Ending Judicial Immunity?

A proposed ballot measure in South Dakota would allow people to sue judges for deliberate violations of the law, deliberate violations of an individual's constitutional rights, or deliberate disregard of the facts.

All of these things do happen. Indeed, in my years as an attorney, I've seen them happen more than once, with pretty harsh consequences for the individuals on the receiving end.

For example, if a judge illegally jails you, you are stuck in jail until you can post a bond or an appellate court stays the action. If you are an indigent defendant in jail improperly for contempt of court, you may not have access to either a public defender or the funds to post bail.

As another example, because appellate standards of review give great deferrence to a trial judge's findings of fact in a trial to the court, a judge who deliberately enters findings of fact to support his or her ruling, which the judge does not believe to be true, can insulate that ruling from being overturned on appeal.

And, in many cases, judges make deliberately incorrect rulings of law, because they know that the case is too small to justify the financial burden of filing an appeal or because they correctly guess that the ruling will force the parties to settle, getting the case off of the judge's docket.

But, practically speaking, I have grave doubts about whether the proposal would make good law. For example, a very large proportion of all disciplinary complaints lodged against judges in Colorado are brought by the incarcerated inmates who were imprisoned by those judges, and almost all are frivilous. Similarly, despite my strong support for the remedy of habeaus corpus, especially for people who have no other recourse to the courts, it is true that a very large proportion of habeaus corpus petitions brough by inmates who have been convicted and lost their appeals are without foundation. We don't have a great system for screening meritorious cases involving state court mistakes from baseless ones.

And, while it may not be that difficult for attorneys immersed in a case to notice judicial malfeasance, it isn't easy for a jury, months later, hearing deposition testimony and reading from court records to make the same kinds of determinations.

We do need better judicial discipline. But, in this case, I think that simply making it easier for public officials to remove judges from office for that kind of behavior, and perhaps introducing the European practice of auditing a small percentage of trial court cases to see if the rulings were correct, even when no party appeals, and judging judges based upon those results, would be better solutions.