Should Judges Have Absolute or Qualified Immunity? T he U.S. Supreme Court has made clear that when judges perform judicial acts within their jurisdiction, they are absolutely immune from money damages lawsuits. When judges act out- side their judicial function, such as in supervising their employees, they do not have absolute immunity. The Court’s upholding of absolute immunity has troubled some legal commentators, who believe that in appropriate circumstances judges should be held personally account- able for judicial actions that are unlawful. Defenders of absolute immunity claim that it is required for the benefit of the public, not for the protection of MALICIOUS or corrupt judges. The legiti- macy of U.S. courts rests on the public’s belief that judges have the freedom to act independently, without fear of the con- sequences. Absolute immunity provides the buffer needed for a judge to act. In the adversarial process, one party wins, and the other party loses. Losing parties are inevitably disappointed, and some seek ways of venting their frustra- tion at the legal system. Some file complaints with lawyer discipline boards, alleging ethical misconduct by the oppos- ing party’s attorney or their own attorney. Some file complaints with a judicial conduct board, claiming that the trial judge violated a canon of judicial conduct. Though these types of complaints do not result in the relitigation of a lawsuit, they do illustrate the VEXATIOUS LITIGATION that faces attorneys and judges. Allowing parties to sue a judge for a judicial act would invite a torrent of meritless suits that would impede the judicial system. Defenders of absolute immunity note that a flood of litigation would not be the only consequence of relaxing the immunity standard. They saythat once judges became liable for damages suits, self-interest would lead them to avoid making decisions likely to provoke such suits. The resulting over- cautiousness and timidity might be hard to detect, but it would impair independent and impartial adjudication. Judges do make honest mistakes during the course of trial. The law is complex, and judges cannot call a recess of court to research every motion before making a decision. If a judge could be sued for damages, another judge might have to rule that the DEFENDANT judge was liable for injuries due to an erroneous decision or procedural flaw. Having judges judge one another could erode the integrity of the courts and undermine public confidence. Defenders of absolute immunity also point out that appellate review is a viable remedy for correcting judicial conduct. In addition, if a judge has violated the canons of judicial conduct, judicial conduct boards may issue sanctions, including a recommendation of removal from the bench. A judge can be prose- cuted for criminal acts. In some states judges may be impeached, and most state court judges must stand for election periodically. All these options serve as checks on judicial behavior and provide protection to the public. Those who criticize absolute immu- nity recognize that judicial independence must be preserved. Nevertheless, they claim that in certain situations the only way to protect the public is to allow personal lawsuits against judges. By totally insulating judges from personal responsibility for their actions, the judi- cial system allows a small number of judges to escape the consequences of unlawful and outrageous behavior. The public loses respect when it sees a judge “beat the system,” while the victim loses the chance to be made whole for the injuries flowing from the judicial act. These critics believe that a qualified immunity standard would protect judges from meritless lawsuits and guarantee victims of unlawful judicial conduct their opportunity to seek damages. Qualified immunity is a lesser form of immunity that may be granted by a court if the judge demonstrates that the law was not clear on the subject in which the judge’s actions occurred. They point out that the executive branch is governed by qualified immunity. There is no indication that the administration of government has ground to a halt, or that the executive branch cannot attract high-quality indi- viduals to government service. A well- articulated qualified immunity standard would allow a lawsuit against a judge to be dismissed if it could be established that the judge was operating within accepted judicial authority. The critics note that the alternative remedies offered by the defenders of absolute immunity do not address the type of conduct that would be the focus of a PERSONAL INJURY lawsuit against a judge. For example, in Stump v. Spark- man, 435 U.S. 349, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978), the judge issued an order to sterilize a teenage girl without the order ’s ever having been filed with the clerk of court. Because there was no record of a case filing or decision, the order could not be reviewed by an appellate court. The judge could be sanctioned by the judicial conduct board, but that would not compensate the victim of the illegal sterilization. Absolute immunity allowed the court to dismiss the girl’s claim because the “ judicial act” was one normally performed by a judge and was within the judge’s judicial capacity. Supporters of qualified immunity discount the assumption that it would precipitate a flood of litigation. They maintain that decisions that judges typi- cally make will seldom be litigated, as appellate review will satisfy most litigants. However,intherarecircumstances whereajudgeabusesherauthorityand someone is injured, these supporters contend, it is only fair to qualify a judge’s personal immunity. They argue that the removal of absolute immunity would, over time, deter judi cial abuse: Judg es would not be intimidated, but they would be more careful to safeguard the rights of all parties. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 68 JUDICIAL IMMUNITY result of the order. At trial, Bradley attempted to introduce evidence in his favor, but Fisher ’s attorney objected to each item, and the judge excluded each item. After three failed attempts to present evidence, the trial court directed the jury to deliver a verdict in favor of Fisher. On appeal by Bradley, the U.S. Supreme Court affirmed the trial court’s decision. Judges could be reached for their MALICIOUS acts, but only through IMPEACHMENT, or removal from office. Thus, the facts of the case were irrelevant. Even if Fisher had exceeded his jurisdiction in single- handedly banning Bradley from the court, Fisher was justified in his actions. According to the Court, “A judge who should pass over in silence an offence of such gravity would soon find himself a subject of pity rather than respect.” Since Bradley, the U.S. Supreme Court has identified some exceptions to judicial immunity. Judges do not receive imm unity for their administrative decisions, such as in hiring and firing court employees (Forrester v. White, 484 U.S. 219, 108 S. Ct. 538, 98 L. Ed. 2d 555 [1988]). Judges also are not immune from declaratory and injunctive relief. These forms of relief differ from monetary relief. Generally they require parties to do or refrain from doing a certain thing. If a judge loses a suit for DECLARATORY JUDGMENT or injunct ive relief, he or she may not be forced to pay money damages, but may be forced to pay the court costs and attorneys’ fees of the winning party. For example, assume that a judge requires the posting of bail by persons charged in criminal court with offenses for which they cannot be jailed. If a person subjected to this unconstitutional practice files suit against the judge, the judge will not be given judicial immunity and, upon losing the case, will be forced to pay the plaintiff’s attorney’s fees and court costs. (Pulliam v. Allen, 466 U.S. 522, 104 S. Ct. 1970, 80 L. Ed. 2d 565 [1984]). The Court held in Pulliam that a judge could be forced to pay the plaintiff’s attorney’s fees and court costs under the 1976 CIVIL RIGHTS Stump v. Sparkman T B he U.S. Supreme Court has consistently upheld absolute immunity for judges performing judi- cial acts, even when those acts violate clearly established judicial procedures. In Stump v. Sparkman, 435 U.S. 349, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978), the Court held that an Indi ana state judge, who ordered the sterilization of a female minor without observing due process, could not be sued for damages under the federa l civil rights statute (42 U.S.C.A. § 1983). In 1971 Judge Harold D. Sparkman, of the Circuit Court of DeKalb County, Indiana, acted on a petition filed by Ora McFarlin, the mother of 15-year-old Linda Spitler. McFarlin sought to have her daughter sterilized on the ground s he was a “somewhat retarded” minor who had been staying out overnight with older men. Judge Sparkman approved and signed the petition, but the petition had not been filed with the court clerk and the judge had not opened a formal case file. The judge failed to appoint a guardian ad litem for Spitler, and he did not hold a hearing on the matter before authorizing a tubal ligation. Spitler, who did not know what the operation was for, discovered she had been sterilized only after she was married. Spitl er, whose married name w as Stump, then sued Sparkman. The Supreme Court ruled that Sparkman was absolutely immune because what he did was “a function normally pe rformed by a judge,” and he performed the act in his “ judici al capacity.” Although he may have violated state laws and procedures, he performed judicial functions that have historically been absolutely immune to civil lawsuits. In a dissenting opinion, Justice Potter Stewart argued that Sparkman’s actions were not absolutely immune simply because he sat in a courtroom, wore a robe, and signed an unlawful order. In Stewart’s view the conduct of a judge “surely does not become a judicial act merely on his say so. A judge is not free, like a loose cannon, to inflict in discrimi- nate damage whenever he announces that he is acting in his judicial capacity.” GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION JUDICIAL IMMUNITY 69 Attorney’s Fees Awards Act, 42 U.S.C.A. § 1988. Gladys Pulliam, a Virginia state court magis- trate, had jailed two men for failure to post bail following their arrest for abusive language and public drunkenness. Under Virginia law, the defendants could not receive a jail sentence if convicted of these offenses. The plaintiffs sued under the federal civil rights act 42 U.S.C.A. § 1983 and obtained an injunction forbidding the judge to require bail for these offenses. The judge was also ordered to pay the defendants $8,000 as reimbursement for their attorneys’ fees. Judges throughout the United States viewed the Pulliam decision as a serious ASSAULT on judicial immunity. The Conference of State Chief Justices, the JUDICIAL CONFERENCE OF THE UNITED STATES ,theAMERICAN BAR ASSOCIATION,andthe American Judges Association lobbied Congress to amend the law and overturn Pulliam.Finally, in the Federal Courts Improvement Act of 1996 (Pub. L. No. 104-317, 110 Stat. 3847), Congress inserted language that voided the decision. The amendment prohibits injunctive relief in a § 1983 action against a “judicial officer for an act or omission taken in such officer’sjudicial capacity” unless “a declaratory decree was violated or declaratory relief was unavailable.” In addition, language was added to § 1988 that precludes the award of costs and attorney’sfees against judges acting in their official capacity. Filing a civil COMPLAINT against a judge can be risky for attorneys because the doctrine of judicial immunity is well established. In Marley v. Wright, 137 F.R.D. 359 (W.D. Okla. 1991), attorney Frank E. Marley sued two Oklahoma state court judges, Thornton Wright, Jr., and David M. Harbour, their COURT REPORTER, and others. Marley alleged in his complaint that Wright and Harbour had violated his constitutional rights in connection with a custody case concerning Marley’schildren. The court not only dismissed the case, but also ordered Marley to pay the attorney’sfeesthat Wright and Harbour had incurred in defending the suit. According to the court, Marley’s complaint “was not warranted by existing law,” and Marley had used the suit “not to define the outer boundaries of judicial immunity but to harass judges and judicial personnel who rendered a decision he did not like.” FURTHER READINGS Block, Frederic. 