WHY PRO SE FATHERS SHOULD NOT SUE JUDGES
By Rinaldo Del Gallo, III
May 13, 2007
413-445-6789
A recent case, RIEMERS v. STATE, 2007 ND App 2, filed April 27, 2007 shows why it is advisable not to sue judges that have been unfair to fathers in family court. I say this because I often receive calls, due to my civil rights lawsuits, about suing judges that have been unfair to dads in court.
Roland C. Riemers appealed a district court decision to the North Dakota Court of Appeals pro se (without an attorney). He sued a district court judge and members of the state’s highest court. The court did not even listen to his claims ruling that judges have judicial immunity:
Here are some excepts from the case:
“[ 4] Riemers argues the district court erred in dismissing the complaint because his claims for damages are not barred by judicial immunity. He contends common law judicial immunity no longer exists, judicial immunity is unconstitutional, and judicial immunity does not apply in this case because the judges’ actions were unlawful and outside the scope of their employment.â€ÂÂ
To this the court replied:
“[ 5] Judicial immunity is a long-standing common law doctrine that protects judges from civil liability for their judicial decisions: The principle of judicial immunity recognizes that although unfairness and injustice to a litigant may result on occasion, it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself. Thus, judges are not liable in civil actions for their judicial acts unless they have acted in the clear absence of jurisdiction. Moreover, a judge will not be deprived of immunity even if the action was in error, was done maliciously, was in excess of his authority, and even if his exercise of authority is flawed by the commission of grave procedural errors.â€ÂÂ
Reimer’s also tried to argue that a newly created statute abolished judicial immunity. Since this has less universal appeal, I omit discussing this aspect of the case. But the excerpts rejecting the claim that judicial immunity causes constitutional problems is well worth repeating to fathers at large who may be contemplating suing a judge:
“Judicial immunity is a well-established, long-standing legal principle, and we reject Riemers’ claim it is unconstitutional.â€ÂÂ
“[ 8] Riemers also claims judicial immunity does not apply in this case because the judges disregarded clear statutory and case law, and therefore their acts were illegal and were not judicial acts. We conclude his argument is not persuasive. Judicial immunity is defined by the governmental functions it protects, not the motives of the officer performing those functions. 46 Am. Jur. 2d Judges § 64 (2007) (“Judges are not deprived of immunity from a suit for money damages merely because of allegations that they committed grave procedural errors or acted maliciously, corruptly, or with evil motive, intent, personal interest, bad faith, or outright malevolence”). Even if the judges disregarded clear case or statutory law, their actions were judicial acts, and judicial immunity bars Riemers’ claims for money damages.â€ÂÂ
The court also did not like the fact that Reimers was attempting to rehash issues already litigated and discussed legal concepts known as “res judicata†and “claim preclusionâ€ÂÂ:
“[ 9] Riemers’ claims for declaratory and injunctive relief are also barred. Res judicata and collateral estoppel are well-established doctrines that bar relitigation of claims and issues and promote the finality of judgments.”
“[ 10] Riemers’ current litigation attempts to challenge decisions Judge Herman and four Justices of the North Dakota Supreme Court made in proceedings stemming from his divorce action. If Riemers was unhappy with the courts’ decisions in his prior litigation, his remedy was to appeal the decision or petition for rehearing. Riemers failed to use the remedies available to redress any wrongs he may have suffered, and the well-established doctrine of collateral estoppel bars him from relitigating these issues in a second action. Riemers’ claims for injunctive and declaratory relief are barred.”
Other fathers who try to sue judges will be attacked for similar reasonsâ€â€Âthey already had their day in court, and their remedy was to appeal.
And here is what really hurt, the states claim for attorney fees:
“[ 13] The State requests attorney fees for this appeal. An award of costs, including reasonable attorney fees, is authorized under N.D.R.App.P. 38 for a frivolous appeal. An appeal is frivolous if it is “`flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation which could be seen as evidence of bad faith.’” Judicial immunity and collateral estoppel are well-established and long-standing legal doctrines. We conclude Riemers’ appeal is flagrantly groundless, devoid of merit, and demonstrates persistence in the course of litigation which evidences bad faith. We therefore conclude Riemers’ appeal is frivolous, and the State is entitled to attorney fees for this appeal. The State did not submit any documentation of its attorney fees, and we remand to the district court for a determination of reasonable attorney fees for this appeal.â€ÂÂ
Here is the moral of the story. If you have been treated unfairly, in a bigoted and outrageous manner in family court, do not sue. I know of no case where a judge was actually sued and damages were awarded. Definitely do not attempt to attack the constitutionality of judicial immunity with a lawsuit unless you are an attorneyâ€â€Âthese are very complex legal issues. There is the option of filing a complaint against a judge. Sadly, if you file a complaint against a judge, in most states it will not be taken seriously. I have heard of instances where judges have been removedâ€â€Âbut these are extraordinary situations.
To reiterate some basic points:
1. Judicial immunity is a species of sovereign immunityâ€â€Âit is nowhere to be found in the United States Constitution. I do not believe judicial immunity exists in any state constitutionsâ€â€Âbut I have not researched this.
2. Many cases, such as this, hold that there is virtually no cap on the amount of bias, unfair dealing, malevolence, and disregard of clearly written law for which a lawsuit against a judge can stand. Other cases are not so sweeping. Some cases suggest when a judge acts in malice in clear defiance of clearly established law, or acts well outside of the normal scope of acting a judge (such as taking a bribe), there is no judicial immunity.
3. A pro se litigant should avoid suing a judgeâ€â€Âthe issues are far too complex; the law is far too slanted in favor of judicial immunity, and the pro se litigant will often add to heartbreak and misery by having to pay attorney fees to the very state from whom he sought compensation.
For a website with a different viewpoint go to THIS LINK HERE
* Some cases, such as
RANKIN v. HOWARD, 633 F.2d 844 (9th Cir. 1980), posted at the website does indicate that judicial immunity is not infinite. For instance, there it was ruled that a judge could be held liable if he acted in clearly without juridiction.


