S 349, 98 S Ct 1099, 55 L Ed 2d
331 (1978), the Court held that an Indiana state
judge, who ordered the sterilization of a female
minor without observing due process, could not be
sued for damages under the federal civil rights
statute (42 U.S.C.A § 1983)
In 1971 Judge Harold D Sparkman, of the Circuit
Court of DeKalb County, Indiana, acted on a petition
filed by Ora McFarlin, the mother of 15-year-old
Linda Spitler McFarlin sought to have her daughter
sterilized on the ground she was a “somewhat
retarded” minor who had been staying out overnight
with older men
Judge Sparkman approved and signed the
petition, but the petition had not been filed with
the court clerk and the judge had not opened a
formal case file The judge failed to appoint a
guardian ad litem for Spitler, and he did not hold
a hearing on the matter before authorizing a tubal ligation Spitler, who did not know what the operation was for, discovered she had been sterilized only after she was married Spitler, whose married name was Stump, then sued Sparkman
The Supreme Court ruled that Sparkman was absolutely immune because what he did was “a function normally performed by a judge,” and he performed the act in his “judicial capacity.”
Although he may have violated state laws and procedures, he performed judicial functions that have historically been absolutely immune to civil lawsuits
In a dissenting opinion, Justice Potter Stewart argued that Sparkman’s actions were not absolutely immune simply because he sat in a courtroom, wore
a robe, and signed an unlawful order In Stewart’s view the conduct of a judge “surely does not become a judicial act merely on his say so A judge
is not free, like a loose cannon, to inflict indiscrimi-nate damage whenever he announces that he is acting in his judicial capacity.”
JUDICIAL IMMUNITY 69
Trang 3Attorney’s Fees Awards Act, 42 U.S.C.A § 1988.
Gladys Pulliam, a Virginia state court magis-trate, had jailed two men for failure to post bail following their arrest for abusive language and public drunkenness Under Virginia law, the defendants could not receive a jail sentence if convicted of these offenses The plaintiffs sued under the federal civil rights act 42 U.S.C.A
§ 1983 and obtained an injunction forbidding the judge to require bail for these offenses The judge was also ordered to pay the defendants
$8,000 as reimbursement for their attorneys’ fees
Judges throughout the United States viewed the Pulliam decision as a serious ASSAULT on judicial immunity The Conference of State Chief Justices, the JUDICIAL CONFERENCE OF THE UNITED STATES, the AMERICAN BAR ASSOCIATION, and the American Judges Association lobbied Congress
to amend the law and overturn Pulliam Finally,
in the Federal Courts Improvement Act of 1996 (Pub L No 104-317, 110 Stat 3847), Congress inserted language that voided the decision The amendment prohibits injunctive relief in a §
1983 action against a“judicial officer for an act
or omission taken in such officer’s judicial capacity” unless “a declaratory decree was violated or declaratory relief was unavailable.”
In addition, language was added to § 1988 that precludes the award of costs and attorney’s fees against judges acting in their official capacity
Filing a civilCOMPLAINTagainst a judge can be risky for attorneys because the doctrine of judicial immunity is well established In Marley v Wright,
137 F.R.D 359 (W.D Okla 1991), attorney Frank
E Marley sued two Oklahoma state court judges, Thornton Wright, Jr., and David M Harbour, theirCOURT REPORTER, and others Marley alleged
in his complaint that Wright and Harbour had violated his constitutional rights in connection with a custody case concerning Marley’s children
The court not only dismissed the case, but also ordered Marley to pay the attorney’s fees that Wright and Harbour had incurred in defending the suit According to the court, Marley’s complaint“was not warranted by existing law,”
and Marley had used the suit“not to define the outer boundaries of judicial immunity but to harass judges and judicial personnel who rendered a decision he did not like.”
FURTHER READINGS Block, Frederic 1999 “Qualified Immunity: A View from the Bench ” Touro Law Review 15 (summer).
Duffy, Shannon P 1999 “Judges Have Absolute Immunity for Actions on the Bench, Circuit Rules ” New Jersey Law Journal 157 (September 27).
