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Judicial Immunity from Civil and Criminal Liability

The Truth News — Tue, 07 Jan 2025 09:00:14 +0000

Judicial Immunity from Civil and Criminal Liability

Jeffrey M. Shaman. * Professor of Law, DePaul University College of Law; Senior Fellow, American Judicature Society. The author appreciates the support of the DePaul University College of Law for this article and wishes to thank Professors Steven Lubet and James Alfini for their valuable comments about the article.

[VOL. 27: 1, 1990] Judicial Immunity SAN DIEGO LAW REVIEW

INTRODUCTION

It is generally thought that some of those who serve in government should possess some degree of immunity from civil liability for acts performed as part of their official duties.’ This is considered necessary so that government officials who are called upon to exercise discretion in their duties will not be deterred from vigorously performing their jobs in the public interest’ Thus, in the United States, members of the executive branch, such as governors,3 teachers, 4 police officers, 5 and prison officials,6 have been granted, under the common law, a qualified immunity from civil liability for their official actions. Under this qualified immunity, executive officers are exempt from civil liability for their wrongful behavior unless it can be shown that they knew or should have known that their behavior was improper.’

On the other hand, under the common law, legislators enjoy absotlute immunity in their official functions,8 and judges likewise enjoy absolute immunity from civil liability for their official functions so long as they are not utterly lacking in jurisdiction.” Absolute immunity for judges means that they may not be sued for their wrongful judicial behavior, even when they act for purely corrupt or malicious reasons. 10 The doctrine of judicial immunity is deeply entrenched in our legal system. It has been used to guard judges from common law causes of action, including false imprisonment,” malicious prosecution,12 and libel, 13 as well as from statutory causes of action for the deprivation of civil liberties and constitutional rights. 14 This immunity, however, does not apply to disciplinary actions against judges for violations of the professional and ethical standards that pertain to their conduct. This Article examines the doctrine of judicial immunity in the civil and criminal spheres. It analyzes the application of judicial immunity, as well as its limits, and appraises the notion that judicial immunity must be absolute to be effective.

I. HISTORY OF JUDICIAL IMMUNITY

It is often said that the doctrine of judicial immunity has ancient common law origins. While this may be true, some of the historical claims made for judicial immunity have been exaggerated. Some historians believe that under early English law, judges were generally liable for their wrongful acts, and judicial immunity was the exception and not the rule.15 Exaggeration has also occurred in respect to the history of judicial immunity in the United States. Indeed, even the Supreme Court has made some questionable assertions about the historical status of judicial immunity in this country. In a 1967 opinion, the High Court contended that the doctrine of judicial immunity had been settled and accepted throughout the states by the year 1871.18 More thorough research, however, has shown that in 1871 there was substantial variation about judicial immunity from state to state.17 In that year, thirteen states followed the rule of absolute immunity; nine states had considered the issue of immunity but had not ruled definitively on it; nine other states had not considered the issue; and six states had ruled that judges are not immune if they act maliciously.18

As a historical matter, the doctrine of judicial immunity arose in response to the creation of the right of appeal. In the tenth and eleventh centuries in England, when no right of appeal existed, losing litigants could challenge unfavorable judgments on the ground that they were false.’ 9 The litigant was entitled to both the nullification of a false judgment and a fine (known as an amercement) against the judge who had rendered it.20 As the right to appeal became available, it replaced amercements against judges, and gradually the doctrine of judicial immunity developed.” In modern times, however, it has become questionable whether the availability of appeal is in all instances an adequate substitute for imposing liability on judges for their wrongful acts. Although a judge’s act may eventually be reversed on appeal, the victim of the judge’s behavior may have suffered damage in the interim for which appeal may not compensate. Indeed, irreversible and serious damage may have occurred, which is not correctable by appeal.

Nevertheless, once appeal became available, judicial immunity was gradually accepted under the common law. In the seminal case of Floyd v. Barker,22 decided by Lord Coke in 1607, judicial immunity was established for judges who served on English courts of record. In that decision, Lord Coke discussed for the first time what are now considered some of the modern policies that underlie the doctrine of judicial immunity. Judicial immunity serves the following purposes according to Lord Coke: (1) It insures the finality of judgments; (2) it protects judicial independence; (3) it avoids continual attacks upon judges who may be sincere in their conduct; and (4) it protects the system of justice from falling into disrepute.2 Some of the purposes that have been advanced in support of judicial immunity are less convincing than others. It is debatable whether any of them justify absolute, rather than limited, immunity for judges. In a nation such as ours, which is founded on freedom of speech and which encourages criticism of government officials, using judicial immunity to protect the reputation of the judiciary is barely, if at all, legitimate. Ensuring the finality of judgments may be a valid goal, but it is not strong enough to justify absolute immunity for malicious judicial behavior that causes serious harm to others. While innocent judges should be sheltered from continual harassment, what about judges who are not innocent? Protecting judicial independence is an extremely important goal, but still, one wonders if absolute immunity is necessary to safeguard the independence of the judiciary.

Today it is generally recognized that the most important purpose of judicial immunity is to protect judicial independence. 24 As the Supreme Court has said, judicial immunity is needed because judges, who often are called upon to decide controversial, difficult, and emotion-laden cases, should not have to fear that disgruntled litigants will hound them with litigation charging improper judicial behavior.25 To impose this burden on judges would constitute a real threat to judicial independence. The question that remains, however, is whether absolute, as distinguished from qualified, immunity is necessary to protect judicial independence. Absolute immunity is strong medicine, justified only by a grave threat to the effective administration of justice.26 As Justice Douglas suggested in his dissenting opinion in Pierson v. Ray, 7 perhaps immunity should not extend to all judges, under all circumstances, no matter how outrageous their
conduct.28

The grant of absolute immunity to judges has often been criticized, especially because it is judges who have granted absolute immunity to themselves. 29 Referring to the rule of absolute immunity for judges, an esteemed commentator once remarked that a “cynic might be forgiven for pointing out just who made this rule.”30 Moreover, the rule has been applied in some infamous cases in which judges have engaged in egregious behavior. Stump v. Sparkman,3′ a 1978 Supreme Court decision, was such a case. This case involved a state court order authorizing the sterilization of a fifteen-year-old girl on the petition of her mother. The mother’s petition stated that the girl was somewhat retarded and had begun dating men, making sterilization necessary to prevent pregnancy. However, the girl’s high school record indicated that in all probability she was not retarded.3 2 The state court judge who granted the petition ordering sterilization of the girl did not hold a hearing, appoint counsel or a guardian ad litem for the girl, or notify her of the petition or subsequent order.33 Despite these flagrant violations of due process of law, the Supreme Court ruled that the state court judge possessed absolute immunity for his acts and could not be held liable for any harm they caused. Tremendous criticism has since been directed at the Supreme Court’s decision in Stump,3 4 but absolute immunity for judges remains the rule.

II. To WHOM IMMUNITY APPLIES

As a general matter, judicial immunity protects all judges, from the lowest to the highest court, so long as they are performing a judicial act that is not clearly beyond their jurisdiction.3 5 Judicial immunity is enjoyed by both state and federal judges, 6 and by judges of general jurisdiction as well as limited jurisdiction. 37 Although, at one time, judges of inferior courts or courts of limited jurisdiction were afforded a restricted degree of immunity or no immunity at all,38 that is no longer the case. Today these judges possess the same degree of immunity as any other judges.39 Justices of the peace, magistrates, and other lay judges are included within the grant of immunity enjoyed by the judicial branch.40 However, many of the cases in which immunity has been denied because the judge acted in clear excess of jurisdiction involve justices of the peace or other lay judges.41 This suggests that in practice there may be less tolerance of judicial immunity for judges who are not formally trained in the law.42 Judicial immunity has been given to administrative law judges and hearing examiners in administrative agencies.43 It has been held that court commissioners are judicial officers and, therefore, entitled to immunity for their official acts.44 Judicial immunity also has been granted to persons who perform quasi-judicial functions, and to individuals whose authority is the functional equivalent of that exercised by a judge.4 ” But judicial immunity will not be extended to persons who are not at least quasi-judicial officers,46 nor will it be extended beyond their judicial functions.47 When judges delegate their authority or appoint persons to perform services for the court, their judicial immunity may follow the delegation or appointment. Court-appointed mediators have been given judicial immunity for performing judicial tasks.48 It also has been ruled that a doctor, appointed by a court to act as an examiner in an insanity hearing, is a quasi-judicial officer who possesses immunity from liability for any action taken in conjunction with the hearing.49 And court clerks and bailiffs have been granted immunity for their activities that are judicial in nature.50 The law clerks of judges also are entitled to share in judicial immunity.5 It has been said that while some of the tasks performed by court clerks are judicial in character, the work of judges’ law clerks is entirely So. 51 Law clerks are sounding boards for the judges who employ them and are privy to judges’ thoughts and ideas about the law and the cases over which they preside. One court has said-perhaps with some exaggeration-that law clerks are simply extensions of the judges whom they serve, and for purposes of absolute judicial immunity, judges and law clerks are as one.5 4

III. THE LIMITS OF IMMUNITY

A. Jurisdictional Limitations

Judicial immunity does not extend to the actions taken by a judge in the clear absence of jurisdiction. In determining if a judge acted in clear absence of jurisdiction, the focus is on subject matter jurisdiction rather than personal jurisdiction. At least one opinion, however, takes the position that if a court does not have personal jurisdiction, it lacks all jurisdiction and thereby forfeits judicial immunity. 6 It is frequently said that the scope of a court’s jurisdiction should be broadly construed in order to enhance the policies that underlie judicial immunity.57 The United States Supreme Court has stated that judges will not be deprived of immunity merely for acting in excess of jurisdiction; rather, they will be subject to liability only when acting in the clear absence of all jurisdiction.5 8 In a number of cases, judges have been sued for summarily holding individuals in contempt of court and ordering them incarcerated. 59 Several decisions have held that, while this may be an act in excess of jurisdiction, so long as the judge had subject matter jurisdiction over the case, it is not an act taken clearly in the absence of jurisdiction and therefore is not beyond the ambit of judicial immunity.60 In one case, it was ruled that a judge who issued a summary contempt order did not act in the clear absence of jurisdiction despite that the order was contrary to a longstanding precedent and was unconstitutional as well.6 On the other hand, judicial immunity has been denied where a judge issued an arrest warrant without a sworn complaint as required by law. Such an act has been held to be in clear excess of jurisdiction, and courts have refused to grant immunity from civil actions for malicious prosecution or abuse of process.6 2 In a similar vein, a justice of the peace was held liable for malicious prosecution for framing an affidavit to indicate that an offense had been committed within the territorial jurisdiction of his court when he knew full well that was not the case.6 3 Another justice of the peace was found to be acting completely beyond his jurisdiction when he tried a motorist under a statute that did not exist for an offense that occurred outside the jurisdiction of his court.64

B. Nonjudicial Acts

The immunity that judges possess from civil liability extends only to acts that are judicial in nature. Unfortunately, it is very difficult to define exactly what constitutes a judicial act. It is clear, though, that judicial immunity is defined as well as justified by the functions it serves, not by the office of the person to whom it attaches.65 In Stump v. Sparkman,6 the Supreme Court explained that the relevant factors to determine whether an act is judicial are the character of the act itself-that is, whether it is a function normally performed by a judge-and the expectations of the parties-that is, whether the parties believe they are dealing with a judge in his or her judicial capacity. 7 Applying these factors in Stump, the Court ruled that it was a judicial act when a judge approved a petition from a mother ordering the sterilization of her minor child even though the petition was not given a docket number, was not filed with the clerk’s office, “and was approved in an ex parte proceeding without notice to the minor, without a hearing, and without the appointment of a guardian ad litem.’ ‘ 8 Because it is not uncommon for state judges to be requested to approve petitions relating to the affairs of minors, and because the petition was presented to the judge in his official capacity, the Supreme Court concluded that the act in question was judicial in nature.” This conclusion was reached despite a stinging dissent asserting that what the judge did was in no way an act normally performed by a member of the judiciary. Judges, the dissent pointed out, “are not normally asked to approve a mother’s decision to have her child given surgical treatment generally” or, more specifically, to have her daughter sterilized. 1 Indeed, the dissent maintained that there was no reason to believe that the acts taken by the judge in Stump had ever been performed by any other judge in that state, either before or since. 2 Expanding on the factors articulated in Stump to decide if an act is judicial in nature, lower courts have focused on:

Whether the precise act is a normal judicial function;
Whether the events occurred in court or an adjunct area such as the judge’s chambers;
Whether the controversy centered around a case then pending before the judge; and
Whether the events at issue arose directly and immediately out of a confrontation with the judge in his or her official capacity.

These considerations are to be construed generously in support of judicial immunity, keeping in mind the policies that underlie it,74 and immunity may be granted even though one of the factors is not met.7 Moreover, a judge’s motivation to act against someone because of personal malice does not turn a judicial act into
a nonjudicial one.76 Findings of nonjudicial action are usually limited to either administrative acts, which are discussed below, or behavior that is highly aberrational.” In one case, a justice of the peace made an “arrest” and conducted a “trial” at a city dump. 8 Other cases involve judges who make “arrests” and conduct summary “trials. ‘7 9 Yet another case involved a judge who, in retaliation against an individual who had filed a complaint against him, misled a police officer into believing that the individual should be arrested and disallowed bond.80 For the most part, though, action taken by a judge in connection with a judicial proceeding will be considered judicial in nature and thus within the scope of judicial immunity. This includes acts taken in connection with child custody proceedings, 8’ commitment proceedings,82 probation matters,8 extradition,84 and disciplinary proceedings against attorneys.85 Administrative acts performed by a judge are not regarded as judicial in nature and, therefore, are not within the scope of judicial immunity.86 Even when essential to the functioning of a court, administrative acts performed by judges are not entitled to the cloak of immunity, because holding judges liable for such acts does not threaten judicial independence in the adjudicative process. 87 That an administrative act is performed by a judge is irrelevant for purposes of immunity; it is the nature of the act in question, not the office of the person performing it, that makes it judicial or nonjudicial.88 It should be noted, though, that the administrative chores of a judge might be within the ambit of another form of immunity, either qualified or absolute.89 In 1880, the Supreme Court held that judicial immunity did not apply to a judge charged with racial discrimination in the selection of jurors for county c6urts.90 In concluding that immunity was not available, the Court explained that whether an act done by a judge is judicial or not is determined by its character and not by the character of the agent performing it.91 The duty of selecting jurors, the Court pointed out, might just as well have been performed by a private person as by a judge.9 2 Actually, jury selection is often performed by nonjudicial personnel such as county commissioners, supervisors, or assessors, and at one time was performed by sheriffs. When done by these officials, jury selection can hardly be considered a judicial function, and the happenstance that it is performed by a judge does not change its essential nonjudicial character.9 3 At one time there was a split among the federal circuit courts of appeals whether, for purposes of determining immunity, actions taken by judges toward court employees were judicial or administrative in nature. Some circuits had ruled that judges are not immune from civil liability for demoting or firing employees for improper reasons such as racial or gender discrimination. 4 Focusing upon the nature of the judge’s action and the capacity in which a judge deals with an employee, these courts concluded that demoting or discharging an employee is an administrative act to which judicial immunity does not attach.9 5 On the other hand, in Forrester v. White,96 the Seventh Circuit
held that a judge does possess judicial immunity from liability for a claim that the judge improperly demoted and discharged a probation officer. The court took the approach that immunity attaches if a judge’s relationship with a court employee affects the judge’s capacity to perform judicial functions. In the court’s view, a judge’s relationship with a probation officer affects the judge’s ability to make decisions regarding sentencing, probation, and parole, and therefore should be protected by judicial immunity. 1 Just a few days later, though, the same court ruled that a judge did not possess immunity from liability for firing a court reporter because the relationship between a judge and court reporter does not implicate the judicial function.98

The split among the federal circuits was resolved when the United States Supreme Court reversed the Seventh Circuit’s decision in Forrester.99 The High Court explained that there is no meaningful distinction between a judge who fires a probation officer and any official of the executive branch who is responsible for employment decisions. 100 These employment actions are not part of the judicial function, regardless of who performs them. And while it is true that some personnel decisions made by judges may be crucial to the proper operation of the courts, the same is true when it comes to the operation of the other branches of government. 101 Judges, like other government officials, may enjoy a qualified immunity in their treatment of employees, but because employee relations involve administrative matters rather than judicial ones, judges are not entitled to absolute judicial immunity for their actions toward court employees. 102 According to the general rule, a prior, private agreement by a judge to rule in favor of one of the parties to a lawsuit is a judicial act within the scope of judicial immunity.103 It has even been held that where a judge conspires to rule against an individual and thereby denies the individual’s constitutional rights, such action, while clearly, improper, is nonetheless judicial in nature and therefore immune from civil liability.10 4 Thus, if a judge agrees or conspires with a prosecutor, other attorney, or a litigant, to decide a case a certain way, judicial immunity will not be forfeited. Moreover, bad faith, personal interest, or malevolence on the part of the
judge in entering a prior agreement or conspiracy will not dissipate judicial immunity. 0 5 Advance agreements or conspiracies by a judge to rule in favor of a party are within the scope of judicial immunity so long as the judge is not acting in the clear absence of jurisdiction.10 6 The courts have said that were it otherwise, judges could be hauled into court and made to defend their judicial acts on mere allegations of conspiracy or prior agreement. This is the precise harm that judicial immunity was designed to avoid.107 Nevertheless, this may be an area where judicial immunity is carried too far. After all, a prior, private agreement by a judge to rule in a particular way is totally incompatible with the judicial role of deciding cases impartially on the basis of evidence and arguments presented in court with all parties present. At one time, the Ninth Circuit recognized that prior agreements to rule a certain way were not functions normally performed by a judge, and therefore should not be considered judicial acts within the ambit of judicial immunity.108 However, the Ninth Circuit later reversed itself by focusing on the judge’s act of ruling in a case, which is judicial in nature, rather than focusing on the prior agreement to rule, which is not.109

This reversal aligned the Ninth Circuit with the other federal circuits that consistently take the position that prior agreements are judicial in nature and therefore immunized from liability.”10 This position extends judicial immunity to its breaking point. It is no less logical to focus on the prior agreement to rule than it is to focus on the act of ruling, and it is difficult to accept the assertion made by the courts that the purposes of judicial immunity require a scope so broad as to include prior agreements and conspiracies.”‘ Certainly, a cynic would wonder whether anyone but a judge would extend judicial immunity so far.

C. Injunctive Relief and Attorney’s Fees

Under the common law, injunctive relief against judges was unknown.” 112 Injunctive relief was an equitable remedy available only from the chancellor against parties to cases being heard in other courts.”113 As the Supreme Court has observed, this restriction upon the use of injunctions indicates nothing about the proper scope of judicial immunity because the restriction derived from the substantive limits of the chancellor’s authority and not from the dictates of judicial immunity.114 Moreover, even under the common law, collateral relief against judges was available in the form of various writs, such as mandamus, prohibition, quo warranto, and habeas corpus.115 Thus the common law provided for relief, analogous to injunctive relief, against judges even when alternative avenues of review existed.’1 0 This has led the Supreme Court to conclude that in the common law, there was no inconsistency between the principle of judicial immunity and the availability of collateral injunctive relief against judges in exceptional circumstances. 117 There has been general agreement that the doctrine of judicial immunity does not bar injunctive relief against judges.”118 There are several reasons for this. The first is that injunctions, being a form of equitable relief, may only be granted upon a showing that the plaintiff is suffering irreparable injury for which there is no adequate legal remedy.” 119 This requirement substantially diminishes the charge that judicial independence will be threatened by disgruntled litigants seeking injunctive relief against judges.’ 20 Second, an injunction directing a judge to do or to refrain from doing something within the judge’s official capacity does not subject the judge to personal liability and, hence, does not threaten a judge in the same way as an action for damages which the judge may have to pay out of personal funds. Injunctive relief, then, does not pose the same kind of risk to the judiciary as other forms of liability, and therefore, it is not necessary to use judicial immunity to interdict it. Judicial immunity is a creation of the common law and, like any other common law construct, can be superseded by statute. This principle was recognized by the Supreme Court in Pulliam v. Allen,12 1 in which the Court held that Congress may authorize the awarding of attorney’s fees against judges, even when money damages would be precluded by the doctrine of judicial immunity. Pulliam arose from a civil rights action filed against a state magistrate who repeatedly incarcerated criminal defendants for nonjailable offenses when they were unable to post bond. The federal district court in which the case was filed found this practice to violate due process and equal protection of law, and issued an injunction to prohibit it.

The district court also found that the plaintiffs were entitled to attorney’s fees in the amount of $7038. The attorney’s fees were awarded by the court under the Civil Rights Attorney’s Fees Awards Act of 1976,122 a federal statute that authorizes courts to award attorney’s fees to plaintiffs whose constitutional rights have been violated.

On appeal to the Supreme Court, the defendant-magistrate argued that the award of attorney’s fees should be barred by judicial immunity because attorney’s fees are the functional equivalent of monetary damages, the award of which are precluded by immunity. 23 While agreeing that there was some logic to the defendant’s argument, the Court nevertheless upheld the award of attorney’s fees on the ground that it was for Congress, not the Supreme Court, to determine whether and to what degree to abrogate the common law doctrine of judicial immunity. 2 4 The Court stated that the legislative history of the Civil Rights Attorney’s Fees Award Act of 1976 made it perfectly clear that Congress intended that judicial immunity should not be a bar to an award of attorney’s fees, even when damages would be precluded by judicial immunity.12 5

IV. IMMUNITY FROM CIVIL LIABILITY FOR DEFAMATION

On occasion, judges are sued for making remarks or written statements that are allegedly defamatory. The rule of absolute judicial immunity shields judges from civil liability for any defamatory remarks or statements that they may make. 26 Judicial immunity from making a defamatory utterance or statement is, of course, an incident of the civil immunity that judges possess in general. It therefore serves all of the (previously discussed) purposes of judicial immunity, the most important of which is to protect the independence of the judiciary. 127 A few courts have taken the position that a judge is immune from liability for defamation only for statements that bear relevance to proceedings before the judge.12 8 This position, however, apparently confuses the doctrine of judicial immunity with another doctrine by which statements made by any participant in a judicial proceeding are privileged. 129 Under the latter doctrine, which functions to foster
openness in the judicial process, defamatory statements made by a witness, party, or attorney to a lawsuit are privileged (and hence, cannot form a basis for liability) so long as they are made in the course of a judicial proceeding and are relevant to it. 130 On the other hand, judicial immunity, even for defamation, is not conditioned upon a requirement of relevancy, and the majority of courts have so held.” Otherwise, the goals served by judicial immunity, especially the protection of judicial independence, would be hampered. As with other instances of judicial immunity, a judge accused of defamation will not be granted immunity when the judge was acting in the clear absence of jurisdiction13 2 or when the judge was acting in a nonjudicial capacity. 133 In accordance with the latter rule, judicial immunity only extends to defamatory statements made in the course of performance of a judicial function.”3 Even if made in the courtroom, defamatory statements made beyond the scope of the judicial role are not covered by immunity. 13 On the other hand, statements made by a judge outside the courtroom (as well as those made in it) are immune if made as part of the judicial function. 36 It is not always a simple matter to determine the perimeters of a judge’s duties and whether a defamatory statement has occurred within or beyond them. That a lawsuit has been finally concluded does not necessarily signal the end of the judicial role in it. Thus, in one case, it was held that immunity still existed in regard to a letter written by a judge to a prison warden, providing information for future parole hearings concerning a criminal defendant already sentenced by the judge. 37

When judges are required by law to convey their opinions to a court reporter for publication, this is clearly part of the judicial function, and therefore, any defamatory remarks contained in their published opinions are absolutely immune. 38 However, a New York court held that it was not part of a judge’s function to send opinion to an unofficial reporter, and therefore, defamatory statements in the opinion were not cloaked with immunity. 3 9 Distinguishing between official and unofficial reporters seems highly questionable, and in a subsequent New York case, a circuit court reached a contrary result.140 Even in New York, it is clear that when a judge is directed by law to submit an opinion to.a reporter, statements in the opinion are covered by judicial immunity. If a judge did not play a part in sending the opinion to the reporter, the judge cannot be held liable for any defamatory remarks it may contain.1 41

V. MISAPPROPRIATION OR MISUSE OF FUNDS AND ESTATES

There are cases in which judges have been found civilly liable for misappropriating funds entrusted to their care.14 However, in these cases the doctrine of judicial immunity apparently was overlooked, because there is no mention of it. Nevertheless, misappropriation of funds entrusted to the care of a judge may be beyond the scope of immunity on the ground that it is not a judicial act. Or, liability for misappropriating funds may be imposed on judges by statutory provisions that overrule, in some aspects, the common law doctrine of immunity. 43 Whatever the rationale might be, it seems quite reasonable to hold judges liable for misappropriating funds for their own use. Such behavior, after all, amounts to theft, and judges should be made to return any funds they have stolen from others.

On the other hand, immunity should shield judges from liability for honest errors of judgment they may commit in administering funds or estates assigned to their care. According to the case law, judges do possess immunity for honest mistakes in the administration of funds or estates.144 There are a few decisions, though, which state that immunity does not cover ministerial acts by judges that result in negligent loss to an estate.’ 45 Ministerial acts are usually regarded as nonjudicial in character and, hence, not within the ambit of immunity.146 In some instances, judges are made liable by statute for the negligent administration of an estate resulting in loss to the estate.147

VI. JUDICIAL IMMUNITY FROM CRIMINAL LIABILITY

A. General Rule of No Immunity

But for one narrow exception, 45 judicial immunity does not exempt judges from criminal liability.’49 Courts have stated unequivocally that the judicial title does not render its holder immune from responsibility even when the criminal act is committed behind the shield of judicial office. 150 As is the case regarding immunity from civil liability,’ immunity from criminal liability does not extend to nonjudicial acts or acts taken in the clear absence of all jurisdiction. 5 2 Even beyond such acts, however, judicial immunity generally is not available for criminal behavior. For instance, judicial immunity does not shield judges from criminal liability for fraud or corruption, or for soliciting or accepting bribes.’5 3 This is as it should be; although important, the purposes of the doctrine of judicial immunity are not so important that they transcend the function of the criminal law to protect the public from crime, especially crime as egregious as fraud, corruption, or bribery. As a consequence, judicial immunity normally stops short of protecting criminal behavior.

The one area where judges can be said to enjoy immunity from criminal liability is for malfeasance or misfeasance in the performance of judicial tasks undertaken in good faith.’ In some states malfeasance or misfeasance in office is made criminal either by statute or common law rule. 15 5 However, this criminal liability will be
precluded by judicial immunity unless the malfeasance or misfeasance is accompanied by bad faith. 56 Furthermore, even in this area, judicial immunity will not be granted for malfeasance or misfeasance by a judicial officer in the performance of an act that is administrative in character rather than judicial. In Ex parte Virginia,157 the Supreme Court ruled that judi- cial immunity would not be given to a judge indicted for excluding qualified black persons from jury lists because the selection of jurors was an administrative task, not a judicial one.’58 As previously noted, the nonjudicial nature of jury selection is indicated in that it is a task often performed by nonjudicial personnel and, indeed, is one that could be performed by private persons.’59 Given the ministerial character of jury selection, the court ruled, the judge was not protected by judicial immunity from criminal liability. 60 The Supreme Court’s decision in Ex parte Virginia apparently was overlooked in Commonwealth v. Tartar,’6 ‘ in which the Kentucky Court of Appeals ruled that a judge was entitled to immunity from criminal misfeasance for improperly certifying a list of grand jurors whose names had not been drawn from a jury wheel or drum as required by law. Although the judge’s action in this case would seem to be no less a ministerial task than the judge’s action in Ex parte Virginia, the Tartar court made no mention of the thought that certification of jurors might be a nonjudicial task not covered by immunity. While the situation in Tartar, unlike that in Ex parte Virginia, did not involve the pernicious behavior of racial discrimination, the supposedly controlling factor in granting immunity is whether the act in question is judicial or administrative; in that respect, the cases appear to be indistinguishable.

Except for cases involving malfeasance or misfeasance in office, claims of judicial immunity for criminal behavior are unavailing. Hence, in Braatelien v. United States,1 2 it was held that a judge could not claim immunity from a criminal charge of conspiring to defraud the government. The court pointed out that the judge in question had not been indicted for an erroneous or even wrongful judicial act, but for criminal behavior that was distinct from his official functions. 163 The court noted that the crime could have been completed without the performance of a single judicial act by the judge and, therefore, amounted to nonjudicial behavior beyond the bounds of immunity. 64 Moreover, the court stated that judges may be held criminally responsible for fraud or corruption because judicial immunity provides no cloak for criminal behavior.,,

Immunity from criminal liability was also found not to exist in McFarland v. State, 66 in which a judge not only collaborated with a criminal defendant to wrongfully secure the defendant’s release by issuing a void writ of habeas corpus, but also improperly cited another judge for disregarding the void writ. For engaging in these actions, the judge was charged with the crime of constructive contempt, and on appeal to the Supreme Court of Nebraska it was ruled that the judge could not claim immunity for this sort of behavior because it was nonjudicial in nature. Indeed, the Nebraska high court made the statement that “[t]o say that such conduct was outside the realm of judicial action is to put it mildly.””6 7 This statement, though, is questionable. Although the court undoubtedly was correct in saying that the judge acted fraudulently and corruptly, and that he unlawfully attempted to interfere with a criminal proceeding, the fact remains that the judge did so, at least in part, by issuing a writ and a contempt citation-both of which are actions that judges normally perform, and that would usually be considered judicial functions. However, the court was on more solid ground in noting that the judge acted in the absence of jurisdiction, and that judicial immunity does not extend to this sort of criminal behavior.” 8

Judges need not be impeached before being indicted and tried on criminal charges.’69 Even federal judges, who “hold their Offices during good Behavior”‘ 170 under article III of the Constitution, may be criminally prosecuted while still in office. The Constitution does not bar the trial of a judge for alleged crimes committed before or after taking office. The tenure granted to federal judges by article III is not meant to give shelter to criminal behavior, and therefore, impeachment of a judge is not a prerequisite to criminal prosecution.’17

B. Criminal Activity as Grounds for Removal from Judicial

Office or Other Disciplinary Sanctions

In some states it is provided by constitutional enactment, statute, or supreme court rule that conviction of a judge of certain crimes operates to automatically remove the judge from office. The content of these provisions differ slightly: most mandate removal from office upon conviction of a felony, 172 others upon conviction of a crime involving moral turpitude,172 and yet others upon conviction of an “infamous” crime.1 4 Essentially, they all provide for removal from office of judges who have been convicted of committing a serious crime. Under these provisions, judges have been removed from office for engaging in mail fraud,175 racketeering,’ 76 bribery,177 extortion, 7 8 obstructing justice, 17 9 assault, 80 and other felonies or serious crimes.’ 8′ These provisions ordinarily do not allow judges to challenge their convictions as being erroneous; once a conviction becomes final, that in itself will operate to require a forfeiture of the judicial office’8 2 and may also disqualify the convicted judge from holding office in the future.’ 83 Some provisions further direct that if a judge is indicted on a serious criminal charge, the judge will be suspended from office, pending final adjudication of the charge.184 It has been held that such suspensions, even though they occur prior to a determination of guilt, do
not violate the due process clause because of the overriding public interest in ensuring an upstanding judiciary.8 5 During the period of suspension, a judge may continue to be entitled to receive his or her salary.’8 6 But once a criminal conviction becomes final, permanent forfeiture of office will occur and the payment of salary will be terminated.18 7 Criminal behavior on the part of a judge also may run afoul of the Code of Judicial Conduct. Criminal conduct is an affront to canon 1 of the Code, which requires judges to uphold the integrity of the judiciary and to observe high standards of behavior. 188 Criminal conduct further offends canon 2, which requires judges to avoid impropriety and the appearance of impropriety in all of their activities. 18 9 Indeed, criminal activity obviously contravenes both of these canons by undermining public confidence in the judiciary and impairing the administration of justice. 90

A wide variety of crimes have been held to violate the Code of Judicial Conduct when committed by a judge. They include tax evasion, 191 receiving stolen goods, 92 contributing to the delinquency of a minor, 193 driving under the influence of alcohol,9 use of illegal drugs, 95 jury tampering, 98 racketeering, 0 7 battery,’9 8 resisting police officers,’ 99 and welfare fraud.200 These are but some of the criminal actions that have been found to violate the Code of Judicial Conduct.

