From the June 2007 Idaho Observer:

A new approach to JAIL proposed

While researching judicial immunity and why there have to be restrictions placed on its application, I ran across the Arizona case Acevedo v. Pima County Adult Probation Dept. In the opinion upholding judicial immunity in that state, the court cited Bradley v. Fisher, a case decided in 1871 by the United States Supreme Court.

In Bradley, the U.S. Supreme Court ruled that, "(a) A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority, but rather he will be subject to liability only when he has acted in the "clear absence of all jurisdiction," Bradley v. Fisher, 13 Wall. 335, 351. Pp. 355-357. [435 U.S. 349, 350] ."

According to the Supreme Court, a judge, acting as a judge, can commit crimes or malfeasance and still not be held liable. In Acevedo, the Arizona court went further by ruling that judges are not liable even if they rule outside of their jurisdiction.

This is ironic since the very institution that compels the people to abide the laws of our nation is itself under no obligation to abide those laws.

Recently there has been a nationwide effort to limit judicial immunity to good faith behavior. One of the methods, advanced by Judicial Accountability Initiative Law (JAIL) for Judges, has been to reform commissions currently commissioned to oversee and discipline misbehaving judges by establishing some form of third-party control over these commissions.

These efforts have met fierce resistance from the justice industry. The bar and its minions have cited such legal concepts as "separation of powers" and "common law" to justify their position that judges should enjoy blanket immunity. So far, none of these efforts at reform have succeeded.

To strike a balance between preserving judicial autonomy while implementing a system to protect judicial immunity during good behavior only, I examined the wording of reformers and the opinions of legal professionals alike. The present initiative is a product of that research. The opinions of the Attorney Generals of Idaho, South Dakota and California were studied. These treatises were then used to formulate a simple law that would stand the test of legal scrutiny. It balances the rights of citizens to be free of corrupt decision making and the judges’ right to be free of legal harassment from suits by disgruntled parties. It is an idea whose time has come.

Note: The proposed initiative will be inserted for Idaho subscribers in the July, 2007 edition.