Morgan, Thomas D., and Ronald D Rotunda 2008 Morgan and Rotunda’s Professional Responsibility, Problems and Materials 10th ed St Paul, MN: Foundation Romo, Cheryl 2002 “Jurist’s Infamous Case Set Judicial Immunity Precedent ” The Los Angeles Daily Journal
115 (December 30).
JUDICIAL NOTICE
A doctrine of evidence applied by a court that allows the court to recognize and accept the existence of a particular fact commonly known by persons of average intelligence without establishing its existence by admitting evidence in a civil or criminal action
When a court takes judicial notice of a certain fact, it obviates the need for parties to prove the fact in court Ordinarily, facts that relate to a case must be presented to the judge
or jury through testimony or tangible evidence However, if each fact in a case had to be proved through such presentation, the simplest case would take weeks to complete To avoid burdening the judicial system, all legislatures have approved court rules that allow a court to recognize facts that constitute common knowl-edge without requiring proof from the parties
On the federal trial court level, judicial notice is recognized in rule 201 of the FEDERAL RULES OF EVIDENCE for U.S District Courts and Magistrates Rule 201 provides, in part, that“[a] judicially noticed fact must be one not subject
to reasonable dispute in that it is either (1) generally known within the territorial jurisdic-tion of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Under rule 201 a trial court must take judicial notice of a well-known fact at the request
of one of the parties, if the court is provided with information supporting the fact A court also has the option to take judicial notice at its discretion, without a request from a party Rule 201 further provides that a court may take judicial notice at any time during a proceeding If a party objects to the taking of judicial notice, the court must give that party an opportunity to be heard on the issue In a civil jury trial, the court must inform the jury that it must accept the judicially noticed facts in the case as conclusively proved In a criminal trial
by jury, the court must instruct the jury“that it
70 JUDICIAL NOTICE
Trang 4may, but is not required to, accept as conclusive
any fact judicially noticed.” All states have
statutes that are virtually identical to rule 201
The most common judicially noticed facts
include the location of streets, buildings, and
geographic areas; periods of time; business
customs; historical events; and federal, state,
and INTERNATIONAL LAW Legislatures also
main-tain statutes that give courts the power to
recognize certain facts in specific situations For
example, in Idaho any document affixed with
the official seal of the state public utilities
com-mission must be judicially noticed by all courts
(Idaho Code § 61-209[1996]) In Hawaii, when a
commercial vehicle is cited for violating vehicle
equipment regulations, a trial court must take
judicial notice of the driver’s subordinate position
if the driver works for a company that owns
the vehicle (Haw Rev Stat § 291-37[1995])
The danger of judicial notice is that, if
abused, it can deprive the fact finder of the
opportunity to decide a contestable fact in a case
In Walker v Halliburton Services, 654 So 2d 365
(La App 1995), Johnny Walker fell from a tank
truck approximately ten feet to a concrete floor
Walker sought workers’ compensation benefits
for his injuries, and his claim was denied by
the Office of Workers’ Compensation
At the application hearing, the hearing
officer stated that it was her experience that a
soft-tissue injury heals in six weeks She then
took judicial notice of the fact that a soft-tissue
injury heals in six weeks—preventing Walker
from contesting that proposition—and
disal-lowed Walker’s claim On appeal the Louisiana
COURT OF APPEAL, Third Circuit, reversed the
decision and ordered the payment of workers’
compensation benefits According to the court,
it was a clear error of law for the hearing officer
to take judicial notice of such intricate medical
knowledge
JUDICIAL REVIEW
A court’s authority to examine an executive or
legislative act and to invalidate that act if it is
contrary to constitutional principles
The power of courts of law to review the
actions of the executive and legislative branches
is called judicial review Though judicial review
is usually associated with the U.S Supreme
Court, which has ultimate judicial authority, it
is a power possessed by most federal and state
courts of law in the United States The concept
is an American invention Prior to the early 1800s, no country in the world gave its judicial branch such authority
In the United States, the supremacy of national law is established by Article VI, Clause 2,
of the U.S Constitution Called the SUPREMACY CLAUSE, it states that “This Constitution, and the laws of the United States which shall be made in pursuance thereof … shall be the supreme law of the land.” It goes on to say that,
“judges in every state shall be bound thereby.”
