More and more, judges are having to hire their own lawyers.
The traditional roles are being turned on their head as judges, once viewed as unbiased arbiters between lawyers for contending parties, are themselves being named defendants in an increasing number of suits challenging the way they acted -- or did not act -- in their official capacities. "I've been sued three times in the last two months; that's not all that unusual," Iowa Chief Justice W. Ward Reynoldson told a reporter for an American Bar Association publication in a February interview. Now the Conference of Chief Justices, which Reynoldson heads, is asking Congress for some protection.
The irony is that, while the new wave of litigation is coming in federal courts, it is state court jurists who are the targets. That's because the cases are being brought under Reconstruction-era statutes that authorize suits against public officials who use their authority to deny civil rights. Such statutes allow suits only against those acting under "color of any statute, ordinance, regulation, custom, or usage of any state or territory." Because federal judges derive their power from the federal government, not the states, they are immune from prosecution.
Reynoldson blames the current rash of suits against judges on a ruling handed down last May by the U.S. Supreme Court that for the first time clearly okayed such litigation against state judges -- a ruling that the four dissenting Justices complained "eviscerates the doctrine of judicial immunity that the common law so long has accepted as absolute." But in fact, before the high court acted, it was not at all clear how much immunity judges had from civil suits brought by disgruntled citizens. Since 1978, federal appellate courts in New Orleans, Chicago, New York, Cincinatti, San Francisco and Boston had all ruled that there were circumstances under which injunctions could be issued against judges.
Injunctions are what is at stake, because it generally has been assumed that a court cannot impose money damages on judges for injuries connected with the way they ran trials or handed out sentences. But an injunction that bars a judge from acting in the future may be more worrisome to those on the bench than an outright assault on their pocketbooks. "The specter of contempt proceedings for alleged violations of injunctive orders is likely to inhibit unbiased decision making as much as the threat of liability for damages," Justice Lewis F. Powell Jr. wrote in dissent to last May's high court ruling.
Even though some appellate courts already allowed injunctions against judges, the May ruling is significant because it clears up the ambiguity in the law and establishes a uniform national rule. More than that, the decision made suits against judges more economically feasible by empowering courts to order a judge who loses such a case to pay the plaintiff's legal bills. That's because in 1976, to add clout to the civil rights laws, Congress decided that defendants who lost civil rights cases could be made to pick up the other side's costs for lawyers, expert witnesses and other related expenses.
"Civil rights" in these contexts means far more than protecting against discrimination on the basis of race. In the case in which the Supreme Court ruled, for instance, the trial court had come down hard on a Culpeper County, Va., magistrate who jailed until trial persons who were arrested and could not post bond, even when the charges against them were so minor -- using abusive language, public drunkenness -- that jail sentences could not be given for convictions. One of the recent cases against Reynoldson claims he was part of a conspiracy to flunk bar candidates to hold down the number of lawyers in Iowa; another was brought by a lawyer who was suspended by the state high court over which Reynoldson presides.
Given the mood of the country after the Civil War, the Supreme Court decided last May, Congress meant the power to sue to enforce rights to be a broad one, and that means including judges along with all other kinds of officials.
But, in fact, the trend towards suing judges may move beyond what the majority envisioned. After the May decision, the U.S. Court of Appeals in Atlanta went even further and said there was no reason why, in some circumstances, judges should not have to pay money damages as well as live under an unjunction. The ruling in Dyks v. Hosemann was limited to the most unusual of circumstances -- situations where a judge acted even though a statute or judicial precedent made unequivocally clear that he or she had no authority in the matter -- but judges worry that it may be an opening wedge. "That's a very alarming concept," Reynoldson says.
In other cases, courts ruled that:
A new kind of lie detector is not proved enough to use in court. The Kansas Supreme Court ruled that a trial judge was wrong in allowing the results of a psychological stress evaluation (PSE) to be admitted as evidence. PSE conclusions, based primarily on the way the voice reacts to a tense situation, have been accepted in New Mexico, but Kansas courts join those in Maryland and Louisiana in rejecting the technique.
(Neises v. Solomon State Bank, March 2)