1999. “Qualified Immunity: A View from the Bench.” Touro Law Review 15 (summer). Duffy, Shannon P. 1999. “Judges Have Absolute Immunity for Actions on the Bench, Circuit Rules.” New Jersey Law Journal 157 (September 27). Morgan, Thomas D., and Ronald D. Rotunda. 2008. Morgan and Rotunda’s Professional Responsibility, Problems and Materials. 10th ed. St. Paul, MN: Foundation. Romo, Cheryl. 2002. “Jurist’s Infamous Case Set Judicial Immunity Precedent.” The Los Angeles Daily Journal 115 (December 30). JUDICIAL NOTICE A doctrine of evidence applied by a court that allows the court to recognize and accept the existence of a particular fact commonly known by persons of average intelligence without establishing its existence by admitting evidence in a civil or criminal action. When a court takes judicial notice of a certain fact, it obviates the need for parties to prove the fact in court. Ordinarily, facts that relate to a case must be presented to the judge or jury through testimony or tangible evidence. However, if each fact in a case had to be proved through such presentation, the simplest case would take weeks to complete. To avoid burdening the judicial system, all legislature s have approved court rules that allow a court to recognize facts that constitute common knowl- edge without requiring proof from the parties. On the federal trial court level, judicial notice is recognized in rule 201 of the FEDERAL RULES OF EVIDENCE for U.S. District Courts and Magistrates. Rule 201 provides, in part, that “[a] judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdic- tion of the trial court or (2) capable of accurate and ready determinat ion b y resort t o s ources whose accuracy cannot r easonably be q uestioned.” Under rule 201 a trial court must take judicial notice of a well-known fact at the request of one of the parties, if the court is provided with information supporting the fact. A court also has the option to take judicial notice at its discretion, without a request from a party. Rule 201 further provides that a court may take judicial notice at any time during a proceeding. If a party objects to the taking of judicial notice, the court must give that party an opportunity to be heard on the issue. In a civil jury trial, the court must inform the jury that it must accept the judicially noticed facts in the case as conclusively proved. In a criminal trial by jury, the court must instruct the jury “that it GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 70 JUDICIAL NOTICE may, but is not required to, accept as conclusive any fact judicially noticed.” All states have statutes that are virtually identical to rule 201. The most common judicially noticed facts include the location of streets, buildings, and geographic areas; periods of time; business customs; historical events; and federal, state, and INTERNATIONAL LAW. Legislatures also main- tain statutes that give courts the power to recognize certa in facts in specific situations. For example, in Idaho any document affixed with the official seal of the state public utilities com- mission must be judicially noticed by all courts (Idaho Code § 61-209 [1996]). In Hawaii, when a commercial vehicle is cited for violating vehicle equipment regulations, a trial court must take judicial notice of the driver’s subordinate position if the driver works for a company that owns the vehicle (Haw. Rev. Stat. § 291-37 [1995]). The danger of judicial notice is that, if abused, it can deprive the fact finder of the opportunity to decide a contestable fact in a case. In Walker v. Halliburton Services,654So.2d365 (La. App. 1995), Johnny Walker fell from a tank truck approximately ten feet to a concrete floor. Walker sought workers’ compensation benefits for his injuries, and his claim was denied by theOfficeofWorkers’ Compensation. At the application hearing, the hearing officer stated that it was her experience that a soft-tissue injury heals in six weeks. She then took judicial notice of the fact that a soft-tissue injury heals in six weeks—preventing Walker from contesting that proposition—and disal- lowed Walker’s claim. On appeal the Louisiana COURT OF APPEAL, Third Circuit, reversed the decision and ordered the paymen t of workers’ compensation benefits. According to the court, it was a clear error of law for the hearing officer to take judicial notice of such intricate medical knowledge. JUDICIAL REVIEW A court’s authority to examine an executive or legislative act and to invalidate that act if it is contrary to constitutio nal principles. The power of courts of law to review the actions of the executive and legislative branches is called judicial review. Though judicial review is usually associated with the U.S. Supreme Court, which has ultimate judicial authority, it is a power possessed by most federal and state courts of law in the United States. The concept is an American invention. Prior to the early 1800s, no country in