Today's Courier Journal story entitled "Judge rebuked for illegal jailing" by Andrew Wolfson was troubling and enlightening, both at the same time.
Troubling - Because Kentucky District Court judge Sue Carol Browning from Logan and Todd Counties ignored the rule of law and per a circuit court order acted illegally by jailing 17 Hispanic immigrants indefinitely without bail or right to counsel.
Enlightening - Because Circuit Court Judge Tyler Gill stepped up and harshly rebuked the judge and releasing those illegally confined and taking the district court judge to task with harsh language in the order.
Our judicial system is supposed to be fair and impartial, dispensing equal justice to all. The corrective nature of the judicial system was highlighted as Judge Gill's order stopped the abuse. Our judicial system works, and it works better than any other legal system in the world (no scientific proof other than my own personal and biased belief after serving in the Army for 12 years active duty and encountering the judicial systems in Panama and Germany as part of my JAGC duties).
This leaves other questions to be answered and probably will be the subject of a Judicial Conduct Commission inquiry, or more depending on how the facts pan out. However, this incident also reminds me how the law is a seamless web, and how decisions in one area provide you insight and impact in others. The following quote from Baker v. Fletcher reveals some of the limits to those remedies available for this conduct while on the bench.
In Kentucky, the framers of our current constitution-and the previous three-included the same language in our state's organic document. They understood that absolute legislative immunity, even with its negative characteristics, is essential if separation of powers FN15 is to be respected and the Commonwealth's legislators are to be encouraged to speak and act candidly on behalf of citizens. This is not materially different from acknowledged judicial and executive immunities, which, stated simply, stand for the proposition that a judge or chief-executive enjoys absolute immunity for actions taken in official capacities while in office.FN16 “The rationale for absolute immunity,” says Justice Cooper in Yanero v. Davis,FN17 “is not to protect those individuals from liability for their own unjustifiable conduct, but to protect their offices against the deterrent effect of a threat of suit ····” FN18
Baker v. Fletcher, --- S.W.3d ----, 2006 WL 1650565 Ky.,2006. June 15, 2006. Not final.
The other and more perplexing question is how did this happen in the first place? Was the judge operating in a vacuum? Did Judge Browning have nowhere else to look for advice? What about lawyers on staff at the AOC? What about the county prosecutor and his/her role, if any?
For what it is worth, Judge Browning is not being challenged in the November general election.
Here is a link to this story with extracts.
Judge rebuked for illegal jailing [Andrew Wolfson, Courier-Journal, 10/7/2006]A Western Kentucky judge who ordered 17 Hispanic immigrants held indefinitely without bail or right to counsel has been harshly rebuked for ignoring "concepts known to every first-year law student."In freeing the men District Judge Sue Carol Browning had jailed, Circuit Judge Tyler Gill said, "The rule of law has inextricably been ignored or abandoned by the very institution entrusted to withhold it."In a Sept. 18 order, Gill said Browning acted illegally by jailing the men indeterminately and by trying herself to get them deported.
"Whether or not legally in the United States, the petitioners are fellow human beings and deserve to be treated as such," Gill's order said. "Innocent people have been jailed without reason," and Logan and Todd counties "have been forced to bear the cost of these incarcerations with no logical goal in sight."
Click here for rest of story.
Rather than refer to my own postings and stories regarding this past year's developments which have contributed to a loss of confidence in Kentucky's courts, I will simply link the reader to a timely posting today from Stan Billingsley which is entitled "U.S. Judge says judiciary not under attack. Neither Force nor Will, but merely Judgement."
For those interested in the unsual, you will note that the above reminder of absolute judicial immunity was connected to the "footnote from nowhere" or "Fletcher's footnote 16" found in Baker v. Fletcher.