This means that state laws may not violate the U.S constitution and that all state courts must uphold the national law State courts uphold the national law through judicial review
Through judicial review, state courts deter-mine whether or not state executive acts or state statutes are valid They base such rulings on the principle that a state law that violates the U.S
constitution is invalid They also decide the constitutionality of state laws under state stitutions If, however, state constitutions con-tradict the U.S Constitution, or any other national statute, the state constitution must yield The highest state court to decide such issues is the state supreme court
While judicial review of state laws is clearly outlined in the supremacy clause, the Framers
of the U.S Constitution did not resolve the question of whether the federal courts should have this power over congressional and execu-tive acts During the early years of the Republic, the Supreme Court upheld congressional acts, which implied the power of judicial review But the key question was whether the Court had the power to strike down an act of Congress
In 1803 the issue was settled in MARBURY V
MADISON, 5 U.S (1 Cranch) 137, 2 L Ed 60, when the Supreme Court, for the first time, ruled an act of Congress unconstitutional In Marbury, Chief Justice JOHN MARSHALL reasoned that since it is the duty of a court in a lawsuit
to declare the law, and since the Constitution is the supreme LAW OF THE LAND, where a rule of statutory law conflicts with a rule of the Constitution, then the law of the Constitution must prevail Marshall asserted that it is
“emphatically the province and duty of the judicial department, to say what the law is.”
Having established the power of judicial review, the Supreme Court applied it only once prior to the Civil War, in 1857, ruling the
JUDICIAL REVIEW 71
Trang 5MISSOURI COMPROMISE OF1820 unconstitutional in
DRED SCOTT V.SANDFORD, 60 U.S (19 How.) 393,
15 L Ed 691 During the same period, the Court invalidated several state laws that came in conflict with the Constitution In M’Culloch v
Maryland, 17 U.S 316, 4 L Ed 579 (1819), the Court invalidated a state’s attempt to tax a branch of the BANK OF THE UNITED STATES In
GIBBONS V.OGDEN, 22 U.S 1, 6 L Ed 23 (1824), the Court struck down a New York law granting
a monopoly to a steamboat company, saying that the state law conflicted with a federal law granting a license to another company
In addition to invalidating state laws, the Marshall Court established the authority to overrule decisions of the highest state courts In Martin v Hunter’s Lessee, 14 U.S 304, 4 L Ed
97 (1816), the Court referred to the supremacy clause to assert that its appellate power extended
to state courts
Following the Civil War, the Supreme Court grew concerned that the recently-passed FOUR-TEENTH AMENDMENT would give the federal government too much power over state govern-ments and individual rights Therefore, it used the power of judicial review to strike down federalCIVIL RIGHTS laws that sought to address racial discrimination in the former Confederate states Beginning in 1890, the Court became embroiled in political controversy when it exercised its power of judicial review to limit government regulation of business In Chicago, Milwaukee, & St Paul Railroad Co v Minne-sota, 134 U.S 418, 10 S Ct 462, 33 L Ed 970 (1890), the Court struck down a state law establishing a commission to set railroad rates
This case was the first of many where the Court applied the doctrine of SUBSTANTIVE DUE PROCESS
to invalidate state and federal legislation that regulated business Substantive due process was
a vague concept that required legislation to be fair, reasonable, and just in its content
Through the early 1900s, the Court came under attack from Populists and Progressives for its desire to insulate capitalism from govern-ment intervention Unmoved by its critics, the Court proceeded to invalidate a federal income tax (Pollock v Farmers’ Loan & Trust Co., 157 U.S 429, 15 S Ct 673, 39 L Ed 759 [1895]), limit the scope of the SHERMAN ANTI-TRUST ACT
(United States v E C Knight Co., 156 U.S 1, 15
S Ct 249, 39 L Ed 325 [1895]), and for-bid states to regulate working hours (LOCHNER V
NEW YORK, 198 U.S 45, 25 S Ct 539, 49 L Ed