Some courts have held that even in the absence of a criminal conviction, a judge may violate the Code of Judicial Conduct if it merely appears that the judge has committed a crime. This occurred in In re Killam,2 ° ‘ in which a judge was charged with driving under the influence of alcohol. At his criminal trial, the judge admitted facts sufficient to establish a finding of guilt on the charge, but the trial court continued the case for one year on the condition that the judge enter and successfully complete a driver alcohol education program. The judge did so, and the criminal charges against him eventually were dismissed. Nonetheless, in a separate disciplinary proceeding, the Massachusetts Supreme Judicial Court ruled that the judge had violated the Code of Judicial Conduct by driving under the influence of alcohol. The dismissal of the criminal charges, in the court’s opinion, had no effect upon the disciplinary proceedings because the criminal law serves different purposes than the disciplinary process.202 Regardless of what the criminal court ruled, the state supreme court, when later considering the disciplinary action, thought the evidence disclosed in the criminal proceeding showed that the judge did actually drive while under the influence of alcohol and
thus violated the Code by bringing undeserved discredit to the judiciary.20 A plea of nolo contendere to a criminal charge, in itself, may constitute a violation of the Code. In In re Inquiry Concerning A Judge No. 491,204 the Supreme Court of Georgia upheld the Judicial Qualification Commission’s finding that a judge’s plea of nolo contendere to a crime involving moral turpitude had brought the judicial office into disrepute, in violation of the Code of Judicial Conduct, even though the question of guilt was not formally adjudicated by such a plea.20 5 Notwithstanding that there existed a statute prohibiting the use of the plea as an admission of guilt, the Georgia Supreme Court held that because the Commission was not inquiring into the guilt of the judge as charged, but merely whether the judge’s plea of no contest had brought the judicial office into disrepute, the Commission could not be restricted by legislative act from considering “any conduct of a judicial officer which reflects on the question they are called upon to decide. 206

C. The Relationship Between the Criminal Process and the Disciplinary Process: The Doctrine of Double Jeopardy

As a general rule, the doctrine of double jeopardy does not operate as a bar to judicial disciplinary proceedings regarding conduct that has previously been the subject of adjudication in a criminal trial.207

Double jeopardy ordinarily applies only when one criminal action is followed by another, and because judicial disciplinary proceedings are considered noncriminal in nature, double jeopardy does not attach between them and a prior criminal adjudication. 208 While sharing some similarities with the criminal process, judicial disciplinary proceedings are usually considered a distinct entity, sui generis, and therefore double jeopardy does not arise between the criminal and disciplinary processes.209 For purposes of the doctrine of double jeopardy, many courts consider judicial disciplinary proceedings to be noncriminal in nature because they function differently than the criminal law. 210 While some courts have arrived at this conclusion because judicial proceedings do not result in the imposition of imprisonment or fines,211 other courts have determined that such proceedings are noncriminal because their purpose is not to punish, but to maintain the honor and
integrity of the judiciary and to restore and reaffirm the public confidence in the administration of justice.2 12 In short, it has been said that the essence of the sanction imposed in disciplinary cases is not “punishment.” Instead, sanctions are based on grounds bearing a rational relationship to the interests of the state in the fitness of its judicial personnel. 213 The judicial disciplinary process further differs from the criminal process in that it does not entail severe penalties, such as imprisonment, which require special procedural protection before they may be imposed. As a result, in those instances for which the particular conduct transgresses both the criminal law and the canons of ethics, prosecution may be pursued under either or both systems without invoking constitutional double jeopardy concerns.214

Judicial disciplinary proceedings have also been described by some courts as regulatory in nature.215 In states that have adopted the two-tier model of judicial conduct organizations, 16 proceedings in the first tier, where no adjudication occurs, have been said to be merely investigatory or quasi-administrative. As such, they serve a function similar to that of a grand jury to which double jeopardy does not attach.217 (This, however, does not explain why double jeopardy concerns would not come into play at the second tier of the proceedings.)

In accordance with these general principles, the Alabama Court of the Judiciary in In re Burns,21a ruled that it was not precluded from censuring a judge for proposing an act of prostitution to a woman, in violation of’ canon 2, even though this conduct had already been the basis of the judge’s criminal conviction of disorderly conduct. Prior adjudication of the conduct in a criminal proceeding did not bar further inquiry of the same conduct in a disciplinary proceeding by the Court of the Judiciary.

The unavailability of the defense of double jeopardy to a judicial disciplinary commission proceeding is further illustrated by In re Bates.219 In Bates, the Judicial Qualification Commission of Texas was allowed to proceed with its hearing prior to the completion of criminal prosecution on the same subject matter because the Commission’s hearing was deemed a “separate and distinct matter and completely independent of any other proceedings which were pending.”‘ 220 A similar result was reached by the California Supreme Court in McComb v. Commission on Judicial Qualifications.2’ There, the court likened a judicial proceeding to that of a state bar disciplinary proceeding for which criminal procedural safeguards do not apply due to the noncriminal nature of the proceeding.222

Employing similar reasoning, courts have also held that legislative action to remove or impeach a judge on grounds of- misconduct in office does not invoke double jeopardy protection against subsequent disciplinary proceedings based on the same misconduct. In Ransford v. Graham,223 the Supreme Court of Michigan held that the refusal of the state House of Representatives to vote for the removal of a judge did not bar, on double jeopardy grounds, subsequent proceedings by the state supreme court regarding the judge’s fitness to serve.

The court held that neither the impeachment nor the disciplinary actions were criminal in nature, and therefore, the doctrine of double jeopardy did not apply.224 Likewise, the New Jersey Supreme Court has taken the position, in In re Mattera,225 that impeachment only determines a judge’s right to hold office and is not intended to bar or delay other actions for a public wrong. The court held that a single act of misconduct may offend the public interest in a number of areas, and justice requires an appropriate remedy for each harm created.226

The New Jersey Supreme Court could find no reason why a prescription in the Constitution of a remedy for one purpose should be found to imply an intention to deny government the power to protect the public in its other interests or to immunize the offender from further consequences of his or her acts.227 This view was reiterated by the Texas Supreme Court in In re Carrillo,228 where it was held that a judge’s removal from office by a state senate impeachment proceeding did not preclude judicial action based on the same conduct leading to the removal. The court ruled that both proceedings could be pursued concurrently.229
As a result of courts’ refusal to apply the doctrine of double jeopardy to judicial disciplinary proceedings, a judge’s prior criminal conviction may be admitted as evidence of judicial misconduct in a subsequent disciplinary inquiry. 3° In Louisiana State Bar Ass’n. v.Funderburk,231 a judge’s guilty plea to criminal charges was entered as competent evidence of misconduct at a subsequent commission investigation, and it created a rebuttable presumption of guilt which the respondent judge had the burden to overcome. Similarly, in In re Biggins,2 the Arizona Supreme Court held that a judge’s conviction of driving under the influence of alcohol afforded an “entirely independent and self-sufficient basis for sustaining the commission’s censure recommendation. 233 In the opinion of the Arizona court, the judge’s conviction was of sufficient consequence to be, in and of itself, conduct prejudicial to the administration of justice, bringing the judicial office into disrepute.” 4 This view was also expressed in In re Callanan,3 5 in which the Michigan Supreme Court held that a judge’s felony conviction for violations of the RICO act was sufficient evidence of conduct which brought the judicial office into disrepute. 36 The general refusal by the courts to apply double jeopardy protection to judicial disciplinary proceedings has not gone entirely without criticism. In In re Friess,237 a New York trial court said that the contention of the State Commission on Judicial Conduct that its proceedings were merely disciplinary and, therefore, not subject to criminal trial standards, was “either niave [sic] or hyprocritical [sic] “238

Whatever label might be assigned to the proceedings, the court said, was merely an exercise in semantics. The court, instead, held that common law safeguards attach “to any significant hearing where the State attempts to deprive an individual of property without due process.” 239 Viewing the current livelihood and good reputation of its judges as valuable property rights, the New York court held that a judge is entitled to all the constitutional rights of a fair trial, including, but not limited to, protection from double jeopardy or star chamber proceedings.24 Despite the concerns of the trial court in Friess, its grant of the petitioner’s request for a severance of charges in accordance with constitutional safeguards was modified by the New York appellate division in In re Application of Friess,241 to the extent of denying the request for severance and removing constitutional double jeopardy protection from disciplinary proceedings. In doing so, the appellate court distinguished disciplinary proceedings from criminal ones by their differing purposes and nature, as well as the disparity of penalties involved, noting particularly that in disciplinary proceedings the fundamental right of liberty is not at stake.242 The appellate court in Friess also pointed out that the hearer of fact in a disciplinary proceeding is routinely a seasoned former jurist as opposed to a panel of lay jurors. In the opinion of the court, these former jurists are fully capable of distinguishing between proof submitted on one charge and proof submitted on another or previous charge.243

CONCLUSION

Under the law, judicial liability for criminal activity is treated quite differently than judicial liability for tortious or other noncriminal wrongful conduct. With one minor exception for malfeasance or misfeasance in office, judges possess no immunity for their criminal behavior. Whatever threat criminal liability might pose to judicial independence, it is not strong enough to override the importance of enforcing the criminal law, even against judges. No one ought to be exempt from the criminal law, and it has been consistently recognized that judges should not be able to hide behind their office as shelter for criminal behavior that harms society.
On the other hand, judges enjoy a substantial degree of immunity from civil liability. Indeed, judges possess not only a qualified immunity from civil liability, like their fellow public servants in the executive branch, but also an absolute immunity that protects them even when they commit wrongs intentionally or maliciously. It is true that judicial immunity stops short of shielding nonjudicial actions or actions taken in the clear absence 6f all jurisdiction, but these limits on the doctrine of judicial immunity are applied sparingly, if not reluctantly. Within these limits, the intentional and malicious civil wrongs of judges, no matter how egregious, are cloaked with absolute immunity.

It is said that this grant of absolute immunity for judges is necessary to maintain judicial independence and to protect judges from harassment by disgruntled litigants. Surely these are admirable goals, but whether absolute immunity, as distinct from qualified immunity, is truly necessary to effectuate them is an open question. A grant of immunity for intentional and malicious civil wrongs has not been found necessary in the executive branch of government. Judicial independence should be scrupulously guarded and some degree of immunity from civil liability must be maintained for judges. But absolute judicial immunity from civil liability remains a debatable practice.

1. See Jaffe, Suits Against Government and Officers: Damage Actions, 77 HARV. L. REv. 209 (1963); McCormack & Kirkpatrick, Immunities of State Officials Under Section 1983, 8 RUT.-CAM. L.J. 65 (1976).
2. See Jaffe, supra note 1; McCormack & Kirkpatrick, supra note 1.
3. Butz v. Economou, 438 U.S. 478 (1978).
4. Scheuer v. Rhodes, 416 U.S. 232 (1974).
5. Wood v. Strickland, 420 U.S. 308 (1975).
6. O’Connor v. Donaldson, 422 U.S. 563 (1975).
7. Butz v. Economou, 438 U.S. 478 (1978).
8. Tenney v. Brandhove, 341 U.S. 367 (1951).
9. See Stump v. Sparkman, 435 U.S. 349 (1978); Pierson v. Ray, 386 U.S. 547 (1967).
10. See Pierson, 386 U.S. at 554; Stump, 435 U.S. at 356.
11. Ravenscroft v. Casey, 139 F.2d 776 (2d Cir.), cert. denied, 323 U.S. 745 (1944); Stahl v. Currey, 135 Ohio St. 253, 20 N.E.2d 529 (1939). 12. O’Bryan v. Chandler, 352 F.2d 987 (10th Cir. 1965), cert. denied, 384 U.S. 926 (1966).
13. Garfield v. Palmieri, 297 F.2d 526 (2d Cir.), cert. denied, 369 U.S. 871 (1962).
14. Pierson, 386 U.S. at 555; Stump, 435 U.S. at 359.
15. Compare Feinman & Cohen, Suing Judges: History and Theory, 31 S.C.L. REv. 201 (1980) with Block, Stump v. Sparkman and the History of Judicial Immunity, 1980 DUKE L.J. 879.
16. See Pierson, 386 U.S. at 560.
17. See Note, Liability of Judicial Officers Under Section 1983, 79 YALE L.J. 322 (1969).
18. Id. at 326-27.
19. See M. COMISKY & P. PATTERSON, THE JUDICIARY-SELECTION, COMPENSATION, ETmICS, AND DISCIPLINE 233 (1987).
20. Id.
21. Id.
22. 77 Eng. Rep. 1305 (Star Chamber 1607).
23. Id. at 1307.
24. See C. WOLRAM, MODERN LEGAL ETHICs 970 (1986).
25. See Pierson v. Ray, 386 U.S. 547, 554 (1967); see also Forrester v. White, 484 U.S. 219, 226-28 (1988).
26. See Forrester v. White, 792 F.2d 647, 660 (7th Cir. 1986) (Posner, J., dissenting), rev’d, 484 U.S. 219 (1988).
27. 386 U.S. 547 (1967).
28. See id. at 558-59 (Douglas, J., dissenting).
29. Compare Note, supra note 17 with Kates, Immunity of State Judges Under the Federal Civil Rights Acts: Pierson v. Ray Reconsidered, 65 Nw. U.L. REv. 615 (1970). See also Laycock, Civil Rights and Civil Liberties, 54 CHI.-KENT L. REv. 390 (1977); Nagel, Judicial Immunity and Sovereignty, 6 HASTINGS CoNsr. L.Q. (1978); Feinman & Cohen, supra note 15; Block, supra note 15.
30. W. PROSSER, TORTS 987 (4th Ed. 1971).
31. 435 U.S. 349 (1978).
32. See id. at 351.
33. Id. at 360.
34. See Nagel, supra note 29; Nahmod, Persons Who Are Not “Persons”: Absolute Individual Immunity Under Section 1983, 28 DEPAUL L. REv. 1 (1978); Rosenberg, Stump v. Sparkman: The Doctrine of Judicial Immunity, 64 VA. L. REV. 833 (1978); Feinman & Cohen, supra note 15; Block, supra note 15.
35. See Pierson v. Ray, 386 U.S. 547, 547 (1967); see also Pomeranz v. Class, 82 Colo. 173, 257 P. 1086 (1927); State ex rel. Clark v. Libbert, 96 Ind. App. 84, 177 N.E. 873 (1931); Allard v. Estes, 292 Mass. 187, 197 N.E. 884 (1935); Health v. Cornelius, 511 S.W.2d 683 (Tenn. 1974).
36. See Turner v. American Bar Ass’n, 407 F. Supp. 451 (N.D. Tex. 1975), aff’d sub nom. Taylor v. Montgomery, 539 F.2d 715 (7th Cir. 1976); Brown v. Dunne, 409 F.2d 341 (7th Cir. 1969).
37. Alzua v. Johnson, 231 U.S. 106 (1913); Sarchet v. Phillips, 102 Colo. 318, 78 P.2d 1096 (1938); Calhoun v. Little, 106 Ga. 336, 32 S.E. 86 (1898); Berry v. Smith, 148 Va. 424, 139 S.E. 252 (1927).
38. See Voll v. Steele, 141 Ohio St. 293, 47 N.E.2d 991 (1943); Williamson v. Lacy, 86 Me. 98, 29 A. 943 (1893); Robertson v. Parker, 99 Wis. 652, 75 N.W. 423(1898).
39. See Alzua, 231 U.S. at 111.
40. See Perez v. Borchers, 567 F.2d 285 (5th Cir.), cert. denied, 439 U.S. 831 (1978).
41. C. WOLFRAM, supra note 24, at 971.
42. See id.
43. Butz v. Economou, 438 U.S. 478, 478 (1978).
44. Linder v. Foster, 209 Minn. 43, 295 N.W. 299 (1940).
45. Morales v. Vegas, 483 F. Supp. 1057 (D.P.R. 1979); Miller v. Reddin, 293 F. Supp. 216 (C.D. Cal. 1968).
46. See Brown v. Rosenbloom, 34 Colo. App. 109, 524 P.2d 626 (1974), afJd,188 Colo. 83, 532 P.2d 948 (1975).
47. McGhee v. Moyer, 60 F.R.D. 578 (W.D. Va. 1973).
48. Mills v. Killebrew, 765 F.2d 69 (6th Cir. 1985).
49. See Linder v. Foster, 209 Minn. 43, 43, 295 N.W. 299, 299 (1940).
50. Scott v. Dixon, 720 F.2d 1542 (11th Cir. 1983), cert. denied, 469 U.S. 832 (1984); Tarter v. Hury, 646 F.2d 1010 (5th Cir. 1981); Slotnick v. Stavinskey, 560 F.2d 31 (1st Cir. 1977), cert. denied, 434 U.S. 1077 (1978); Adkins v. Clark County, 105 Wash. 2d 675, 717 P.2d 275 (1986).
51. Oliva v. Heller, 670 F. Supp. 523 (S.D.N.Y. 1987), a~fd, 839 F.2d 37 (2d Cir. 1988); see also Eades v. Sterlinski, 810 F.2d 723 (7th Cir.), cert. denied, 484 U.S. 847 (1987); Gray v. Bell, 712 F.2d 490 (9th Cir. 1983), cert. denied, 465 U.S. 1100 (1984).
52. Oliva, 670 F. Supp. at 526.
53. Id.
54. Id.
55. See Ashelman v. Pope, 793 F.2d 1072 (9th Cir. 1986) (en banc); Green v. Maraio, 722 F.2d 1013 (2nd Cir. 1983).
56. See Rankin v. Howard, 633 F.2d 844, 848-49 (9th Cir. 1980), cert. denied, 451 U.S. 939 (1981).
57. See Ashelman, 793 F.2d at 1076; Holloway v. Walker, 765 F.2d 517 (5th Cir.), cert. denied, 474 U.S. 1037 (1985).
58. See Stump v. Sparkman, 435 U.S. 349, 356-57 (1978).
59. See King v. Love, 766 F.2d 962 (6th Cir.), cert. denied, 474 U.S. 971 (1985); see also Adams v. McIlhany, 764 F.2d 294 (5th Cir. 1985), cert. denied, 474 U.S. 1101 (1986).
60. E.g., Adams, 764 F.2d at 298.
61. Id. at 294.
62. See, e.g., Hoppe v. Klapperich, 224 Minn. 224, 28 N.W.2d 780 (1947); Utley v. City of Independence, 240 Or. 384, 402 P.2d 91 (1965).
63. State ex rel. Little v. United States Fidelity & Guar. Co., 217 Miss. 576, 64 So. 2d 697 (1953).
64. Vickrey v. Dunivan, 59 N.M. 90, 279 P.2d 853 (1955).
65. See Forrester v. White, 484 U.S. 219, 227-29 (1988).
66. 435 U.S. 349 (1978); see also supra notes 31-34 and accompanying text.
67. Stump, 435 U.S. at 362.
68. See id. at 360-62.
69. Id. at 362-63.
70. Id. at 365-67 (Stuart, J., dissenting).
71. Id. at 365-66.
72. Id. at 367.
73. See Ashelman v. Pope, 793 F.2d 1072, 1075-76 (9th Cir. 1986) (en banc); see also Dykes v. Hosemann, 776 F.2d 942 (11th Cir. 1985), cert. denied, 479 U.S. 983 (1986); Adams v. McIlhany, 764 F.2d 294, 297 (5th Cir. 1985) (citing McAlester v. Brown, 469 F.2d 1280, 1282 (5th Cir. 1972)), cert. denied, 474 U.S. 1101 (1986); Merckle v. Harper, 638 F.2d 848, 858 (5th Cir.), cert. denied, 454 U.S. 816 (1981).
74. See Ashelman, 793 F.2d at 1076.
75. See Adams, 764 F.2d at 297-99.
76. Id.
77. See Gregory v. Thompson, 500 F.2d 59 (9th Cir. 1982).
78. Brewer v. Blackwell, 692 F.2d 387 (5th Cir. 1982).
79. See Harris v. Harvey, 605 F.2d 330 (7th Cir. 1979), cert. denied, 445 U.S. 938 (1980); Zarcone v. Perry, 572 F.2d 52 (2d Cir. 1978); Wall v. Heath, 622 F. Supp. 105 (S.D. Miss. 1985).
80. King v. Love, 766 F.2d 962 (6th Cir.), cert. denied, 474 U.S. 971 (1985).
81. Dear v. Locke, 128 Ill. App. 2d 356, 262 N.E.2d 27 (1970).
82. Devault v. Truman, 354 Mo. 1193, 194 S.W.2d 29 (1946).
83. Grove v. Rizzolo, 441 F.2d 1153 (3d Cir.), cert. denied, 404 U.S. 945 (1971).
84. Collins v. Moore, 441 F.2d 550 (5th Cir. 1971).
85. Peterson v. Knutson, 305 Minn. 53, 233 N.W.2d 716 (1975).
86. Forrester v. White,, 484 U.S. 219 (1988); Supreme Court of Va. v. Consum- ers Union of United States, Inc., 446 U.S. 719 (1980); Ex Parte Virginia, 100 U.S. 339 (1880).
87. See Forrester, 484 U.S. at 228-30.
88. Id.
89. See Consumers Union, 446 U.S. at 731-34.
90. See Ex parte Virginia, 100 U.S. 339 (1880); see also Forrester, 484 U.S. at 228 (“Although [Ex parte Virginia] involved a criminal charge against a judge, the reach of the Court’s analysis was not in any obvious way confined by that circumstance.”).
91. Ex parte Virginia, 100 U.S. at 348.
92. Id.
93. Id.
94. See Guerico v. Brody, 814 F.2d 1115 (6th Cir. 1987), cert. denied, 484 U.S. 1025 (1988); Goodwin v. Circuit Court, 729 F.2d 541 (8th Cir.), cert. denied, 469 U.S. 828 (1984), cert. denied, 469 U.S. 1216 (1985); see also McDonald v. Krajewski, 649 F. Supp. 370 (N.D. Ind. 1986).
95. See cases cited supra note 94.
96. 792 F.2d 647 (7th Cir. 1986), rev’d, 484 U.S. 219 (1988).
97. Forrester, 792 F.2d at 657.
98. McMillan v. Svetanoff, 793 F.2d 149 (7th Cir.), cert. denied, 479 U.S. 985 (1986).
99. Forrester v. White, 484 U.S. 219 (1988).
100. See id. at 229.
101. See id.
102. See id. at 230.
103. Ashelman v. Pope, 793 F.2d 1072 (9th Cir. 1986) (en banc); Holloway v. Walker, 765 F.2d (5th Cir.), cert. denied, 474 U.S. 1037 (1985).
104. See Holloway v. Walker, 765 F.2d 517 (5th Cir.), cert. denied, 474 U.S. 1037 (1985); Dykes v. Hosemann, 776 F.2d 942 (11th Cir. 1985), cert. denied, 479 U.S. 983 (1986).
105. See Ashelman, 793 F.2d at 1077-78.
106. See supra notes 55-64 and accompanying text.
107. See Dykes, 776 F.2d at 946; Ashelman, 793 F.2d at 1077.
108. See Rankin v. Howard, 633 F.2d 844 (9th Cir. 1980), cert. denied, 451 U.S. 939 (1981).
109. See Ashelman, 793 F.2d at 1078.
110. See Holloway v. Walker, 765 F.2d 517 (5th Cir.), cert. denied, 474 U.S. 1037 (1985); Dykes v. Hosemann, 776 F.2d 942 (11th Cir. 1985), cert. denied, 479 U.S. 983 (1986); see also Krempp v. Dobbs, 775 F.2d 1319 (5th Cir. 1985).
111. See Dykes, 776 F.2d at 946-48; Ashelman, 793 F.2d at 1077-78.
112. 2 J. STORY, COMMENTARIES ON EQUITY JURISPRUDENCE § 875 (11th ed. 1873).
113. Id.
114. Pulliam v. Allen, 466 U.S. 522, 529 (1984).
115. 1 W. HOLDSWORTH, A HISTORY OF ENGLISH LAW 226-31 (7th ed. 1956).
116. Gould v. Gapper, 5 East. 345, 102 Eng. Rep. 1102 (R.B. 1804); In re Hill, 10 Ex. Ch. 726 (1855).
117. Pulliam, 466 U.S. at 535-36.
118. See Pulliam, 466 U.S. at 529; R.W.T. v. Dalton, 712 F.2d 1225, 1233-34 (8th Cir.), cert. denied, 464 U.S. 1009 (1983); In re Justices of Supreme Court of Puerto Rico, 695 F.2d 17, 25-26 (1st Cir. 1982); WXYZ v. Hand, 658 F.2d 420 (6th Cir. 1981); Heimbach v. Lyons, 597 F.2d 344, 347 (2d Cir. 1979); Harris v. Harvey, 605
F.2d 330, 337 (7th Cir. 1979), cert. denied, 445 U.S. 938 (1980).
119. See Trainor v. Hernandez, 431 U.S. 424, 440-41 (1979); Judice v. Vail, 430 U.S. 327, 336-38 (1977); Huffman v. Pursue, Ltd., 420 U.S. 592, 601 (1975); Younger v. Harris, 401 U.S. 37, 43-46 (1971).
120. See Pulliam, 466 U.S. at 537-38.
121. 466 U.S. 522 (1984).
122. Pub. L. No. 94-559, 90 Stat. 2641 (codified as amended at 42 U.S.C. § 1988 (1982)).
123. Pulliam, 466 U.S. at 543.
124. Id.
125. Id. at 543-44.
126. See O’Bryan v. Chandler, 496 F.2d 403 (10th Cir.), cert. denied, 419 U.S. 986 (1974); Ginger v. Bowles, 369 Mich. 680, 120 N.W.2d 842, cert. denied, 375 U.S. 856 (1963); Reller v. Ankeny, 160 Neb. 47, 68 N.W.2d 686 (1955); Brech v. Seacat, 84
S.D. 264, 170 N.W.2d 348 (1969).
127. See supra notes 19-25 and accompanying text.
128. See Wahler v. Schroeder, 9 Ill. App. 3d 505, 292 N.E.2d 521 (1972); Reller, 160 Neb. at 54-55; see also RESTATEMENT (SEcoND) OF ToRTS § 585 comment e (1977). 129. See M. CoMIsKY & P. PATTERSON, supra note 19, at 243.
130. Id.
131. See Rice v. Coolidge, 121 Mass. 393 (1876); Kraushaar v. Lavin, 39 N.Y.S.2d 880, 883 (Sup. Ct. 1943); Karelas v. Baldwin, 237 A.D. 265, 261 N.Y.S. 518 (1932); Houghton v. Humphries, 85 Wash. 50, 147 P. 641 (1915).
132. See supra text accompanying notes 55-64.
133. See supra text accompanying notes 65-111.
134. See Garfield v. Palmieri, 297 F.2d 526 (2d Cir.), cert. denied, 369 U.S. 871 (1962); Ginger v. Bowles, 369 Mich. 680, 120 N.W.2d 842 (1963) cert. denied, 375 U.S. 856 (1963); Murray v. Brancato, 290 N.Y. 52, 48 N.E.2d 257 (1943).
135. See supra text accompanying notes 65-111.
136. See Kraushaar v. Lavin, 39 N.Y.S.2d 880, 884 (Sup. Ct. 1943).
137. Brech v. Seacat, 84 S.D. 264, 170 N.W.2d 348 (1969).
138. See Garfield, 297 F.2d at 527-28; see also McGovern v. Marty, 182 F. Supp. 343 (D.D.C. 1960). 139. See Murray v. Brancato, 290 N.Y. 52, 48 N.E.2d 257 (1943).
140. Garfield v. Palmieri, 297 F.2d 526 (2d Cir.), cert. denied, 369 U.S. 871
(1962).
141. See Bradford v. Pette, 204 Misc. 308 (N.Y. 1953).
142. See Brown v. Rutledge, 20 Ga. App. 118, 92 S.E. 774 (1916); King County v. United Pac. Ins. Co., 72 Wash. 2d 604, 434 P.2d 554 (1967).
143. See Commonwealth v. Lee, 120 Ky. 433, 86 S.W. 990 (1905).
144. See Truesdale v. Bellinger, 172 S.C. 80, 172 S.E. 784 (1934).
145. See e.g., id. at 87-88, 172 S.W. at 787.
146. American Surety Co. v. Skaggs’ Guardian, 247 Ky. 687, 57 S.W.2d 495 (1983); Heyn v. Massachusetts Bonding & Ins. Co., 110 S.W.2d 261 (Tex. 1937).
147. See cases cited supra note 146.
148. See infra text accompanying notes 154-56.
149. See Ex Parte Virginia, 100 U.S. 339, 348 (1880); Braatelien v. United States, 147 F.2d 888 (8th Cir. 1945); McFarland v. State, 172 Neb. 251, 109 N.W.2d 397 (1961).
150. Braatelien, 147 F.2d at 895; McFarland, 172 Neb. at 260, 109 N.W.2d at 404.
151. See supra text accompanying notes 55-111.
152. See Braatelien, 147 F.2d at 895; McFarland, 172 Neb. at 260, 109 N.W.2d at 404.
153. See Braatelien v. United States, 147 F.2d 888 (8th Cir. 1945); McFarland v. State, 172 Neb. 251, 109 N.W.2d 397 (1961).
154. See Hamilton v. Williams, 26 Ala. 527 (1855); Commonwealth v. Tartar, 239 S.W.2d 265 (Ky. 1951); In re McNair, 324 Pa. 48, 187 A. 498 (1936).
155. See M. COMISKY & P. PATrERSON, supra note 19, at 239.
156. See cases cited supra note 149.
157. 100 U.S. 339 (1880).
158. See id. at 348.
159. See supra text accompanying notes 86-93.
160. See Ex parte Virginia, 100 U.S. at 348.
161. 239 S.W.2d 265 (Ky. 1951).
162. 147 F.2d 888 (8th Cir. 1945).
163. Id. at 895.
164. Id.
165. Id.
166. 172 Neb. 251, 109 N.W.2d 397 (1961).
167. Id. at 260, 109 N.W.2d at 403.
168. Id.
169. See United States v. Issacs, 493 F.2d 1124 (7th Cir.), cert. denied, 417 U.S. 976 (1974).
170. U.S. CoNsT. art. III, § 1.
171. Issacs, 493 F.2d at 1140-44.
172. E.g., Ky. Sup. CT. R. 4.020; MICH. CONST. art. VI, § 30(2); OR. CONST. art. VII, § 8(1); WASH. REV. CODE ANN. § 9.92.120 (1988).
173. E.g., WYo. CONST. art. V, § 6(c).
174. E.g., PA. CONST. art. VI, § 7.
175. In re Callanan, 419 Mich. 376, 355 N.W.2d 69 (1984).
176. Sullivan v. State ex reL Attorney Gen., 472 So. 2d 970 (Ala. 1985).
177. In re Coruzzi, 95 N.J. 557, 472 A.2d 546 (1984).
178. In re Kivett, 309 N.C. 635, 309 S.E.2d 442 (1983).
179. In re Tindall, 60 Cal. 2d 469, 386 P.2d 473, 34 Cal. Rptr. 849 (1963), cert. denied, 377 U.S. 966 (1964).
180. State ex rel. Carroll v. Simmons, 61 Wash. 2d 146, 377 P.2d 421 (1962), cert. denied, 374 U.S. 808 (1963).
181. For a summary of modem cases involving the criminal conduct of judges, see AMERICAN JUDICATURE Soc’Y, JUDICIAL DISCIPLINE AND DISABILITY DIGEST 355-58 (1981).
182. See State ex rel. Carroll v. Simmons, 61 Wash. 2d 146, 377 P.2d 421 (1962), cert. denied, 374 U.S. 808 (1963); In re Callanan, 419 Mich. 376, 355 N.W.2d 69 (1984).
183. WASH. REV. CODE ANN. § 9.92.120 (1988).
184. E.g., CAL. CONsT. art. VI, § 18.
185. See Gruenburg v. Kavanagh, 413 F. Supp. 1132 (E.D. Mich. 1976).
186. E.g., MICH. CT. R. 9.220.
187. E.g., WASH. REV. CODE ANN. § 9.92.120 (1988).
188. MODEL CODE OF JUDICIAL CONDucT Canon 1 (1972).
189. ‘Id. Canon 2.
190. See In re Wireman, 270 Ind. 344, 367 N.E.2d 1368 (1977), cert. denied, 436 U.S. 904 (1978); In re Callanan, 419 Mich. 376, 355 N.W.2d 69 (1984); In re Duncan, 541 S.W.2d 564 (Mo. 1976); In re Hunt, 308 N.C. 328, 302 S.E.2d 235 (1983); W. Va. Judicial Inquiry Comm’n v. Dostert, 165 W. Va. 233, 271 S.E.2d 427 (1980).
191. In re Van Susteren, 118 Wis. 2d 806, 348 N.W.2d 579 (1984).
192. In re Maxwell, 287 S.C. 594, 340 S.E.2d 541 (1986).
193. Id.
194. In re Killam, 388 Mass. 619, 447 N.E.2d 1233 (1983).
195. Starnes v. Judicial Retirement & Removal Comm’n, 680 S.W.2d 922 (Ky. 1984); In re Whitaker, 463 So. 2d 1291 (La. 1985).
196. In re Robert Dean Hawkins, (Unreported Order, Judicial Retirement & Removal Comm’n, Ky. Nov. 28, 1984).
197. In re Callanan, 419 Mich. 376, 355 N.W.2d 69 (1984); In re Raineri, 102 Wis. 2d 418, 306 N.W.2d 699 (1981).
198. In re Roth, 293 Or. 179, 645 P.2d 1064 (1982).
199. Roberts v. Comm’n on Jud. Performance, 33 Cal. 3d 739, 661 P.2d 1064, 190 Cal. Rptr. 910 (1983).
200. In re Inquiry Concerning A Judge No. 491, 249 Ga. 30, 287 S.E.2d 2 (1982).
201. 388 Mass. 619, 447 N.E.2d 1233 (1983).
202. Id. at 622, 447 N.E.2d at 1235-36.
203. Id. at 623, 447 N.E.2d at 1236.
204. 249 Ga. 30, 287 S.E.2d 2 (1982).
205. Id. at 31, 287 S.E.2d at 4.
206. Id.
207. See In re Burns (Unreported Judgment COJ-7, Ala. Ct. Jud., July 18, 1977); In re Inquiry Concerning A Judge No. 491, 249 Ga. 30, 287 S.E.2d 2 (1982); Louisiana State Bar Ass’n v. Funderburk, 284 So. 2d 564 (La. 1973); In re Szymanski, 400 Mich. 469, 255 N.W.2d 601 (1977); In re Bates, 555 S.W.2d 420 (Tex. 1977). In re Biggins, 153 Ariz. 439, 737 P.2d 1077 (1987); McComb v. Comm’n on Jud. Performance, 19 Cal. 3d 1, 564 P.2d 1, 138 Cal. Rptr. 459 (1977);
208. See cases cited supra note 207.
209. See In re Haddad, 128 Ariz. 490, 492, 627 P.2d 221, 223 (1981).
210. See id.; In re Kelley, 238 So. 2d 565, 569 (Fla. 1970), cert. denied, 401 U.S. 962 (1971); In re Benoit, 487 A.2d 1158 (Me. 1985); In re Storie, 574 S.E.2d 369 (Mo. 1978); In re Wright, 313 N.C. 495, 329 S.E.2d 668 (1985).
211. See Kelley, 238 So. 2d at 569.
212. See Benoit, 487 A.2d at 1174;’In re Diener, 268 Md. 659, 304 A.2d 587 (1973), cert. denied, 415 U.S. 989 (1974); Sharpe v. State, 448 P.2d 301 (Okla. 1968), cert. denied, 394 U.S. 904 (1969); In re Coruzzi, 95 N.J. 557, 472 A.2d 546, appeal dismissed, 469 U.S. 802 (1984); Wright, 313 N.C. at 499, 329 S.E.2d at 671.
213. Kelley, 238 So. 2d at 569.
214. See People v. La Carrubba, 46 N.Y.2d 658, 661, 416 N.Y.S.2d 203, 206, 389 N.E.2d 799, 802 (1979); see also cases cited supra note 207.
215. E.g., In re Haddad, 128 Ariz. 490, 492, 627 P.2d 221, 223 (1981); Coruzzi, 95 N.J. at 570, 472 A.2d at 557.
216. See I. TESITOR & D. SINKS, JUDICIAL CONDUCT ORGANIZATIONS 3 (2d ed. 1980).
217. See In re Sanford, 352 So. 2d 1126, 1128-29 (Ala. 1977); In re Ross, 428 A.2d 858, 860 (Me. 1981); In re Judge Anonymous, 590 P.2d 1181, 1188 (Okla. 1978).
218. In re Burns (Unreported Judgment COJ-7, Ala. Ct. Jud., July 18, 1977); In re Biggins, 153 Ariz. 439, 737 P.2d 1077 (1987); McComb v. Comm’n on Jud. Performance, 19 Cal. 3d 1, 564 P.2d 1, 138 Cal. Rptr. 459 (1977); In re Inquiry Concerning A Judge No. 491, 249 Ga. 30, 287 S.E.2d 2 (1982); Louisiana State Bar Ass’n v. Funderburk, 284 So. 2d 564 (La. 1973); In re Szymanski, 400 Mich. 469, 255 N.W.2d 601 (1977); In re Bates, 555 S.W.2d 420 (Tex. 1977).
219. 555 S.W.2d 420 (Tex. 1977).
220. Id. at 428.
221. 19 Cal. 3d Spec. Trib. Supp. 1, 564 P.2d 1, 138 Cal. Rptr. 459 (1977).
222. Id. at 9, 564 P.2d at 5, 138 Cal. Rptr. at 463.223. 374 Mich. 104, 131 N.W.2d 201 (1964).
224. Id. at 105, 131 N.W.2d at 203.
225. 34 N.J. 259, 168 A.2d 38 (1961).
226. Id. at 266, 168 A.2d at 42.
227. Id.
228. 542 S.W.2d 105 (Tex. 1976).
229. Id. at 108; see also In re Mussman, 112 N.H. 99, 289 A.2d 403 (1972).
230. See In re Biggins, 153 Ariz. 439, 737 P.2d 1077 (1987); In re Inquiry Concerning A Judge No. 491, 249 Ga. 30, 287 S.E.2d 2 (1982); Louisiana State Bar Ass’n v. Funderburk, 284 So. 2d 564 (La. 1973); In re Callanan, 419 Mich. 376, 355 N.W.2d 69 (1984).
231. 284 So. 2d 564 (La. 1973).
232. 153 Ariz. 439, 737 P.2d 1077 (1987).233. Id. at 443-44, 737 P.2d at 1081-82.
234. Id.
235. 419 Mich. 376, 355 N.W.2d 69 (1984).
236. Id. at 387-89, 355 N.W. 2d at 74.
237. N.Y.L.J., June 2, 1982 at 1, col. 5 (N.Y. Sup. Ct. May 27), modified, 91 A.D.2d 554, 457 N.Y.S.2d 33 (1982).
238. Friess, N.Y.L.J., June 2, 1982 at 7, col. 2.
239. Id.
240. Id.
241. 91 A.D.2d 554, 457 N.Y.S.2d 33 (1982).
242. Id. at 556, 457 N.Y.S.2d at 35.
243. Id.
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Abuse & Neglect – The Reporters (Police, D.A & Medical & the Bad Actors)

