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The Danger of Judge Made Law
Originally Posted: 07/09/2008
‚€œAt one time the question for
America‚€™s judges was how to read
Constitution; but under today‚€™s
liberal, postmodern, man-centered
worldview, the question too often is
whether to read the Constitution.
Brannon Howse insightfully documents
the tragic consequences that
judicial tyranny, legal positivism,
and the humanist worldview are
having upon our faith, family, and
‚€” The Honorable Edwin Meese III,
Former Attorney General, Reagan
The course of action by our
judiciary is no innocent drift in
legal interpretation. The judges‚€™
unconstitutional moves have been
calculated by a few to thrust their
will upon Americans while the U.S.
Congress has been asleep at the
switch, seemingly unaware that the
legislators‚€™ very reason for
existence is being chipped away.
Benjamin Cardozo, appointed to the
U.S. Supreme Court in 1932, proudly
proclaimed a belief in his right to
usurp powers of the U.S. Congress
and to violate the check-and-balance
separations of the U.S.
Constitution: ‚€œI take judge-made
law as one of the existing realities
Cardozo not only held the U.S.
Constitution and U.S. Congress in
contempt; he saw little purpose for
people of faith‚€”which includes
most Americans‚€”who want to apply a
moral law as foundation for the
legal process: ‚€œIf there is any
law which is back of the sovereignty
of the state, and superior thereto,
it is not law in such a sense as to
concern the judge or lawyer, however
much it concerns the statesman or
Justice Cardozo was not the first to
sound this theme. In 1907, Charles
Evans Hughes, who would later become
chief justice of the U.S. Supreme
Court, declared, ‚€œWe are under a
Constitution, but the Constitution
is what the judges say it is.‚€Ě3
Lino Graglia, professor of
constitutional law at the University
of Texas School of Law, explains the
crisis caused when members of the
judicial branch make policy:
Judicial usurpation of legislative
power has become so common and so
complete that the Supreme Court has
become our most powerful and
important instrument of government
in terms of determining the nature
and quality of American life.
The result is that the central truth
of constitutional law today is that
it has nothing to do with the
Constitution except that the words
‚€œdue process‚€Ě or ‚€œequal
protection‚€Ě are almost always used
by the judges in stating their
conclusions. Not to put too fine a
point on it, constitutional law has
become a fraud, a cover for a system
of government by the majority vote
of a nine-person committee of
lawyers, unelected and holding
office for life. The desirability of
this form of government should be
the central question in any
realistic discussion of judicial
How can judges fulfill their sworn
oath to defend and protect the U.S.
Constitution while helping
themselves to large portions of
unconstitutional power and
authority? How can they uphold the
U.S. Constitution when they often
don‚€™t even consider the
Constitution when rendering
decisions? Or how can federal judges
claim to fulfill their sworn duty
when the majority of federal judges
have endeavored to replace the U.S.
Constitution with a different
The separation of power among the
three branches of our
and legislative‚€”was designed to
safeguard our nation from the very
thing we now face: a runaway branch
of the government. But make no
mistake. The check system
is still in place.
It just isn‚€™t being used by
Congress. Instead, our elected
representatives go on allowing
judges to enforce their new standard
And exactly what is this new
Secular humanism and its penchant
for moral relativism, along with
misapplied Darwinism, has now become
the postmodern foundation on which
America‚€™s courts and law schools
are built. Constitutional and legal
scholar John Eidsmoe observes:
is based on a Darwinian worldview.
Life evolves, men evolve, society
evolves, and therefore laws and the
constitution‚€™s meaning evolves and
changes with time.‚€Ě5
This new legal formulation is known
as ‚€œlegal positivism.‚€Ě In his
Christianity and the Constitution,
John Eidsmoe reviews the writings of
the Critical Legal Studies movement,
a group of radical lawyers, law
professors, and law students. He
summarizes legal positivism with the
‚€Ę There are no objective,
God-given standards of law, or if
there are, they are irrelevant to
the modern legal system.
‚€Ę Since God is not the author of
law, the author of law must be man;
in other words, law is law simply
because the highest human authority,
the state, has said it is law and is
able to back it up by force.
