Wednesday, June 4, 2014

The Collapsing Constitution

For my latest rant, check out my essay "The Collapsing Constitution" in the new issue of the Hofstra Law Review, available here. (All of my articles are available here.) On a related note, for a discussion of my second book "Tried and Convicted" check out The Irreverent Lawyer, here, where he ties-in the book's theme with the recent judicial misconduct in Florida. The Dog's readers have probably seen the video by now, but if you haven't, it's included in the irreverent one's post. Hopefully the defense lawyer has a civil suit against the judge. It would be great if some of the judge's huge salary and benefits could be transferred to the lawyer in the form of compensatory and punitive damages. But it would be interesting to see how far the doctrine of judicial immunity could be stretched. I think that threatening the lawyer, challenging him to a fight, and then leaving the bench to go outside might be a bit outside the scope of "his honor's" judicial duties.


  1. Not knowing anything about judicial immunity, I'd intuitively say you're right that the judge can't claim that defense. The sticking point, I suspect, would be the doctrine of "mutual combat" or some variant, (Again: not knowing anything much; then again, this context is sufficiently weird that it's hard to imagine anyone drawing conclusions from prior experience.) That gets to the nub of the problem, which is that defense counsel had no business going into the hallway to mix it up. If the judge had shed the trappings of his office along with his dignity, counsel it seems to me had no less shed his function as an attorney at that moment. Neither covered himself in glory, I don't think.

    1. Good point. The only thing I can think of is that the lawyer might be able to say that he didn't seriously think the judge was gonna throw-down. I've been screamed at before by judges, and if one of them said something like "let's go in the back so we can fight," I would NOT expect to be hit, despite the word "fight." This is a very weird situation, especially given that both the lawyer and the judge sounded sober, i.e., not drunk or high. Really crazy stuff.

  2. Jonathan Adler makes the point that no matter how-handed the judge, immunity is almost certain to attach, (judge's inappropriate removal of counsel from 70 cases for criticizing judge didn't strip immunity: "The judge’s high-handed actions caused Bright great hardship, but litigation seeking to hold Judge Evans personally liable is not the solution."). But for an exception, there's Harris v. Harvey, 605 F.2d 330 ("These acts involved the [judge]'s repeated communications to the press and to city officials over the course of more than a year. These communications were critical of plaintiff and called for action to be taken against him. Many of them were made while plaintiff was awaiting trial on the criminal charges stemming from the John Doe proceeding. Such acts were not judicial because they were not functions normally performed by a judge, and were not "to the expectations of the parties" in that as to these acts the parties did not deal with him in his judicial capacity.") Much the same could -- should -- be said of the Florida judge.

  3. Judicial immunity protects judges in a colorable exercise of judicial functions. It supposedly affirms judicial independence by protecting the bench from disappointed litigants use and abuse of the legal system.Judicial mania proceeds lawyer cowardice.We defense lawyers can not and must not justify judges yelling or threatening us and our clients.The terms "your honor' assumes proper demeanor on the part of judges.Since the judge's bar room conduct is outside of the scope of judicial function ,he in open to a suit for compensatory and punitive damages. I would like to see the suit focused on judicial temperament running amok.Perhaps a law suit will spark judicial discipline authorities to perform their duties to keep judges functioning as respectable authorities of the law.