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CURRENT TEST = We also have the The ‘Brandenburg test’ for incitement to violence – 1st Amendment

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The Parental Rights Amendment is currently in the U.S. Senate, and is being introduced in the U.S. House.

How to File a complaint of Police Misconduct ?

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How to File a complaint of Police Misconduct ?

OR ANY OTHER GOVERNMENT OFFICIALS

CALIFORNIA PIU3 COMPLAINT ABOUT LAW ENFORCEMENT / POLICE / SHERIFF or other LEO ETC https://oag.ca.gov/sites/all/files/agweb/pdfs/consumers/le_complaint_policy.pdf
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Contact the Department of Justice to report a civil rights violation https://civilrights.justice.gov/report/
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Claims against government agencies must generally be submitted to the agency before a lawsuit can be filed, pursuant to the California Torts Claims Act and federal Federal Torts Claims Act (28 USC § 1346 and 28 USC §§ 2671-2680). Some agencies have forms for submitting claims;

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if your complaint involves any of the following matters, generally not investigated by the DOJ OIG LIKE:

911 emergencies
EEO complaints
Misconduct by judges at the federal, state, or local level
Misconduct by state and local police departments (unless the misconduct concerns DOJ grant funds)
Misconduct at state and local prisons (unless the complainant involves a U.S. Marshals Service detainee)

THEN LOOK AT THESE RESOURCES

If your complaint does not fall within the DOJ OIG’s investigative authority, you may need to contact another federal, state, or local agency for assistance.

For 911 emergencies, contact your local police department or sheriff’s office.
For complaints regarding a state prison or local jail, contact the state Inspector General’s office or internal affairs unit that oversees the detaining agency. If you have a complaint about a U.S. Marshals Service detainee being held in a state prison or local jail, you may submit your complaint to the DOJ OIG.
For complaints involving fraud, waste, abuse, or misconduct at federal agencies other than the DOJ, contact information for the appropriate federal Inspector General’s office can be found here.
For complaints involving fraud, waste, or abuse related to the Coronavirus Aid, Relief, and Economic Security Act (CARES) of 2020, contact the Pandemic Response Accountability Committee here.
For Equal Employment Opportunity (EEO) complaints, please refer to the DOJ Equal Employment Opportunity Office.
For complaints related to misconduct by federal judges, please refer to the United States Courts website.
For complaints involving civil rights violations committed by individuals outside of the DOJ, contact the DOJ Civil Rights Division here.

You may want to read up on the FEDERAL RULES OF CIVIL PROCEDURE

The Federal Rules of Civil Procedure (pdf) (eff. Dec. 1, 2020) govern civil proceedings in the United States district courts. Their purpose is “to secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1. The rules were first adopted by order of the Supreme Court on December 20, 1937, transmitted to Congress on January 3, 1938, and effective September 16, 1938. The Civil Rules were last amended in 2020. download that here

Here is the DOJ Police Misconduct

ADDRESSING POLICE MISCONDUCT LAWS ENFORCED BY THE DEPARTMENT OF JUSTICE

The vast majority of the law enforcement officers in this country perform their very difficult jobs with respect for their communities and in compliance with the law. Even so, there are incidents in which this is not the case. This document outlines the laws enforced by the United States Department of Justice (DOJ) that address police misconduct and explains how you can file a complaint with DOJ if you believe that your rights have been violated.

Federal laws that address police misconduct include both criminal and civil statutes. These laws cover the actions of State, county, and local officers, including those who work in prisons and jails. In addition, several laws also apply to Federal law enforcement officers. The laws protect all persons in the United States (citizens and non-citizens).

Each law DOJ enforces is briefly discussed below. In DOJ investigations, whether criminal or civil, the person whose rights have been reportedly violated is referred to as a victim and often is an important witness. DOJ generally will inform the victim of the results of the investigation, but we do not act as the victim’s lawyer and cannot give legal advice as a private attorney could.

The various offices within DOJ that are responsible for enforcing the laws discussed in this document coordinate their investigative and enforcement efforts where appropriate. For example, a complaint received by one office may be referred to another if necessary to address the allegations. In addition, more than one office may investigate the same complaint if the allegations raise issues covered by more than one statute.

What is the difference between criminal and civil cases? Criminal and civil laws are different. Criminal cases usually are investigated and handled separately from civil cases, even if they concern the same incident. In a criminal case, DOJ brings a case against the accused person; in a civil case, DOJ brings the case (either through litigation or an administrative investigation) against a governmental authority or law enforcement agency. In a criminal case, the evidence must establish proof “beyond a reasonable doubt,” while in civil cases the proof need only satisfy the lower standard of a “preponderance of the evidence.” Finally, in criminal cases, DOJ seeks to punish a wrongdoer for past misconduct through imprisonment or other sanction. In civil cases, DOJ seeks to correct a law enforcement agency’s policies and practices that fostered the misconduct and, where appropriate, may require individual relief for the victim(s).

FEDERAL CRIMINAL ENFORCEMENT

It is a crime for one or more persons acting under color of law willfully to deprive or conspire to deprive another person of any right protected by the Constitution or laws of the United States. (18 U.S.C. §§ 241, 242). “Under color of law” means that the person doing the act is using power given to him or her by a governmental agency (local, State, or Federal). A law enforcement officer acts “under color of law” even if he or she is exceeding his or her rightful power. The types of law enforcement misconduct covered by these laws include excessive force, sexual assault, intentional false arrests, theft, or the intentional fabrication of evidence resulting in a loss of liberty to another. Enforcement of these provisions does not require that any racial, religious, or other discriminatory motive existed. What remedies are available under these laws? These are criminal statutes. Violations of these laws are punishable by fine and/or imprisonment. There is no private right of action under these statutes; in other words, these are not the legal provisions under which you would file a lawsuit on your own.

FEDERAL CIVIL ENFORCEMENT

“Police Misconduct Provision”

This law makes it unlawful for State or local law enforcement officers to engage in a pattern or practice of conduct that deprives persons of rights protected by the Constitution or laws of the United States. (34 U.S.C. § 12601). The types of conduct covered by this law can include, among other things, excessive force, discriminatory harassment, false arrests, coercive sexual conduct, and unlawful stops, searches or arrests. In order to be covered by this law, the misconduct must constitute a “pattern or practice” — it may not simply be an isolated incident. The DOJ must be able to show in court that the agency has an unlawful policy or that the incidents constituted a pattern of unlawful conduct. However, unlike the other civil laws discussed below, DOJ does not have to show that discrimination has occurred in order to prove a pattern or practice of misconduct. What remedies are available under this law? The remedies available under this law do not provide for individual monetary relief for the victims of the misconduct. Rather, they provide for injunctive relief, such as orders to end the misconduct and changes in the agency’s policies and procedures that resulted in or allowed the misconduct. There is no private right of action under this law; only DOJ may file suit for violations of the Police Misconduct Provision.

Title VI of the Civil Rights Act of 1964 and the “OJP Program Statute”

Together, these laws prohibit discrimination on the basis of race, color, national origin, sex, and religion by State and local law enforcement agencies that receive financial assistance from DOJ. (42 U.S.C. § 2000d, et seq. and 34 U.S.C. § 10228). These laws prohibit both individual instances and patterns or practices of discriminatory misconduct, i.e., treating a person differently because of race, color, national origin, sex, or religion. The misconduct covered by Title VI and the OJP (Office of Justice Programs) Program Statute includes, for example, harassment or use of racial slurs, discriminatory arrests, discriminatory traffic stops, coercive sexual conduct, retaliation for filing a complaint with DOJ or participating in the investigation, discriminatory use of force, or refusal by the agency to respond to complaints alleging discriminatory treatment by its officers. What remedies are available under these laws? DOJ may seek changes in the policies and procedures of the agency to remedy violations of these laws and, if appropriate, also seek individual remedial relief for the victim(s). Individuals also have a private right of action in certain circumstances under Title VI and under the OJP Program Statute; in other words, you may file a lawsuit yourself under these laws. However, you must first exhaust your administrative remedies by filing a complaint with DOJ if you wish to file in Federal Court under the OJP Program Statute.

Title II of the Americans with Disabilities Act of 1990 and Section 504 of the Rehabilitation Act of 1973

The Americans with Disabilities Act (ADA) and Section 504 prohibit discrimination against individuals on the basis of disability. (42 U.S.C. § 12131, et seq. and 29 U.S.C. § 794). These laws protect all people with disabilities in the United States. An individual is considered to have a “disability” if he or she has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.

The ADA prohibits discrimination on the basis of disability in all State and local government programs, services, and activities regardless of whether they receive DOJ financial assistance; it also protects people who are discriminated against because of their association with a person with a disability. Section 504 prohibits discrimination by State and local law enforcement agencies that receive financial assistance from DOJ. Section 504 also prohibits discrimination in programs and activities conducted by Federal agencies, including law enforcement agencies.

These laws prohibit discriminatory treatment, including misconduct, on the basis of disability in virtually all law enforcement services and activities. These activities include, among others, interrogating witnesses, providing emergency services, enforcing laws, addressing citizen complaints, and arresting, booking, and holding suspects. These laws also prohibit retaliation for filing a complaint with DOJ or participating in the investigation. What remedies are available under these laws? If appropriate, DOJ may seek individual relief for the victim(s), in addition to changes in the policies and procedures of the law enforcement agency. Individuals have a private right of action under both the ADA and Section 504; you may file a private lawsuit for violations of these statutes. There is no requirement that you exhaust your administrative remedies by filing a complaint with DOJ first.

HOW TO FILE A COMPLAINT WITH DOJ

Criminal Enforcement of Police Illegal Conduct

If you would like to file a complaint alleging a violation of the criminal laws by law enforcement discussed above, you may contact the Federal Bureau of Investigation (FBI), which is responsible for investigating allegations of criminal deprivations of civil rights. You may also contact the United States Attorney’s Office (USAO) in your district. The FBI and USAOs have offices in most major cities and have publicly-listed phone numbers.

You can find your local office here:
https://www.fbi.gov/contact-us

Civil Enforcement

If you would like to report a violation of the Police Misconduct Statute, Title VI, or the OJP Program Statute, contact the Justice Department at civilrights.justice.gov.

How do I file a complaint about the conduct of a law enforcement officer from a Federal agency?

If you believe that you are a victim of criminal misconduct by a Federal law enforcement officer (such as Immigration and Customs Enforcement; the FBI; Alcohol, Tobacco, Firearms and Explosives; Drug Enforcement Agency, United States Marshals Service, or the Border Patrol), you should follow the procedures discussed above concerning how to file a complaint alleging violations of the criminal laws we enforce. If you believe that you have been subjected by a Federal law enforcement officer to the type of misconduct discussed above concerning “Federal Civil Enforcement,” visit civilrights.justice.gov.

Reproduction of this document is encouraged.

This flyer is not intended to be a final agency action, has no legally binding effect, and has no force or effect of law. This document may be rescinded or modified in the Department’s complete discretion, in accordance with applicable laws. This flyer does not establish legally enforceable rights or responsibilities beyond what is required by the terms of the applicable statutes, regulations, or binding judicial precedent. For more information, see “Memorandum for All Components: Prohibition of Improper Guidance Documents,” from Attorney General Jefferson B. Sessions III, November 16, 2017.

https://www.justice.gov/crt/addressing-police-misconduct-laws-enforced-department-justice

What to Report TO the OIG and it involves any of the following below use these resources

You may report waste, fraud, abuse, or misconduct relating to a DOJ employee, program, contract, or grant to the OIG Hotline. The OIG accepts complaints related to the following DOJ components:

Federal Bureau of Investigation
Drug Enforcement Administration
Federal Bureau of Prisons
U.S. Marshals Service
Bureau of Alcohol, Tobacco, Firearms, and Explosives
United States Attorneys’ Offices
Other DOJ Offices, Bureaus, or Divisions

The DOJ OIG also has jurisdiction to investigate allegations of whistleblower retaliation involving:

Employees of the Federal Bureau of Investigation
Employees of DOJ contractors, subcontractors, grantees, and subgrantees
DOJ employees who believe their security clearance or access to classified information has been taken in retaliation for whistleblowing

to learn where to submit this info go here https://oig.justice.gov/hotline/nature_of_complaint

§1346. United States as defendant

28 U.S.C.
United States Code, 2015 Edition
Title 28 – JUDICIARY AND JUDICIAL PROCEDURE
PART IV – JURISDICTION AND VENUE
CHAPTER 85 – DISTRICT COURTS; JURISDICTION
Sec. 1346 – United States as defendant

LAW ENFORCEMENT MISCONDUCT

Investigations and Prosecutions

About the Law Enforcement Misconduct Statute

Physical Assault

Sexual Misconduct

Deliberate Indifference to a Serious Medical Condition or a Substantial Risk of Harm

Failure to Intervene

INVESTIGATIONS AND PROSECUTIONS

The Department of Justice (“The Department”) vigorously investigates and, where the evidence permits, prosecutes allegations of Constitutional violations by law enforcement officers. The Department’s investigations most often involve alleged uses of excessive force, but also include sexual misconduct, theft, false arrest, and deliberate indifference to serious medical needs or a substantial risk of harm to a person in custody. These cases typically involve police officers, jailers, correctional officers, probation officers, prosecutors, judges, and other federal, state, or local law enforcement officials. The Department’s authority extends to all law enforcement conduct, regardless of whether an officer is on or off duty, so long as he/she is acting, or claiming to act, in his/her official capacity.

In addition to Constitutional violations, the Department prosecutes law enforcement officers for related instances of obstruction of justice. This includes attempting to prevent a victim or witnesses from reporting the misconduct, lying to federal, state, or local officials during the course of an investigation into the potential misconduct, writing a false report to conceal misconduct, or fabricating evidence.

The principles of federal prosecution, set forth in the United States Attorneys’ Manual (“USAM”), require federal prosecutors to meet two standards in order to seek an indictment.

First, the government must be convinced that the potential defendant committed a federal crime. Second, the government must also conclude that the government would be likely to prevail at trial, where the government must prove the charges beyond a reasonable doubt. See USAM § 9-27.220.^[1]

^[1]The USAM provides only internal Department of Justice guidance. It is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal. Nor are any limitations hereby placed on otherwise lawful litigative prerogatives of the Department of Justice.

ABOUT THE LAW ENFORCEMENT MISCONDUCT STATUTE

The federal criminal statute that enforces Constitutional limits on conduct by law enforcement officers is 18 U.S.C. § 242. Section 242 provides in relevant part:

“Whoever, under color of any law, …willfully subjects any person…to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States [shall be guilty of a crime].”

Section 242 is intended to “protect all persons in the United States in their civil rights, and furnish the means of their vindication.” Screws v. United States, 325 U.S. 91, 98 (1945) (quoting legislative history).

To prove a violation of § 242, the government must prove each of the following elements beyond a reasonable doubt: (1) that the defendant deprived a victim of a right protected by the Constitution or laws of the United States, (2) that the defendant acted willfully, and (3) that the defendant was acting under color of law. A violation of § 242 is a felony if one of the following conditions is met: the defendant used, attempted to use, or threatened to use a dangerous weapon, explosive or fire; the victim suffered bodily injury; the defendant’s actions included attempted murder, kidnapping or attempted kidnapping, aggravated sexual abuse or attempted aggravated sexual abuse, or the crime resulted in death. Otherwise, the violation is a misdemeanor.

Establishing the intent behind a Constitutional violation requires proof beyond a reasonable doubt that the law enforcement officer knew what he/she was doing was wrong and against the law and decided to do it anyway. Therefore, even if the government can prove beyond a reasonable doubt that an individual’s Constitutional right was violated, § 242 requires that the government prove that the law enforcement officer intended to engage in the unlawful conduct and that he/she did so knowing that it was wrong or unlawful. See Screws v. United States, 325 U.S. 91, 101-107 (1945). Mistake, fear, misperception, or even poor judgment does not constitute willful conduct prosecutable under the statute.

Physical Assault

In cases of physical assault, such as allegations of excessive force by an officer, the underlying Constitutional right at issue depends on the custodial status of the victim. If the victim has just been arrested or detained, or if the victim is being held in jail but has not yet been convicted, the government must, in most cases, prove that that the law enforcement officer used more force than is reasonably necessary to arrest or gain control of the victim. This is an objective standard dependent on what a reasonable officer would do under the same circumstances. “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386, 396-97 (1989).

If the victim is a convicted prisoner, the government must show that the law enforcement officer used physical force to punish , retaliate against, an inmate, or otherwise cause harm to the prisoner, rather than to protect the officer or others from harm or to maintain order in the facility. See Whitley v. Albers, 475 U.S. 312, 319 (1986).

Sexual Misconduct

Law enforcement officers who engage in nonconsensual sexual contact with persons in their custody deprive those persons of liberty without due process of law, which includes the right to bodily integrity. The Department investigates and prosecutes instances of nonconsensual sexual misconduct committed by patrol officers, federal and state probation officers, wardens, and corrections officers, among others. Sexual misconduct includes, but is not limited to, sexual assault without consent (rape), sexual contact procured by force, threat of force or coercion, and unwanted or gratuitous sexual contact such as touching or groping.

To prove that a law enforcement officer violated a victim’s right to bodily integrity, the government must prove that the victim did not consent to the defendant’s actions. Prosecutors can establish lack of consent or submission by showing that the defendant officer used either force or coercion to overcome the victim’s will. It is not necessary to prove that the defendant used actual violence against the victim. Coercion may exist if a victim is told that an officer will bring false charges or cause the victim to suffer unjust punishment.

Deliberate Indifference to a Serious Medical Condition or a Substantial Risk of Harm

Section 242 prohibits a law enforcement officer from acting with deliberate indifference to a substantial risk of harm to persons in custody. Therefore, an officer cannot deliberately ignore a serious medical condition of or risk of serious harm (such as a risk that an inmate will be assaulted by other inmates or officers) to a person in custody. To prove deliberate indifference, the government must prove that the victim faced a substantial risk of serious harm; that the officer had actual knowledge of the risk of harm; and that the officer failed to take reasonable measures to abate it.

Failure to Intervene

An officer who purposefully allows a fellow officer to violate a victim’s Constitutional rights may be prosecuted for failure to intervene to stop the Constitutional violation. To prosecute such an officer, the government must show that the defendant officer was aware of the Constitutional violation, had an opportunity to intervene, and chose not to do so. This charge is often appropriate for supervisory officers who observe uses of excessive force without stopping them, or who actively encourage uses of excessive force but do not directly participate in them.
https://www.justice.gov/crt/law-enforcement-misconduct#iap

Looking for all your federally protected civil rights statutes?

Are you are looking for all federally protected civil rights statutes click here

SHOULD SHERIFF’S DEPUTIES ENJOY IMMUNITY FOR DEPRAVED CONDUCT?

The Truth News — Sun, 07 Aug 2022 09:19:59 +0000

SHOULD SHERIFF’S DEPUTIES ENJOY IMMUNITY FOR DEPRAVED CONDUCT?

In the 2008 crime thriller Lakeview Terrace, Samuel L. Jackson plays a Los Angeles cop who relentlessly harasses his next-door neighbors, an interracial couple. Expecting help, the couple alert another officer but learn a disturbing lesson about the emptiness of “protect and serve” slogans. “It’s his word against yours, and he has, let’s say, the color issue on his side,” the warped officer advises. “And that color happens to be blue.”

Crystal Holmes probably won’t watch that flick because of her real-life nightmare. For years, Holmes found herself targeted for obnoxious harassment by her next-door neighbor in Altadena: a cop. Holmes reported the conduct of LA sheriff’s detective Rosalina Harris; her husband, Dean; and her adult daughter Arlani to other cops without winning an iota of sympathy. In fact, according to court records, Dean advised her, “Go ahead. Go to the police. They’re not going to do anything to us.”

He was right. Police officers not only refused to come to Holmes’ aid, but they also joined in the abuse. What the subsequent Holmes v. Harris litigation underscores is a troubling question: Who can a harassed citizen turn to if the perpetrator is a cop?

Detective’s classy dog poop transfer to neighbor’s property

This story began innocently. Thinking she’d found her dream home, Holmes moved next to the Harrises in 1998. The corporate consultant eventually found herself in a living hell. Her neighbors behaved as if they owned her driveway.

“Ms. Holmes repeatedly returned home to find herself unable to park in her own driveway because it was already occupied by [the Harrises’] vehicles or their guests’ [cars],” according to Holmes’ lawyers, Caleb E. Mason and Scott L. Menger of Brown White & Osborn, LLP. “When Holmes politely asked if they would please stop parking their vehicles in her driveway, Mr. Harris refused, saying, ‘If your car is not in your driveway, we are going to use it, and there is nothing you can do about it.’”

Holmes says her complaints only brought retaliation, including “rude and threatening statements” or worse.

For example, the Harrises’ dog would urinate and crap on their driveway, and the detective would hose the mess onto Holmes’ property.

Rosalina Harris denied the assertion, but surveillance footage captured her in such an act on Nov. 19, 2017; a still image shows the detective holding a hose, pointing the flow at the dog’s feces and creating a corresponding unsanitary puddle in Holmes’ driveway.

The detective wasn’t alone in her mischief. Court records show Dean liked to use a leaf blower as a delivery device to transport trash and debris from his property onto Holmes’ yard. On April 13, 2015, Holmes parked her red SUV on the street, and Dean moved two of his cars directly in front of and behind hers, bumper to bumper, trapping it in. Surveillance footage shows him walking away from his masterpiece.

On Sept. 30, 2016, Dean “backed his truck with significant force into the front of Holmes’ car, causing damage,” according to court records. Though the victim notified the California Highway Patrol, nothing happened. Dean claimed it had been an accident.

Holmes finally found relief in October 2016, when she won a temporary restraining order against Dean. At a later hearing for a permanent injunction, the detective introduced an alleged psychological evaluation by Argiro Julie Kiotas, then a purported 26-year psychologist. Kiotas opined that Holmes suffered from a “serious personality disorder” and was the actual harasser in the feud.