‚€Ę Since man and society evolve,
therefore law must evolve as well.
‚€Ę Judges, through their
decisions, guide the evolution of
law (Note again: judges ‚€œmake
‚€Ę To study law, get at the
original sources of law, the
decisions of judges; hence most law
schools today use the ‚€œcase law‚€Ě
method of teaching law.6
Another, simpler definition of legal
positivism is: moral relativism
applied to law. Moral relativism is
the belief there is no such thing as
moral absolutes‚€”no standard of
right or wrong for all people in all
places at all times. At times, moral
relativism is also called, simply,
pragmatism. Moral relativism is
closely tied to situational ethics,
the belief that individuals are free
to decide for themselves what is
best for them to secure the most
desirable outcome in any given
Tracing the development of the
positivistic approach to law, David
Barton notes, ‚€œThis philosophy of
‚€˜positivism‚€™ was introduced in
the 1870s when Harvard Law School
Dean Christopher Columbus Langdell
(1826‚€“1906) applied Darwin‚€™s
premise of evolution to
Langdell‚€™s thought was advanced
further by Dean Roscoe Pound and
Supreme Court Justice Oliver Wendell
Holmes Jr. Holmes argued there is no
fixed moral foundation for law:
‚€œThe felt necessities of the time,
the prevalent moral and political
theories . . . have a good deal more
to do than the syllogism [legal
reasoning process] in determining
the rules by which men should be
Did you catch that? The ‚€œfelt
necessities of the time‚€Ě and
‚€œprevalent moral and political
theories‚€Ě should be the basis of
the rules by which men are governed.
Using the ‚€œfelt necessities‚€Ě and
‚€œprevalent theories‚€Ě model,
judges can allow just about anything
to be legal, depending on whose
feelings, morals, and political
theories are chosen for reference.
Guided by this dangerous thinking,
we have seen countless abortions
performed in America. Even the
grisly partial-birth abortion
procedure has passed legal
muster‚€”a practice the late Senator
Daniel Patrick Moynahan called
Along with millions of babies,
matters of decency have also been
aborted. Current U.S. Supreme Court
Justice Ruth Bader Ginsburg, while
serving as an attorney for the ACLU
in 1977, wrote a paper, entitled
‚€œSex Bias in the U.S. Code,‚€Ě for
the U.S. Commission on Civil Rights.
In it, she argued that the legal age
for sexual activity should be
lowered to twelve years old.9
If enough judges agree the age
change ‚€œis a necessity‚€Ě based on
the perverted ‚€œmoral and political
theories‚€Ě of Alfred Kinsey, for
instance, Americans would have to
accept that it would be legal for an
adult to have sex with a child of
age twelve. Lest you think that too
crazy to happen, bear in mind that
famed sex researcher Alfred Kinsey
actually promoted the idea of adults
having sex with children, and there
are other forces pushing in similar
directions. A University of
Minnesota publisher produced a book
that discusses the ‚€œbenefits‚€Ě of
children having sex with adults, and
the North American Man/Boy Love
Association has promoted this idea
for years. These are the kinds of
philosophical foundations that are
now in play with relativistic
The Nature of the Judicial Process
(New Haven: Yale University Press,
The Growth of the Law
(New Haven; Yale University Press,
Final Report of the Joint Committee
on the Organization of Congress,
Lino A. Graglia, ‚€œJudicial Review
on the Basis of ‚€˜Regime
Principles‚€™: A Prescription for
Government by Judges,‚€Ě
South Texas Law Journal,
vol. 26, no. 3 (Fall 1985),
435‚€“52, at 446.
Christianity and the Constitution
(Grand Rapids, MI: Baker Book House,
(Aledo, TX: Wallbuilders, 1996),
Oliver Wendell Holmes Jr., ‚€œThe
Law in Science-Science in Law,‚€Ě
Collected Legal Papers
(New York: Harcourt, Brace and
Company, 1920), 225.
Back to Index
System Is Corrupt Beyond Recognition, Judge Tells Harvard
Law SchoolMassachusetts News
By Geraldine Hawkins
The American legal system has been corrupted almost beyond
Judge Edith Jones of the U.S. Court of Appeals for the Fifth
Circuit, told the
Federalist Society of Harvard Law School on February 28.
