Judging the Judges
A grassroots movement seeks revenge against offending jurists
SUSAN DAVIS GARY ZERMAN responding
IF GARY ZERMAN HAS HIS WAY, judges across the country will soon find themselves a lot more exposed to angry litigants. A Valencia-based sole practitioner, Zerman first got riled up about judges in the 1990s when he was representing two plaintiffs in a legal malpractice suit. When he got to court, he says, the judge made him sit down, cutting short his opening statement, and then told the jurors to find for the defense. Zerman pursued the case all the way up to the California Supreme Court, but without success. He then tried to sue the offending judges in federal court only to learn that they are immune from such suits. "It's like the judges are the new kings," he marvels.
Soon afterward, Zerman hooked up with Ron Branson, a military prison guard turned pastor turned cult investigator, who also had a negative experience with the courts. Together they formed Jail4Judges a nonprofit that has mounted a national campaign that looks pretty quirky but is starting to be taken seriously.
Most conspicuously, Zerman's group has been pushing hard for a constitutional amendment that would establish 13-member grand juries to investigate, indict, and sentence judges who abuse their power. And though the group failed three times to secure the required number of signatures to put a Judicial Accountability Initiative Law (JAIL) on the ballot here in California, this fall voters in South Dakota will get the chance to vote on one. Jail4Judges plans to launch a similar effort in Nevada as well.
Of course, the judicial immunity that Zerman is so steamed up about has never been absolute. It protects judges only against civil lawsuits, claims of civil rights abuses, and liability for judgment calls made within the confines of their official jurisdictions. But it doesn't protect them from charges related to judicial acts taken outside their jurisdictions or others arising from non-judicial acts on the job, such as sexual harassment. Then, too, all 50 states plus the District of Columbia have boards or commissions that hear and investigate complaints against judges. In 2004 this state's Commission on Judicial Performance received 1,114 new complaints about active and former California judges (see MCLE [Minimum Continuing Legal Education], page 45). Eight percent of those led to staff inquiries and four percent to investigations.
But that isn't enough to satisfy Jail4Judges. On its website, the group blames judicial immunity for a wide range of ills, including "ignored laws, ignored evidence, sophistry, eminent domain abuse, confiscation of property without due process, probate fraud, secret dockets, graft, falsifications of court records and other abuses."
If nothing else, Jail4Judges has flair. Cofounder Branson, for one, refers to himself as the organization's "Five-Star National JAIL Commander-In-Chief." And in Nevada, Jail4Judges member Steven Dempsey rails not only against abusive judges but also against the fluoridation of tap water.
Still, even at the highest levels, esteemed members of the judiciary aren't taking these people lightly. "The question of judicial immunity has come up over and over again in the last 150 years," says the chief justice of the California Supreme Court, Ronald M. George. "I remember as a child the move to impeach Earl Warren. What's disturbing about this current effort is that the attacks seem to be escalating and gathering momentum. That's worrisome."
April 14, 2006
Dear California Lawyer Editor:
I (along with Ron Branson and our Judicial Accountability Initiative Law, www.jail4judges.org) am the subject of "Judging the Judges; A grassroots movement seeks revenge against offending jurists." [April]. Your first sentence reads: "If Gary Zerman has his way, judges across the country will soon find themselves a lot more exposed to angry litigants." Contrary to your assertion, I have always sought, and still seek, when I (or anyone) goes to court, to simply get my (their) day in court: a fair judge, a proper finding of the facts, a proper application of the law, and that a measure of justice be done. And when that is not done because of judicial misconduct (or worse), I do seek to hold those judges accountable.
You want to term that revenge? I can't stop you. Actually, revenge is where: in July of 1993, Giani Luigi Ferri went shooting his lawyers (and others) at Petit & Martin in San Francisco, killing 9, wounding 6; in November of 2003, William Strier started shooting at his new attorney, Gerald Curry, who luckily danced for cover around the tree at the Van Nuys courthouse; and, in February 2005, Bart A. Ross layed in wait for federal Judge Judith Lefkow at her home in Chicago after he killed her husband and mother. See the essay, "The Plague of Violence" in your August 1993 edition that predicted something like this.