Bumper to bumper games employed against Holmes

But, according to court records, Kiotas wasn’t a licensed psychologist in California and never interviewed Holmes. According to Transparent California, she makes $274,000 annually as an instructor at Pasadena City College.

Holmes’ attorneys blame Kiotas’ input for the judge siding in early 2017 with Harris on the injunction issue.

That court victory may have emboldened the detective and her family. On Feb. 25, 2017, Dean parked his truck across the street and walked onto his property. Meanwhile, Arlani waited 16 seconds to follow as Holmes was arriving. “Arlani then crossed the street, timing her crossing so that Holmes’ vehicle was now pulling up slowly by the properties and passed behind her,” states Holmes’ version of the events. “Mr. Harris watched Arlani as she crossed the street. Immediately after Holmes passed Arlani, Arlani visibly laughed.”

View of Harris’ deputy colleague watching the paint dry at Holmes’ house

At first, the joke was on Holmes. Dean called deputies to report a felony. Summoned officers were told Holmes revved her engine and accelerated as she tried to run over Arlani, which—if true—would constitute assault with a deadly weapon. Arlani posed frightened.

From surveillance footage, it appears one of the officers at the scene, Sergeant Tom Crosswhite, may have been resisting a demand for Holmes’ arrest. According to court records, Dean “became quite animated” and “appeared to argue with or berate [Sergeant] Crosswhite.” Rosalina arrived at the scene 35 minutes into the dispute and huddled with her law-enforcement pals. At the conclusion of the pow-wows, Deputy Elizabeth Cano arrested Holmes, who that day was scheduled for a business trip to Hawaii.

“Arlani then turned to Mr. Harris and laughed and danced,” according to Holmes’ lawsuit.

Welcome to a disturbing Orwellian La La Land (Illustration by Paul Angel)

But there had been no crime other than, perhaps, filing a false police report, which—as you can now guess—was ignored. For that fact, we can once again thank surveillance video, which deputies unsuccessfully tried to confiscate from a suspicious Holmes. After watching the footage, a prosecutor declined to file charges, announcing, “[Arlani] claims the suspect tried to hit her. The video does not support her claim.”

R. SCOTT MOXLEY

Over the objections of Rosalina’s department in August 2017, Superior Court Judge Darrell Mavis declared Holmes’ “factually innocent,” a rare judicial pronouncement for a defendant.

Was Holmes now able to live without harassment? No. Horror-movie fans know monsters such as Jason Voorhees of the Friday the 13th series fame aren’t easily extinguished.

According to court records, when Holmes refused to obey the Harrises’ demands about what she should do on her own property, armed and on-duty deputies arrived at her house on Dec. 10, 2017; Feb. 15, 2018; and April 3, 2018. They asked her hostile questions about her trash-bin use and the erection of a fence, snooped around, and left her intimidated. Sometimes the officers stood aggressively in front of her house and just stared. Surveillance footage also proves these facts.

How many armed deputies does it take to explore residential trash bin use?

On April 4, 2018, Dean ripped down a tarp Holmes had installed on her fence. When Holmes walked over, Dean stated to his nearby wife, “Honey, she stabbed me! Call the police!”

Detective Harris phoned her colleagues via 911. When deputies arrived, they saw no evidence of a stabbing, according to court records. Nonetheless, the incident was scarring. Holmes, who is African American, moved into a hotel and, in May 2018, filed a federal lawsuit alleging malicious prosecution and deprivation of constitutional rights under the color of law.

Before a jury trial, Rosalina tried to kill the litigation. She argued there wasn’t proof she used her police power in the dispute, including causing Holmes’ arrest. Her communications with deputies over the years about her neighbor had only been part of her efforts to “de-escalate” tensions, she insisted.

If that didn’t work, she wanted evidence excluded so she could claim the feud had been an innocent misunderstanding. Besides, blame for the arrest rested solely on Holmes, according to the detective’s lawyers at Seki, Nishimura & Watase, which specializes in representing accused dirty cops.

“Plaintiff’s seizure was caused by her own refusal to release the surveillance footage to the deputies,” they opined. “A reasonable person would consider her conduct highly unusual or an extraordinary response to the situation. Mrs. Harris did not know and had no reason to expect that [Holmes] would act in a wrongful manner.”

On the other hand, the detective had acted “reasonably” in her role as “a wife and mother,” and deserved qualified immunity to “shield her from liability” based on her police officer status, they added.

This May, U.S. District Court Judge Philip S. Gutierrez dismissed Holmes’ malicious prosecution claims on a loophole. Though Holmes had been arrested on a trumped-up accusation, she hadn’t been technically prosecuted. But Gutierrez said a jury should decide if the detective trampled Holmes’ rights against unreasonable arrests.

In the weeks before jury selection, the Los Angeles County Sheriff’s Department placed a one-minute, 34-second video on YouTube. The footage shows a mild-mannered Harris driving and speaking to a camera. The department attached the following words: “Watch as she discusses her love for the job, helping innocent victims and finding justice for them.”

Taxpayer-funded police YouTube shenanigans

The sly publicity stunt didn’t work. This month, a jury sided with Holmes. They awarded her more than $2.26 million.

If Google is accurate, no Southern California media outlet covered this case.

R. SCOTT MOXLEY

CNN-featured investigative reporter R. Scott Moxley has won Journalist of the Year honors at the Los Angeles Press Club; been named Distinguished Journalist of the Year by the LA Society of Professional Journalists; obtained one of the last exclusive prison interviews with Charles Manson disciple Susan Atkins; won inclusion in Jeffrey Toobin’s The Best American Crime Reporting for his coverage of a white supremacist’s senseless murder of a beloved Vietnamese refugee; launched multi-year probes that resulted in the FBI arrests and convictions of the top three ranking members of the Orange County Sheriff’s Department; and gained praise from New York Times Magazine writers for his “herculean job” exposing entrenched Southern California law enforcement corruption.

CITED FROM https://www.ocweekly.com/rosalina-harris-los-angeles-deputy/

Jurisdiction – Judge’s Qualified Immunity – Judicial Ethics for Pro Se Litigants

The Truth News — Sun, 17 Jul 2022 08:45:56 +0000

Judge’s Jurisdiction – Judicial Ethics for Pro Se Litigants

Piercing a Judges’ Qualified Immunity

You can’t But he can, and many do………..

JUDGE’S’ PIERCING THEIR OWN IMMUNITY OF PROTECTION OPENING THEMSELVES UP TO CIVIL RETALIATION

NOT ALWAYS IMMUNE WHEN THEY PIERCE IT THEMSELVES

after reading this article learn more on the subject Jurisdiction vs Venue below:

What Is Jurisdiction? Jurisdition vs Venue? (click here)

How Far Does Judicial Immunity & Where it End$ Click Here to Learn More

NO IMMUNITY

“Sovereign immunity does not apply where (as here) government is a lawbreaker or jurisdiction is the issue.” Arthur v. Fry, 300 F.Supp. 622 “Knowing failure to disclose material information necessary to prevent statement from being misleading, or making representation despite knowledge that it has no reasonable basis in fact, are actionable as fraud under law.” Rubinstein v. Collins, 20 F.3d 160, 1990

[a] “Party in interest may become liable for fraud by mere silent acquiescence and partaking of benefits Bransom v. Standard Hardware, Inc., 874 S.W.2d 919,1994

Ex dolo malo non oritur actio. Out of fraud no action arises; fraud never gives a right of action. No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. As found in Black’s Law Dictionary, Fifth Edition, page 509. “Fraud destroys the validity of everything into which it enters,” Nudd v. Burrows, 91 U.S 426. “Fraud vitiates everything” Boyce v. Grundy, 3 Pet. 210

“Fraud vitiates the most solemn contracts, documents and even judgments.” U.S. v. Throckmorton, 98 US 61

When a Citizen challenges the acts of a federal or state official as being illegal, that official cannot just simply avoid liability based upon the fact that he is a public official. In United States v. Lee, 106 U.S. 196, 220, 221, 1 S.Ct. 240, 261, the United States claimed title to Arlington, Lee’s estate, via a tax sale some years earlier, held to be void by the Court. In so voiding the title of the United States, the Court declared:“No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives. “Shall it be said… that the courts cannot give remedy when the citizen has been deprived of his property by force, his estate seized and converted to the use of the government without any lawful authority, without any process of law, and without any compensation, because the president has ordered it and his officers are in possession? If such be the law of this country, it sanctions a tyranny which has no existence in the monarchies of Europe, nor in any other government which has a just claim to well-regulated liberty and the protection of personal rights.”

See Pierce v. United States (“The Floyd Acceptances”), 7 Wall. (74 U.S.) 666, 677
(“We have no officers in this government from the President down to the most subordinate agent, who does not hold office under the law, with prescribed duties and limited authority”);
Cunningham v. Macon, 109 U.S. 446, 452, 456, 3 S.Ct. 292, 297 (“In these cases he is not sued as, or because he is, the officer of the government, but as an individual, and the court is not ousted of jurisdiction because he asserts authority as such officer. To make out his defense he must show that his authority was sufficient in law to protect him… It is no answer for the defendant to say I am an officer of the government and acted under its authority unless he shows the sufficiency of that authority”); and Poindexter v. Greenhow, 114 U.S. 270, 287, 5 S.Ct. 903, 912 WHEREAS, officials and even judges have no immunity (See, Owen vs. City of Independence, 100 S Ct. 1398; Maine vs. Thiboutot, 100 S. Ct. 2502; and Hafer vs. Melo, 502 U.S. 21; officials and judges are deemed to know the law and sworn to uphold the law; officials and judges cannot claim to act in good faith in willful deprivation of law, they certainly cannot plead ignorance of the law, even the Citizen cannot plead ignorance of the law, the courts have ruled there is no such thing as ignorance of the law, it is ludicrous for learned officials and judges to plead ignorance of the law therefore there is no immunity, judicial or otherwise, in matters of rights secured by the Constitution for the United States of America. See: Title 42 U.S.C. Sec. 1983.

WHEREAS, officials and even judges have questioned immunity (See, Owen vs. City of Independence, 100 S Ct. 1398; Maine vs. Thiboutot, 100 S. Ct. 2502; and Hafer vs. Melo, 502 U.S. 21; officials and judges are deemed to know the law and sworn to uphold the law; officials and judges cannot claim to act in good faith in willful deprivation of law, they certainly cannot plead ignorance of the law, even the Citizen cannot plead ignorance of the law, the courts have ruled there is no such thing as ignorance of the law, it is ludicrous for learned officials and judges to plead ignorance of the law therefore there is no immunity, judicial or otherwise, in matters of rights secured by the Constitution for the United States of America. See: Title 42 U.S.C. Sec. 1983.

“When lawsuits are brought against federal officials, they must be brought against them in their “individual” capacity not their official capacity. When federal officials perpetrate constitutional torts, they do so ultra vires (beyond the powers) and lose the shield of immunity.” Williamson v. U.S. Department of Agriculture, 815 F.2d. 369, ACLU Foundation v. Barr, 952 F.2d. 457, 293 U.S. App. DC 101, (CA DC 1991).“Personal involvement in deprivation of constitutional rights is prerequisite to award of damages, but defendant may be personally involved in constitutional deprivation by direct participation, failure to remedy wrongs after learning about it, creation of a policy or custom under which unconstitutional practices occur or gross negligence in managing subordinates who cause violation.” (Gallegos v. Haggerty, N.D. of New York, 689 F. Supp. 93 (1988). (HEAD DISTRICT ATTORNEY & HEADMASTER JUDGE)

“The law requires proof of jurisdiction to appear on the record of the administrative agency and all administrative proceedings.” Hagans v. Lavine, 415 U. S. 533

“Judge acted in the face of clearly valid statutes or case law expressly depriving him of (personal) jurisdiction would be liable.” Dykes v. Hosemann, 743 F.2d 1488 (1984). “In such case the judge has lost his judicial function, has become a mere private person, and is liable as a trespasser for damages resulting from his unauthorized acts.”

“Where there is no jurisdiction there is no judge; the proceeding is as nothing. Such has been the law from the days of the Marshalsea, 10 Coke 68;
also Bradley v. Fisher, 13 Wall 335,351.” Manning v. Ketcham, 58 F.2d 948.

“A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter any authority exercised is a usurped authority and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible.” Bradley v.Fisher,13 Wall 335, 351, 352.

The laws of nature are the laws of God, whose authority can be superseded by no power on earth. A legislature must not obstruct our obedience to him from whose punishments they cannot protect us. All human constitutions which contradict his cannot protect us. All human constitutions which contradict his (God’s) laws, we are in conscience bound to disobey. 1772, Robin v. Hardaway, 1 Jefferson 109. Supreme court cases from digging around Robin v. Hardaway 1790. Biblical Law at “Common Law” supersedes all laws, and “Christianity is custom, custom is Law.”

(I, Me, Myself am a “state”, with standing, standing in “original jurisdiction” know as the common law, Gods Law, a neutral traveling in itinerary, demanding all of my rights under God’s Natural Law, recorded in part in the Bible, which law is recognized in US Public Law 97-280 as “the word of God and all men are admonished to learn and apply it” so I demand anyone and everyone to notice God’s Laws, which are My Makers Laws and therefore My Laws!)

– Article 1 of the Bill of Rights – guarantees freedom of religion-
Constitution for the United States of America ARTICLE IV, sect. 1, Full faith and credit among states. (Self-executing constitutional provisions) Section 1. Full faith and Credit shall be given in each state to the public Acts, Records, and judicial Proceedings of every other state.

And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Zeller v. Rankin, 101 S.Ct. 2020, 451 U.S. 939, 68 L.Ed 2d 326 When a judge knows that he lacks jurisdiction, or acts in the face of clearly valid statutes expressly depriving him of jurisdiction, judicial immunity is lost.

JURISDICTION: NOTE: It is a fact of law that the person asserting jurisdiction must, when challenged, prove that jurisdiction exists; mere good faith assertions of power and authority (jurisdiction) have been abolished.

Albrecht v. U.S. Balzac v. People of Puerto Rico, 258 U.S. 298 (1922) “The United States District Court is not a true United States Court, established under Article 3 of the Constitution to administer the judicial power of the United States therein conveyed. It is created by virtue of the sovereign congressional faculty, granted under Article 4, 3, of that instrument, of making all needful rules and regulations respecting the territory belonging to the United States. The resemblance of its jurisdiction to that of true United States courts, in offering an opportunity to nonresidents of resorting to a tribunal not subject to local influence, does not change its character as a mere territorial court.”

“Jurisdiction of court may be challenged at any stage of the proceeding, and also may be challenged after conviction and execution of judgment by way of writ of habeas corpus.” [U.S. v. Anderson, 60 F.Supp. 649 (D.C.Wash. 1945)]

“No judicial process, whatever form it may assume, can have any lawful authority outside of the limits of the jurisdiction of the court or judge by whom it is issued; and an attempt to enforce it beyond these boundaries is nothing less than lawless violence.” Stump v. Sparkman, id., 435 U.S. 349.

Some Defendants urge that any act “of a judicial nature” entitles the Judge to absolute judicial immunity. But in a jurisdictional vacuum (that is, absence of all jurisdiction) the second prong necessary to absolute judicial immunity is missing. A judge is not immune for tortious acts committed in a purely Administrative, non-judicial capacity. Marbury v. Madison, 5 U.S. (2 Cranch) 137, 180 (1803) “… the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument.”

“In declaring what shall be the supreme law of the land, the Constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank”. “All law (rules and practices) which are repugnant to the Constitution are VOID”. Since the 14th Amendment to the Constitution states “NO State (Jurisdiction) shall make or enforce any law which shall abridge the rights, privileges, or immunities of citizens of the United States nor deprive any citizens of life, liberty, or property, without due process of law, … or equal protection under the law“, this renders judicial immunity unconstitutional. Piper v. Pearson, 2 Gray 120, cited in Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872)

“Where there is no jurisdiction, there can be no discretion, for discretion is incident to jurisdiction.” Chandler v. Judicial Council of the 10th Circuit, 398 U.S. 74, 90 S. Ct. 1648, 26 L. Ed. 2d 100 Justice Douglas, in his dissenting opinion at page 140 said, “If (federal judges) break the law, they can be prosecuted.” Justice Black, in his dissenting opinion at page 141) said, “Judges, like other people, can be tried, convicted and punished for crimes… The judicial power shall extend to all cases, in law and equity, arising under this Constitution”.

Davis v. Burris, 51 Ariz. 220, 75 P.2d 689 (1938) A judge must be acting within his jurisdiction as to subject matter and person, to be entitled to immunity from civil action for his acts.

“Jurisdiction, once challenged, cannot be assumed and must be decided.” Maine v. Thiboutot, 100 S. Ct. 250

Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828) Under federal Law, which is applicable to all states, the U.S. Supreme Court stated that “if a court is without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void, and form no bar to a recovery sought, even prior to a reversal in opposition to them. They constitute no justification and all persons concerned in executing such judgments or sentences are considered, in law, as trespassers.”

JUDICIAL IMMUNITY: See also, 42 USC 1983 – Availability of Equitable Relief Against Judges. Note: [Copied verbiage; we are not lawyers.] Judges have given themselves judicial immunity for their judicial functions. Judges have no judicial immunity for criminal acts, aiding, assisting, or conniving with others who perform a criminal act or for their administrative/ministerial duties, or for violating a citizen’s constitutional rights. When a judge has a duty to act, he does not have discretion – he is then not performing a judicial act; he is performing a ministerial act. Nowhere was the judiciary given immunity, particularly nowhere in Article III; under our Constitution, if judges were to have immunity, it could only possibly be granted by amendment (and even less possibly by legislative act), as Art. I, Sections 9 & 10, respectively, in fact expressly prohibit such, stating, “No Title of Nobility shall be granted by the United States” and “No state shall… grant any Title of Nobility.” Most of us are certain that Congress itself doesn’t understand the inherent lack of immunity for judges. Article III, Sec. 1, “The Judicial Power of the United States shall be vested in one supreme court, and in such inferior courts, shall hold their offices during good behavior.” Tort & Insurance Law Journal, Spring 1986 21 n3, p 509516, “Federal tort law: judges cannot invoke judicial immunity for acts that violate litigants’ civil rights.” – Robert Craig Waters.

“Ignorance of the law does not excuse misconduct in anyone, least of all in a sworn officer of the law.” In re McCowan (1917), 177 C. 93, 170 P. 1100.

“All are presumed to know the law.” San Francisco Gas Co. v. Brickwedel (1882), 62 C. 641; Dore v. Southern Pacific Co. (1912), 163 C. 182, 124 P. 817; People v. Flanagan (1924), 65 C.A. 268, 223 P. 1014; Lincoln v. Superior Court (1928), 95 C.A. 35, 271 P. 1107; San Francisco Realty Co. v. Linnard (1929), 98 C.A. 33, 276 P. 368.

“It is one of the fundamental maxims of the common law that ignorance of the law excuses no one.” Daniels v. Dean (1905), 2 C.A. 421, 84 P. 332.

Griffin v. Mathews, 310 Supp. 341, 423 F. 2d 272 Hagans v. Lavine, 415 U.S. 528 Howlett v. Rose, 496 U.S. 356 (1990) Federal Law and Supreme Court Cases apply to State Court Cases. Sims v. Aherns, 271 SW 720 (1925) “The practice of law is an occupation of common right.” Maine v. Thiboutot, 448 U.S. 1 Mookini v. U.S., 303 U.S. 201 (1938) “The term ‘District Courts of the United States’ as used in the rules without an addition expressing a wider connotation, has its historic significance. It describes the constitutional courts created under Article 3 of the Constitution. Courts of the Territories are Legislative Courts, properly speaking, and are not district courts of the United States. We have often held that vesting a territorial court with jurisdiction similar to that vested in the district courts of the United States (98 U.S. 145) does not make it a ‘District Court of the United States’.

“Not only did the promulgating order use the term District Courts of the United States in its historic and proper sense, but the omission of provision for the application of the rules the territorial court and other courts mentioned in the authorizing act clearly
shows the limitation that was intended.“

In Leiberg v. Vitangeli, 70 Ohio App. 479, 47 N.E. 2d 235, 238-39 (1942) “These constitutional provisions employ the word ‘person,’ that is. anyone whom we have permitted to peaceably reside within our borders may resort to our courts for redress of an injury done him in his land, goods, person or reputation. The real party plaintiff for whom the nominal plaintiff sues is not shown to have entered our land in an unlawful manner. We said to her, you may enter and reside with us and be equally protected by our laws so long as you conform thereto. You may own property and our laws will protect your title. “We, as a people, have said to those of foreign birth that these constitutional guaranties shall assure you of our good faith. They are the written surety to you of our proud boast that the United States is the haven of refuge of the oppressed of all mankind.”

Court will assign to common-law terms their common-law meaning unless legislature directs otherwise. People v. Young (1983) 340 N.W.2d 805,418 Mich. 1.

Common law, by constitution, is law of state. Beech Grove Inv. Co. v. Civil Rights Com’n (1968) 157 N.W.2d 213, 380 Mich. 405. “Common law” is but the accumulated expressions of various judicial tribunals in their efforts to ascertain what is right and just between individuals in respect to private disputes. Semmens v. Floyd Rice Ford, Inc. (1965) 136 N.W.2d 704,1 Mich.App. 395.

Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another. seems to be intolerable on any country where freedom prevails, as being the essence of slavery.

Mattox v. U.S., 156 US 237,243. (1895) “We are bound to interpret the Constitution in the light of the law as it existed at the time it was adopted.” Carolina v. U.S., 199 U.S. 437, 448 (1905). “The Constitution is a written instrument. As such, its meaning does not alter. That which it meant when it was adopted, it means now.”

When there is substantive issues to the court’s findings, and the court abused its discretion (see In re M.R. (2017) 7 Cal.App.5th 886, 902; Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300) in terminating jurisdiction and issuing the custody orders.

THIS CLARIFY YOU DON’T GET TO GO AROUND CHANGING IT FOR YOURSELF

28 U.S. Code § 144 – Bias or prejudice of judge

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.

(June 25, 1948, ch. 646, 62 Stat. 898; May 24, 1949, ch. 139, § 65, 63 Stat. 99.)

Rule 2.3: Bias, Prejudice, and Harassment

(A) A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice.

(B) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so.

(C) A judge shall require lawyers in proceedings before the court to refrain from manifesting bias or prejudice, or engaging in harassment, based upon attributes including but not limited to race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, against parties, witnesses, lawyers, or others.

(D) The restrictions of paragraphs (B) and (C) do not preclude judges or lawyers from making legitimate reference to the listed factors, or similar factors, when they are relevant to an issue in a proceeding.

Standing on YOUR rights as a citizen to use my rights as a citizen

Hale v. Henkel was decided by the united States Supreme Court in 1906. The opinion of the court states:
“The “individual” may stand upon “his Constitutional Rights” as a CITIZEN. He is entitled to carry on his “private” business in his own way. “His power to contract is unlimited.” He owes no duty to the State or to his neighbors to divulge his business, or to open his doors to an investigation, so far as it may tend to incriminate him. He owes no duty to the State, since he receives nothing there from, beyond the protection of his life and property. “His rights” are such as “existed” by the Law of the Land (Common Law) “long antecedent” to the organization of the State”, and can only be taken from him by “due process of law”, and “in accordance with the Constitution.” “He owes nothing” to the public so long as he does not trespass upon their rights.”

HALE V. HENKEL 201 U.S. 43 at 89 (1906)
Hale v. Henkel is binding on all the courts of the United States of America until another Supreme Court case says it isn’t. No other Supreme Court case has ever overturned Hale v. Henkel

None of the various issues of Hale v. Henkel has ever been overruled Since 1906, Hale v. Henkel has been cited by the Federal and State Appellate Court systems over 1,600 times! In nearly every instance when a case is cited, it has an impact on precedent authority of the cited case. Compared with other previously decided Supreme Court cases, no other case has surpassed Hale v. Henkel in the number of times it has been cited by the courts. Basso v. UPL, 495 F. 2d 906 Brook v. Yawkey, 200 F. 2d 633

Miller v. U.S., 230 F.2d. 486,489 “The claim and exercise of a Constitutional right cannot be converted into a crime.”

Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401 (1958). “No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.” The constitutional theory is that we the people are the sovereigns, the state and federal officials only our agents.”

Before we place the stigma of a criminal conviction upon any such citizen the legislative mandate must be clear and unambiguous. Accordingly that which Chief Justice Marshall has called ‘the tenderness of the law Page 11 of 48 for the rights of individuals’ [FN1] entitles each person, regardless of economic or social status, to an unequivocal warning from the legislature as to whether he is within the class of persons subject to vicarious liability. Congress cannot be deemed to have intended to punish anyone who is not ‘plainly and unmistakably’ within the confines of the statute. United States v. Lacher, 134 U.S. 624, 628, 10 S. Ct. 625, 626, 33 L. Ed. 1080; United States v. Gradwell, 243 U.S. 476,485, 37 S. Ct. 407, 61 L. Ed. 857. FN1 United States v. Wiltberger, 5 Wheat. 76, 95, 5 L.Ed. 37.

We do not overlook those constitutional limitations which, for the protection of personal rights, must necessarily attend all investigations conducted under the authority of Congress. Neither branch of the legislative department, still less any merely administrative body, established by Congress, possesses, or can be invested with, a general power of making inquiry into the private affairs of the citizen. Kilbourn v. Thompson, 103 U. S. 168,196 [26: 377, 386]. We said in Boyd v. United States, 116 U. S. 616, 630 [29: 746, 751]—and it cannot be too often repeated—that the principles that embody the essence of constitutional liberty and security forbid all invasions on the part of the government and its employs of the sanctity of a man’s home, and the privacies of his life. As said by Mr. Justice Field in Re Pacific R. Commission, 32 Fed. Rep. 241,250, “of all the rights of the citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves, not merely protection of his person from assault, but exemption of his private affairs, books, and papers from the inspection and scrutiny of others. Without the enjoyment of this right, all others would lose half their value.”

Harris v. Harvey (1979) The jury concluded that Harvey was not eligible for judicial immunity for these actions, as such acts which were not part of the judge’s normal duties (i.e. were “outside his jurisdiction”). The jury awarded Harris $260,000 damages. Another judge later added $7,500 legal fees. The United States Court of Appeals for the Seventh Circuit concurred with the jury’s decision. Judge Harvey petitioned the Seventh Circuit court for an en banc rehearing, which was denied. His petition to the Supreme Court was also denied. Harris v. Harvey is the first case in the United States where a sitting court judge has been sued and lost in a civil action; it is a binding precedent in the Seventh Circuit and is persuasive authority in the other circuits.

Supreme Court of Virginia v. Consumers Union (1980) Consumers Union filed a lawsuit in federal court against the Supreme Court of Virginia and others, under 42 U.S.C. § 1983, seeking to have the regulation declared unconstitutional and to enjoin the defendants from enforcing it.^[22] The U.S. Supreme Court affirmed the Supreme Court of Virginia’s legislative immunity:

People v. Superior Court (Jones ) (1998) 18 Cal.4th 667, 680-681, 76 Cal.Rptr.2d 641, 958 P.2d 393.) “Findings of fact are reviewed under a ‘substantial evidence’ standard.” ( Ibid. )

Under this standard, ” ‘a trial court’s ruling will not be disturbed, and reversal of the judgment [or order] is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” ( People v. Hovarter (2008) 44 Cal.4th 983, 1004, 81 Cal.Rptr.3d 299, 189 P.3d 300 ; see People v. Kipp (1998) 18 Cal.4th 349, 371, 75 Cal.Rptr.2d 716, 956 P.2d 1169 [“[a] court abuses its discretion when its ruling ‘falls outside the bounds of reason’

Marbury v. Madison, 5 U.S. (2 Cranch) 137, 180 (1803) “… the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument.” Since the 14th Amendment to the Constitution states “NO State (Jurisdiction) shall make or enforce any law which shall abridge the rights, privileges, or immunities of citizens of the United States nor deprive any citizens of life, liberty, or property, without due process of law, … or equal protection under the law”, this renders judicial immunity unconstitutional.

State v. Sutton, 63 Min 147, 65 NW 262, 30 LRA630, AM ST 459 When any court violates the clean and unambiguous language of the Constitution, a fraud is perpetuated, and no one is bound to obey it.

Norton vs. Shelby County, 118 US 425 p. 442. “An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.”

Bell v. Hood, 71 F.Supp., 813, 816 (1947) U.S.D.C. — So. Dist. CA. History is clear that the first ten amendments to the Constitution were adopted to secure certain common law rights of the people, against invasion by the Federal Government.”

SIMMONS v US, supra. “We find it intolerable that one constitutional right should have to be surrendered in order to assert another”

Judicial Ethics for Pro Se Litigants

Justice is the waying of facts presented in the case. Most judges will eventually hear a case with pro se parties. With pro se parties, in the interest of assuring them the same access to justice as represented parties, even if that comes at times at the expense of procedural efficiency. As a result, cases with a pro se party can be more time-consuming and require more patience

In an advisory opinion, the California Judges Association Judicial Ethics Committee encouraged judges to “understand the difficulties encountered by self-represented litigants” and “to exercise discretion to treat them differently.” California Judges Association Advisory Opinion 76 (2018). The opinion emphasized that a “judge may make reasonable procedural accommodations that will provide a diligent self-represented litigant acting in good faith the opportunity to have his or her case fairly heard.”

The committee explained:

Some judges take the position that the job of the judge is to call the balls and strikes, not to throw the pitches. Is this an accurate statement of the role of the judge? Not necessarily. . . . Fundamental justice should not be sacrificed to procedural rules and cases should be decided on their merits. Exercising discretion – not just calling balls and strikes – is the nature of judging, from granting motions for extensions of time to handing out sentences.

Frequently, there is tension between the represented party and the self-represented litigant. One side is ready to proceed, has done the legal work, and would like to complete the proceeding as soon as possible. The self-represented litigant often is struggling with legal terms, time limits, and court procedures. The judge must decide what reasonable accommodation is proper and when it is unreasonable. Judges may grant continuances, explain legal terms, refer a litigant to self-help services or the library, or refer him or her to the local bar association for a low-cost meeting with an attorney. Whether the judge should take any of these or other steps is a matter of judicial discretion.

The committee concluded:

The adversary system is not embedded in the Code of Judicial Ethics, nor is it the primary purpose of the code to protect the formalities of the adversary system. Reasonable procedural accommodations for self-represented litigants do not change the facts, the law, or the burden of proof, nor do they ensure a victory for the unrepresented. Such accommodations simply mean that both sides will have a fair opportunity to tell their stories.