937 [1905])
The Supreme Court’s use of substantive due process brought charges of “judicial activism,” which means that in determining whether laws would meet constitutional muster, the Court was accused of acting more as a legislative body than as a judicial body Justice Oliver Wendell Holmes Jr., in his famous dissenting opinion in Lochner, argued for “judicial restraint,” caution-ing the Court that it was usurpcaution-ing the function
of the legislature
Despite Holmes’s warning the Court continued to strike down laws dealing with economic regulation into the 1930s In 1932, the United States, in the midst of the Great Depression, electedFRANKLIN D.ROOSEVELT presi-dent Roosevelt immediately began to imple-ment his NEW DEAL program, which was based
on the federal government’s aggressive regula-tion of the naregula-tional economy The Supreme Court used its power of judicial review to invalidate eight major pieces of New Deal legislation
Roosevelt, angry at the conservative justices for blocking his reforms, proposed legislation that would add new appointees to the Court— appointees that would create a liberal majority This “court-packing” plan aroused bipartisan opposition and ultimately failed But the Court may have gotten Roosevelt’s message, for in
1937, it made an abrupt turnabout: a majority
of the Court abandoned the substantive due process doctrine and voted to uphold the
WAGNER ACT, which guaranteed to industrial workers the right to unionize and bargain collectively (NATIONAL LABOR RELATIONS BOARD V Jones & Laughlin Steel Corp., 301 U.S 1, 57 S
Ct 615, 81 L Ed 893[1937])
With this decision the Court ceased to interpret the Constitution as a barrier to social and economic legislation The Court subse-quently upheld congressional legislation that affected labor relations, agricultural production, and social welfare It also exercised judicial restraint with respect to state laws regulating economic activity
Beginning in the 1950s, the Supreme Court exercised its judicial review power in cases involving civil rights and civil liberties During the tenure of Chief Justice EARL WARREN, from
1953 to 1969, the Court declared federal statutes unconstitutional in whole or in part in 25 cases,
72 JUDICIAL REVIEW
Trang 6most of the decisions involving civil liberties.
The Warren Court’s decision inBROWN V.BOARD
OF EDUCATION, 347 U.S 483, 74 S Ct 686, 98 L
Ed 873 (1954), however, invalidated state laws
that mandated racially segregated public schools
The Supreme Court became increasingly
conservative in the 1970s Yet, in 1973, under
Chief Justice WARREN E BURGER, it invalidated
state laws prohibiting ABORTION in ROE V.WADE,
410 U.S 113, 93 S Ct 705, 35 L Ed 2d 147
Since the elevation of WILLIAM H REHNQUIST to
chief justice in 1986, the Court has continued
its movement to the right, although it has not
retreated from most of the protections it
recognized under Warren in the realm of civil
rights and civil liberties
The exercise of judicial review is subject to
important rules of judicial self-restraint, which
restrict the Supreme Court, and state courts as
well, from extending its power The Supreme
Court will hear only cases or controversies,
actual live disputes between adversary parties
who are asserting valuable legal rights This
means the Court cannot issue advisory opinions
on legislation In addition, a party bringing suit
must have standing (a direct stake in the
outcome) in order to challenge a statute
The most important rule of judicial restraint
is that statutes are presumptively valid, which
means that judges assume legislators did not
intend to violate the Constitution It follows
that the BURDEN OF PROOF is on the party that
raises the issue of unconstitutionality In
addi-tion, if a court can construe a disputed statute in
a manner that allows it to remain intact without
tampering with the meaning of the words or if a
court can decide a case on nonconstitutional
grounds, these courses are to be preferred
Finally, a court will not sit in judgment of the
motives or wisdom of legislators, nor will it hold
a statute invalid merely because it is deemed to
be unwise or undemocratic
FURTHER READINGS
Curtis, Kent 2003 “Judicial Review and Populism.” Wake
Forest Law Review 38 (summer).