the world gave its judicial branch such authority. In the UnitedStates, the supremacyof national law is established by Article VI, Clause 2, of the U.S. Constitution. Called the SUPREMACY CLAUSE , it states that “This Constitution, and the laws of the United States which shall be made in pursuance thereof … shall be the supreme law of the land.” It goes on to say that, “judges in every state shall be bound thereby.” This means that state laws may not violate the U.S. constitution and that all state courts must uphold the national law . State courts uphold the national law through judicial review. Through judicial review, state courts deter- mine whether or not state executive acts or state statutes are valid. They base such rulings on the principle that a state law that violates the U.S. constitution is invalid. They also decide the constitutionality of state laws under state con- stitutions. If, however, state constitutions con- tradict the U.S. Constitution, or any other national statute, the state constitution must yield. The highest state court to decide such issues is the state supreme court. While judicial review of state laws is clearly outlined in the supremacy clause, the Framers of the U.S. Constitution did not resolve the question of whether the federal courts should have this power over congressional and execu- tive acts. During the early years of the Republic, the Supreme Court upheld congressional acts, which implied the power of judicial review. But the key question was whether the Court had the power to strike down an act of Congress. In 1803 the issue was settled in MARBURY V. MADISON, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60, when the Supreme Court, for the first time, ruled an act of Congress unconstitutional. In Marbury, Chief Justice JOHN MARSHALL reasoned that since it is the duty of a court in a lawsuit to declare the law, and since the Constitution is the supreme LAW OF THE LAND, where a rule of statutory law conflicts with a rule of the Constitution, then the law of the Constitution must prevail. Marshall asserted that it is “emphatically the province and duty of the judicial department, to say what the law is.” Having established the power of judicial review, the Supreme Court applied it only once prior to the Civil War, in 1857, ruling the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION JUDICIAL REVIEW 71 MISSOURI COMPROMISE OF 1820 unconstitutional in DRED SCOTT V. SANDFORD, 60 U.S. (19 How.) 393, 15 L. Ed. 691. During the same period, the Court invalidated several state laws that came in conflict with the Constitution. In M’Culloch v. Maryland, 17 U.S. 316, 4 L. Ed. 579 (1819), the Court invalidated a state’s attempt to tax a branch of the BANK OF THE UNITED STATES.In GIBBONS V. OGDEN, 22 U.S. 1, 6 L. Ed. 23 (1824), the Court struck down a New York law granting a monopoly to a steamboat company, saying that the state law conflicted with a federal law granting a license to another company. In addition to invalidating state laws, the Marshall Court established the authority to overrule decisions of the highest state courts. In Martin v. Hunter’s Lessee, 14 U.S. 304, 4 L. Ed. 97 (1816), the Court referred to the supremacy clause to assert that its appellate power extended to state courts. Following the Civil War, the Supreme Court grew concerned that the recently-passed FOUR- TEENTH AMENDMENT would give the federal government too much power over state govern- ments and individual rights. Therefore, it used the power of judicial review to strike down federal CIVIL RIGHTS laws that sought to address racial discrimination in the former Confederate states. Beginning in 1890, the Court became embroiled in political controversy when it exercised its power of judicial review to limit government regulation of business. In Chicago, Milwaukee, & St. Paul Railroad Co. v. Minne- sota, 134 U.S. 418, 10 S. Ct. 462, 33 L. Ed. 970 (1890), the Court struc k down a state law establishing a commission to set railroad rates. This case was the first of many where the Court applied the doctrine of SUBSTANTIVE DUE PROCESS to invalidate state and federal legislation that regulated business. Substantive due process was a vague concept that required legislation to be fair, reasonable, and just in its content. Through the early 1900s, the Court came under attack from Populists and Progressives for its desire to insulate capitalism from govern- ment intervention. Unmoved by its critics, the Court proceeded to invalidate a federal income tax (Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429, 15 S. Ct. 673, 39 L. Ed. 759 [1895]), limit the scope of the SHERMAN ANTI-TRUST ACT (United States v. E. C. Knight Co., 156 U.S. 1, 15 S. Ct. 249, 39 L. Ed. 325 [1895]), and for- bid states to regulate working hours ( LOCHNER V. NEW YORK, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 [1905]). The Supreme Court’s use of substantive due process brought charges of “judicial activism,” which means that in determining whether laws would meet constitutional muster, the Court was accu sed of acting more as a legislative body than as a judicial body. Justice Oliver Wendell Holmes Jr., in his famous dissenting opinion in Lochner, argued for “judicial restraint,” caution- ing the Court that it was usurping the function of the legislature. Despite Holmes’s warning the Court continued to strike down laws dealing with economic regulation into the 1930s. In 1932, the United States, in the midst of the Great Depression, elected FRANKLIN D. ROOSEVELT presi- dent. Roosevelt immediately began to imple- ment his NEW DEAL program, which was based on the federal government’s aggressive regula- tion of the national economy. The Supreme Court used its power of judicial review to invalidate eight major pieces of New Deal legislation. Roosevelt, angry at the conservative justices for blocking his reforms, proposed legislation that would add new appointees to the Court— appointees that would create a liberal majority. This “court-packing” plan aroused bipartisan opposition and ultimately failed. But the Court may have gotten Roosevelt’s message, for in 1937, it made an abrupt turnabout: a majority of the Court abandoned the substantive due process doctrine and voted to uphold the WAGNER ACT, which guaranteed to industrial workers the right to unionize and bargain collectively ( NATIONAL LABOR RELATIONS BOARD V. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S. Ct. 615, 81 L. Ed. 893 [1937]). With this decision the Court ceased to interpret the Constitution as a barrier to social and economic legislation. The Court subse- quently upheld congressional legislation that affected labor relations, agricultural production, and social welfare. It also exercised judicial restraint with respect to state laws regulating economic activity. Beginning in the 1950s, the Supreme Court exercised its judicial review power in cases involving civil rights and civil liberties. During the tenure of Chief Justice EARL WARREN, from 1953 to 1969, the Court declared federal statutes unconstitutional in whole or in part in 25 cases, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 72 JUDICIAL REVIEW most of the decisions involving civil liberties. The Warren Court’s decision in BROWN V. BOARD OF EDUCATION , 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), however, invalidated state laws that mandated racially segregated public schools. The Supreme Court became increasingly conservative in the 1970s. Yet, in 1973, under Chief Justice WARREN E. BURGER, it invalidated state laws prohibiting ABORTION in ROE V. WADE, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147. Since the elevation of WILLIAM H. REHNQUIST to chief justice in 1986, the Court has continued its movement to the right, although it has not retreated from most of the protections it recognized under Warren in the realm of civil rights and civil liberties. The exercise of judicial review is subject to important rules of judicial self-restraint, which restrict the Supreme Court, and state courts as well, from extending its power. The Supreme Court will hear only cases or controversies, actual live disputes between adversary parties who are asserting valuable legal rights. This means the Court cannot issue advisory opinions on legislation. In addition, a party bringing suit must have standing (a direct stake in the outcome) in order to challenge a statute. The most important rule of judicial restraint is that statutes are presumptively valid, which means that judges assume legislators did not intend to violate the Constitution. It follows that the BURDEN OF PROOF is on the party that raises the issue of unconstitutionality. In addi- tion, if a court can construe a disputed statut e in a manner that allows it to remain intact without tampering with the meaning of the words or if a court can decide a case on nonconstitutional grounds, these courses are to be preferred. Finally, a court will not sit in judgment of the motives or wisdom of legislators, nor will it hold a statute invalid merely because it is deemed to be unwise or undemocratic. FURTHER READINGS Curtis, Kent. 2003. “Judicial Review and Populism.” Wake Forest Law Review 38 (summer). Dellinger, Walter, and Christopher H. Schroeder. 2003. “The Case for Judicial Review.” Washington Post (December 6). Kramer, Larry D. 2004. The People Themselves: Popular Constitutionalism and Judicial Review. New York: Oxford Univ. Press. Lipkin, Robert Justin. 2000. Constitutional Revolutions: Pragmatism and the Role of Judicial Review in American Constitutionalism. Durham, NC: Duke Univ. Press. Prakash, Saikrishna B., and John C. Yoo. 2003. “The Origins of Judicial Review.” Univ. of Chicago Law Review 70 (summer). Available online at http://papers.ssrn.com/ sol3/papers.cfm?abstract_id=426860; website home page: http://papers.ssrn.com (accessed August 3, 2009). Seidman, Louis Michael. 2001. Our Unsettled Constitution: A New Defense of Constitutionalism and Judicial Review. New Haven, CT: Yale Univ. Press. CROSS REFERENCES Due Process of Law; Separation of Powers; Supreme Court of the United States. JUDICIAL SALE The transfer of title to and possession of a debtor’s property to another in exchange for a price determined in proceedings that are conducted under a judgment or an order of court by an officer duly appointed and commissioned to do so. A judicial sale is a method plaintiffs use to enforce a judgment. When a PLAINTIFF wins a judgment against a DEFENDANT in civil court, and the defendant does not pay the judgment, the plaintiff can force the sale of the defendant’s property until the judgment is satisfied. The plaintiff forces the sale by filing in court for an execution on property, which is a seizure of property by the court for the purpose of selling the property. Judicial sales are regulated by state and federal statute. In Alabama, for example, the judicial sale process begins w hen a judgment remains unpaid ninety days after it is placed on the record by the court (Ala. Code § 6-9-21 [1995]). The plaintiff must bring an order mandating payment of the judgment and court costs to the county where the defendant’s property is located. This order is called a writ of execution, and it is issued by the trial court. A writ of execution identifies the amount of the judgment, interest, and court costs that the defendant owes the plaintiff. Generally, a writ of execution may be levied against any real property or PERSONAL PROPERTY of the defendant. The plaintiff must file the writ of execution with the probate judge in the county where the defendant’s property is located. The plaintiff must also give notice of the execution on the defendant’s property to the defendant. Once the writ is filed, the plaintiff has a LIEN on the defendant’s property. A lien gives the plaintiff a legally recognized ownership interest in the defendant’s property, equal to the amount of the judgment. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION JUDICIAL SALE 73 Once the plaintiff has obtained a lien on the defendant’s property, the judicial sale can begin. The process typically must be carried out within a fixed time period, such as within ninety days after the writ of execution is issued. The sheriff’s office in the county where the property i s located is responsible for levying, or seizing, the property and for conducting the sale of the property. The sale of real prop erty may take place at the courthouse. If the prop erty that the plaintiff seeks is perishable and in danger of waste or decay, the sale may occur at some other time and place. A defendant can avoid a judicial sale after a writ of execution is issued, by paying the judgment, interest, and court costs in full. If the defendant appeals the judgment to a higher court, the defendant may postpone the judicial sale by posting a bond to secure the debt during the appea ls process. If the defendant does not plan to appeal, and the levying officer is about to seize personal property, the defendant may be able to keep the property until the day of sale if the defendant gives the levying officer a bond made payable to the plaintiff for a certain amount, such as twice the amount in the writ of execution. Generally, judicial sales are the last resort for a plaintiff trying to collect on a judgment. A d efendant who owns or possesses valuable property is usually able to satisfy a judgment in civil court by leveraging the property, or using it to borrow money to pay the judgment. JUDICIAL WRITS Orders issued by a judge in the English courts after a lawsuit had begun. An ORIGINAL WRIT, issued out of the Chan- cery, was the proper document for starting a lawsuit in England for hundreds of years, but courts could issue judicial writs during the course of a proceeding or to give effect to their orders after the lawsuit had commenced. Unlike original writs, judicial writs were issued under the private seal of the courts rather than the king’s great seal, and they were sent out in the name of the chief judge of the court hearing the case rather than in the king’s name. The capias was one form of a judicial writ. JUDICIARY The judiciary is the branch of government that is endowed with the authority to interpret and apply the law, adjudicate legal disputes, and otherwise administer justice. The U.S. judiciary comprises a system of state and federal courts, tribunals, and adminis- trative bodies, as well as the judges and other judicial officials who preside over them. Every society in human history has con- fronted the question of how to resolve disputes among its members. Many early societies chose a private system of revenge for dispute resolu- tion. As civilization gradually evolved, commu- nities began designating individuals to resolve disputes in accordance with established norms and customs. These individuals were usually leaders who were expected to exercise their judgment in an impartial manner. The origins of JUDICIAL ACTION, judicial power, and judicial process may be traced to the first communities that relied on neutral third parties to resolve legal disputes. Judicial action is any action taken by a court or other judicial body to interpret, apply, or declare what the law is on a particular issue during a legal proceeding. It is also the action taken by a judicial body to settle a legal dispute by issuing an opinion, order, decree, or judgment. Judicial power is the authority of a court to hear a particular lawsuit or legal dispute and take judicial action with regard to it. Judicial process is the procedures by which a court takes judi cial action or exercises its judicial power. Ancient Greece, an early society in Western civilization, evolving from about the sixth century to the second century b.c., employed a combination of judicial procedures. Greek rulers, known as arkhons, w ere empowered to hear a variety of disputes, as was the agora,a group of respected elders in the community. A court known as the Areopagus heard MURDER cases, but direct retaliation by private citizens was still permitted in many civil disputes. The judicial powers of these institutions were gradually replaced by the Ekklesia, an assembly of six thousand jurors that was divided into smaller panels to hear particular cases. Juries played an integral role in the development of the English judicial system. As more legal disputes were submitted to juries for resolution, this system became more self- conscious. Concerns were expressed that both GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 74 JUDICIAL WRITS judges and juries were rendering biased deci- sions based on irrelevant and untrustworthy evidence. Litigants complained that trial proce- dures were haphazard, arbitrary, and unfair. Losing parties sought effective remedies to redress erroneous decisions made at the trial court level. Each of these concerns has mani- fested itself in the modern judicial system of the United States. The blueprints for the U.S. judiciary were laid out in 1789. During that year the U.S. Constitution was formally adopted by the states. Article III of the Constitution delineates the general structure of the federal judicial system, including the powers and obligations of federal courts. The JUDICIARY ACT OF 1789 (1 Stat. 73 [codified as amended in 28 U.S.C.A.]) explains many details of federal judicial power that were not addressed by the Constitution. The