The committee applied its analysis to several courtroom situations. For example, the committee stated, a judge may, at the beginning of a civil case in which one litigant is unrepresented by counsel and the other is represented, explain how the proceedings will be conducted, including that the party bringing the action has the burden to present evidence in support of the relief sought, the kind of evidence that may be presented, and the kind of evidence that cannot be considered. In addition, the opinion advised:

A judge may give a self-represented litigant a neutral explanation of how to respond to a motion for summary judgment.
A judge may provide a self-represented litigant information about the requirements for entry of a default judgment.
A judge may ask a self-represented litigant if she wants a continuance to bring a witness to court.
During a trial, a judge may ask witnesses neutral questions to clarify testimony and develop facts.
A judge may sign a settlement agreement prepared by the attorney for 1 party and signed by an unrepresented party, but, as a best practice, should ask the parties if they understand the document and ask the unrepresented party if she understands her responsibilities under the agreement.
When a self-represented litigant refers to information after being instructed not to, a judge is not required to grant a motion for a mistrial but may instruct the jury to disregard the testimony.
If an unrepresented plaintiff makes no specific claim for damages at the close of her case, the judge may ask the plaintiff, “Are you asking for damages in this case? If so, what is the amount you are asking for? And why are you asking for this amount?”
In a criminal case, if a prosecutor tries to take advantage of a defendant’s unrepresented status to introduce the defendant’s prior drug-related arrest and the factual basis for a search, the judge should immediately intervene even if the defendant does not object.

In domestic violence cases, the committee stated, a judge:

May give the self-represented plaintiff a short continuance to learn about the relevant rules of evidence and the procedural requirements for the admission of hospital records,
Should permit a support person to accompany a self-represented moving party to counsel table, and
Should inform a self-represented respondent that he could present oral testimony.

Commentary to the California Code of Judicial Ethics states: “[W]hen a litigant is self-represented, a judge has the discretion to take reasonable steps, appropriate under the circumstances and consistent with the law and the canons to enable the litigant to be heard.” Comment 4 to Rule 2.2 of the American Bar Association Model Code of Judicial Conduct states: “It is not a violation of this Rule [requiring that a judge be fair and impartial] for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard.” 34 states and the District of Columbia have added comment 4 or a version of comment 4 to their codes of judicial conduct.

https://ncscjudicialethicsblog.org/category/pro-se-litigants/

Government / Public Servants / Officers / Judges Not Immune from suit!

“The officers of the law, in the execution of process, are required to know the requirements of the law, and if they mistake them, whether through ignorance or design, and anyone is harmed by their error, they must respond in damages.” Roger v. Marshall (United States use of Rogers v. Conklin), 1 Wall. (US) 644, 17 Led 714.

“It is a general rule that an officer, executive, administrative, quasi-judicial, ministerial, or otherwise, who acts outside the scope of his jurisdiction, and without authorization of law may thereby render himself amenable to personal liability in a civil suit.” Cooper v. O`Conner, 69 App DC 100, 99 F (2d)

“Public officials are not immune from suit when they transcend their lawful authority by invading constitutional rights. “AFLCIO v. Woodard, 406 F 2d 137 t.

“Immunity fosters neglect and breeds irresponsibility while liability promotes care and caution, which caution and care is owed by the government to its people.” (Civil Rights) Rabon vs Rowen Memorial Hospital, Inc. 269 N.S. 1, 13, 152 SE 1 d 485, 493.

Government Immunity – “In Land v. Dollar, 338 US 731 (1947), the court noted, “that when the government entered into a commercial field of activity, it left immunity behind.” Brady v. Roosevelt, 317 US 575 (1943); FHA v. Burr, 309 US 242 (1940); Kiefer v. RFC, 306 US 381 (1939).

The high Courts, through their citations of authority, have frequently declared, that “…where any state proceeds against a private individual in a judicial forum it is well settled that the state, county, municipality, etc. waives any immunity to counters, cross claims and complaints, by direct or collateral means regarding the matters involved.” Luckenback v. The Thekla, 295 F 1020, 226 Us 328; Lyders v. Lund, 32 F2d 308;

“When enforcing mere statutes, judges of all courts do not act judicially (and thus are not protected by “qualified” or “limited immunity,” – SEE: Owen v. City, 445 U.S. 662; Bothke v. Terry, 713 F2d 1404)

– – “but merely act as an extension as an agent for the involved agency — but only in a “ministerial” and not a “discretionary capacity…” Thompson v. Smith, 154 S.E. 579, 583; Keller v. P.E., 261 US 428; F.R.C. v. G.E., 281, U.S. 464.

Thompson v. Clark 2022 Holding: Larry Thompson’s showing that his criminal prosecution ended without a conviction satisfies the requirement to demonstrate a favorable termination of a criminal prosecution in a Fourth Amendment claim under Section 1983 for malicious prosecution; an affirmative indication of innocence is not needed.

Immunity for judges does not extend to acts which are clearly outside of their jurisdiction. Bauers v. Heisel, C.A. N.J. 1966, 361 F.2d 581, Cert. Den. 87 S.Ct. 1367, 386 U.S. 1021, 18 L.Ed. 2d 457 (see also Muller v. Wachtel, D.C.N.Y. 1972, 345 F.Supp. 160; Rhodes v. Houston, D.C. Nebr. 1962, 202 F.Supp. 624 affirmed 309 F.2d 959, Cert. den 83 St. 724, 372 U.S. 909, 9 L.Ed. 719, Cert. Den 83 S.Ct. 1282, 383 U.S. 971, 16 L.Ed. 2nd 311, Motion denied 285 F.Supp. 546).

“Judges not only can be sued over their official acts, but could be held liable for injunctive and declaratory relief and attorney’s fees.” Lezama v. Justice Court, A025829.

“The immunity of judges for acts within their judicial role is beyond cavil.” Pierson v. Ray, 386 U.S. 547 (1957). Keyword within their role, outside of that role they are not.

At least seven circuits have indicated affirmatively that there is no immunity bar to such relief, and in situations where in their judgment an injunction against a judicial officer is necessary to prevent irreparable injury to a petitioner’s constitutional rights, courts will grant that relief. “There is no common law judicial immunity.” Pulliam v. Allen, 104S.Ct. 1970; cited in Lezama v. Justice Court, A025829.

“Judges, members of city council, and police officers as well as other public officials, may utilize good faith defense of action for damages under 42-1983, but no public official has absolute immunity from suit under the 1871 civil rights statute.” (Samuel vs University of Pittsburg, 375 F.Supp. 1119, ‘see also, White vs Fleming 374 Supp. 267.)

NO IMMUNITY
“Sovereign immunity does not apply where (as here) government is a lawbreaker or jurisdiction is the issue.” Arthur v. Fry, 300 F.Supp. 622 “Knowing failure to disclose material information necessary to prevent statement from being misleading, or making representation despite knowledge that it has no reasonable basis in fact, are actionable as fraud under law.” Rubinstein v. Collins, 20 F.3d 160, 1990

[a] “Party in interest may become liable for fraud by mere silent acquiescence and partaking of benefits of fraud.” Bransom v. Standard Hardware, Inc., 874 S.W.2d 919, 1994

“Fraud destroys the validity of everything into which it enters,” Nudd v. Burrows, 91 U.S 426.

“Fraud vitiates everything” Boyce v. Grundy, 3 Pet. 210

“Fraud vitiates the most solemn contracts, documents and even judgments.” U.S. v. Throckmorton, 98 US 61

U.S. v. Lee, 106 U.S. 196, 220 1 S. Ct. 240, 261, 27 L. Ed 171 (1882) “No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. “

When a Citizen challenges the acts of a federal or state official as being illegal, that official cannot just simply avoid liability based upon the fact that he is a public official. In United States v. Lee, 106 U.S.196, 220, 221, 1 S.Ct. 240, 261, the United States claimed title to Arlington, Lee’s estate, via a tax sale some years earlier, held to be void by the Court. In so voiding the title of the United States, the Court declared:
“No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives. “Shall it be said… that the courts cannot give remedy when the citizen has been deprived of his property by force, his estate seized and converted to the use of the government without any lawful authority, without any process of law, and without any compensation, because the president has ordered it and his officers are in possession? If such be the law of this country,
it sanctions a tyranny which has no existence in the monarchies of Europe, nor in any other government which has a just claim to well-regulated liberty and the protection of personal rights.”

See Pierce v. United States (“The Floyd Acceptances”), 7 Wall. (74 U.S.) 666, 677 (“We have no officers in this government from the President down to the most subordinate agent, who does not hold office under the law, with prescribed duties and limited authority”);
Cunningham v. Macon, 109 U.S. 446, 452, 456, 3 S.Ct. 292, 297 (“In these cases he is not sued as, or because he is, the officer of the government, but as an individual, and the court is not ousted of jurisdiction because he asserts authority as such officer. To make out his defense he must show that his authority was sufficient in law to protect him… It is no answer for the defendant to say I am an officer of the government and acted under its authority unless he shows the sufficiency of that authority”); and Poindexter v. Greenhow, 114 U.S. 270, 287, 5 S.Ct. 903, 912

“Personal involvement in deprivation of constitutional rights is prerequisite to award of damages, but defendant may be personally involved in constitutional deprivation by direct participation, failure to remedy wrongs after learning about it, creation of a policy or custom under which unconstitutional practices occur or gross negligence in managing subordinates who cause violation.” (Gallegos v. Haggerty, N.D. of New York, 689 F. Supp. 93 (1988).

“The law requires proof of jurisdiction to appear on the record of the administrative agency and all administrative proceedings.” Hagans v. Lavine, 415 U. S. 533

“If you’ve relied on prior decisions of the Supreme Court you have a perfect defense for willfulness.” U.S. v. Bishop, 412 U.S. 346

Before we place the stigma of a criminal conviction upon any such citizen the legislative mandate must be clear and unambiguous. Accordingly that which Chief Justice Marshall has called ‘the tenderness of the law Page 11 of 48 for the rights of individuals’ [FN1] entitles each person, regardless of economic or social status, to an unequivocal warning from the legislature as to whether he is within the class of persons subject to vicarious liability. Congress cannot be deemed to have intended to punish anyone who is not ‘plainly and unmistakably’ within the confines of the statute. United States v. Lacher, 134 U.S. 624, 628, 10 S. Ct. 625, 626, 33 L. Ed. 1080; United States v. Gradwell, 243 U.S. 476,485, 37 S. Ct. 407, 61 L. Ed. 857. FN1 United States v. Wiltberger, 5 Wheat. 76, 95, 5 L.Ed. 37.

We do not overlook those constitutional limitations which, for the protection of personal rights, must necessarily attend all investigations conducted under the authority of Congress. Neither branch of the legislative department, still less any merely administrative body, established by Congress, possesses, or can be invested with, a general power of making inquiry into the private affairs of the citizen. Kilbourn v. Thompson, 103 U. S. 168,196 [26: 377, 386].
We said in Boyd v. United States, 116 U. S. 616, 630 [29: 746, 751]—and it cannot be too often repeated—that the principles that embody the essence of constitutional liberty and security forbid all invasions on the part of the government and its employes of the sancity of a man’s home, and the privacies of his life.
As said by Mr. Justice Field in Re Pacific R. Commission, 32 Fed. Rep. 241,250, “of all the rights of the citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves, not merely protection of his person from assault, but exemption of his private affairs, books, and papers from the inspection and scrutiny of others. Without the enjoyment of this right, all others would lose half their value.”

Zeller v. Rankin, 101 S.Ct. 2020, 451 U.S. 939, 68 L.Ed 2d 326 When a judge knows that he lacks jurisdiction, or acts in the face of clearly valid statutes expressly depriving him of jurisdiction, judicial immunity is lost.

“Jurisdiction of court may be challenged at any stage of the proceeding, and also may be challenged after conviction and execution of judgment by way of writ of habeas corpus.” [U.S. v. Anderson, 60 F.Supp. 649 (D.C.Wash. 1945)]

Stump v. Sparkman, id., 435 U.S. 349. Some Defendants urge that any act “of a judicial nature” entitles the Judge to absolute judicial immunity. But in a jurisdictional vacuum (that is, absence of all jurisdiction) the second prong necessary to absolute judicial immunity is missing. A judge is not immune for tortious acts committed in a purely Administrative, non-judicial capacity.

Piper v. Pearson, 2 Gray 120, cited in Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872) “Where there is no jurisdiction, there can be no discretion, for discretion is incident to jurisdiction.”

Chandler v. Judicial Council of the 10th Circuit, 398 U.S. 74, 90 S. Ct. 1648, 26 L. Ed. 2d 100 Justice Douglas, in his dissenting opinion at page 140 said, “If (federal judges) break the law, they can be prosecuted.” Justice Black, in his dissenting opinion at page 141) said, “Judges, like other people, can be tried, convicted and punished for crimes… The judicial power shall extend to all cases, in law and equity, arising under this Constitution“.

Davis v. Burris, 51 Ariz. 220, 75 P.2d 689 (1938) A judge must be acting within his jurisdiction as to subject matter and person, to be entitled to immunity from civil action for his acts.

“Jurisdiction, once challenged, cannot be assumed and must be decided.” Maine v. Thiboutot, 100 S. Ct. 250

Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828) Under federal Law, which is applicable to all states, the U.S. Supreme Court stated that “if a court is without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void, and form no bar to a recovery sought, even prior to a reversal in opposition to them. They constitute no justification and all persons concerned in executing such judgments or sentences are considered, in law, as trespassers.”

JUDICIAL IMMUNITY: See also, 42 USC 1983 – Availability of Equitable Relief Against Judges.

Note: [Copied verbiage; we are not lawyers.] Judges have given themselves judicial immunity for their judicial functions. Judges have no judicial immunity for criminal acts, aiding, assisting, or conniving with others who perform a criminal act or for their administrative/ministerial duties, or for violating a citizen’s constitutional rights. When a judge has a duty to act, he does not have discretion – he is then not performing a judicial act; he is performing a ministerial act. Nowhere was the judiciary given immunity, particularly nowhere in Article III; under our Constitution, if judges were to have immunity, it could only possibly be granted by amendment (and even less possibly by legislative act), as Art. I, Sections 9 & 10, respectively, in fact expressly prohibit such, stating, “No Title of Nobility shall be granted by the United States” and “No state shall… grant any Title of Nobility.” Most of us are certain that Congress itself doesn’t understand the inherent lack of immunity for judges. Article III, Sec. 1, “The Judicial Power of the United States shall be vested in one supreme court, and in such inferior courts, shall hold their offices during good behavior.”

Tort & Insurance Law Journal, Spring 1986 21 n3, p 509-516, “Federal tort law: judges cannot invoke judicial immunity for acts that violate litigants’ civil rights.” – Robert Craig Waters.

TAKE DUE NOTICE ALL GOVERNMENT OFFICIALS, SERVANTS, JUDGES, LAYERS, CLERKS, EMPLOYEES:

“Ignorance of the law does not excuse misconduct in anyone, least of all in a sworn officer of the law.” In re McCowan (1917), 177 C. 93, 170 P. 1100.

“It is one of the fundamental maxims of the common law that ignorance of the law excuses no one.” Daniels v. Dean (1905), 2 C.A. 421, 84 P. 332.

Jurisdiction challenged to all, at any and all times

The laws of nature are the laws of God, whose authority can be superseded by no power on earth. A legislature must not obstruct our obedience to him from whose punishments they cannot protect us. All human constitutions which contradict his cannot protect us. All human constitutions which contradict his (God’s) laws, we are in conscience bound to disobey. 1772, Robin v. Hardaway, 1 Jefferson 109. Supreme court cases from digging around Robin v. Hardaway 1790. Biblical Law at “Common Law” supersedes all laws, and “Christianity is custom, custom is Law.”

– Article 1 of the Bill of Rights – guarantees freedom of religion-
Constitution for the United States of America ARTICLE IV, sect. 1, Full faith and credit among states. (Self-executing constitutional provisions) Section 1. Full faith and Credit shall be given in each state to the public Acts, Records, and judicial Proceedings of every other state.

And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

for true knowledge of how sophisticated the legal minds of our forefathers were read how intricate their minds worked absent of all modern inventions including modern internet free schooling.

California Civil Code Section 52.1

Interference by threat, intimidation or coercion with exercise or enjoyment of individual rights
The Bane Civil Rights Act (California Civil Code Section 52.1) forbids anyone from interfering by
force or by threat of violence with your federal or state constitutional or statutory rights.
The acts forbidden by these civil laws may also be criminal acts, and can expose violators to criminal penalties.
California Civil Code Section 52.1 - Interference by threat, intimidation or coercion with exercise or enjoyment of individual rights read here
california-civil-code-section-52-1/

42 U.S. Code § 1983 – Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, subjects, or causes to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

Secret Canons of Judicial Conduct

ECONOMIC STATUS ATTACKS!

To Learn More…. Read MORE Below and click the links Below

Abuse & Neglect – The Mandated Reporters (Police, D.A & Medical & the Bad Actors)

Mandated Reporter Laws – Nurses, District Attorney’s, and Police should listen up
If You Would Like to Learn More About: The California Mandated Reporting LawClick Here

To Read the Penal Code § 11164-11166 – Child Abuse or Neglect Reporting Act – California Penal Code 11164-11166Article 2.5. (CANRA) Click Here

Mandated Reporter formMandated ReporterFORM SS 8572.pdf – The Child Abuse

ALL POLICE CHIEFS, SHERIFFS AND COUNTY WELFARE DEPARTMENTS INFO BULLETIN:
Click Here Officers and DA’s for (Procedure to Follow)

It Only Takes a Minute to Make a Difference in the Life of a Child learn more below

You can learn more here California Child Abuse and Neglect Reporting Law its a PDF file

Learn More About True Threats Here below….

We also have the The Brandenburg v. Ohio (1969) – 1st Amendment

CURRENT TEST = We also have the The ‘Brandenburg test’ for incitement to violence – 1st Amendment

We also have the The Incitement to Imminent Lawless Action Test– 1st Amendment

We also have the True Threats – Virginia v. Black is most comprehensive Supreme Court definition – 1st Amendment

We also have the Watts v. United States – True Threat Test – 1st Amendment

We also have the Clear and Present Danger Test – 1st Amendment

We also have the Gravity of the Evil Test – 1st Amendment

We also have the Elonis v. United States (2015) – Threats – 1st Amendment

Learn More About What is Obscene…. be careful about education it may enlighten you

We also have the Miller v. California – 3 Prong Obscenity Test (Miller Test) – 1st Amendment

We also have the Obscenity and Pornography – 1st Amendment

Learn More About Police, The Government Officials and You….

$$ Retaliatory Arrests and Prosecution $$

Anti-SLAPP Law in California

Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

We also have the Brayshaw v. City of Tallahassee – 1st Amendment – Posting Police Address

We also have the Publius v. Boyer-Vine –1st Amendment – Posting Police Address

We also have the Lozman v. City of Riviera Beach, Florida (2018) – 1st Amendment – Retaliatory Police Arrests

We also have the Nieves v. Bartlett (2019) – 1st Amendment – Retaliatory Police Arrests

We also have the Hartman v. Moore (2006) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

We also have the Reichle v. Howards (2012) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

Freedom of the Press – Flyers, Newspaper, Leaflets, Peaceful Assembly – 1$t Amendment – Learn More Here

Vermont’s Top Court Weighs: Are KKK Fliers – 1st Amendment Protected Speech

We also have the Insulting letters to politician’s home are constitutionally protected, unless they are ‘true threats’ – Letters to Politicians Homes – 1st Amendment

We also have the First Amendment Encyclopedia very comprehensive – 1st Amendment

Dwayne Furlow v. Jon Belmar – Police Warrant – Immunity Fail – 4th, 5th, & 14th Amendment

ARE PEOPLE LYING ON YOU? CAN YOU PROVE IT? IF YES…. THEN YOU ARE IN LUCK!

Penal Code 118 PC – California Penalty of “Perjury” Law

Federal Perjury – Definition by Law

Penal Code 132 PC – Offering False Evidence

Penal Code 134 PC – Preparing False Evidence

Penal Code 118.1 PC – Police Officer$ Filing False Report$

Spencer v. Peters– Police Fabrication of Evidence – 14th Amendment

Penal Code 148.5 PC – Making a False Police Report in California

Penal Code 115 PC – Filing a False Document in California

Sanctions and Attorney Fee Recovery for Bad Actors

FAM § 3027.1 – Attorney’s Fees and Sanctions For False Child Abuse Allegations – Family Code 3027.1 – Click Here

FAM § 271 – Awarding Attorney Fees– Family Code 271 Family Court Sanction Click Here

Awarding Discovery Based Sanctions in Family Law Cases – Click Here

FAM § 2030 – Bringing Fairness & Fee Recovery – Click Here

Zamos v. Stroud – District Attorney Liable for Bad Faith Action – Click Here

Mi$Conduct – Pro$ecutorial Mi$Conduct

Prosecutor$

Attorney Rule$ of Engagement – Government (A.K.A. THE PRO$UCTOR) and Public/Private Attorney

What is a Fiduciary Duty; Breach of Fiduciary Duty

The Attorney’s Sworn Oath

Malicious Prosecution / Prosecutorial Misconduct – Know What it is!

New Supreme Court Ruling – makes it easier to sue police

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & Prosecutor – Rules of Professional Conduct

Functions and Duties of the Prosecutor – Prosecution Conduct

Criminal Motions § 1:9 – Motion for Recusal of Prosecutor

Pen. Code, § 1424 – Recusal of Prosecutor

Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidence from Your Case

Mi$Conduct – Judicial Mi$Conduct

Judge$

Prosecution Of Judges For Corrupt Practice$

Code of Conduct for United States Judge$

Disqualification of a Judge for Prejudice

Judicial Immunity from Civil and Criminal Liability

Recusal of Judge – CCP § 170.1 – Removal a Judge – How to Remove a Judge

l292 Disqualification of Judicial Officer – C.C.P. 170.6 Form

How to File a Complaint Against a Judge in California?

Commission on Judicial Performance – Judge Complaint Online Form

Why Judges, District Attorneys or Attorneys Must Sometimes Recuse Themselves

Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidence from Your Case

Misconduct by Government Know Your Rights Click Here (must read!)

Under 42 U.S.C. $ection 1983 – Recoverable Damage$

42 U.S. Code § 1983 – Civil Action for Deprivation of Right$

18 U.S. Code § 242 – Deprivation of Right$ Under Color of Law

18 U.S. Code § 241 – Conspiracy against Right$

Section 1983 Lawsuit – How to Bring a Civil Rights Claim

Suing for Misconduct – Know More of Your Right$

Police Misconduct in California – How to Bring a Lawsuit

How to File a complaint of Police Misconduct? (Tort Claim Forms here as well)

Deprivation of Rights – Under Color of the Law

What is Sua Sponte and How is it Used in a California Court?

Removing Corrupt Judges, Prosecutors, Jurors
and other Individuals & Fake Evidence from Your Case

Anti-SLAPP Law in California

Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

How to Recover “Punitive Damages” in a California Personal Injury Case

Pro Se Forms and Forms Information(Tort Claim Forms here as well)

What is Tort?

PARENT CASE LAW

RELATIONSHIP WITH YOUR CHILDREN &
YOUR CONSTITUIONAL RIGHT$ + RULING$

YOU CANNOT GET BACK TIME BUT YOU CAN HIT THOSE IMMORAL NON CIVIC MINDED PUNKS WHERE THEY WILL FEEL YOU = THEIR BANK

Family Law Appeal – Learn about appealing a Family Court Decision Here

9.3 Section 1983 Claim Against Defendant as (Individuals) —
14th Amendment this CODE PROTECT$ all US CITIZEN$

Amdt5.4.5.6.2 – Parental and Children’s Rights –
5th Amendment this CODE PROTECT$ all US CITIZEN$

9.32 – Interference with Parent / Child Relationship –
14th Amendment this CODE PROTECT$ all US CITIZEN$

California Civil Code Section 52.1
Interference with exercise or enjoyment of individual rights

Parent’s Rights & Children’s Bill of Rights
SCOTUS RULINGS FOR YOUR PARENT RIGHTS

SEARCH of our site for all articles relating for PARENTS RIGHTS Help!

Child’s Best Interest in Custody Cases

Are You From Out of State (California)? FL-105 GC-120(A)
Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

Learn More:Family Law Appeal

Necessity Defense in Criminal Cases

GRANDPARENT CASE LAW

Do Grandparents Have Visitation Rights? If there is an Established Relationship then Yes

Third “PRESUMED PARENT” Family Code 7612(C) – Requires Established Relationship Required

Cal State Bar PDF to read about Three Parent Law –
The State Bar of California family law news issue4 2017 vol. 39, no. 4.pdf

Distinguishing Request for Custody from Request for Visitation

Troxel v. Granville, 530 U.S. 57 (2000) – Grandparents – 14th Amendment

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship

Child’s Best Interest in Custody Cases

When is a Joinder in a Family Law Case Appropriate? – Reason for Joinder

Joinder In Family Law Cases – CRC Rule 5.24

GrandParents Rights To Visit
Family Law Packet OC Resource Center
Family Law Packet SB Resource Center

Motion to vacate an adverse judgment

Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder

When is a Joinder in a Family Law Case Appropriate?

Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848

Punsly v. Ho (2001) 87 Cal.App.4th 1099

Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

Ian J. v. Peter M

DUE PROCESS READS>>>>>>

Due Process vs Substantive Due Process learn more HERE

Understanding Due Process – This clause caused over 200 overturns in just DNA alone Click Here

Mathews v. Eldridge – Due Process – 5th & 14th Amendment Mathews Test – 3 Part Test– Amdt5.4.5.4.2 Mathews Test

“Unfriending” Evidence – 5th Amendment

At the Intersection of Technology and Law

We also have the Introducing TEXT & EMAIL Digital Evidence in California Courts – 1st Amendment
so if you are interested in learning about Introducing Digital Evidence in California State Courts
click here for SCOTUS rulings

Retrieving Evidence / Internal Investigation Case

Conviction Integrity Unit (“CIU”) of the Orange County District Attorney OCDA – Click Here

Fighting Discovery Abuse in Litigation – Forensic & Investigative Accounting – Click Here

Orange County Data, BodyCam, Police Report, Incident Reports,
and all other available known requests for data below:

APPLICATION TO EXAMINE LOCAL ARREST RECORD UNDER CPC 13321 Click Here

Learn About Policy 814: Discovery Requests OCDA Office – Click Here

Request for Proof In-Custody Form Click Here

Request for Clearance Letter Form Click Here

Application to Obtain Copy of State Summary of Criminal HistoryForm Click Here

Request Authorization Form Release of Case Information – Click Here

Texts / Emails AS EVIDENCE: Authenticating Texts for California Courts

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

California Supreme Court Rules:
Text Messages Sent on Private Government Employees Lines
Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

CPRA Public Records Act Data Request – Click Here

Here is the Public Records Service Act Portal for all of CALIFORNIA Click Here

Rules of Admissibility – Evidence Admissibility

Confrontation Clause – Sixth Amendment

Exceptions To The Hearsay Rule – Confronting Evidence

Prosecutor’s Obligation to Disclose Exculpatory Evidence

Successful Brady/Napue Cases – Suppression of Evidence

Cases Remanded or Hearing Granted Based on Brady/Napue Claims

Unsuccessful But Instructive Brady/Napue Cases

ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Frivolous, Meritless or Malicious Prosecution – fiduciary duty

Appealing/Contesting Case/Order/Judgment/Charge/ Suppressing Evidence

First Things First: What Can Be Appealed and What it Takes to Get Started – Click Here

Options to Appealing– Fighting A Judgment Without Filing An Appeal Settlement Or Mediation

Cal. Code Civ. Proc. § 1008 Motion to Reconsider

Penal Code 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

Penal Code 1538.5 – Motion To Suppress Evidence in a California Criminal Case

CACI No. 1501 – Wrongful Use of Civil Proceedings

Penal Code “995 Motions” in California – Motion to Dismiss

WIC § 700.1 – If Court Grants Motion to Suppress as Evidence

Suppression Of Exculpatory Evidence / Presentation Of False Or Misleading Evidence – Click Here

Notice of Appeal — Felony (Defendant) (CR-120) 1237, 1237.5, 1538.5(m) – Click Here

California Motions in Limine – What is a Motion in Limine?

Cleaning Up Your Record

Penal Code 851.8 PC – Certificate of Factual Innocence in California

Petition to Seal and Destroy Adult Arrest Records – Download the PC 851.8 BCIA 8270 Form Here

SB 393: The Consumer Arrest Record Equity Act – 851.87 – 851.92 & 1000.4 – 11105 – CARE ACT

Expungement California – How to Clear Criminal Records Under Penal Code 1203.4 PC

How to Vacate a Criminal Conviction in California – Penal Code 1473.7 PC

Seal & Destroy a Criminal Record

Cleaning Up Your Criminal Record in California (focus OC County)

Governor Pardons – What Does A Governor’s Pardon Do

How to Get a Sentence Commuted (Executive Clemency) in California

How to Reduce a Felony to a Misdemeanor – Penal Code 17b PC Motion

Epic Criminal / Civil Right$ SCOTUS Help – Click Here

Epic Parents SCOTUS Ruling – Parental Right$ Help – Click Here

Judge’s & Prosecutor’s Jurisdiction– SCOTUS RULINGS on

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

Family Treatment Court Best Practice Standards

Download Here this Recommended Citation

Please take time to learn new UPCOMING

The PROPOSED Parental Rights Amendment
to the US CONSTITUTION Click Here to visit their site

The proposed Parental Rights Amendment will specifically add parental rights in the text of the U.S. Constitution, protecting these rights for both current and future generations.

The Parental Rights Amendment is currently in the U.S. Senate, and is being introduced in the U.S. House.

Overcoming Qualified Immunity in Civil Rights Claims

The Truth News — Fri, 22 Apr 2022 11:57:58 +0000

Overcoming Qualified Immunity in Civil Rights Claims

Qualified immunity is a legal doctrine that protects government officials from lawsuits seeking money damages. The doctrine applies when officers are exercising discretion in their official capacity. The defense of qualified immunity, when invoked successfully, leads to dismissal of civil claims.

The doctrine of qualified immunity protects different classes of government officials, state officials, and public officials. Some of these include:

State governors,¹
School officials,²
Prison officials,³ and
Police officers.⁴

Under this doctrine, police officers can act without fear of being sued. It can protect them as long as their conduct does not:

violate the victim’s constitutional rights, which
were so clearly established that a reasonable person would have known them.⁵

When government officials successfully raise this doctrine in a lawsuit, the court will generally dismiss the case.

Qualified immunity cases involve lawsuits that seek monetary damages in federal courts. If the lawsuit only demands a change in policy, this doctrine cannot be invoked.⁶

Questions of police reform have reached a fever pitch in the wake of the killing of George Floyd by Minneapolis police, and the police violence and police use of tear gas in the ensuing protests. Some members of the Senate in Congress suggest doing away with these police protections altogether. Meanwhile, the U.S. Supreme Court has recently turned down several federal appeals court cases involving how this doctrine keeps police brutality victims from recovering settlements.⁷

1. How can victims of police misconduct overcome qualified immunity?

Overcoming qualified immunity is critical in a police misconduct lawsuit. Claiming this doctrine is one of the first things that police officers do when they are sued. If they convince the judge that they are immune from the lawsuit, the judge will likely dismiss the case. The victims will recover nothing for their losses if this happens.

Police officers accused of misconduct have the burden of proving they are immune from a lawsuit. Victims can argue that immunity does not apply. To do this, one would have to show two prongs:

their constitutional rights were violated, and
those rights were so clearly established that a reasonable officer / reasonable official would have known he/she committed the constitutional violation.

Only by overcoming the qualified immunity defense can a victim recover money damages.