She said that the question of what is morally right is routinely
to what is politically expedient. The change has come because legal
has descended to nihilism.
"The integrity of law, its religious roots, its transcendent quality
disappearing. I saw the movie 'Chicago' with Richard Gere the other
That's the way the public thinks about lawyers," she told the
"The first 100 years of American lawyers were trained on Blackstone,
wrote that: 'The law of nature ‚€¶ dictated by God himself ‚€¶ is
binding ‚€¶ in all
counties and at all times; no human laws are of any validity if
this; and such of them as are valid derive all force and all their
from this original.' The Framers created a government of limited
this understanding of the rule of law - that it was dependent on
religious obligation," said Jones.
She said that the business about all of the Founding Fathers being
is "just wrong," or "way overblown." She says they believed in
reason," and this did not lead to intolerance.
"This is not a prescription for intolerance or narrow sectarianism,
continued, "for unalienable rights were given by God to all our
citizens. Having lost sight of the moral and religious foundations
of the rule
of law, we are vulnerable to the destruction of our freedom, our
before the law and our self-respect. It is my fervent hope that this
century will experience a revival of the original understanding of
the rule of
law and its roots.
"The answer is a recovery of moral principle, the sine qua non of an
orderly society. Post 9/11, many events have been clarified. It is
remain a moral relativist when your own people are being killed."
According to the judge, the first contemporary threat to the rule of
comes from within the legal system itself.
Alexis de Tocqueville, author of Democracy in
America and one of the first writers to observe the United States
the outside looking-in, "described lawyers as a natural aristocracy
America," Jones told the students. "The intellectual basis of their
and the study of law based on venerable precedents bred in them
order and a taste for formalities and predictability. " As
Tocqueville saw it,
"These qualities enabled attorneys to stand apart from the passions
majority. Lawyers were respected by the citizens and able to guide
moderate the public's whims. Lawyers were essential to tempering the
tyranny of the majority.
"Some lawyers may still perceive our profession in this flattering
but to judge from polls and the tenor of lawyer jokes, I doubt the
shares Tocqueville' s view anymore, and it is hard for us to do so.
"The legal aristocracy have shed their professional independence for
temptations and materialism associated with becoming businessmen.
has become a self-avowed business, pressure mounts to give clients
they want to hear, to pander to the clients' goal through deft
the law. ‚€¶ While the business mentality produces certain benefits,
occasional competition to charge clients lower fees, other adverse
include advertising and shameless self-promotion. The legal system
been wounded by lawyers who themselves no longer respect the rule of
The judge quoted Kenneth Starr as saying, "It is decidedly
win at any cost," and added that most lawyers agree with him.
However, "An increasingly visible and vocal number apparently
the strategic use of anger and incivility will achieve their aims.
uninhibited about making misstatements to the court or their
destroying or falsifying evidence," she claimed. "When lawyers
trusted to observe the fair processes essential to maintaining the
law, how can we expect the public to respect the process?"
Lawsuits Do Not Bring 'Social Justice'
Another pernicious development within the legal system is the misuse
lawsuits, according to her.
"We see lawsuits wielded as weapons of revenge," she says. "Lawsuits
brought that ultimately line the pockets of lawyers rather than
‚€¶ The lawsuit is not the best way to achieve social justice, and
to think it
is, is a seriously flawed hypothesis. There are better ways to
goals than by going into court."
Jones said that employment litigation is a particularly fertile
this kind of abuse.
"Seldom are employment discrimination suits in our court supported
direct evidence of race or sex-based animosity. Instead, the courts
to revisit petty interoffice disputes and to infer invidious motives
trivial comments or work-performance criticism. Recrimination,
and suspicion plague the workplace when tenuous discrimination suits
‚€¶ creating an atmosphere in which many corporate defendants are
costly settlements because they simply cannot afford to vindicate
"While the historical purpose of the common law was to compensate
individual injuries, this new litigation instead purports to achieve
redistributive social justice. Scratch the surface of the attorneys'
self-serving press releases, however, and one finds how enormously
social redistribution is for those lawyers who call themselves
Jones wonders, "What social goal is achieved by transferring
dollars to the lawyers, while their clients obtain coupons or token
The judge quoted George Washington who asked in his Farewell
"Where is the security for property, for reputation, for life, if
the sense of
religious obligation desert the oaths ‚€¶ in courts of justice?"
