Should Judges be Sued?

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Aired November 17, 2005 - 11:00   ET

WHITFIELD: And should you be allowed to sue a judge when you think they've abused their authority? Straight ahead, we'll tell you about a ballot proposal that could overturn more than a century of courtroom tradition.

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WHITFIELD: Well, when was the last time that you heard of a state or local judge being hauled into court to explain their judicial actions? Chances are never. It's not because judges don't make mistakes, because they sometimes do. But there is a legal precedent established by the U.S. Supreme Court that effectively shields judges from lawsuits.

The state of South Dakota, however, could become the first in the country to challenge this principle.

Former federal prosecutor Kendall Coffey will join us in a few minutes to give us his take on this. But first, let's talk to attorney Gary Zerman, spokesman for the South Dakota Judicial Accountability Amendment.

Good to see you, Mr. Zerman.

GARY ZERMAN, ATTORNEY: Good morning. How are you?

WHITFIELD: I'm doing pretty good.

All right. First off, what's your understanding as to why there is such a thing as judicial immunity?

ZERMAN: I don't know. I think it's unconstitutional. None of the cases cite the Constitution. There's nothing in Article III. And moreover, it came from judges. Judges giving judges immunity violates the doctrine of separation of powers.

WHITFIELD: So why try to remove this immunity? Because by having the immunity, didn't that mean in part that the judge, instead of making emotional decisions by letting everyone know beforehand which way they would swing, that perhaps removing this kind of immunity might take away from that impartiality that is presumed most judges have?

ZERMAN: Well, let me dispel two myths right away. One, that the judiciary is independent, apolitical, above the fray. In fact, they're the third branch of government. So by definition, they're political. And right now you see the raw political power battles going on over the Supreme Court.

Now, one thing further, this immunity covers judges for malicious and corrupt acts. And there's a basic covenant in life that we owe -- all owe and expect of each other individual accountability.

The other myth is that judges, sitting at the pinnacle of power, we have this notion in America that no man is above the law, that we're a nation of laws and not men. But most people, and most attorneys included, do not know that judges have this absolute immunity from civil suit.

WHITFIELD: Why South Dakota?

ZERMAN: Well, because we have chapters all over the state, but South Dakota is a pure initiative state. We have a sponsor there. Bill Stagmeyer (ph), who is -- holds liberty in very high regard and was worried about this problem of judges getting out of control.

Also, the South Dakota constitution encourages this. It says that we continually need to go back to fundamental principles. WHITFIELD: Well, Mr. Zerman, talk about out of control. Aren't we a nation that is out of control when it comes to lawsuit? So if you open the door in the case of being able to sue a judge, who is going to police what's considered a frivolous lawsuit and which one has merit?

ZERMAN: Well, the Constitution starts out, "We the people." I agree with you that we have got a government that's largely out of control, a legal system that's largely out of control. It's about nine times bigger than it should be.

Look at the recent hearings with Justice Roberts.

WHITFIELD: Well, I was talking about lawsuits being out of control, the filing of lawsuits.

ZERMAN: Well, why didn't they ask Justice Roberts, aren't we supposed to have a limited government? He would have to say, under our Constitution, yes. The follow-up question would be, well, what happened?

WHITFIELD: All right.

Mr. Gary Zerman, thanks so much.

Kendall Coffey, I want to bring you into this equation. Maybe you can help answer the question of why even have judicial immunity?

KENDALL COFFEY, FMR. U.S. ATTORNEY: Well, this goes all the way back to merry old England, Fredricka. It's one of the most basic things in the system. In this country, it was established right after the Civil War in connection with the trial of one of the alleged accomplices in the assassination of Abraham Lincoln.

Why have it? Because we've got to have judges focus on their work in a courtroom as judges, not being hauled into a courtroom as defendants, not being threatened by the possibility of a lawsuit.

The distraction potential is nothing short of chaotic. Consider, for example, there are two million people in America's prisons right now. How many of them think they got a fair shake from the judge? How about all the people that lose in civil lawsuits every day?

So if there's anything that would increase moral litigation, subject us to avalanches and flood tides beyond imagination, it's opening the door to suing judges whenever we disagree with what they do.

WHITFIELD: Is not the appellate court system in place in which to try to challenge, perhaps, a judgment coming from a case you're involved in?

COFFEY: Absolutely. And in fact, everyone has an absolute right to go to the appeals court, different judges who had nothing to do with the trial court process, to get a fair shake if there had been significant mistakes. One of the realities is people in this country do not have a good feeling or understanding of what happens in the appeals process. There aren't reality or daytime TV shows that talk about appellate courts. And I think if there was a better understanding of the vital role of appellate courts, there might be a recognition that we don't really need to solve any frustrations with the legal system by declaring open season on our judges.

WHITFIELD: So being able to sue a judge might obviate the need altogether to even have an appellate courts?

COFFEY: Well, originally, before you had appellate courts, going back centuries, that's when they allowed people to sue judges. Once you have appellate judges, very responsible, different, independent from the trial court situation, you've got a real safeguard. And, of course, in many cases you go beyond the intermediate appellate court and you can go all the way to a state or a federal supreme court.

The bottom line is, do we want our judges deciding cases in the courtroom or being distracted by all the time they have to spend as defendants? There's probably enough litigation in this country already. We'll see what the people of South Dakota have to say about it.

WHITFIELD: Where do you see this potential going potentially in South Dakota?

COFFEY: Well, if they've got enough signatures, it could get on the ballot. Now, it's a pretty convoluted proposal. And I can see all kinds of legal challenges to the technical sufficiency of the proposal itself, which, of course, would be decided by judges.

WHITFIELD: All right. Kendall Coffey, thank you so much.

And Gary Zerman, thank you for your input as well.