Ironically, I noted that in your same April edition, the MCLE self-study article was "Judges Behaving Badly." It started with Socrates' famous admonition: "Four things belong to a judge: to hear courteously, to answer wisely, to consider soberly, and to decide impartially." Conspicuously absent from Socrates' admonition was immunity. Perhaps that was Plato, who came up with "Philosopher Kings." But fact is, there is no Easter Bunny; nor are there Philosopher Kings. (Even if there were, we never wanted them in America. We fought a revolution to get rid of kings and royalty ruling over us. Instead, we chose a Republic and the jury system, albeit today less and less.) Nor just because you give one the title "judge" and a $29.00 cloth robe does that insure the judge comes with a halo. In fact, the almost absolute power given to a judge can cause just the opposite condition. See Bracey v. Gramley, 522 U.S. 899 (1997), recapping the federal sting "Operation Greylord" in Chicago, and learn about "bagmen," "bribes" and the 14 judges who went to jail. Why haven't there been more Operation Greylords?
Typically your piece was slanted, using biased terms such as "revenge," "angry litigants," "so steamed up about" and "rails ... against," foregoing the usual pejoratives "disgruntled," "vexatious," "gadfly," and "pest." Thanks for that. You did though, in habitual journalistic favoritism, omit our core arguments about the doctrine of absolute judicial immunity (AJI) that: 1) There is NO authority in our Constitution giving immunity to judges (nor do any of the USSC cases on AJI ever cite any); 2) Judges giving judges AJI violates the doctrine of separation of powers the so-called checks & balances (nor do any of the USSC cases mention this); 3) AJI turns the sovereignty of We the People on its head by placing the judiciary over, above and beyond the People, making the servant the master; and, 4) Why has our USSC condoned eugenics? See Stump v. Sparkman, 435 U.S. 349 (1978).
Note that neither Chief Justice Roberts nor Justice Alito were asked any of these questions at their recent Senate Judiciary Committee confirmation hearings. Checks & balances?
Your piece asserted that "... judicial immunity ... has never been absolute." Correct in theory, but almost totally wrong regarding application. Name the last judge impeached, federal or state. (We have a joke around J.A.I.L. Impeachment of judges is like Haley's Comet; it comes around once every 64 years.) Judges can be criminally prosecuted, but in fact seldom, if ever are; and if they are, still usually get a break on punishment. See "L.A. County's Dual Standard of Justice Marches On," 1/11/98, LA Times, p. M-6, by Charles Lindner, asserting that "insider justice" happens because of the "closed fraternity" between judges and prosecutors.
You citied 2004 Commission on Judicial Performance statistics: that of 1,114 complaints received, 8% led to staff inquiries and 4% to investigations. Pitiful. A manufacturing concern handling complaints in that fashion would be out of business pronto. But here we are dealing with people and their rights, which calls for greater integrity than products or services. You omitted stats for discipline actually imposed. Review of the 10-Year Summary of Commission Activity notes a grossly inordinate amount of "0" (goose eggs) and "<1%" (less than one percent) tallies for actual discipline.
The federal system is worse, with over 99% of complaints against federal judges routinely dismissed. For example, see "WITHOUT MERIT: The Empty Promise of Judicial Discipline," by Elena Sassower, Massachusetts School of Law, The Long Term View, Vol. 4, No. 1, p.90 (1997), www.judgewatch.org. More recent, see "9th Circuit's Kozinski Blasts L.A. Judge, Majority in Discipline Case," 10/4/05, The Recorder, by Justin Scheck, www.law.com, with the first sentence: "Can federal judges be trusted to police themselves? Alex Kozinski isn't so sure." In re Complaint of Judicial Misconduct, No. 03-89037, Judicial Council, 9th Circuit, 9/25/05, where the complaint was dismissed for the 3rd and final time (despite finding the involved judge deliberately acted without legal authority), Justice Kozinski wrote in dissent: "... It does not inspire confidence in the federal judiciary when we treat our own so much better than everybody else." Bingo!
Your piece ends quoting Chief Justice George: "... What's disturbing about this current effort is that the attacks seem to be escalating and gathering momentum. That's worrisome." We agree. Meet with us, Chief Justice George, and let's work together to solve these crucial problems in our judicial system. Please be a leader. Or, will your reply be: "Let them eat cake." We hope to hear from you.
From California Lawyer Magazine, April, 2006, reprinted with Zerman's response in J.A.I.L. News Journal, Los Angeles, Califorina, April 15, 2006. Original article by Susan Davis at http://www.callawyer.com/story.cfm?pubdt=NaN&eid=821920&evid=1. Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.