blue- prints for the state judicial systems were created similarly by state constitutional and statutory provisions. The U.S. judicial system has three principal characteristics: It is part of a federalist system of government, it has a specific role under the federal separation-of-power s doctrine, and it is organized in a hierarchical fashion. Federalism The judiciary is part of a federalist system in which the state and federal governments share authority over legal matters arising within their geographic boundaries. In some instances, both state and federal courts have the power to hear a legal dispute that arises from a single set of circumstances. For example, four Los Angeles police officers who were accused of participat- ing in the 1991 beating of speeding motorist RODNEY G. KING faced prosecution for excessive use of force in both state and federal court. In other instances, a state or federal court has exclusive jurisdiction over a particular legal matter. For example, state courts typically have exclusive jurisdiction over matrimonial law, and federal courts have exclusive jurisdiction over BANKRUPTCY law. Separation of Powers Under the separation-of-powers doctrine, the judiciary shares power with the executive and legislative branches of government at both the state and federal levels. The judiciary is delegat- ed the duty of interpreting and applying the laws that are passed by the legislature and enforced by the executive branch. Article I of the U.S. Constitution grants Congress its lawmaking power, and Artic le II authorizes the president to sign and veto legis- lation and to execute laws that are enacted. Article III grants the federal judiciary t he power to adjudicate lawsuits that arise under the Constitution, congressional law, and treaties with foreign countries. Hierarchy of U.S. Appellate Judiciary Supreme Court Courts of Appeal (11 numbered circuits plus District of Columbia Circuit) Court of Appeals for the Federal Circuit Court of Appeals for the Armed Forces Ninety-four U.S. District Courts Tax Court Court of International Trade Claims Court Court of Veterans Appeals Army, Navy-Marine Corps, Coast Guard, and Air Force Courts of Criminal Appeals ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION JUDICIARY 75 The Politicizing of American Jurisprudence A B n old saying goes, “A judge is a lawyer who knew a governor (or senator or president).” The inference is unavoidable: Judges are pol itical creatures. From ma ny of the nation’s l aw professors to leading members of its foremost bar association, some legal experts think this assertion is regrettably all too true. Only federal judges and a handful of state judges are appointed for life, barring impeachment. In all other states and in local governments, most judges a re elected by popular vote for a specific term. Voters tend to elect persons who share their views. The same is true for most gubernatorial appointments, although in many states this tendency is tempered by senatorial confirmation. Inescapably, the development of platforms that represent the most popular, prevailing, or promising views is a political process. In the words of John Adams’s Massachusetts constitution, it has always been the desire to make judges “as free, impartial and independent as the lot of huma nity will ad mit.” In a political system in which party politics are defined by social issues and in which jurisprudence affects those issues. How- ever, party alignment of judges seems inevitable, either by default or by declaration. The extent is arguable, but few would deny that judges assume the bench based on ho w others perceive they will run the court: conservatively or liberally. Ostensible checks and balances exist, of course. All judges are expected to follow ethical standards requiring disinterested and unbiased opinions, which most do. Most states have a code of judicial conduct and/or ethics for t his purpose, generally fashioned from that of the American Bar Association (ABA). These codes proscribe many instances of campaign conduct for prospective and current judges. Judges ca nnot personally solicit or accept campai gn funds and often are prohibited from identifying themselves with any political party. Typically, they must run on a non-partisan ticket. But nothing prevents political action committees (PACs) from making campaign contributions to judges. Some scoff at the imposition of limits. “If PACs are limited, people go out and create more PACs,” explained Dick Wilcox, president of the Business and Industry Politica l Education Commit- tee in Mississippi. “If we althy individuals are restricted, they give money to their secretaries, wives, or children to contribute.” Contributions add up: Michigan spent $16 million on judicial elections in 2000 alone. In Georgia in 2002, races for two Supreme Court seats garnered more than $700,000. Electing judges, however, is unnecessary. As an alternative, some point to the pioneering Missouri system. Under this system, a governor appoints all state trial and appellate judges with the advice and consent of the legislature. Still another variation seeks to further depoliticize such choices by requiring a governor to select among nominees submitted by a selection panel or special nominating committee. Support for reform is growing. The American Bar Association (ABA) has cal led for a sweeping overhaul of the current state system. In 2003 the ABA Commission on the 21st Century Judiciary warned that partisanship over the courts was escalating to crisis levels. Among 23 recommenda- tions, the commission called for limiting judges to service of either one long term or until a specific age, without eligibility for retention or reelection. Such limits are needed to “inoculate America’scourts against the toxic effects