“Judicial Immunity”

                                             by Bob Vinik –

We inherited judicial immunity from The English concept of “Common Law”. When this country was founded after the rebellion we continued to use “Common Law” The legal concept of “Common Law” was that it would continue in force until or unless it was overturned by statue.

Congress enacted the Civil Rights Act (it was commonly known as the Ku Klux Klan Act) in 1866 with the specific purpose of making all state officials including state judges subject to it’s justice. The Act made it a crime to deny citizens of their Constitutional and Legal Rights on the basis of race. This was a statute that overturned Common Law Judicial Immunity.

After of the 1866 bill passed the Senate and House, President Andrew Johnson vetoed it. His opposition was based in part on the fact that section 2 of the bill “invades the judicial power of the State.” (Veto Message, at 1680). The President warned that “judges of the State courts…[and] marshals and sheriffs, who should, as ministerial officers, execute processes, sanctioned by the State laws and issued by State judges in execution of their judgements, could be brought before other tribunals and there subjected to fine and imprisonment for the performance of the duties which the State law might impose.” Various Congressmen responded to the President’s criticisms and freely admitted that section 2 of the legislation was aimed at state judicial systems. As a member of the House Judiciary committee, Representative Lawrence, declared: “I answer it is better to invade the judicial power of the State than to permit it to invade, strike down, and destroy the civil rights of citizens. A judicial power perverted to such uses should be speedily invaded. The grievance would be insignificant.” Within two weeks, both the Senate and the House voted to override the veto.

In 1871 Congress passed a counterpart to the Ku Klux Klan Act called section 1 of the 1871 Civil Rights Act. Section 1 of the Civil Rights Act of 1871 is now codified as Title 42 Sections 1983, 1985, 1986 and 1988. This act established civil liability for the same acts as the prior section (1866 Act) made criminal. And most importantly, the 1871 act now extended to all persons instead of persons denied because of race. In plain language it meant that citizens now have two options for redress of denial of civil rights by state officials. One was under section 2 of the 1966 Act for criminal prosecution and the other was civil suit under section 1 of the 1871 Act.

Judicial immunity has never been reestablished by law. It was established by the U.S. Supreme Court Judges in an act of protection of their state colleagues. The United States Supreme Court does not have the authority to make law, it may only interpret the law made by Congress. The Constitution requires the Court to stay within the intent of Congress while doing its interpreting.

To assume that congress, which had enacted a criminal sanction directed against state judicial officials, intended “sub silentio” to exempt those same officials from the civil counterpart approaches the incredible. Judges, sheriffs and marshalls, while performing a quintessentially judicial function were clearly liable under the 1866 Act, notwithstanding President Andrew Johnson’s objections. Because, as Representative Shellabarger stated, section 1 of the 1871 Act provided a civil remedy “in identically the same case” or ” on the same state of facts” as section 2 of the 1866 Act, it obviously overrode whatever immunity many have existed at common law for these participants in the judicial process in 1871.

For five years citizens were permitted to sue judges that denied their rights, under the “Civil Rights Act” (Now codified as Title 42 §1983 et. seq.) However, incredible as it may seem, the Supreme Court in 1876 ruled that congress “could not have meant what it said” and that “By a rule we announce today State Judges will be immune from civil suit.”

The position that Congress did not intend to change the common-law rule of judicial immunity that existed prior to the Ku Klux Klan Act ignores the fact that every member of Congress who spoke to the issue assumed that the words of the statute meant what they said and that judges would be liable. The touchstone of the legislation passed by congress was that it hold errant judges’ feet to the fire.

The courts in New Jersey are a “No man’s land” where no right of appeal exists. You must move for leave to appeal. Where no right to redress in Federal Court exists. Where no right to sue the judge who violated your Constitutional and Civil Rights exists. They have falsely re-established judicial immunity on the English Common Law Doctrine of THE KING CAN DO NO WRONG as extended to the King’s Judges.


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