Dellinger, Walter, and Christopher H Schroeder 2003.
“The Case for Judicial Review.” Washington Post
(December 6).
Kramer, Larry D 2004 The People Themselves: Popular
Constitutionalism and Judicial Review New York: Oxford
Univ Press.
Lipkin, Robert Justin 2000 Constitutional Revolutions:
Pragmatism and the Role of Judicial Review in American
Constitutionalism Durham, NC: Duke Univ Press.
Prakash, Saikrishna B., and John C Yoo 2003 “The Origins
of Judicial Review ” Univ of Chicago Law Review 70 (summer) Available online at http://papers.ssrn.com/
sol3/papers.cfm?abstract_id=426860; website home page: http://papers.ssrn.com (accessed August 3, 2009).
Seidman, Louis Michael 2001 Our Unsettled Constitution: A New Defense of Constitutionalism and Judicial Review.
New Haven, CT: Yale Univ Press.
CROSS REFERENCES Due Process of Law; Separation of Powers; Supreme Court
of the United States.
JUDICIAL SALE The transfer of title to and possession of a debtor’s property to another in exchange for a price determined in proceedings that are conducted under
a judgment or an order of court by an officer duly appointed and commissioned to do so
A judicial sale is a method plaintiffs use to enforce a judgment When a PLAINTIFF wins a judgment against aDEFENDANTin civil court, and the defendant does not pay the judgment, the plaintiff can force the sale of the defendant’s property until the judgment is satisfied The plaintiff forces the sale by filing in court for an execution on property, which is a seizure of property by the court for the purpose of selling the property
Judicial sales are regulated by state and federal statute In Alabama, for example, the judicial sale process begins when a judgment remains unpaid ninety days after it is placed on the record by the court (Ala Code § 6-9-21 [1995]) The plaintiff must bring an order mandating payment of the judgment and court costs to the county where the defendant’s property is located This order is called a writ
of execution, and it is issued by the trial court
A writ of execution identifies the amount of the judgment, interest, and court costs that the defendant owes the plaintiff
Generally, a writ of execution may be levied against any real property orPERSONAL PROPERTYof the defendant The plaintiff must file the writ of execution with the probate judge in the county where the defendant’s property is located The plaintiff must also give notice of the execution
on the defendant’s property to the defendant
Once the writ is filed, the plaintiff has a LIEN
on the defendant’s property A lien gives the plaintiff a legally recognized ownership interest
in the defendant’s property, equal to the amount
of the judgment
JUDICIAL SALE 73
Trang 7Once the plaintiff has obtained a lien on the defendant’s property, the judicial sale can begin
The process typically must be carried out within
a fixed time period, such as within ninety days after the writ of execution is issued The sheriff’s office in the county where the property is located is responsible for levying, or seizing, the property and for conducting the sale of the property
The sale of real property may take place at the courthouse If the property that the plaintiff seeks is perishable and in danger of waste or decay, the sale may occur at some other time and place
A defendant can avoid a judicial sale after a writ of execution is issued, by paying the judgment, interest, and court costs in full If the defendant appeals the judgment to a higher court, the defendant may postpone the judicial sale by posting a bond to secure the debt during the appeals process If the defendant does not plan to appeal, and the levying officer is about
to seize personal property, the defendant may
be able to keep the property until the day of sale
if the defendant gives the levying officer a bond made payable to the plaintiff for a certain amount, such as twice the amount in the writ of execution
Generally, judicial sales are the last resort for a plaintiff trying to collect on a judgment
A defendant who owns or possesses valuable property is usually able to satisfy a judgment
in civil court by leveraging the property, or using it to borrow money to pay the judgment
JUDICIAL WRITS Orders issued by a judge in the English courts after a lawsuit had begun
AnORIGINAL WRIT, issued out of the Chan-cery, was the proper document for starting a lawsuit in England for hundreds of years, but courts could issue judicial writs during the course of a proceeding or to give effect to their orders after the lawsuit had commenced
Unlike original writs, judicial writs were issued under the private seal of the courts rather than the king’s great seal, and they were sent out in the name of the chief judge of the court hearing the case rather than in the king’s name The capias was one form of a judicial writ
JUDICIARY The judiciary is the branch of government that is endowed with the authority to interpret and apply the law, adjudicate legal disputes, and otherwise administer justice
