The Media Seems Outraged by Newt’s Plan to Arrest Judges Who Make Rulings He disagrees With….But that same doctrine has been advanced by the KBA in Kentucky, and was recently upheld
By LawReader Senior Editor Stan Billingsley
A republican was quoted this week in attacking the philosophy of Newt Gingrinch’s plan to arrest judges who issue rulings he disagrees with.
Michael Mukasey, George Bush’s attorney general said: “It would lead us to become a banana republic, in which administrations would become regimes and
each regime would feel it perfectly appropriate to disregard decisions of courts staffed by previous regimes. That’s not what we are.”
Newt’s doctrine however was recently implemented in Kentucky. The KBA prosecuted Judge Joseph Bamberger for a ruling he made as a Circuit Judge. The defense of Judicial Immunity was raised
but ignored by the Bar Counsel and the KBA Board of Governors. A motion to allow the filing of an amicus brief* raising the Judicial Immunity doctrine, was denied by the Ky. Supreme
Court. So Judge Bamberger was permanently disbarred for signing orders in his official capacity as a judge.
The Ky. Supreme Court had previously held that: “The doctrine of judicial immunity is well-settled under federal and common law and predates the adoption of the
current Constitution of Kentucky.” See Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1977); Vaughn v. Webb, 911 S.W.2d 273 (Ky. App. 1995). “So
long as the judge has jurisdiction over the subject matter of the cause before him, he is entitled to immunity. Id”
But in the Bamberger case, they Bar Counsel successfully argued that Judge Bamberger’s ruling was “shocking”, and therefore justified permanent disbarment.
It appears to LawReader that the Judicial Immunity Doctrine has been relegated to the attic of legal doctrines. Perhaps the Judicial Immunity Doctrine will be considered again in the future when there is
some political clout backing a judge, but as long as a Judge has ruled in a controversial case, the Bar has established the precedent that any ruling of a judge the KBA
finds “shocking” is a justification for the judge’s disbarment.
So Newt is being attacked by his opponents for advocating the same doctrine that in November was adopted by the Kentucky Supreme Court.
The Kentucky Supreme Court refused to consider this issue and never explained why they ignored the Judicial Immunity Doctrine.
Maybe there were facts we are not aware of, or maybe they just didn’t want to consider this case since the offending judge had not paid the Appeal
tax of $18,800 in order to have the right to file an appeal in his own name. (The court a month later repealed the Appeal Tax rule.)
It appears to us that the Supreme Court has failed to consider the consequences of their denial to consider Judge Bamberger’s Judicial Immunity Defense. They may attempt to defend their inaction by calling
it a procedural ruling, but they didn’t even make that defense for their decision to permanently disbar a trial judge for making a “shocking” ruling.
*The author tendered an Amicus Brief to the Supreme Court raising only the Judicial Immunity Doctrine in behalf of Judge Bamberger and all other judges.
The Supreme Court denied the motion and the Amicus brief was not considered by the Supreme Court.