of money, partisanship and narrow interests,” the commission declared. Advocates of r eform say it may cure other ills and weaknesses, too. Reform might eliminate so- called negative campaigning, which may create perceptions among voters that justices are “bought” by special interests. Moreover, judges may lose independence out of fear that certain opinions will be used against them in negative campaign ads. Another blemish that might be cured is that of real or perceived l awyer lobbying. For years, attorneys—particularly plaintiffs’ lawyers— have outspent the largest oil and automotive companies in jud icial campaign contributions. The ABA has spoken out sharply against attorneys contributing to campaigns of judges before whom they do frequent business or from whom they wish to gain court- appointed business. Yet just like other campaign contributors, attorneys are exercising their speech GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 76 JUDICIARY Federal judges, including Supreme Court justices, are not elected to office. Instead, they are appointed to office by the PRESIDENT OF THE UNITED STATES with the ADVICE AND CONSENT of the Senate. Once appointed, federal judges hold office for life, unless they resign or are impea- ched for “Treason, Bribery, or other High Crimes and Misdemeanors” (U.S. Const. art. II, § 4). The lifetime appointment of federal jud ges is controversial. On one hand, the federal judiciary runs the risk of growing out of touch with popular sentiment because it is being immunized from the electorate. On the other hand, it is considered necessary for the judiciary to remain independent of popular will so that judges will decide cases according to legal principles, not political considerations. In many states, judges are elected to office. Nonetheless, each state constitution similarly delegates powers among the three branches of government. Accordingly, judges are still exp- ected to decide cases based on the law, not the political considerations that the executive and legislative branches may take into account in executing their duties. Hierarchy The U.S. judiciary is a hierarchical system of trial and appellate courts at both the state and federal levels. In general, a lawsuit is originally filed with a tria l court that hears the suit and determines its merits. Parties aggrieved by a final judgment have the right to appeal the decision. They do so by asking an appellate court to review the decision of a trial court. rights under the First Amendment. Howe ver, the Supreme Court in Caperton v. Massey (__U.S.__, 129 S. Ct. 2252 [2009]) addressed campaign con- tributions and the duty of a judge to recuse from decisions involving contributors. The court stated: “We conclude that there is a serious risk of actual bias—based on obj ective and reasonable perceptions—whenapersonwithapersonalstake in a particular case had a significant and dispropor- tionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.” Concerns about politicization of the j udiciary soared during the unusual 2000 presidential elec- tion. Whe n Florida circuit judge Nikki Ann Clark, an African American and a Democrat, was assigned one of the election cases seeking to invalidate as many as 15,000 absentee ballots from Florida’s Seminole County, attorneys for candidate George W. Bush requested that she recuse herself from the case. Just weeks before, Bush’s brother, Republi- can Florida governor Jeb Bush, had bypassed her for a state appellate court vacancy. She refused to recuse herself, issuing a decision unfavorable to Bush and favorable to Flori da’s African American voters. After her decision was upheld by both the appellate court and the Florida Supre me Court, critics complained that their justices had been appointed by Democratic governors. Both sides, in fact, found much to complain about. After a sharply divided U.S. Supreme Court reversed the Florida Supreme Court and halted the manual r ecount of votes (Bush v. Gore,531U.S.98, 121 S. Ct. 525, 148 L. Ed. 2d 388 [U.S. 2000]), critics of the decision scathingly denounced it as politically motivated. In fact, 554 U.S. law professors at 120 American law schools took out an ad in the New York Times criticizing the majority for “acting as political proponents for candidate Bush, not as judges.” FURTHER READINGS “ABA Commission Warns: State Court Systems at Risk.” 2003. Justice at Stake Campaign. (March). Available online at www.justiceatstake.org/contentViewer.asp?breadcrumb= 3,358 (accessed July 15, 2003). “Bush v. Gore and the Conservatives: Gary Rosen & Critics.” 2003. Commentary 113 (March). Ezzard, Martha. 2002. “Money Can’t Buy Judicial Elections Yet.” Atlanta Journal and Constitution (August 18): G3. Law Professors for the Rule of Law. 2001. “524 Law Professors Say by Stopping the Vote Count in Florida, the U.S. Supreme Court Used Its Power to Act as Political Partisans, Not Judges of a Court of Law.” New York Times. Available online at www.the-rule-of-law.com/ archive/supreme/viewad.html (accessed July 15, 2003). CROSS REFERENCES American Bar Assoc iation; Code of Judicial Conduct; Elec- tions; Term Limits B GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION JUDICIARY 77 . their speech GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 76 JUDICIARY Federal judges, including Supreme Court justices, are not elected to office. Instead, they are appointed to office by the PRESIDENT. from 1953 to 1 969 , the Court declared federal statutes unconstitutional in whole or in part in 25 cases, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 72 JUDICIAL REVIEW most of the decisions. PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION JUDICIARY 75 The Politicizing of American Jurisprudence A B n old saying goes, “A judge is a lawyer who knew a governor