The U.S judiciary comprises a system of state and federal courts, tribunals, and adminis-trative bodies, as well as the judges and other judicial officials who preside over them Every society in human history has con-fronted the question of how to resolve disputes among its members Many early societies chose
a private system of revenge for dispute resolu-tion As civilization gradually evolved, commu-nities began designating individuals to resolve disputes in accordance with established norms and customs These individuals were usually leaders who were expected to exercise their judgment in an impartial manner
The origins of JUDICIAL ACTION, judicial power, and judicial process may be traced to the first communities that relied on neutral third parties to resolve legal disputes Judicial action is any action taken by a court or other judicial body to interpret, apply, or declare what the law is on a particular issue during a legal proceeding It is also the action taken by a judicial body to settle a legal dispute by issuing
an opinion, order, decree, or judgment Judicial power is the authority of a court to hear a particular lawsuit or legal dispute and take judicial action with regard to it Judicial process
is the procedures by which a court takes judicial action or exercises its judicial power
Ancient Greece, an early society in Western civilization, evolving from about the sixth century to the second century b.c., employed a combination of judicial procedures Greek rulers, known as arkhons, were empowered to hear a variety of disputes, as was the agora, a group of respected elders in the community
A court known as the Areopagus heardMURDER
cases, but direct retaliation by private citizens was still permitted in many civil disputes The judicial powers of these institutions were gradually replaced by the Ekklesia, an assembly
of six thousand jurors that was divided into smaller panels to hear particular cases
Juries played an integral role in the development of the English judicial system As more legal disputes were submitted to juries for resolution, this system became more self-conscious Concerns were expressed that both
74 JUDICIAL WRITS
Trang 8judges and juries were rendering biased
deci-sions based on irrelevant and untrustworthy
evidence Litigants complained that trial
proce-dures were haphazard, arbitrary, and unfair
Losing parties sought effective remedies to
redress erroneous decisions made at the trial
court level Each of these concerns has
mani-fested itself in the modern judicial system of the
United States
The blueprints for the U.S judiciary were
laid out in 1789 During that year the U.S
Constitution was formally adopted by the states
Article III of the Constitution delineates the
general structure of the federal judicial system,
including the powers and obligations of federal
courts The JUDICIARY ACT OF 1789 (1 Stat 73
[codified as amended in 28 U.S.C.A.]) explains
many details of federal judicial power that were
not addressed by the Constitution The
blue-prints for the state judicial systems were created
similarly by state constitutional and statutory
provisions
The U.S judicial system has three principal
characteristics: It is part of a federalist system of
government, it has a specific role under the
federal separation-of-powers doctrine, and it is
organized in a hierarchical fashion
Federalism
The judiciary is part of a federalist system in
which the state and federal governments share
authority over legal matters arising within their geographic boundaries In some instances, both state and federal courts have the power to hear
a legal dispute that arises from a single set of circumstances For example, four Los Angeles police officers who were accused of participat-ing in the 1991 beatparticipat-ing of speedparticipat-ing motorist
RODNEY G KING faced prosecution for excessive use of force in both state and federal court
In other instances, a state or federal court has exclusive jurisdiction over a particular legal matter For example, state courts typically have exclusive jurisdiction over matrimonial law, and federal courts have exclusive jurisdiction over
BANKRUPTCYlaw
Separation of Powers
Under the separation-of-powers doctrine, the judiciary shares power with the executive and legislative branches of government at both the state and federal levels The judiciary is
delegat-ed the duty of interpreting and applying the laws that are passed by the legislature and enforced by the executive branch
Article I of the U.S Constitution grants Congress its lawmaking power, and Article II authorizes the president to sign and veto legis-lation and to execute laws that are enacted
Article III grants the federal judiciary the power
to adjudicate lawsuits that arise under the Constitution, congressional law, and treaties with foreign countries
Hierarchy of U.S Appellate Judiciary
Supreme Court
Courts of Appeal
(11 numbered circuits
plus District of
Columbia Circuit)
Court of Appeals for the Federal Circuit
Court of Appeals for the Armed Forces
Ninety-four U.S.