A trial court’s / district court’s decision about these cases can be appealed right away. The case does not have to go to the end before it can be contested to an appeals court. Police officers can appeal lower courts’ decisions even if they prevailed on one of the steps.⁸

2. What is a constitutional right?

Constitutional rights are those that are enshrined in the U.S. Constitution or federal law.

In the context of police misconduct, they include:

protection from unlawful detentions, false arrest (no probable cause), and illegal searches, search warrants, or seizures,⁹
freedom from cruel and unusual punishments (which can include excessive force, unnecessary use of force, and deadly force a.k.a. police brutality),¹⁰ and
safety from sexual assault, harassment, or other crimes.¹¹

Rights guaranteed under state law cannot be used to overcome qualified immunity.¹² Only federal rights count.

3. When is a constitutional right clearly established?

Police cannot invoke the qualified immunity doctrine if they violated a right that was clearly established. It has to be clearly established at the time of the violation.

What makes a constitutional right “clearly established” is up for debate.¹³ The Supreme Court has made conflicting statements about it. At best, the court has provided a general rule of thumb. A right is clearly established if a police officer had fair notice of it.¹⁴

However, police officers often stress that there are no laws that prohibit exactly what they did. Victims often have to show that the officer’s conduct was prohibited by a more general rule.

Example: An FBI agent searches a home without a warrant. The victims of the search claim it was an unreasonable search that violated their Fourth Amendment civil liberties. Law enforcement claims that the case involves particular details involving a constitutional question that have never been decided, before.¹⁵

4. What remedies are there for a civil rights violation?

Overcoming the qualified immunity test means the officer can be held personally liable for their actions. They can be compelled to pay compensation to the victim.

It is rare for the police officer’s employer to be held vicariously liable.¹⁶ When police commit misconduct, they usually violate official police procedures. This means the department or town is not liable for the misconduct because it broke their rules.

There is one way for the department or town to be held responsible for civil damages. This is if the officer was acting according to a policy or custom.¹⁷

Punitive damages are also possible in civil rights cases. It requires overcoming qualified immunity, though. They are far more common in civil rights cases than in personal injury lawsuits.

5. What is the law in California?

California law says that police officers, government officials, and public officials can assert a qualified immunity defense in certain cases.

Note, though, that there is arguably no qualified immunity for California police officers accused of false arrest or imprisonment.¹⁹ And unlike federal law, California law places the burden on the police to justify a false arrest or imprisonment.²⁰

Further, under California’s Tom Bane Civil Rights Act, citizens can file civil lawsuits against government employees if they interfere by threat, intimidation, or coercion with that person’s constitutional rights. Government employees are barred from raising a qualified immunity defense in these cases.²¹

Under California Senate Bill 2, prison guards and their employers cannot use a qualified immunity defense in most cases where they injure prisoners or fail to provide medical care to them.²²

When California law enforcement officers get sued for misconduct, they can ask their police department to defend them going forward. Whether the case settles or the police officer is found liable at trial, the police department is responsible for paying all compensatory damages to the plaintiff. This includes expenses for medical bills, lost wages, pain and suffering, and other out-of-pocket expenses.

California law does not make police departments liable for paying punitive damages in police misconduct lawsuits. However, the department can elect to pay punitive damages anyway if:

the trial judgment is based on an act or omission of an officer (or former officer) acting within the course and scope of his or her employment,
at the time of the misconduct, the officer acted in good faith, without actual malice, and in the apparent best interests of the department, and
payment of the claim or judgment would be in the best interests of the department.²⁰

(Punitive damages are meant to punish the defendant rather than compensate the plaintiff. And punitive damages only come into play if the case goes to trial and the defendant loses.)

For cases in Nevada, please see our article on criminal justice cases against the government in Nevada.

Legal References:

Scheuer v. Rhodes, 416 U.S. 232 (1974).
Wood v. Strickland, 420 U.S. 308 (1975).
Procunier v. Navarette, 434 U.S. 555 (1978).
Pierson v. Ray, 386 U.S. 547 (1967).
Harlow v. Fitzgerald, 457 U.S. 800 (1982).
Mitchell v. Forsyth, 472 U.S.C. 511 (1985) (“an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial”); Fry v. Melaragno, 939 F.2d 832 (9th Circuit Court of Appeals 1991).
Josh Gerstein, Supreme Court turns down cases on ‘qualified immunity’ for police, Politico (June 15, 2020)(though Justice Sonia Sotomayor and Justice Clarence Thomas indicated that the doctrine warrants review); Jamie Ehrlich, Democrats team for effort to end doctrine shielding police as GOP backs off, CNN (July 1, 2020)(“Similar legislation was introduced in the House in June by Reps. Ayanna Pressley, a Massachusetts Democrat, and Justin Amash, a Michigan Libertarian, finding support from 60 members of Congress on all sides of the aisle…Some Republicans have said they are willing to look at revision rather than elimination.”); see also the Institute for Justice regarding qualified immunity jurisprudence.
Camreta v. Greene, 131 S.Ct. 2020 (2011); see also Callahan v. Millard Cty, 494 F.3d 891 (Tenth Circuit 2007); Haugen v. Brousseau, 339 F.3d 857 (Ninth Circuit 2003).
See e.g., Safford Unified School District v. Redding, 129 S.Ct. 2633 (2009); see also Zadeh v. Robinson, 928 F.3d 457 (Fifth Circuit 2019).
Hope v. Pelzer, 536 U.S. 730 (2002). See also See also Rivas-Villegas v. Cortesluna (2021) 142 S. Ct. 4.
See U.S. v. Lanier, 520 U.S. 259 (1997); see also Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), 42 U.S.C. § 1983 and the common law good-faith defense.
Davis v. Scherer, 468 United States Supreme Court 183 (1984).
Compare Brosseau v. Haugen, 543 U.S. 194 (2004) (rights are only “clearly established” if there is a court case recognizing them in a scenario similar to the victim’s) and Hope v. Pelzer, Supra (court cases involving fundamentally similar cases are not necessary).
Hope v. Pelzer, Supra.
Anderson v. Creighton, 483 U.S. Supreme Court 635 (1987); also see Malley v. Briggs, 457 U.S. 335 (1986).
Monell v. Department of Social Services, 436 U.S. 658 (1978).
See Owen v. City of Independence, 445 U.S. 622 (1980); also see case law Saucier v. Katz, 533 U.S. 194 (2001), a prior case to Pearson v. Callahan, 555 U.S. 223 (2009).
California Penal Code 847.
California Penal Code 847.
California Civil Jury Instructions 1401-1402.
See Senate Bill 2 (approved by Governor September 30, 2021).
See same.

Cited https://www.shouselaw.com/ca/civil-rights/qualified-immunity/

A NICE MANUAL EXPLAINING DIFFERENT IMMUNITIES with DIFFERENT GOVERNEMTN STATE_IMMUNITY_TORT_CAPS_NOV_2017

How Far Does Qualified Immunity Go for Government?

The Truth News — Mon, 07 Mar 2022 22:03:29 +0000

How Far Does Qualified Immunity Go for Government?

By David L. Hudson Jr.

Qualified immunity is a doctrine that shields government officials from liability unless they violated clearly established statutory or constitutional law.

Under this doctrine, a government officials could violate a person’s First Amendment rights, but not face liability because the law was not settled or known at the time the official engaged in such conduct.

Qualified immunity protects government officials when law is unsettled

Uniformed Secret Service agents in Akron, Ohio on Oct. 3, 2016. The U.S. Supreme Court has ruled many times that government officials are entitled to qualified immunity in First Amendment lawsuits, meaning they might not face liability for violating someone’s constitutional rights if the law was not settled or known at the time of the conduct in question. In Wood v. Moss in 2014, Secret Service agents who removed protestors away from President George W. Bush were granted qualified immunity against a challenge that the protestors First Amendment rights of speech were violated. (Photo by Tim Evanson, CC by SA-2.0)

The idea behind qualified immunity is that society should not punish a government official unless that official knew or should have known what he or she was doing was unlawful. Furthermore, the doctrine advances the idea that we do not want to chill the conduct of government officials who may be leery of acting in certain situations for fear of being sued.

Previously, courts had applied a two-part test to determine whether a government official was entitled to qualified immunity. Under this test, a court first analyzed whether or not a government official had violated a constitutional right. If there was a violation of a constitutional right, then the court determines whether or not that constitutional right was clearly established.

In Pearson v. Callahan (2009), a Fourth Amendment search and seizure case, the Supreme Court provided that reviewing federal district courts could apply the “clearly established prong” first without deciding whether or not there was a violation of a constitutional right. Some legal commentators have criticized this approach, pointing out that it can slow the growth of constitutional law, because courts can bypass the first inquiry of whether there has been a constitutional violation.

Law enforcement is sometimes protected in free speech cases through qualified immunity

The U.S. Supreme Court has determined in many cases that government officials were entitled to qualified immunity in First Amendment cases.

For example, in Wood v. Moss (2014), the Court ruled that Secret Service agents were entitled to qualified immunity when they removed protestors away from then President George W. Bush.

Similarly, in Reichle v. Howards (2012), the Court ruled that Secret Service agents were entitled to qualified immunity from a lawsuit alleging a retaliatory arrest.

Another example is Morse v. Frederick (2007) in which the Court ruled that a high school principal was entitled to qualified immunity for suspending a public high school student for displaying a “Bong Hits 4 Jesus” sign at a school-sanctioned event.

But the extent of qualified immunity in free speech cases has sometimes raised questions. In 2021, the U.S. Supreme Court declined to review a free-speech case in which the 8th U.S. Circuit Court of Appeals granted qualified immunity to college officials at Arkansas State University. Justice Clarence Thomas wrote in a statement with the denial to hear Hoggard v. Rhodes (2021) that he thought the doctrine of qualified immunity needed to be reevaluated or the “one-size-fits-all” approach examined. He argued that school officials who have plenty of time to make “calculated decisions” about student speech rights were different from police officers who have to make split-second decisions that might infringe on constitutional speech rights.

This article was last updated in 2021 by encyclopedia staff. David L. Hudson Jr. is a professor at Belmont University College of Law who writes and speaks regularly on First Amendment issues. He is the author of First Amendment: Freedom of Speech (2012), the author of a 12-part lecture series titled Freedom of Speech: Understanding the First Amendment (2018), and a 24-part lecture series, The American Constitution 101 (2019).

cited https://mtsu.edu/first-amendment/article/1560/qualified-immunity

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Eleventh Amendment

The Truth News — Sat, 05 Mar 2022 09:17:44 +0000

Eleventh Amendment – XI Amendment

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Fitzpatrick v. Bitzer (1976)– The Supreme Court has the power to override a state’s sovereign immunity for the purpose of enforcing civil rights on the state.

Other Interesting Facts About the Eleventh Amendment

States may always “consent” to lawsuits that are barred by the Eleventh Amendment. If the state consents, any case may be heard.

Lawsuits can be brought in federal court against a state’s cities, counties, and municipalities, but usually not against the state itself.

When a state violates federal law, the state itself can’t be sued in federal court. However, a federal court can order state officials (by their own name) to follow the law.

Suits against states by other states or by the United States government to enforce federal laws are allowed. source

State Immunity under the 11th Amendment

Remember the Eleventh Amendment? You know, the constitutional amendment that prohibits the federal courts from hearing certain lawsuits against states? If you clear out the cobwebs that have formed since your 1L year, you’ll remember that the Eleventh Amendment ensures that states retain their sovereign status within the federal system. As a result, states are generally immune from suits brought by private parties and foreign governments in federal court. This immunity also extends to suits brought against a state official for violating a federal law—with some exceptions (see table below).

However, Eleventh Amendment immunity does not extend to any of the following:

suits brought by the United States or another state
suits asserted against a local government (e.g., city, county)
suits initiated in bankruptcy court.

UWorld condensed the nuances of state immunity under the Eleventh Amendment into the following table:

Eleventh Amendment (state immunity from suit in federal court)

Immunity applies

Suits brought by private party or foreign government
Suits against state official violating state law

Exceptions:

State consents to suitImmunity repealed by enforcing 13th, 14th, or 15th Amendment
State official sued for injunctive or declaratory relief
Damages to be paid by state official personally (not state treasury)
State official sued for prospective (not retroactive) damages to be paid by state treasury

No immunity

Suits brought by United States or other state
Suits against local government (e.g., counties, municipalities)
Bankruptcy proceedings

Remember that Congress cannot override a state’s Eleventh Amendment immunity through its enumerated powers (e.g., power to regulate interstate commerce, power to protect copyrights and patents). However, it can abrogate or repeal a state’s immunity by clearly acting to enforce any of the Civil War Amendments, which are described in the following table:

Civil War Amendments
Thirteenth	Prohibits slavery & involuntary servitude
Fourteenth	Prohibits denial of equal protection, due process, or privileges/immunities of national citizenship
Fifteenth	Prohibits denial or abridgment of voting rights based on race, color, or previous servitude

source

What is the 11th Amendment?

The 11th Amendment of the Constitution reads as follows: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

This has two explicit meanings.

First, it means that the Supreme Court can’t hear cases against a state if it is sued by either a citizen who lives in another state or a non-citizen who lives in a foreign country.

Second, it means that because states don’t have “sovereign immunity,” states can sue other states, and the federal government can sue states.

But there are some exceptions.

There are some exceptions to the 11th AmendmentCredit: Getty

What are some exceptions to the 11th Amendment?

History has some specific examples of exceptions to the 11th Amendment.

In the 1890 case of Hans vs. Louisiana, the Supreme Court ruled that citizens of states cannot sue their states for cases that the federal courts need to hear.

This case was controversial because it left open whether citizens could sue their state in state courts.

This case was ultimately resolved in 1999, in the case of Alden vs. Maine.

Alden vs. Maine settled the 11th AmendmentCredit: Getty

In the Alden case, it was ruled that “state’s sovereign immunity forecloses suits against a state government in state court.”

In this case, the Seminole Native American tribe sued the state of Florida for violating the good faith negotiations requirement of the Indian Gaming Regulatory Act.

But in this case, the courts ruled in a 5-4 decision that the state of Florida did have sovereign immunity from a lawsuit.

The Supreme Court is currently hearing an 11th Amendment caseCredit: Getty

source

Amdt11.5.1 General Scope of State Sovereign Immunity

Eleventh Amendment:

In its 1890 decision, Hans v. Louisiana, the Supreme Court adopted Justice James Iredell’s position in Chisholm v. Georgia, that the states, as sovereigns, were immune from suit by their citizens under long-standing principles grounded in the common law.¹ In Hans v. Louisiana,² a resident of Louisiana brought a suit against that state in federal court under federal question jurisdiction, alleging a violation of the Contract Clause in the state’s repudiation of its obligation to pay interest on certain bonds. Admitting that the Amendment on its face prohibited only entertaining a suit against a state by citizens of another state, or citizens or subjects of a foreign state, the Court reasoned that the scope of the Eleventh Amendment was informed by the scope of Article III, Section 2, Clause 1, which provided federal courts jurisdiction over suits between a state and citizens of another state and foreign States, citizens or subjects. The court noted that the Eleventh Amendment was a result of the shock of surprise throughout the country at the Chisholm decision, which contravened long-established common law precedent that a sovereign cannot be sued absent its consent, and reflected the general consensus that the decision was wrong, and that federal jurisdiction did not extend to making defendants of unwilling states in lawsuits brought by individuals.³

In the Hans Court’s view, the Eleventh Amendment reversed an erroneous decision and restored the proper interpretation of the Constitution. Delivering the Court’s opinion, Justice Joseph Bradley stated: The truth is, that the cognizance of suits and actions unknown to the law, and forbidden by the law, was not contemplated by the Constitution when establishing the judicial power of the United States. The suability of a State without its consent was a thing unknown to the law.⁴ The Court reasoned that the Eleventh Amendment’s silence on whether a citizen of a state could sue that state should not be construed as permitting such suits. Instead the manner in which [Chisholm] was received by the country, the adoption of the Eleventh Amendment, the light of history and the reason of the thing,⁵ led the Court unanimously to hold that states could not be sued by their own citizens on grounds arising under the Constitution and laws of the United States.

In line with Hans, the Court held, in Ex parte New York (No. 1),⁶ that, absent its consent, a state was immune to suit in admiralty, the Eleventh Amendment’s reference to any suit in law or equity notwithstanding. Writing for the Court, Justice Mahlon Pitney stated: That a State may not be sued without its consent is a fundamental rule of jurisprudence . . . of which the Amendment is but an exemplification . . . . It is true the Amendment speaks only of suits in law or equity; but this is because the Amendment was the outcome of a purpose to set aside the effect of the decision of this court in Chisholm v. Georgia from which it naturally came to pass that the language of the Amendment was particularly phrased so as to reverse the construction adopted in that case.⁷ Just as Hans v. Louisiana had demonstrated the impropriety of construing the Amendment so as to permit federal question suits against a state, Justice Mahlon Pitney reasoned, it seems to us equally clear that it cannot with propriety be construed to leave open a suit against a State in the admiralty jurisdiction by individuals, whether its own citizens or not.⁸

The Court has continued to rely on Hans⁹ although support for it has not been universal.¹⁰ In 1996, the Court further solidified Hans in Seminole Tribe of Florida v. Florida,¹¹ holding that Congress lacks power under Article I to abrogate state immunity under the Eleventh Amendment. And, in 1999, the Court ruled in Alden v. Maine¹² that the broad principle of sovereign immunity reflected in the Eleventh Amendment bars suits against states in state courts as well as federal.

Having previously reserved the question of whether federal statutory rights could be enforced in state courts,¹³ the Court in Alden v. Maine¹⁴ held that states could also assert Eleventh Amendment sovereign immunity in their own courts. Recognizing that the application of the Eleventh Amendment, which limits only the federal courts, was a misnomer¹⁵ as applied to state courts, the Court nonetheless concluded that the principles of common law sovereign immunity applied absent compelling evidence that the states had surrendered such by ratifying the Constitution. Although this immunity is subject to the same limitations as apply in federal courts, the Court’s decision effectively limited applying significant portions of federal law to state governments.¹⁶ Both Seminole Tribe and Alden were 5-4 decisions with four dissenting Justices maintaining that Hans was wrongly decided.

This split continued with Federal Maritime Commission v. South Carolina State Ports Authority,¹⁷ which held that state sovereign immunity also applies to quasi-judicial proceedings in federal agencies. In this case, the operator of a cruise ship devoted to gambling had been denied entry to the Port of Charleston, and subsequently filed a complaint with the Federal Maritime Commission, alleging a violation of the Shipping Act of 1984.¹⁸ Justice Stephen Breyer, writing for the four dissenting Justices, emphasized the executive (as opposed to judicial) nature of such agency adjudications, noting that the ultimate enforcement of such proceedings in federal court was exercised by a federal agency (as is allowed under the doctrine of sovereign immunity). The majority, however, while admitting to a relatively barren historical record, presumed that when a proceeding was unheard of at the time of the founding of the Constitution, it could not subsequently be applied in derogation of a State’s dignity within our system of federalism.¹⁹

Footnotes

Footnotes
1. Jump to essay-1134 U.S. 1 (1890).
2. Jump to essay-2Id. at 11.
3. Jump to essay-3Id. at 13–14.
4. Jump to essay-4Id. at 15, 16.
5. Jump to essay-5134 U.S. at 18. The Court acknowledged that Chief Justice John Marshall’s opinion in Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 382–83, 406–07, 410–12 (1821), was to the contrary, but observed that the language was unnecessary to the decision and thus dictum, and though made by one who seldom used words without due reflection, ought not to outweigh the important considerations referred to which lead to a different conclusion. 134 U.S. at 20.
6. Jump to essay-6256 U.S. 490 (1921).
7. Jump to essay-7Id. at 497–98.
8. Jump to essay-8Id. at 498. See also Florida Dep’t of State v. Treasure Salvors, 458 U.S. 670 (1982); Welch v. Texas Dep’t of Highways and Transp., 483 U.S. 468 (1987).
9. Jump to essay-9E.g., Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 97–103 (1984) (opinion of the Court by Justice Lewis Powell); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 237–40, 243–44 n.3 (1985) (opinion of the Court by Justice Lewis Powell); Welch v. Texas Dep’t of Highways & Pub. Transp., 483 U.S. 468, 472–74, 478–95 (1987) (plurality opinion of Justice Lewis Powell); Pennsylvania v. Union Gas Co., 491 U.S. 1, 29 (1989) (Justice Antonin Scalia concurring in part and dissenting in part); Dellmuth v. Muth, 491 U.S. 223, 227–32 (1989) (opinion of the Court by Justice Anthony Kennedy); Hoffman v. Connecticut Dep’t of Income Maintenance, 492 U.S. 96, 101 (1989) (plurality opinion of Justice Byron White); id. at 105 (concurring opinions of Justices Sandra Day O’Connor and Antonin Scalia); Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 305 (1990) (opinion of the Court by Justice Sandra Day O’Connor).
10. Jump to essay-10E.g., Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 246 (1985) (dissenting); Welch v. Texas Dep’t of Highways & Pub. Transp., 483 U.S. 468, 496 (1987) (dissenting); Dellmuth v. Muth, 491 U.S. 223, 233 (1989) (dissenting); Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 309 (1990) (concurring). Joining Justice William Brennan were Justices Thurgood Marshall, Harry Blackmun, and John Stevens. See also Pennsylvania v. Union Gas Co., 491 U.S. 1, 23 (1989) (Justice Stevens concurring).
11. Jump to essay-11517 U.S. 44 (1996).
12. Jump to essay-12527 U.S. 706 (1999).
13. Jump to essay-13Employees of the Dep’t of Public Health and Welfare v. Department of Public Health and Welfare, 411 U.S. 279, 287 (1973). 16. 527 U.S. 706 (1999).
14. Jump to essay-14527 U.S. 706 (1999).
15. Jump to essay-15527 U.S. at 713.
16. Jump to essay-16Note, however, that at least one subsequent decision has seemingly enhanced the applicability of federal law to the states themselves. In PennEast Pipeline Co. v New Jersey (595 U.S. —), the Court held that a private company that was granted authority to exercise eminent domain by the federal government could exercise that authority to take possession of property interests owned by a state.
17. Jump to essay-17535 U.S. 743 (2002). Justice Breyer’s dissenting opinion describes a need for continued dissent from the majority’s sovereign immunity holdings. 535 U.S. at 788.
18. Jump to essay-18 46 U.S.C. §§ 40101 et seq.
19. Jump to essay-19535 U.S. at 755, 760.

source

Amdt11.5.2 Nature of States’ Immunity

Eleventh Amendment:

Hans v. Louisiana and Ex parte New York note that Chisholm was erroneously decided and that the Amendment’s intent was to restore the original understanding that a state could not be sued without its consent, and that nothing in the Constitution, including Article III’s grants of federal court jurisdiction, was intended to provide otherwise. In Edelman v. Jordan,¹ the Court held that a state could properly raise its Eleventh Amendment defense on appeal after having defended and lost on the merits in the trial court. The Court stated: [I]t has been well settled . . . that the Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional bar so that it need not be raised in the trial court.² But that the bar is not wholly jurisdictional seems established as well.³

Moreover, if under Article III there is no jurisdiction of suits against states, the settled principle that states may consent to suit⁴ becomes conceptually difficult, as jurisdiction may not be conferred if the state refuses its consent.⁵ And Article III jurisdiction exists for some suits against states, such as those brought by the United States or by other states.⁶ Furthermore, Congress is able, in some instances, to legislate away state immunity,⁷ although it may not enlarge Article III jurisdiction.⁸ The Court has declared that the principle of sovereign immunity [reflected in the Eleventh Amendment] is a constitutional limitation on the federal judicial power established in Art. III, while acknowledging that [a] sovereign’s immunity may be waived.⁹

Another explanation of the Eleventh Amendment is that it merely recognized the continued vitality of the doctrine of sovereign immunity as established prior to the Constitution: a state was not subject to suit without its consent.¹⁰ Modern case law supports this view. In the 1999 Alden v. Maine decision, the Court stated: the States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today¹¹ The Court, in dealing with questions of governmental immunity from suit, has traditionally treated precedents dealing with state immunity and those dealing with Federal Governmental immunity interchangeably.¹² Viewing the Amendment and Article III this way explains consent to suit as a waiver.¹³ The limited effect of the doctrine in federal courts arises from the fact that traditional sovereign immunity arose in a unitary state, barring unconsented suit against a sovereign in its own courts or the courts of another sovereign. But upon entering the Union the states surrendered their sovereignty to some undetermined and changing degree to the national government, a sovereign that does not have plenary power over them but that is more than their coequal.¹⁴

Within the area of federal court jurisdiction, the issue becomes the extent to which the states, upon entering the Union, ceded their immunity to suit in federal court. Chisholm held—and the Eleventh Amendment reversed —that the states had given up their immunity to suit in diversity cases based on common law or state law causes of action; Hans v. Louisiana and subsequent cases held that the Amendment, in effect, recognized state immunity to suits based on federal causes of action.¹⁵ Other cases have held that states ceded their immunity to suits by the United States or by other states.¹⁶

Still another view of the Eleventh Amendment is that it embodies a state sovereignty principle limiting the Federal Government’s power.¹⁷ In this respect, the federal courts may not act without congressional guidance in subjecting states to suit, and Congress, which can act to the extent of its granted powers, is constrained by judicially created doctrines requiring it to be explicit when it legislates against state immunity.¹⁸

Questions regarding the constitutional dimensions of sovereign immunity have arisen in the context of interstate sovereign immunity when a private party institutes an action against a state in another state’s court. In the now-overturned 1979 decision of Nevada v. Hall, the Court held that while states are free as a matter of comity to accord each other immunity or to respect any established limits on liability, the Constitution does not compel a state to grant another state immunity in its courts.¹⁹ In Hall, California residents who were severely injured in a car crash with a Nevada state university employee on official business sued the university and the State of Nevada in California court.²⁰ After considering the scope of sovereign immunity as it existed prior to and in the early days of independence, the doctrine’s effect on the framing of the Constitution, and specific aspects of the Constitution that qualify the sovereignty of the several States, such as the Full Faith and Credit Clause,²¹ the Court concluded that [n]othing in the Federal Constitution authorizes or obligates this Court to frustrate California’s policy of full compensation in its courts for injuries on its highways resulting from the negligence of state or non-state actors out of enforced respect for the sovereignty of Nevada.²²

Forty years later, the Court overruled Hall in Franchise Tax Board of California v. Hyatt (Franchise Tax Board III), holding that States retain their sovereign immunity from private suits brought in the courts of other States.²³ Franchise Tax Board III involved a tort action by a private party against a California state agency in Nevada’s courts.²⁴ The sole question before the Court was whether to overrule Nevada v. Hall, a question over which the Court divided in 2016.²⁵ As the majority in Franchise Tax Board III read the historical record, although interstate sovereign immunity may have existed as a voluntary practice of comity at the time of the Founding, the Constitution fundamentally adjust[ed] the States’ relationship with each other and curtail[ed] their ability, as sovereigns, to decline to recognize each other’s immunity.²⁶ The Court reiterated the view embraced in several of its decisions since Hall that in proposing the Eleventh Amendment in response to Chisholm v. Georgia, Congress acted not to change but to restore the original constitutional design.²⁷ Accordingly, the Court explained, the sovereign immunity of the States . . . neither derives from, nor is limited by, the terms of the Eleventh Amendment.²⁸ Moreover, the Court reasoned, [n]umerous provisions in the Constitution support the view that interstate sovereign immunity is embe[dded] . . . within the constitutional design.²⁹ Among other provisions, the Court cited Article I insofar as it divests the States of the traditional diplomatic and military tools that foreign sovereigns possess and Article IV’s Full Faith and Credit Clause, which requires that state-court judgments be accorded full effect in other States and preclude[s] States from ‘adopt[ing] any policy of hostility to the public Acts’ of other States.³⁰ Accordingly, because sovereign immunity was inherent in the constitutional design, the Court concluded that the State of California could not be sued in Nevada absent the former state’s consent.³¹

Footnotes

Jump to essay-1415 U.S. 651 (1974).
Jump to essay-2415 U.S. at 678. The Court relied on Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459 (1945), where the issue was whether state officials who had voluntarily appeared in federal court had authority under state law to waive the state’s immunity. Edelman has been followed in Sosna v. Iowa, 419 U.S. 393, 396 n.2 (1975); Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 278 (1977), with respect to the Court’s responsibility to raise the Eleventh Amendment jurisdictional issue on its own motion.
Jump to essay-3See Patsy v. Florida Board of Regents, 457 U.S. 496, 515–16 n.19 (1982), in which the Court bypassed the Eleventh Amendment issue, which had been brought to its attention, because of the interest of the parties in having the question resolved on the merits. See id. at 520 (Justice Lewis Powell dissenting).
Jump to essay-4Clark v. Barnard, 108 U.S. 436 (1883).
Jump to essay-5E.g., People’s Band v. Calhoun, 102 U.S. 256, 260–61 (1880). See Justice Lewis Powell’s explanation in Patsy v. Florida Board of Regents, 457 U.S. 496, 528 n.13 (1982) (dissenting) (no jurisdiction under Article III of suits against unconsenting states).
Jump to essay-6See, e.g., the Court’s express rejection of the Eleventh Amendment defense in these cases. United States v. Texas, 143 U.S. 621 (1892); South Dakota v. North Carolina, 192 U.S. 286 (1904).
Jump to essay-7E.g., Fitzpatrick v. Bitzer, 427 U.S. 445 (1976); Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989).
Jump to essay-8The principal citation is Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803).
Jump to essay-9Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98, 99 (1984).
Jump to essay-10As Justice Oliver Holmes explained, the doctrine is based on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends. Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907). Of course, when a state is sued in federal court pursuant to federal law, the Federal Government, not the defendant state, is the authority that makes the law creating the right of action. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 154 (1996) (Souter, J., dissenting). For the history and jurisprudence, see Lewis J. Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv. L. Rev. 1 (1963).
Jump to essay-11Alden v. Maine, 527 U.S. 706, 713 (1999).
Jump to essay-12See, e.g., United States v. Lee, 106 U.S. 196, 210–14 (1882); Belknap v. Schild, 161 U.S. 10, 18 (1896); Hopkins v. Clemson Agricultural College, 221 U.S. 636, 642–43, 645 (1911).
Jump to essay-13A sovereign may consent to suit. E.g., United States v. Sherwood, 312 U.S. 584, 586 (1941); United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 514 (1940).
Jump to essay-14See Fletcher, supra.
Jump to essay-15For a while only Justice William Brennan advocated this view, Parden v. Terminal Ry., 377 U.S. 184 (1964); Emps. of the Dep’t of Pub. Health and Welfare v. Dep’t of Pub. Health and Welfare, 411 U.S. 279, 298 (1973) (dissenting), but in time he was joined by three others. See, e.g., Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 247 (1985) (Justice William Brennan, joined by Justices Thurgood Marshall, Harry Blackmun, and John Stevens, dissenting).
Jump to essay-16E.g., United States v. Texas, 143 U.S. 621 (1892); South Dakota v. North Carolina, 192 U.S. 286 (1904). See Kansas v. Colorado, 533 U.S. 1 (2001) (state may seek damages from another state, including damages to its citizens, provided it shows that the state has an independent interest in the proceeding).
Jump to essay-17E.g., Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976); Quern v. Jordan, 440 U.S. 332, 337 (1979).
Jump to essay-18See Hutto v. Finney, 437 U.S. 678 (1978), in which the various opinions differ among themselves as to the degree of explicitness required. See also Quern v. Jordan, 440 U.S. 332, 343–45 (1979). As noted in the previous section, later cases stiffened the rule of construction. The parallelism of congressional power to regulate and to legislate away immunity is not exact. Thus, in Employees of the Dep’t of Pub. Health and Welfare v. Department of Pub. Health and Welfare, 411 U.S. 279 (1973), the Court strictly construed congressional provision of suits as not reaching states, while in Maryland v. Wirtz, 392 U.S. 183 (1968), it had sustained the constitutionality of the substantive law.
Jump to essay-19440 U.S. 410, 426 (1979), overruled by Franchise Tax Bd. v. Hyatt, 139 S. Ct. 1485, 1492 (2019) [hereinafter Franchise Tax Bd. III.] 40. Id. at 411–12.
Jump to essay-20Id. at 411–12.
Jump to essay-21Id. at 414–18.
Jump to essay-22Id. at 426. In the Court’s view, for a federal court to infer from the structure of our Constitution and nothing else, that California is not free in this case to enforce its policy of full compensation, that holding would constitute the real intrusion on the sovereignty of the States—and the power of the people—in our Union. Id. at 426–27.
Jump to essay-23Franchise Tax Bd. III, 139 S. Ct. 1485, 1492 (2019).
Jump to essay-24Id. at 1490–91.
Jump to essay-25Id. at 1491; see also Franchise Tax Bd. of Cal. v. Hyatt, 136 S. Ct. 1277, 1279 (2016) (The Court is equally divided on this question, and we consequently affirm the Nevada courts’ exercise of jurisdiction over California.); Franchise Tax Bd. III, 139 S. Ct. at 1490–91 (explaining that the two prior Franchise Tax Board decisions centered on interpretations of the Full Faith and Credit Clause of Article IV of the Constitution).
Jump to essay-26Franchise Tax Bd. III, 139 S. Ct. at 1493, 1497.
Jump to essay-27Id. at 1496 (quoting Alden v. Maine, 527 U.S. 706, 722 (1999)).
Jump to essay-28Id. (quoting Alden, 527 U.S. at 713). 49. Id. at 1497.
Jump to essay-29Id. at 1497.
Jump to essay-30Id. (citation omitted).
Jump to essay-31Id. at 1499. The Court reasoned that stare decisis did not compel it to follow Hall even though some plaintiffs, such as Hyatt relied on that decision in litigation against states. Id. at1499. In the Court’s view, Hall failed to account for the historical understanding of state sovereign immunity and stood as an outlier in [the Court’s] sovereign immunity jurisprudence. Id.

