JUDICIAL IMMUNITY

By Guest Writer Angela M. Young

The statement “Where Law Ends, Tyranny Begins” is carved in stone on the Stearns County Court house in Minnesota, Seventh Judicial District.

John Locke states in Section 202 of Chap. XVIII “Of Tyranny” in Book II of the Two Treatises of Government that even magistrates must abide by the law:
Stearns Co.3

Image by Angie Young

Where-ever law ends, tyranny begins, if the law be transgressed to another’s harm; and whosoever in authority exceeds the power given him by the law, and makes use of the force he has under his command, to compass that upon the subject, which the law allows not, ceases in that to be a magistrate; and, acting without authority, may be opposed, as any other man, who by force invades the right of another. This is acknowledged in subordinate magistrates. He that hath authority to seize my person in the street, may be opposed as a thief and a robber, if he endeavors to break into my house to execute a writ, notwithstanding that I know he has such a warrant, and such a legal authority, as will empower him to arrest me abroad. And why this should not hold in the highest, as well as in the most inferior magistrate, I would gladly be informed.”

Where law ends, tyranny begins. Let us talk a bit about judicial immunity. There is an argument that judges must be free from liability in order to allow them to make controversial decisions in the spirit of justice without fear of retribution- Even if said judges are acting corruptly or in bad faith. Think about that! Not only are judges human and subject to human error, and in order to preserve justice and uphold the law, they should be accountable to “fix” their mistakes, but even if they act in bad faith they are completely immune  no matter what damage is done.

According to the book Judicial Misconduct A Cross-National Comparison, by Mary L. Volcansek with Elisabetta de Franciscis and Jacqueline Lucienne Lafon, Complete judicial immunity was never intended, while it is our country’s current reality. Simply put, our district court judges have more authority and less “checks and balances” than the president of the United States of America. The word democracy comes from the roots power (kratos) and people (demos). In theory, US citizens have the power to regulate their leaders to a certain degree- to hold them accountable. This is not reality with judges.

Volcansek stated, “The issues of judicial accountability in democracies is a critical, though often neglected, force in achieving or maintaining democracy.” A judge’s role is to interpret and enforce the law, not to create law. However, Volcansek asserts that in the United States, “…at the national level the emphasis is on judicial independence, and accountability is clearly secondary.” Judicial accountability is beyond secondary, it is overwhelmingly non-existent.

The Minnesota Board of Professional Responsibility (that supposedly addresses complaints against attorneys) is privately regulated (verses state regulated) and funded by attorneys and judges. Doesn’t this seem like a conflict of interest? Or, at very least a lack of “checks and balances” that our country’s fore fathers found to be an imperative component of a government that is fair and just.   ANY other profession that requires a license is state regulated in an attempt to protect consumers. Think about that- ANY other profession: teachers, mental health therapists, doctors, dentists, nurses, occupational therapists, physical therapists, foster providers, and the list could go on and on. But not attorneys or judges. The Board of Judicial Standards in Minnesota (that supposedly addresses complaints against judges) is supposedly a state regulated board, but if one files a complaint against  judge, one will likely find no relief,  blaming the consumer for not having the money for an appeal, or if one does, the board itself acknowledges the appellate court has “many inadequacies.” The executive secretary, Thomas C. Vasaly acknowledged to this writer, ““I do not want to imply that your situation is not serious, I don’t want to imply that you have a remedy when you don’t”. This leaves me perplexed! WHAT, IF ANYTHING DOES THIS “BOARD” DO? WHAT ARE OUR TAX PAYER DOLLARS PAYING FOR???????

In Criminal Court, defendants are at risk of losing certain freedoms: the right to vote, to own/possess fire arms, to avoid unlawful incarceration. Therefore, in theory, more rights afforded to such individuals being charged with crimes: the right to a public defender, and more attention and focus of the court of appeals and the Supreme Court to assure such fundamental constitutional rights are protected. The Constitution supposedly affords us the right to a trial by a jury of our peers. Why is that not the case in family court?

What about parental rights? What about the rights of children? Are they not at least as important as the rights of (alleged) criminals? Their rights fall under the blanket of the constitution. Parents wanting to protect their children and act in their children’s best interest- and more importantly- the children they attempt to parent and protect- are vulnerable in family court. If one looks up any appellate court decisions regarding statute violations they will see the Courts basically cutting and pasting case law giving district court judges unilateral discretion. You will find arguments such as “District Courts have broad discretion in determining custody matters,) Goldman v. Greenwood, 748 N.W. 2d 279, 281-82, and that the Appellate Court is directed to “view the record in the light most favorable to the trial courts finds” In re the Custody of N.A.K. 649 N.W. 2d 166, 174 (Minn 2002). Finally, the appellate court asserts, “We cannot reweigh evidence presented to the trial court” Vangsness 607 N.W. 2d at 475. Let us also not forget that justice is not free.  Many people are financially devastated by attempting to protect their children in family court. Often times the parent who “wins” is the one with more money for attorneys, bought and paid for custody evaluators, Guardians Ad Litem, and on and on.

Judicial immunity is unconstitutional. It allows judges to make human mistakes without rectifying them to uphold the law, and in worse case scenarios, allows them to make decisions in bad faith and perhaps, criminally without accountability. “Power tends to corrupt. Absolute power corrupts absolutely.” –John Emerich Edward Dahlberg-Action

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