District Courts Tax Court
Court of International Trade Claims Court
Court of Veterans Appeals
Army, Navy-Marine Corps, Coast Guard, and Air Force Courts
of Criminal Appeals
ILLUSTRATION BY GGS CREATIVE RESOURCES REPRODUCED BY PERMISSION OF GALE,
A PART OF CENGAGE LEARNING.
JUDICIARY 75
Trang 9The Politicizing of American
Jurisprudence
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n old saying goes, “A judge is a lawyer who
knew a governor (or senator or president).”
The inference is unavoidable: Judges are political
creatures From many of the nation’s law professors
to leading members of its foremost bar association,
some legal experts think this assertion is regrettably
all too true
Only federal judges and a handful of state
judges are appointed for life, barring impeachment
In all other states and in local governments, most
judges are elected by popular vote for a specific
term Voters tend to elect persons who share their
views The same is true for most gubernatorial
appointments, although in many states this tendency
is tempered by senatorial confirmation Inescapably,
the development of platforms that represent the most
popular, prevailing, or promising views is a political
process
In the words of John Adams’s Massachusetts
constitution, it has always been the desire to make
judges “as free, impartial and independent as the
lot of humanity will admit.” In a political system in
which party politics are defined by social issues and
in which jurisprudence affects those issues
How-ever, party alignment of judges seems inevitable,
either by default or by declaration The extent is
arguable, but few would deny that judges assume
the bench based on how others perceive they will
run the court: conservatively or liberally
Ostensible checks and balances exist, of
course All judges are expected to follow ethical
standards requiring disinterested and unbiased
opinions, which most do Most states have a code
of judicial conduct and/or ethics for this purpose,
generally fashioned from that of the American Bar
Association (ABA) These codes proscribe many
instances of campaign conduct for prospective and
current judges Judges cannot personally solicit or
accept campaign funds and often are prohibited
from identifying themselves with any political party
Typically, they must run on a non-partisan ticket
But nothing prevents political action committees
(PACs) from making campaign contributions to
judges Some scoff at the imposition of limits “If
PACs are limited, people go out and create more
PACs,” explained Dick Wilcox, president of the Business and Industry Political Education Commit-tee in Mississippi “If wealthy individuals are restricted, they give money to their secretaries, wives, or children to contribute.” Contributions add up: Michigan spent $16 million on judicial elections
in 2000 alone In Georgia in 2002, races for two Supreme Court seats garnered more than $700,000
Electing judges, however, is unnecessary As an alternative, some point to the pioneering Missouri system Under this system, a governor appoints all state trial and appellate judges with the advice and consent of the legislature Still another variation seeks
to further depoliticize such choices by requiring a governor to select among nominees submitted by a selection panel or special nominating committee
Support for reform is growing The American Bar Association (ABA) has called for a sweeping overhaul of the current state system In 2003 the ABA Commission on the 21st Century Judiciary warned that partisanship over the courts was escalating to crisis levels Among 23 recommenda-tions, the commission called for limiting judges to service of either one long term or until a specific age, without eligibility for retention or reelection Such limits are needed to “inoculate America’s courts against the toxic effects of money, partisanship and narrow interests,” the commission declared
Advocates of reform say it may cure other ills and weaknesses, too Reform might eliminate so-called negative campaigning, which may create perceptions among voters that justices are“bought”
by special interests Moreover, judges may lose independence out of fear that certain opinions will
be used against them in negative campaign ads
Another blemish that might be cured is that of real or perceived lawyer lobbying For years, attorneys—particularly plaintiffs’ lawyers—have outspent the largest oil and automotive companies