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Amdt11.5.3 Suits Against States

Eleventh Amendment:

Despite the apparent limitations of the Eleventh Amendment, individuals may, under certain circumstances, bring constitutional and statutory cases against states. In some of these cases, the state’s sovereign immunity has either been waived by the state (either explicitly or implicitly as a product of their consent to the plan of the Constitutional Convention) or abrogated by Congress. In other cases, the Eleventh Amendment does not apply because the procedural posture is such that the Court does not view them as being against a state. As discussed below, this latter doctrine is most often seen in suits to enjoin state officials. However, it has also been invoked in bankruptcy and admiralty cases, where the res, or property in dispute, is in fact the legal target of a dispute.¹

The application of this last exception to the bankruptcy area has become less relevant, because even when a bankruptcy case is not focused on a particular res, the Court has held that a state’s sovereign immunity is not infringed by being subject to an order of a bankruptcy court. In Central Virginia Community College v. Katz, the Court noted that [t]he history of the Bankruptcy Clause, the reasons it was inserted in the Constitution, and the legislation both proposed and enacted under its auspices immediately following ratification of the Constitution demonstrate that it was intended not just as a grant of legislative authority to Congress, but also to authorize limited subordination of state sovereign immunity in the bankruptcy arena.² Thus, where a federal law authorized a bankruptcy trustee to recover preferential transfers made to state educational institutions,³ the court held that the state’s sovereign immunity was not infringed despite the fact that the issue was ancillary to a bankruptcy court’s in rem jurisdiction.⁴

Because Eleventh Amendment sovereign immunity inheres in states and not their subdivision or establishments, a state agency that wishes to claim state sovereign immunity must establish that it is acting as an arm of the state. In Lake County Estates v. Tahoe Regional Planning Agency, the Court stated: [A]gencies exercising state power have been permitted to invoke the [Eleventh] Amendment in order to protect the state treasury from liability that would have had essentially the same practical consequences as a judgment against the State itself.⁵ In evaluating such a claim, courts will examine state law to determine the nature of the entity and whether to treat it as an arm of the state.⁶ The Supreme Court has consistently refused to extend Eleventh Amendment sovereign immunity to counties, cities, or towns,⁷ even though such political subdivisions exercise a slice of state power.⁸ Even when such entities enjoy immunity from suit under state law, they do not have Eleventh Amendment immunity in federal court and states may not confer it.⁹ Similarly, entities created pursuant to interstate compacts (and subject to congressional approval) are not immune from suit, absent a showing that the entity was structured so as to take advantage of the state’s constitutional protections.¹⁰

Footnotes

Jump to essay-1See Tennessee Student Assistance Corp. v. Hood, 541 U.S. 440, 446–48 (2004) (exercise of bankruptcy court’s in rem jurisdiction over a debtor’s estate to discharge a debt owed to a state does not infringe the state’s sovereignty); California v. Deep Sea Research, Inc., 523 U.S. 491, 507–08 (1998) (despite state claims over shipwrecked vessel, the Eleventh Amendment does not bar federal court in rem admiralty jurisdiction where the res is not in the possession of the sovereign).
Jump to essay-2Central Virginia Community College v. Katz, 546 U.S. 356, 362–63 (2006). The Court has cautioned, however, that Katz’s analysis is limited to the context of the Bankruptcy Clause. Specifically, the Court has described the Clause as sui generis or unique among Article I’s grants of authority, and, unlike other such grants, the Bankruptcy Clause itself abrogated state sovereign immunity in bankruptcy proceedings. See Allen v. Cooper, 140 S.Ct. 994, 1002–03 (2020) (observing that Katz points to a good-for-one-clause-only holding and does not cast further doubt on Seminole Tribe’s general rule that Article I cannot justify haling a State into federal court).
Jump to essay-3A preferential transfer was defined as the transfer of a property interest from an insolvent debtor to a creditor, which occurred on or within ninety days before the filing of a bankruptcy petition, and which exceeds what the creditor would have been entitled to receive under such bankruptcy filing. 11 U.S.C. § 547(b). 55. 546 U.S. at 373.
Jump to essay-4546 U.S. at 373.
Jump to essay-5Lake County Estates v. Tahoe Regional Planning Agency, 440 U.S. 391, 400–01 (1979), citing Edelman v. Jordan, 415 U.S. 651 (1974), and Ford Motor Co. v. Department of Treasury, 323 U.S. 459 (1945). The fact that a state agency can be indemnified for the costs of litigation does not divest the agency of its Eleventh Amendment immunity. Regents of the University of California v. Doe, 519 U.S. 425 (1997).
Jump to essay-6See, e.g., Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977) (local school district not an arm of the state based on (1) its designation in state law as a political subdivision, (2) the degree of supervision by the state board of education, (3) the level of funding received from the state, and (4) the districts’ empowerment to generate their own revenue through the issuance of bonds or levying taxes.
Jump to essay-7Northern Insurance Company of New York v. Chatham County, 547 U.S. 189, 193 (2006) (counties have neither Eleventh Amendment immunity nor residual common law immunity). See Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274 (1977); Moor v. County of Alameda, 411 U.S. 693 (1973); Workman v. City of New York, 179 U.S. 552 (1900); Lincoln County v. Luning, 133 U.S. 529 (1890). In contrast to their treatment under the Eleventh Amendment, the Court has found that state immunity from federal regulation under the Tenth Amendment extends to political subdivisions as well. See Printz v. United States, 521 U.S. 898 (1997).
Jump to essay-8Lake County Estates v. Tahoe Regional Planning Agency, 440 U.S. 391, 400–01 (1979) (quoting earlier cases).
Jump to essay-9Chicot County v. Sherwood, 148 U.S. 529 (1893).
Jump to essay-10Lake County Estates v. Tahoe Regional Planning Agency, 440 U.S. 391 (1979); Petty v. Tennessee-Missouri Bridge Comm’n, 359 U.S. 275 (1959)

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Amdt11.6.1 Waiver of State Sovereign Immunity

Eleventh Amendment:

The immunity of a state from suit is a privilege which it may waive at its pleasure. Historically, the conclusion that a state has consented or waived its immunity has not been lightly inferred; the Court strictly construes statutes alleged to consent to suit. Thus, a state may waive its immunity in its own courts without consenting to suit in federal court,¹ and a general authorization to sue and be sued is ordinarily insufficient to constitute consent.² A statutory waiver of state Eleventh Amendment immunity is effective only where stated in the most express language or by such overwhelming implication from the text as [will] leave no room for any other reasonable construction.³

Thus, in Port Authority Trans-Hudson Corp. v. Feeney,⁴ an expansive consent to suits, actions, or proceedings of any form or nature at law, in equity or otherwise was deemed too ambiguous and general to waive immunity in federal court, because it might be interpreted to reflect only a state’s consent to suit in its own courts. But, when combined with language specifying that consent was conditioned on venue being laid within a county or judicial district, established by one of said States or by the United States, and situated wholly or partially within the Port of New York District, waiver was effective.⁵

There are, however, a few cases in which the Court has found a waiver by implication. For example, in Parden v. Terminal Railway,⁶ the Court ruled that employees of a state-owned railroad could sue the state for damages under the Federal Employers’ Liability Act (FELA). One of the two primary grounds for finding lack of immunity was that by taking control of a railroad which was subject to the FELA, enacted some twenty years previously, the state had effectively accepted the imposition of the Act and consented to suit.⁷ Distinguishing Parden as involving a proprietary activity,⁸ the Court later refused to find any implied consent to suit by states participating in federal spending programs; participation was insufficient, and only when waiver has been stated by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction, will it be found.⁹ Further, even if a state becomes amenable to suit under a statutory condition on accepting federal funds, remedies, especially monetary damages, may be limited, absent express language to the contrary.¹⁰

Another form of waiver by implication is the waiver by consent to the plan of the Constitutional Convention; that is, that states waived sovereign immunity to litigation on certain matters when they ratified the Constitution. A recent decision seems to have expanded the scope of these sort of implicit waivers. In PennEast Pipeline Co. v. New Jersey,¹¹ the Court heard an appeal related to an interstate pipeline approved by the federal government. Under the Natural Gas Act (NGA), parties who receive certificates to construct and operate interstate natural gas pipelines are authorized to exercise eminent domain in order to obtain the necessary rights-of-way to construct and operate the pipeline along the approved route.¹² In this instance, the approved route included lands owned by the State of New Jersey. The certificate holders brought an action in federal district court seeking to condemn those state-owned parcels, and the state responded by asserting its sovereign immunity under the eleventh Amendment. The lower courts sided with the state, rejecting the argument that the federal government had delegated its authority to sue states in the NGA and the certificate proceeding, but the Supreme Court disagreed. Writing for the 5-4 majority, Chief Justice John Roberts noted that [t]he ‘plan of the Convention’ includes certain waivers of sovereign immunity to which all States implicitly consented at the founding.¹³ The Court concluded that it would be untenable to find that this waiver did not extend to private parties authorized by the federal government to exercise eminent domain authority.¹⁴ In addition, because the waiver of sovereign immunity was based on the states’ implicit consent via the plan of the Convention rather than abrogation or explicit waiver, there was no need to find that the NGA clearly authorized such suits.¹⁵ The Court’s decision in PennEast is one of the only Supreme Court decisions relying on the plan of convention as a basis for consent or waiver, so its impact outside of federal legislation delegating eminent domain power remains to be seen.

A state may also waive its immunity by initiating or participating in litigation. In Clark v. Barnard,¹⁶ the state had filed a claim for disputed money deposited in a federal court, and the Court held that the state could not thereafter complain when the court awarded the money to another claimant. However, the Court is loath to find a waiver simply because an official or an attorney representing the state decided to litigate the merits of a suit, so that a state may at any point in litigation raise a claim of immunity based on whether that official has the authority under state law to make a valid waiver.¹⁷ However, this argument is only available when the state is brought into federal court involuntarily. If a state voluntarily agrees to removal of a state action to federal court, the Court has held it may not then invoke a defense of sovereign immunity and thereby gain an unfair tactical advantage.¹⁸

Footnotes

Jump to essay-1Smith v. Reeves, 178 U.S. 436 (1900); Murray v. Wilson Distilling Co., 213 U.S. 151, 172 (1909); Graves v. Texas Co., 298 U.S. 393, 403–04 (1936); Great Northern Life Ins. Co. v. Read, 322 U.S. 47 (1944).
Jump to essay-2Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 54 (1944); Ford Motor Co. v. Department of Treasury, 323 U.S. 459 (1945); Kennecott Copper Corp. v. State Tax Comm’n, 327 U.S. 573 (1946); Petty v. Tennessee-Missouri Bridge Comm’n, 359 U.S. 275 (1959); Florida Dep’t of Health v. Florida Nursing Home Ass’n, 450 U.S. 147 (1981). Compare Patsy v. Florida Bd. of Regents, 457 U.S. 496, 519 n.* (1982) (Justice White concurring), with id. at 522 and n.5 (Justice Lewis Powell dissenting).
Jump to essay-3Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 305–06 (1990) (internal citations omitted; emphasis in original). 5. 495 U.S. 299 (1990).
Jump to essay-4495 U.S. 299 (1990).
Jump to essay-5495 U.S. at 306–07. But see Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985).
Jump to essay-6377 U.S. 184 (1964). The alternative but interwoven ground had to do with Congress’s power to withdraw immunity. See also Petty v. Tennessee- Missouri Bridge Comm’n, 359 U.S. 275 (1959).
Jump to essay-7The implied waiver issue aside, Parden subsequently was overruled, a plurality of the Court emphasizing that Congress had failed to abrogate state immunity unmistakably. Welch v. Texas Dep’t of Highways and Pub. Transp., 483 U.S. 468 (1987). Justice Lewis Powell’s plurality opinion was joined by Chief Justice William Rehnquist and by Justices Byron White and Sandra Day O’Connor. Justice Antonin Scalia, concurring, thought Parden should be overruled because it must be assumed that Congress enacted the FELA and other statutes with the understanding that Hans v. Louisiana shielded states from immunity. Id. at 495.
Jump to essay-8Edelman v. Jordan, 415 U.S. 651, 671–72 (1974). For the same distinction in the Tenth Amendment context, see National League of Cities v. Usery, 426 U.S. 833, 854 n.18 (1976).
Jump to essay-9Edelman v. Jordan, 415 U.S. 651 (1974) (quoting id. at 673, Murray v. Wilson Distilling Co., 213 U.S. 151, 171 (1909)); Florida Dep’t of Health v. Florida Nursing Home Ass’n, 450 U.S. 147 (1981). Of the four Edelman dissenters, Justices Thurgood Marshall and Harry Blackmun found waiver through knowing participation, 415 U.S. at 688. In Florida Dep’t, Justice John Stevens noted he would have agreed with them had he been on the Court at the time but that he would now adhere to Edelman. Id. at 151.
Jump to essay-10Sossamon v. Texas, 131 S. Ct. 1651 (2011).
Jump to essay-11No. 19-1039 (U.S. June 29, 2021).
Jump to essay-12 15 U.S.C. § 717f(h).
Jump to essay-13Alden, 527 U.S. at 755–56.
Jump to essay-14Id.
Jump to essay-15Id.
Jump to essay-16108 U.S. 436 (1883).
Jump to essay-17Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 466–467 (1945); Edelman v. Jordan, 415 U.S. 651, 677–678 (1974).
Jump to essay-18Lapides v. Board of Regents, 535 U.S. 613 (2002

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Amdt11.6.2 Abrogation of State Sovereign Immunity

Eleventh Amendment:

The Constitution grants Congress power to regulate state action by legislation. In some instances when Congress does so, it may subject states to suit by individuals to implement the legislation. The clearest example arises from the Civil War Amendments, which directly restrict state powers and expressly authorize Congress to enforce these restrictions through appropriate legislation.¹ Thus, in Fitzpatrick v. Bitzer, the Court stated: the Eleventh Amendment and the principle of state sovereignty which it embodies . . . are necessarily limited, by the enforcement provisions of § 5 of the Fourteenth Amendment.² The power to enforce the Civil War Amendments is substantive, however, not being limited to remedying judicially cognizable violations of the amendments, but extending as well to measures that in Congress’s judgment will promote compliance.³ The principal judicial brake on this power to abrogate state immunity in legislation enforcing the Civil War Amendments is the rule requiring that congressional intent to subject states to suit be clearly stated.⁴

In the 1989 case of Pennsylvania v. Union Gas Co.,⁵ the Court—temporarily at least—ended years of uncertainty by holding expressly that Congress acting pursuant to its Article I powers (as opposed to its Fourteenth Amendment powers) may abrogate the Eleventh Amendment immunity of the states, so long as it does so with sufficient clarity. Twenty-five years earlier the Court had stated that same principle,⁶ but only as an alternative holding, and a later case had set forth a more restrictive rule.⁷ The premises of Union Gas were that by consenting to ratification of the Constitution, with its Commerce Clause and other clauses empowering Congress and limiting the states, the states had implicitly authorized Congress to divest them of immunity, that the Eleventh Amendment was a restraint upon the courts and not similarly upon Congress, and that the exercises of Congress’s powers under the Commerce Clause and other clauses would be incomplete without the ability to authorize damage actions against the states to enforce congressional enactments. The dissenters disputed each of these strands of the argument, and, while recognizing the Fourteenth Amendment abrogation power, took the position that no such power existed under Article I.

Pennsylvania v. Union Gas lasted less than seven years before the Court overruled it in Seminole Tribe of Florida v. Florida.⁸ Chief Justice William Rehnquist, writing for a 5-4 majority, concluded that Union Gas had deviated from a line of cases, tracing back to Hans v. Louisiana,⁹ which viewed the Eleventh Amendment as implementing the fundamental principle of sovereign immunity [that] limits the grant of judicial authority in Article III.¹⁰ Because the Eleventh Amendment restricts the judicial power under Article III, . . . Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction.¹¹ Subsequent cases have upheld this interpretation.¹²

Section 5 of the Fourteenth Amendment, of course, is another matter. Fitzpatrick v. Bitzer,¹³ which held, in part, that the Fourteenth Amendment operated to alter the pre-existing balance between state and federal power achieved by Article III and the Eleventh Amendment, remains good law.¹⁴ This ruling led to a number of cases that examined whether a statute that might be applied against non-state actors under an Article I power could also, under section 5 of the Fourteenth Amendment, be applied against the states.¹⁵

In another line of cases, a different majority of the Court focused on language Congress used to overcome immunity rather than the authority underlying the action. Henceforth, the Court held in a 1985 decision, and even with respect to statutes that were enacted prior to promulgation of this judicial rule of construction, Congress may abrogate the States’ constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute itself.¹⁶

At one time, a plurality of the Court appeared to take the position that Congress had to refer specifically to state sovereign immunity and the Eleventh Amendment for its language to be unmistakably clear.¹⁷ Thus in 1985 the Court held in Atascadero State Hospital v. Scanlon that general language subjecting to suit in federal court by any recipient of Federal assistance under the Rehabilitation Act was insufficient to satisfy this test, not because of any question about whether states are recipients within the meaning of the provision but because given their constitutional role, the states are not like any other class of recipients of federal aid.¹⁸ As a result of these rulings, Congress began to use words the Court had identified.¹⁹ Since then, however, the Court has accepted less precise language,²⁰ and in at least one context, has eliminated the requirement of specific abrogation language altogether.²¹

Even before the Alden v. Maine decision,²² when the Court believed that Eleventh Amendment sovereign immunity did not apply to suits in state courts, the Court applied its rule of strict construction to require unmistakable clarity by Congress in order to subject states to suit.²³ Although the Court was willing to recognize exceptions to the clear statement rule when the issue involved subjection of states to suit in state courts, the Court also suggested the need for symmetry so that states’ liability or immunity would be the same in both state and federal courts.²⁴

Footnotes

Jump to essay-1Fitzpatrick v. Bitzer, 427 U.S. 445 (1976); Hutto v. Finney, 437 U.S. 678 (1978); City of Rome v. United States, 446 U.S. 156 (1980). More recent cases affirming Congress’s Section 5 powers include Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 99 (1984); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 (1985); and Dellmuth v. Muth, 491 U.S. 223, 227 (1989).
Jump to essay-2Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976) (under the Fourteenth Amendment, Congress may provide for private suits against States or state officials which are constitutionally impermissible in other contexts.).
Jump to essay-3In Maher v. Gagne, 448 U.S. 122 (1980), the Court found that Congress could validly authorize imposition of attorneys’ fees on the state following settlement of a suit based on both constitutional and statutory grounds, even though settlement had prevented determination that there had been a constitutional violation. Maine v. Thiboutot, 448 U.S. 1 (1980), held that § 1983 suits could be premised on federal statutory as well as constitutional grounds. Other cases in which attorneys’ fees were awarded against states are Hutto v. Finney, 437 U.S. 678 (1978); and New York Gaslight Club v. Carey, 447 U.S. 54 (1980). See also Frew v. Hawkins, 540 U.S. 431 (2004) (upholding enforcement of consent decree).
Jump to essay-4Even prior to the tightening of the clear statement rule over the past several decades to require express legislative language (see note and accompanying text, infra), application of the rule curbed congressional enforcement. Fitzpatrick v. Bitzer, 427 U.S. 445 451–53 (1976); Hutto v. Finney, 437 U.S. 678, 693–98 (1978). Because of its rule of clear statement, the Court in Quern v. Jordan, 440 U.S. 332 (1979), held that in enacting 42 U.S.C. § 1983, Congress had not intended to include states within the term person for the purpose of subjecting them to suit. The question arose after Monell v. N.Y. City Dep’t of Soc. Servs., 436 U.S. 658 (1978), reinterpreted person to include municipal corporations. Cf. Alabama v. Pugh, 438 U.S. 781 (1978). The Court has reserved the question of whether the Fourteenth Amendment itself, without congressional action, modifies the Eleventh Amendment to permit suits against states, Milliken v. Bradley, 433 U.S. 267, 290 n.23 (1977), but the result in Milliken, holding that the Governor could be enjoined to pay half the cost of providing compensatory education for certain schools, which would come from the state treasury, and in Scheuer v. Rhodes, 416 U.S. 232 (1974), permitting imposition of damages upon the governor, which would come from the state treasury, is suggestive. But see Rabinovitch v. Nyquist, 433 U.S. 901 (1977). The Court declined in Ex parte Young, 209 U.S. 123, 150 (1908), to view the Eleventh Amendment as modified by the Fourteenth.
Jump to essay-5491 U.S. 1 (1989). The Justice William Brennan wrote the Court’s plurality opinion and was joined by the three other Justices who believed Hans was incorrectly decided. See id. at 23 (Justice Stevens concurring). Justice Byron White provided the fifth vote id. at 45, 55–56 (Justice Byron White concurring), although he believed Hans was correctly decided and ought to be maintained although he did not believe Congress had acted with sufficient clarity in the statutes before the Court to abrogate immunity. Justice Antonin Scalia thought the statutes were express enough but that Congress simply lacked the power. Id. at 29. Chief Justice William Rehnquist and Justices Sandra Day O’Connor and Anthony Kennedy joined relevant portions of both opinions finding lack of power and lack of clarity.
Jump to essay-6Parden v. Terminal Railway, 377 U.S. 184, 190–92 (1964). See also Employees of the Dep’t of Pub. Health and Welfare v. Department of Pub. Health and Welfare, 411 U.S. 279, 283, 284, 285–86 (1973).
Jump to essay-7Edelman v. Jordan, 415 U.S. 651, 672 (1974).
Jump to essay-8517 U.S. 44 (1996) (invalidating a provision of the Indian Gaming Regulatory Act authorizing an Indian tribe to sue a state in federal court to compel performance of a duty to negotiate in good faith toward the formation of a compact).
Jump to essay-9134 U.S. 1 (1890).
Jump to essay-10517 U.S. at 64 (quoting Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 97–98 (1984).
Jump to essay-11517 U.S. at 72–73. Justice David Souter’s dissent undertook a lengthy refutation of the majority’s analysis, asserting that the Eleventh Amendment is best understood, in keeping with its express language, as barring only suits based on diversity of citizenship, and as having no application to federal question litigation. Moreover, Justice Souter contended, the state sovereign immunity that the Court mistakenly recognized in Hans v. Louisiana was a common law concept that had no constitutional status and was subject to congressional abrogation. 517 U.S. at 117. The Constitution made no provision for wholesale adoption of the common law, but, on the contrary, was premised on the view that common law rules would always be subject to legislative alteration. This imperative of legislative control grew directly out of the Framers’ revolutionary idea of popular sovereignty. Id. at 160.
Jump to essay-12Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999) (the Trademark Remedy Clarification Act, an amendment to the Lanham Act, did not validly abrogate state immunity); Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627 (1999) (amendment to patent laws abrogating state immunity from infringement suits is invalid); Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000) (abrogation of state immunity in the Age Discrimination in Employment Act is invalid); Allen v. Cooper, 140 S. Ct. 994 (2020) (the Copyright Remedy Clarification Act of 1990 did not validly abrogate state sovereign immunity).
Jump to essay-13427 U.S. 445 (1976).
Jump to essay-14Seminole Tribe, 517 U.S. at 65–66.
Jump to essay-15See Fourteenth Amendment, Congressional Definition of Fourteenth Amendment Rights, infra.
Jump to essay-16Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985) (emphasis added).
Jump to essay-17Justice Anthony Kennedy for the Court in Dellmuth, 491 U.S. at 231, expressly noted that the statute before the Court did not demonstrate abrogation with unmistakable clarity because, inter alia, it makes no reference whatsoever to either the Eleventh Amendment or the States’ sovereign immunity. Justice Antonin Scalia, one of four concurring Justices, expressed an understanding that the Court’s reasoning would allow for clearly expressed abrogation of immunity without explicit reference to state sovereign immunity or the Eleventh Amendment. Id. at 233.
Jump to essay-18Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 246 (1985). See also Dellmuth v. Muth, 491 U.S. 223 (1989).
Jump to essay-19In 1986, following Atascadero, Congress provided that states were not to be immune under the Eleventh Amendment from suits under several laws barring discrimination by recipients of federal financial assistance. Pub. L. No. 99-506, § 1003, 100 Stat. 1845 (1986), 42 U.S.C. § 2000d-7. Following Dellmuth, Congress amended the statute to insert the explicit language. Pub. L. No. 101-476, § 103, 104 Stat. 1106 (1990), 20 U.S.C. § 1403. See also the Copyright Remedy Clarification Act, Pub. L. 101-553, § 2, 104 Stat. 2749 (1990), 17 U.S.C. § 511 (making states and state officials liable in damages for copyright violations).
Jump to essay-20Kimel v. Florida Board of Regents, 528 U.S. 62, 74–78 (2000). In Kimel, statutory language authorized age discrimination suits against any employer (including a public agency), and a public agency was defined to include the government of a State or political subdivision thereof. The Court found this language to be sufficiently clear evidence of intent to abrogate state sovereign immunity. The relevant portion of the opinion was written by Justice Sandra Day O’Connor, and joined by Chief Justice William Rehnquist and Justices John Stevens, Antonin Scalia, David Souter, Ruth Bader Ginsburg, Stephen Breyer and John Stevens. But see Raygor v. Regents of the University of Minnesota, 534 U.S. 533 (2002) (federal supplemental jurisdiction statute which tolls limitations period for state claims during pendency of federal case not applicable to claim dismissed on the basis of Eleventh Amendment immunity).
Jump to essay-21Central Virginia Community College v. Katz, 546 U.S. 356, 363 (2006) (abrogation of state sovereign immunity under the Bankruptcy Clause was effectuated by the Constitution, so it need not additionally be done by statute); id. at 383 (Justice Clarence Thomas dissenting).
Jump to essay-22527 U.S. 706 (1999).
Jump to essay-23Will v. Michigan Dep’t of State Police, 491 U.S. 58 (1989) (holding that states and state officials sued in their official capacity could not be made defendants in § 1983 actions in state courts).
Jump to essay-24Hilton v. South Carolina Pub. Rys. Comm’n, 502 U.S. 197, 206 (1991) (interest in symmetry is outweighed by stare decisis, the FELA action being controlled by Parden v. Terminal Ry

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Amdt11.6.3 Officer Suits and State Sovereign Immunity

Eleventh Amendment:

Courts may provide relief from government wrongs under the doctrine that sovereign immunity does not prevent suits to restrain individual government officials.¹ The doctrine is built upon a double fiction: that for purposes of the sovereign’s immunity, a suit against an official is not a suit against the government, but for the purpose of finding state action to which the Constitution applies, the official’s conduct is that of the state.² The doctrine is often associated with the decision in Ex parte Young.³

Young arose when a state legislature passed a law reducing railroad rates and providing severe penalties for any railroad that failed to comply with the law. Plaintiffs brought a federal action to enjoin Young, the state attorney general, from enforcing the law, alleging that it was unconstitutional and that they would suffer irreparable harm if he were not prevented from acting. An injunction was granted forbidding Young from acting on the law, an injunction he violated by bringing an action in state court against noncomplying railroads; for this action he was adjudged in contempt.

In deciding Young, the Court faced inconsistent lines of cases, including numerous precedents for permitting suits against state officers. Chief Justice John Marshall had begun the process in Osborn by holding that suit was barred only when the state was formally named a party.⁴ He modified his position to preclude suit when an official, the governor of a state, was sued in his official capacity,⁵ but relying on Osborn and reading Madrazo narrowly, the Court later held in a series of cases that an official of a state could be sued to prevent him from executing a state law in conflict with the Constitution or a law of the United States, and the fact that the officer may be acting on behalf of the state or in response to a state statutory obligation did not make the suit one against the state.⁶ Subsequently the Court developed another more functional, less formalistic concept of the Eleventh Amendment and sovereign immunity, which evidenced an increasing wariness toward affirmatively ordering states to relinquish state-controlled property⁷ and culminated in the broad reading of Eleventh Amendment immunity in Hans v. Louisiana.⁸

Two of the leading cases concerned suits to prevent Southern states from defaulting on bonds.⁹ In Louisiana v. Jumel,¹⁰ a Louisiana citizen sought to compel the state treasurer to apply a sinking fund that had been created under the earlier constitution for the payment of the bonds after a subsequent constitution had abolished this provision for retiring the bonds. The proceeding was held to be a suit against the state.¹¹ Then, In re Ayers¹² purported to supply a rationale for cases on the issuance of mandamus or injunctive relief against state officers that would have severely curtailed federal judicial power. Suit against a state officer was not barred when his action, aside from any official authority claimed as its justification, was a wrong simply as an individual act, such as a trespass, but if the act of the officer did not constitute an individual wrong and was something that only a state, through its officers, could do, the suit was in actuality a suit against the state and was barred.¹³ That is, the unconstitutional nature of the state statute under which the officer acted did not itself constitute a private cause of action. For that, one must be able to point to an independent violation of a common law right.¹⁴

Although Ayers was in all relevant points on all fours with Young,¹⁵ the Young Court held that the court had properly issued the injunction against the state attorney general, even though the state was in effect restrained as well. The Court stated that [t]he act to be enforced is alleged to be unconstitutional, and, if it be so, the use of the name of the State to enforce an unconstitutional act to the injury of the complainants is a proceeding without the authority of and one which does not affect the State in its sovereign or governmental capacity.¹⁶ Rather, the Court noted, [i]t is simply an illegal act upon the part of a state official in attempting by the use of the name of the State to enforce a legislative enactment which is void because unconstitutional. If the act which the state Attorney General seeks to enforce be a violation of the Federal Constitution, the officer in proceeding under such enactment comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subject in his person to the consequences of his individual conduct.¹⁷ Justice John Harlan was the only dissenter, arguing that in law and fact the suit was one only against the state and that the suit against the individual was a mere fiction.¹⁸

Justice John Harlan’s fiction remains a mainstay of Eleventh Amendment jurisprudence.¹⁹ It accounts for much of the litigation brought by individuals to challenge the execution of state policies. Suits against state officers alleging that they are acting pursuant to an unconstitutional statute are the standard device by which the validity of state legislation in federal courts is tested prior to enforcement and thus interpretation by state courts.²⁰ Similarly, suits to restrain state officials from contravening federal statutes²¹ or to compel undertaking affirmative obligations imposed by the Constitution or federal laws²² are common.

For years, the accepted rule was that the Eleventh Amendment did not preclude suits prosecuted against state officers in federal courts upon grounds that they are acting in excess of state statutory authority²³ or that they are not doing something required by state law.²⁴ However, in Pennhurst State School & Hospital v. Halderman,²⁵ the Court held that Young did not permit suits in federal courts against state officers alleging violations of state law. In the Court’s view, Young was necessary to promote the supremacy of federal law, a basis that disappears if the violation alleged is of state law. The Court also still adheres to the doctrine, first pronounced in Governor of Georgia v. Madrazo,²⁶ that some suits against officers are actually suits against the state²⁷ and are barred by the state’s immunity, such as when the suit involves state property or asks for relief which clearly calls for the exercise of official authority.²⁸

For example, a suit to prevent tax officials from collecting death taxes arising from the competing claims of two states as being the last domicile of the decedent foundered upon the conclusion that there could be no credible claim of a constitutional or federal law violation; state law imposed the obligation upon the officials and in reality the action was against the state.²⁹ Suits against state officials to recover taxes have also been made increasingly difficult to maintain. Although the Court long ago held that the state sovereign immunity prevented a suit to recover money in the state treasury,³⁰ the Court also held that a suit would lie against a revenue officer to recover tax moneys illegally collected and still in his possession.³¹ Beginning, however, with Great Northern Life Insurance Co. v. Read,³² the Court has held that this kind of suit cannot be maintained unless the state expressly consents to suits in federal courts. In this case, the state statute provided for payment of taxes under protest and for suits afterward against state tax collection officials for recovery of taxes illegally collected, which revenues were required to be kept segregated.³³

In Edelman v. Jordan,³⁴ the Court appeared to begin to adopt new restrictive interpretations of what the Eleventh Amendment proscribed. The Court announced in dictum that a suit seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment.³⁵ The Court held, however, that it was permissible for federal courts to require state officials to comply in the future with claims payment provisions of the welfare assistance sections of the Social Security Act, but that they were not permitted to hear claims seeking, or issue orders directing, payment of funds found to be wrongfully withheld.³⁶ Conceding that some of the characteristics of prospective and retroactive relief would be the same in their effects upon the state treasury, the Court nonetheless believed that retroactive payments were equivalent to imposing liabilities which must be paid from public funds in the treasury, and that this was barred by the Eleventh Amendment. The spending of money from the state treasury by state officials shaping their conduct in accordance with a prospective-only injunction is an ancillary effect which is a permissible and often an inevitable consequence of Ex parte Young, whereas payment of state funds . . . as a form of compensation to those wrongfully denied the funds in the past is in practical effect indistinguishable in many aspects from an award of damages against the State.³⁷

That Edelman, in many instances, may be a formal rather than an actual restriction is illustrated by Milliken v. Bradley,³⁸ in which state officers were ordered to spend money from the state treasury to finance remedial educational programs to counteract effects of past school segregation; the decree, the Court said, fits squarely within the prospective-compliance exception reaffirmed by Edelman.³⁹ Although the payments were a result of past wrongs, the Court did not view them as compensation, inasmuch as they were not to be paid to victims of past discrimination but rather used to better conditions either for them or their successors.⁴⁰ The Court also applied Edelman in Papasan v. Allain,⁴¹ holding that a claim against a state for payments representing a continuing obligation to meet trust responsibilities stemming from a nineteenth century grant of public lands for the benefit of educating the Chickasaw Indian Nation is barred by the Eleventh Amendment as indistinguishable from an action for past loss of trust corpus, but that an Equal Protection claim for present unequal distribution of school land funds is the type of ongoing violation for which the Eleventh Amendment does not bar redress.

In Idaho v. Coeur d’Alene Tribe of Idaho,⁴² the Court further narrowed Ex parte Young. The implications of the case are difficult to predict, because of the narrowness of the Court’s holding, the closeness of the vote (5-4), and the inability of the majority to agree on a rationale. The Court held that the Tribe’s suit against state officials for a declaratory judgment and injunction to establish the Tribe’s ownership and control of the submerged lands of Lake Coeur d’Alene is barred by the Eleventh Amendment. The Tribe’s claim was based on federal law—Executive Orders issued in the 1870s, prior to Idaho statehood. The portion of Justice Anthony Kennedy’s opinion that represented the Court’s opinion concluded that the Tribe’s unusual suit was the functional equivalent of a quiet title action which implicates special sovereignty interests.⁴³ The case was unusual because state ownership of submerged lands traces to the Constitution through the equal footing doctrine, and because navigable waters uniquely implicate sovereign interests.⁴⁴ This was therefore no ordinary property dispute in which the state would retain regulatory control over land regardless of title. Rather, grant of the far-reaching and invasive relief sought by the Tribe would diminish, even extinguish, the State’s control over a vast reach of lands and waters long . . . deemed to be an integral part of its territory.⁴⁵

The Supreme Court faced a novel question related to state sovereign immunity in the 2021 case Whole Woman’s Health v. Jackson.⁴⁶ That case involved a challenge to a Texas state law known as the Texas Heartbeat Act or S.B. 8, which allowed private citizens to sue healthcare providers and others who perform or abet abortions after a fetal heartbeat is detected. Because S.B. 8 banned some pre-viability abortions, it appeared to conflict with the Supreme Court’s abortion jurisprudence at the time it was enacted. However, because the statute was enforced through private civil suits, rather than by state actors, it was not clear whether people challenging the law could bring suit under Ex parte Young to prevent its enforcement. Some opponents of S.B. 8 brought suit under Young against the Texas attorney general, clerks and judges of Texas state courts that could hear S.B. 8 claims, and certain state medical licensing officials. The Supreme Court held that the suit could not proceed against state court judges or clerks because judicial officers are not subject to suit under Young,⁴⁷ and that the plaintiffs could not sue the Texas attorney general because he lacked the power to enforce S.B. 8.⁴⁸ The Court allowed the suit to proceed against the state medical licensing officials, however, concluding that those officials had some authority to enforce S.B. 8.⁴⁹ Whole Woman’s Health did not fully resolve questions about the extent to which states can enact legislation that limits the exercise of constitutional rights but evades federal judicial review under Young.⁵⁰

Thus, as with the cases dealing with suits facially against the states themselves, the Court’s greater attention to state immunity in the context of suits against state officials has resulted in a mixed picture, of some new restrictions, of the lessening of others. But a number of Justices have increasingly turned to the Eleventh Amendment as a means to reduce federal-state judicial conflict.⁵¹

Footnotes

Jump to essay-1See, e.g. Larson v. Domestic and Foreign Corp., 337 U.S. 682 (1949). It should be noted, however, that as a threshold issue in lawsuits against state employees or entities, courts must look to whether the sovereign is the real party in interest to determine whether state sovereign immunity bars the suit. See Hafer v. Melo, 502 U.S. 21, 25 (1991). Court must determine whether the remedy sought is truly against the sovereign, and if an action is in essence against a State even if the State is not a named party, then the State is the real party in interest and is entitled to invoke the Eleventh Amendment’s protections. See Lewis v. Clarke, 137 S. Ct. 1285, 1290–91 (2017). As a result, arms of the state, such as a state university, enjoy sovereign immunity. Id. at 6. Likewise, lawsuits brought against employees in their official capacity may also be barred by sovereign immunity. Id.
Jump to essay-2C. Wright, The Law of Federal Courts § 48 (4th ed. 1983). 3. 209 U.S. 123 (1908).
Jump to essay-3209 U.S. 23 (1908).
Jump to essay-4Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824).
Jump to essay-5Governor of Georgia v. Madrazo, 26 U.S. (1 Pet.) 110 (1828).
Jump to essay-6Davis v. Gray, 83 U.S. (16 Wall.) 203 (1872); Board of Liquidation v. McComb, 92 U.S. 531 (1876); Allen v. Baltimore & Ohio R.R., 114 U.S. 311 (1885); Rolston v. Missouri Fund Comm’rs, 120 U.S. 390 (1887); Pennoyer v. McConnaughy, 140 U.S. 1 (1891); Reagan v. Farmers’ Loan & Trust Co., 154 U.S. 362 (1894); Smyth v. Ames, 169 U.S. 466 (1898); Scranton v. Wheeler, 179 U.S. 141 (1900).
Jump to essay-7Judicial reluctance to confront government officials over government-held property did not extend in like manner in a federal context, as was evident in United States v. Lee, the first case in which the sovereign immunity of the United States was claimed and rejected. United States v. Lee, 106 U.S. 196 (1882). See Article III, Suits Against United States Officials. However, the Court sustained the suit against the federal officers by only a 5-4 vote, and the dissent presented the arguments that were soon to inform Eleventh Amendment cases.
Jump to essay-8134 U.S. 1 (1890).
Jump to essay-9See J. J. Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889, 1968–2003 (1983); J. V. Orth, The Interpretation of the Eleventh Amendment, 1798–1908: A Case Study of Judicial Power, 1983 U. Ill. L. Rev. 423.
Jump to essay-10107 U.S. 711 (1882).
Jump to essay-11The relief asked will require the officers against whom the process is issued to act contrary to the positive orders of the supreme political power of the State, whose creatures they are, and to which they are ultimately responsible in law for what they do. They must use the public money in the treasury and under their official control in one way, when the supreme power has directed them to use it in another, and they must raise more money by taxation when the same power has declared that it shall not be done. 107 U.S. at 721. See also Christian v. Atlantic & N.C. R.R., 133 U.S. 233 (1890).
Jump to essay-12123 U.S. 443 (1887).
Jump to essay-13123 U.S. at 500–01, 502.
Jump to essay-14Ayers sought to enjoin state officials from bringing suit under an allegedly unconstitutional statute purporting to overturn a contract between the state and the bondholders to receive the bond coupons for tax payments. The Court asserted that the state’s contracts impliedly contained the state’s immunity from suit, so that express withdrawal of a supposed consent to be sued was not a violation of the contract; but, in any event, because any violation of the assumed contract was an act of the state, to which the officials were not parties, their actions as individuals in bringing suit did not breach the contract. 123 U.S. at 503, 505–06. The rationale had been asserted by a four-Justice concurrence in Antoni v. Greenhow, 107 U.S. 769, 783 (1883). See also Cunningham v. Macon & Brunswick R.R., 109 U.S. 446 (1883); Hagood v. Southern, 117 U.S. 52 (1886); North Carolina v. Temple, 134 U.S. 22 (1890); In re Tyler, 149 U.S. 164 (1893); Baltzer v. North Carolina, 161 U.S. 240 (1896); Fitts v. McGhee, 172 U.S. 516 (1899); Smith v. Reeves, 178 U.S. 436 (1900).
Jump to essay-15Ayers would seem to be decisive of the Young litigation. C. Write, The Law of Federal Courts § 48 at 288 (4th ed. 1983). The Young Court purported to distinguish and to preserve Ayers but on grounds that either were irrelevant to Ayers or that had been rejected in the earlier case. Ex parte Young, 209 U.S. 123, 151, 167 (1908). Similarly, in a later case, the Court continued to distinguish Ayers but on grounds that did not in fact distinguish it from the case before the Court, in which it permitted a suit against a state revenue commissioner to enjoin him from collecting allegedly unconstitutional taxes. Georgia R.R. & Banking Co. v. Redwine, 342 U.S. 299 (1952).
Jump to essay-16 Ex parteYoung, 209 U.S. 123, 159–60 (1908). The opinion did not address the issue of how an officer stripped of his official . . . character could violate the Constitution, in that the Constitution restricts only state action, but the double fiction has been expounded numerous times since. Thus, for example, it is well settled that an action unauthorized by state law is state action for purposes of the Fourteenth Amendment. Home Tel. & Tel. Co. v. City of Los Angeles, 227 U.S. 278 (1913). The contrary premise of Barney v. City of New York, 193 U.S. 430 (1904), though eviscerated by Home Tel. & Tel. was not expressly disavowed until United States v. Raines, 362 U.S. 17, 25–26 (1960).
Jump to essay-17 Ex parte Young, 209 U.S. 123, 159–60 (1908).
Jump to essay-18Ex parte Young, 209 U.S. 123, 173–74 (1908) (Harlan, J., dissenting). In the process of limiting application of Young, a Court majority referred to the Young fiction. Idaho v. Coeur d’Alene Tribe, 521 U.S. 261, 281 (1997).
Jump to essay-19E.g., Ray v. Atlantic Richfield Co., 435 U.S. 151, 156 n.6 (1978) (rejecting request of state officials being sued to restrain enforcement of state statute as preempted by federal law that Young be overruled); Florida Dep’t of State v. Treasure Salvors, 458 U.S. 670, 685 (1982).
Jump to essay-20See, e.g., Home Tel. & Tel. Co. v. City of Los Angeles, 227 U.S. 278 (1913); Truax v. Raich, 239 U.S. 33 (1915); Cavanaugh v. Looney, 248 U.S. 453 (1919); Terrace v. Thompson, 263 U.S. 197 (1923); Hygrade Provision Co. v. Sherman, 266 U.S. 497 (1925); Massachusetts State Grange v. Benton, 272 U.S. 525 (1926); Hawks v. Hamill, 288 U.S. 52 (1933). See also Graham v. Richardson, 403 U.S. 365 (1971) (enjoining state welfare officials from denying welfare benefits to otherwise qualified recipients because they were aliens); Goldberg v. Kelly, 397 U.S. 254 (1970) (enjoining city welfare officials from following state procedures for termination of benefits); Milliken v. Bradley, 433 U.S. 267 (1977) (imposing half the costs of mandated compensatory education programs upon state through order directed to governor and other officials). On injunctions against governors, see Continental Baking Co. v. Woodring, 286 U.S. 352 (1932); Sterling v. Constantin, 287 U.S. 378 (1932). Applicable to suits under this doctrine are principles of judicial restraint—constitutional, statutory, and prudential—discussed under Article III.
Jump to essay-21E.g., Edelman v. Jordan, 415 U.S. 651, 664–68 (1974); Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978).
Jump to essay-22E.g., Women’s Whole Health v. Jackson, No. 21-463 (2021) (citing Ex Parte Young in refusing to enjoin state court clerks and judges from enforcement of a state law); Milliken v. Bradley, 433 U.S. 267 (1977); Edelman v. Jordan, 415 U.S. 651, 664–68 (1974); Quern v. Jordan, 440 U.S. 332, 346–49 (1979).
Jump to essay-23E.g., Pennoyer v. McConnaughy, 140 U.S. 1 (1891); Scully v. Bird, 209 U.S. 481 (1908); Atchison, T. & S. F. Ry. v. O’Connor, 223 U.S. 280 (1912); Greene v. Louisville & Interurban R.R., 244 U.S. 499 (1917); Louisville & Nashville R.R. v. Greene, 244 U.S. 522 (1917). Property held by state officials on behalf of the state under claimed state authority may be recovered in suits against the officials, although the court may not conclusively resolve the state’s claims against it in such a suit. South Carolina v. Wesley, 155 U.S. 542 (1895); Tindal v. Wesley, 167 U.S. 204 (1897); Hopkins v. Clemson College, 221 U.S. 636 (1911). See also Florida Dep’t of State v. Treasure Salvors, 458 U.S. 670 (1982), in which the eight Justices who agreed that the Eleventh Amendment applied divided 4-4 over the proper interpretation.
Jump to essay-24E.g., Rolston v. Missouri Fund Comm’rs, 120 U.S. 390 (1887); Atchison, T. & S. F. Ry. v. O’Connor, 223 U.S. 280 (1912); Johnson v. Lankford, 245 U.S. 541, 545 (1918); Lankford v. Platte Iron Works Co., 235 U.S. 461, 471 (1915); Davis v. Wallace, 257 U.S. 478, 482–85 (1922); Glenn v. Field Packing Co., 290 U.S. 177, 178 (1933); Lee v. Bickell, 292 U.S. 415, 425 (1934).
Jump to essay-25465 U.S. 89 (1984).
Jump to essay-26Governor of Georgia v. Madrazo, 26 U.S. (1 Pet.) 110 (1828).
Jump to essay-27E.g., Ford Motor Co. v. Department of the Treasury, 323 U.S. 459, 464 (1945).
Jump to essay-28In Frew v. Hawkins, 540 U.S. 431 (2004), Texas, which was under a consent decree regarding its state Medicaid program, attempted to extend the reasoning of Pennhurst, arguing that unless an actual violation of federal law had been found by a court, then such court would be without jurisdiction to enforce such decree. The Court, in a unanimous opinion, declined to so extend the Eleventh Amendment, noting, among other things, that the principles of federalism were served by giving state officials the latitude and discretion to enter into enforceable consent decrees. Id. at 442.
Jump to essay-29Worcester County Trust Co. v. Riley, 302 U.S. 292 (1937). See also Old Colony Trust Co. v. Seattle, 271 U.S. 426 (1926). Worcester County remains viable. Cory v. White, 457 U.S. 85 (1982). The actions were under the Federal Interpleader Act, 49 Stat. 1096 (1936), 28 U.S.C. § 1335, under which other actions against officials have been allowed. E.g., Treines v. Sunshine Mining Co., 308 U.S. 66 (1939) (joinder of state court judge and receiver in interpleader proceeding in which state had no interest and neither judge nor receiver was enjoined by final decree). See also Missouri v. Fiske, 290 U.S. 18 (1933).
Jump to essay-30Smith v. Reeves, 178 U.S. 436 (1900).
Jump to essay-31Atchison, T. & S. F. Ry. v. O’Connor, 223 U.S. 280 (1912).
Jump to essay-32322 U.S. 47 (1944).
Jump to essay-33See also Ford Motor Co. v. Department of Treasury, 323 U.S. 459 (1945); Kennecott Copper Corp. v. Tax Comm’n, 327 U.S. 573 (1946). States may confine to their own courts suits to recover taxes. Smith v. Reeves, 178 U.S. 436 (1900); Murray v. Wilson Distilling Co., 213 U.S. 151 (1909); Chandler v. Dix, 194 U.S. 590 (1904).
Jump to essay-34415 U.S. 651 (1974).
Jump to essay-35415 U.S. at 663.
Jump to essay-36415 U.S. at 667–68. Where the money at issue is not a state’s, but a private party’s, then the distinction between retroactive and prospective obligations is not important. In Verizon Md. Inc. v. Public Serv. Comm’n of Md., 535 U.S. 635 (2002), the Court held that a challenge to a state agency decision regarding a private party’s past and future contractual liabilities does not violate the Eleventh Amendment. Id. at 648. In fact, three justices questioned whether the Eleventh Amendment is even implicated where there is a challenge to a state’s determination of liability between private parties. Id. at 649 (Justice David Souter, concurring).
Jump to essay-37415 U.S. at 668. See also Quern v. Jordan, 440 U.S. 332 (1979) (reaffirming Edelman, but holding that state officials could be ordered to notify members of the class that had been denied retroactive relief in that case that they might seek back benefits by invoking state administrative procedures; the order did not direct the payment but left it to state discretion to award retroactive relief). But cf. Green v. Mansour, 474 U.S. 64 (1985). Notice relief permitted under Quern v. Jordan is consistent with the Eleventh Amendment only insofar as it is ancillary to valid prospective relief designed to prevent ongoing violations of federal law. Thus, where Congress has changed the AFDC law and the state is complying with the new law, an order to state officials to notify claimants that past payments may have been inadequate conflicts with the Eleventh Amendment.
Jump to essay-38433 U.S. 267 (1977).
Jump to essay-39433 U.S. at 289.
Jump to essay-40433 U.S. at 290 n.22. See also Hutto v. Finney, 437 U.S. 678, 690–91 (1978) (affirming order to pay attorney’s fees out of state treasury as an ancillary order because of state’s bad faith).
Jump to essay-41478 U.S. 265 (1986).
Jump to essay-42521 U.S. 261 (1997).
Jump to essay-43521 U.S. at 281.
Jump to essay-44521 U.S. at 284.
Jump to essay-45521 U.S. at 282.
Jump to essay-46142 S. Ct. 522 (2021).
Jump to essay-47142 S. Ct. 522 (2021).
Jump to essay-48Id. at 531–34.
Jump to essay-49Id. at 534–35. In addition to their claims against state officials under Young, the S.B. 8 challengers sued a private individual who had threatened to sue under S.B. 8; the Court held that claim could not proceed because the private defendant later disclaimed any intent to sue under S.B. 8. Id. at 537.
Jump to essay-50Id. at 535–37; id. at 544 (Roberts, C.J, dissenting); id. at 545 (Sotomayor, J., dissenting).Following remand and certification of a state law question to the Texas Supreme Court, the state court ruled that Texas law did not authorize state medical licensing officials to enforce S.B. 8, Whole Woman’s Health v. Jackson, 642 S.W. 3d 569 (Tex. 2022), and the U.S. Court of Appeals for the Fifth Circuit dismissed the claims against those officials, Whole Woman’s Health v. Jackson, 31 F.4th 1004 (Mem) (5th Cir. 2022). The U.S. Supreme Court later overruled key abortion precedents that applied when it decided Whole Woman’s Health, removing the main substantive basis for constitutional challenges to S.B. 8. Dobbs v. Jackson Women’s Health Organization, No. 19-1392, 2022 WL 2276808 (June 24, 2022). The procedural issues presented in Whole Woman’s Health remain unresolved, as legislation based on S.B. 8 may u See J. J. Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889, 1968–2003 (1983); J. V. Orth, The Interpretation of the Eleventh Amendment, 1798–1908: A Case Study of Judicial Power, 1983 U. Ill. L. Rev. 423.
Jump to essay-51142 S. Ct. 522 (2021).

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Amdt11.6.4 Tort Actions Against State Officials

Eleventh Amendment:

In Tindal v. Wesley,¹ the Court adopted the rule of United States v. Lee,² a tort suit against federal officials, to permit a tort action against state officials to recover real property held by them and claimed by the state and to obtain damages for the period of withholding. State immunity afforded by the Eleventh Amendment has long been held not to extend to actions against state officials for damages arising out of willful and negligent disregard of state laws.³ The reach of the rule is evident in Scheuer v. Rhodes,⁴ in which the Court held that plaintiffs were not barred by the Eleventh Amendment or other immunity doctrines from suing the governor and other officials of a state alleging that they deprived plaintiffs of federal rights under color of state law and seeking damages, when it was clear that plaintiffs were seeking to impose individual and personal liability on the officials. There was no executive immunity from suit, the Court held; rather, the immunity of state officials is qualified and varies according to the scope of discretion and responsibilities of the particular office and the circumstances existing at the time the challenged action was taken.⁵

Footnotes

Jump to essay-1167 U.S. 204 (1897).
Jump to essay-2106 U.S. 196 (1882).
Jump to essay-3Johnson v. Lankford, 245 U.S. 541 (1918); Martin v. Lankford, 245 U.S. 547 (1918).
Jump to essay-4416 U.S. 232 (1974).
Jump to essay-5These suits, like suits against local officials and municipal corporations, are typically brought pursuant to 42 U.S.C. § 1983 and typically involve all the decisions respecting liability and immunities thereunder. On the scope of immunity of federal officials, see Article III, Suits Against United States Officials, supra.

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Immunity Archives - Good Shepherd News - Fastest Growing Religious, Free Speech & Political Content

Judicial Immunity from Civil and Criminal Liability

Judicial Immunity from Civil and Criminal Liability

INTRODUCTION

I. HISTORY OF JUDICIAL IMMUNITY

II. To WHOM IMMUNITY APPLIES

III. THE LIMITS OF IMMUNITY

A. Jurisdictional Limitations

B. Nonjudicial Acts

C. Injunctive Relief and Attorney’s Fees

IV. IMMUNITY FROM CIVIL LIABILITY FOR DEFAMATION

V. MISAPPROPRIATION OR MISUSE OF FUNDS AND ESTATES

VI. JUDICIAL IMMUNITY FROM CRIMINAL LIABILITY

A. General Rule of No Immunity

B. Criminal Activity as Grounds for Removal from Judicial

Office or Other Disciplinary Sanctions

C. The Relationship Between the Criminal Process and the Disciplinary Process: The Doctrine of Double Jeopardy

CONCLUSION

To Learn More…. Read MORE Below and click the links Below

Abuse & Neglect – The Reporters (Police, D.A & Medical & the Bad Actors)

Mandated Reporter Laws – Nurses, District Attorney’s, and Police should listen up If You Would Like to Learn More About: The California Mandated Reporting LawClick Here

To Read the Penal Code § 11164-11166 – Child Abuse or Neglect Reporting Act – California Penal Code 11164-11166Article 2.5. (CANRA) Click Here

Mandated Reporter formMandated ReporterFORM SS 8572.pdf – The Child Abuse

ALL POLICE CHIEFS, SHERIFFS AND COUNTY WELFARE DEPARTMENTS INFO BULLETIN: Click Here Officers and DA’s for (Procedure to Follow)

You can learn more here California Child Abuse and Neglect Reporting Law its a PDF file

Learn More About True Threats Here below….

We also have the The Brandenburg v. Ohio (1969) – 1st Amendment

CURRENT TEST = We also have the The ‘Brandenburg test’ for incitement to violence – 1st Amendment

We also have the The Incitement to Imminent Lawless Action Test– 1st Amendment

We also have the True Threats – Virginia v. Black is most comprehensive Supreme Court definition – 1st Amendment

We also have the Watts v. United States – True Threat Test – 1st Amendment

We also have the Clear and Present Danger Test – 1st Amendment

We also have the Gravity of the Evil Test – 1st Amendment

We also have the Elonis v. United States (2015) – Threats – 1st Amendment

Learn More About What is Obscene…. be careful about education it may enlighten you

We also have the Miller v. California – 3 Prong Obscenity Test (Miller Test) – 1st Amendment

We also have the Obscenity and Pornography – 1st Amendment

Learn More About Police, The Government Officials and You….

$$ Retaliatory Arrests and Prosecution $$

We also have the Brayshaw v. City of Tallahassee – 1st Amendment – Posting Police Address

We also have the Publius v. Boyer-Vine –1st Amendment – Posting Police Address

We also have the Lozman v. City of Riviera Beach, Florida (2018) – 1st Amendment – Retaliatory Police Arrests

We also have the Nieves v. Bartlett (2019) – 1st Amendment – Retaliatory Police Arrests

We also have the Hartman v. Moore (2006) – 1st Amendment – Retaliatory Police Arrests Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

We also have the Reichle v. Howards (2012) – 1st Amendment – Retaliatory Police Arrests Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

We also have the Freedom of the Press – Flyers, Newspaper, Leaflets, Peaceful Assembly – 1st Amendment

We also have the Insulting letters to politician’s home are constitutionally protected, unless they are ‘true threats’ – Letters to Politicians Homes – 1st Amendment

We also have the First Amendment Encyclopedia very comprehensive – 1st Amendment

ARE PEOPLE LYING ON YOU? CAN YOU PROVE IT? IF YES…. THEN YOU ARE IN LUCK!

We also have the Penal Code 118 PC – California Penalty of “Perjury” Law

We also have the Federal Perjury – Definition by Law

We also have the Penal Code 132 PC – Offering False Evidence

We also have the Penal Code 134 PC – Preparing False Evidence

We also have the Penal Code 118.1 PC – PoliceOfficer$ Filing False Report$

We also have the Spencer v. Peters– PoliceFabrication of Evidence – 14th Amendment

We also have the Penal Code 148.5 PC – Making a FalsePoliceReport in California

We also have the Penal Code 115 PC – Filing a False Document in California

Sanctions and Attorney Fee Recovery for Bad Actors

FAM § 3027.1 – Attorney’s Fees and Sanctions For False Child Abuse Allegations – Family Code 3027.1 – Click Here

FAM § 271 – Awarding Attorney Fees– Family Code 271 Family Court SanctionClick Here

Awarding Discovery Based Sanctions in Family Law Cases – Click Here

FAM § 2030 – Bringing Fairness & Fee Recovery – Click Here

Zamos v. Stroud – District Attorney Liable for Bad Faith Action – Click Here

Pro$ecutorial Mi$conduct – Judicial & Pro$ecutorial Conduct

Prosecutor$

Criminal Motions § 1:9 – Motion for Recusal of Prosecutor

Pen. Code, § 1424 – Recusal of Prosecutor

Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidence from Your Case

Judge$

Prosecution Of Judges For Corrupt Practice$

Code of Conduct for United States Judge$

Judicial Immunity from Civil and Criminal Liability

Recusal of Judge – CCP § 170.1 – Removal a Judge – How to Remove a Judge

l292 Disqualification of Judicial Officer – C.C.P. 170.6 Form

How to File a Complaint Against a Judge in California?

Commission on Judicial Performance – Judge Complaint Online Form

Misconduct by Government Know Your RightsClick Here (must read!)

Under 42 U.S.C. $ection 1983 – Recoverable Damage$

42 U.S. Code § 1983 – Civil Action for Deprivation of Right$

$ection 1983 Lawsuit – How to Bring a Civil Rights Claim

Mandated Reporter Laws – Nurses, District Attorney’s, and Police should listen up
If You Would Like to Learn More About: The California Mandated Reporting LawClick Here

ALL POLICE CHIEFS, SHERIFFS AND COUNTY WELFARE DEPARTMENTS INFO BULLETIN:
Click Here Officers and DA’s for (Procedure to Follow)

We also have the Hartman v. Moore (2006) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

We also have the Reichle v. Howards (2012) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

We also have the Introducing TEXT & EMAIL Digital Evidence in California Courts – 1st Amendment
so if you are interested in learning about Introducing Digital Evidence in California State Courts
click here for SCOTUS rulings

The PROPOSED Parental Rights Amendment
to the US CONSTITUTION Click Here to visit their site