in judicial campaign contributions The ABA has spoken out sharply against attorneys contributing to campaigns of judges before whom they do frequent business or from whom they wish to gain court-appointed business Yet just like other campaign contributors, attorneys are exercising their speech
76 JUDICIARY
Trang 10Federal judges, including Supreme Court
justices, are not elected to office Instead, they
are appointed to office by the PRESIDENT OF THE
UNITED STATESwith theADVICE AND CONSENTof the
Senate Once appointed, federal judges hold
office for life, unless they resign or are
impea-ched for“Treason, Bribery, or other High Crimes
and Misdemeanors” (U.S Const art II, § 4)
The lifetime appointment of federal judges
is controversial On one hand, the federal
judiciary runs the risk of growing out of touch
with popular sentiment because it is being
immunized from the electorate On the other
hand, it is considered necessary for the judiciary
to remain independent of popular will so that
judges will decide cases according to legal
principles, not political considerations
In many states, judges are elected to office
Nonetheless, each state constitution similarly delegates powers among the three branches of government Accordingly, judges are still exp-ected to decide cases based on the law, not the political considerations that the executive and legislative branches may take into account in executing their duties
Hierarchy
The U.S judiciary is a hierarchical system of trial and appellate courts at both the state and federal levels In general, a lawsuit is originally filed with a trial court that hears the suit and determines its merits Parties aggrieved by a final judgment have the right to appeal the decision
They do so by asking an appellate court to review the decision of a trial court
rights under the First Amendment However, the
Supreme Court in Caperton v Massey ( U.S. ,
129 S Ct 2252 [2009]) addressed campaign
con-tributions and the duty of a judge to recuse from
decisions involving contributors The court stated:
“We conclude that there is a serious risk of
actual bias—based on objective and reasonable
perceptions—when a person with a personal stake
in a particular case had a significant and
dispropor-tionate influence in placing the judge on the case by
raising funds or directing the judge’s election
campaign when the case was pending or imminent.”
Concerns about politicization of the judiciary
soared during the unusual 2000 presidential
elec-tion When Florida circuit judge Nikki Ann Clark, an
African American and a Democrat, was assigned
one of the election cases seeking to invalidate as
many as 15,000 absentee ballots from Florida’s
Seminole County, attorneys for candidate George
W Bush requested that she recuse herself from the
case Just weeks before, Bush’s brother,
Republi-can Florida governor Jeb Bush, had bypassed her
for a state appellate court vacancy She refused to
recuse herself, issuing a decision unfavorable to
Bush and favorable to Florida’s African American
voters After her decision was upheld by both the
appellate court and the Florida Supreme Court,
critics complained that their justices had been
appointed by Democratic governors
Both sides, in fact, found much to complain about After a sharply divided U.S Supreme Court reversed the Florida Supreme Court and halted the manual recount of votes (Bush v Gore, 531 U.S 98,
121 S Ct 525, 148 L Ed 2d 388[U.S 2000]), critics of the decision scathingly denounced it as politically motivated In fact, 554 U.S law professors at 120 American law schools took out an ad in the New York Times criticizing the majority for “acting as political proponents for candidate Bush, not as judges.”
FURTHER READINGS
“ABA Commission Warns: State Court Systems at Risk.” 2003.
Justice at Stake Campaign (March) Available online at www.justiceatstake.org/contentViewer.asp?breadcrumb=
3,358 (accessed July 15, 2003).
“Bush v Gore and the Conservatives: Gary Rosen & Critics.”
2003 Commentary 113 (March).
Ezzard, Martha 2002 “Money Can’t Buy Judicial Elections Yet.”
Atlanta Journal and Constitution (August 18): G3.
Law Professors for the Rule of Law 2001 “524 Law Professors Say by Stopping the Vote Count in Florida, the U.S.
Supreme Court Used Its Power to Act as Political Partisans, Not Judges of a Court of Law ” New York Times Available online at www.the-rule-of-law.com/
archive/supreme/viewad.html (accessed July 15, 2003).
CROSS REFERENCES American Bar Association; Code of Judicial Conduct; Elec-tions; Term Limits
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