Similarly, asked Jones, how can a system founded on law survive if
administrators of the law daily display their contempt for it?
"Lawyers' private morality has definite public consequences, " she
"Their misbehavior feeds on itself, encouraging disrespect and
the rule of law as the public become encouraged to press their own
in a system they perceive as manipulatable. "
The second threat to the rule of law comes from government, which is
encumbered with agencies that have made the law so complicated that
difficult to decipher and often contradicts itself.
"Agencies have an inherent tendency to expand their mandate," says
"At the same time, their decision-making often becomes parochial and
short-sighted. They may be captured by the entities that are
regulated, or they may pursue agency self-interest at the expense of
public welfare. Citizens left at the mercy of selective and
agency action have little recourse."
Jones recommends three books by Philip Howard: The
Death of Common Sense, The Collapse of the Common Good and The Lost
Art of Drawing the Line, which further
delineate this problem.
The third and most comprehensive threat to the rule of law arises
contemporary legal philosophy.
"Throughout my professional life, American legal education has been
by theories like positivism, the residue of legal realism, critical
studies, post-modernism and other philosophical fashions," said
of these theories has a lot to say about the 'is' of law, but none
addresses the 'ought,' the moral foundation or direction of law."
Jones quoted Roger C. Cramton, a law professor at Cornell
wrote in the 1970s that "the ordinary religion of the law school
"a moral relativism tending toward nihilism, a pragmatism tending
amoral instrumentalism, a realism tending toward cynicism, an
tending toward atomism, and a faith in reason and democratic
toward mere credulity and idolatry."
No 'Great Awakening' In Law School Classrooms
The judge said ruefully, "There has been no Great Awakening in the
school classroom since those words were written." She maintained
that now it
is even worse because faith and democratic processes are breaking
"The problem with legal philosophy today is that it reflects all too
the broader post-Enlightenment problem of philosophy," Jones said.
Ernest Fortin, who wrote in Crisis magazine: "The whole of modern
has been a series of heroic attempts to reconstruct a world of human
and value on the basis of ‚€¶ our purely mechanistic understanding
Jones said that all of these threats to the rule of law have a
thread running through them, and she quoted Professor Harold Berman
identify it: "The traditional Western beliefs in the structural
law, its ongoingness, its religious roots, its transcendent
disappearing not only from the minds of law teachers and law
students but also
from the consciousness of the vast majority of citizens, the people
whole; and more than that, they are disappearing from the law
itself. The law
itself is becoming more fragmented, more subjective, geared more to
and less to morality. ‚€¶ The historical soil of the Western legal
being washed away ‚€¶ and the tradition itself is threatened with
Judge Jones concluded with another thought from George Washington:
the dispositions and habits which lead to prosperity, religion and
are indispensable supports. In vain would that man claim the tribute
patriotism who should labor to subvert these great pillars of human
- these firmest props of the duties of men and citizens."
Upon taking questions from students, Judge Jones recommended Michael
Novak's book, On Two Wings: Humble Faith and Common
"Natural law is not a prescriptive way to solve problems," Jones
is a way to look at life starting with the Ten Commandments. "
Natural law provides "a framework for government that permits human
freedom," Jones said. "If you take that away, what are you left
senses? The will of the majority? The communist view? What is it -
according to his ability, to each according to his need?' I don't
remember it, thank the Lord," she said to the amusement of the
"I am an unabashed patriot - I think the United States is the
society in the world at this point in time," Jones said, although
concede that there were other ways to accommodate the rule of law,
"Our legal system is way out of kilter," she said. "The tort
system is wreaking havoc. Look at any trials that have been
conducted on TV.
These lawyers are willing to say anything."
Potential Nominee to Supreme Court
Judge Edith Jones has been mentioned as a potential nominee to the
Court in the Bush administration, but does not relish the idea.
"Have you looked at what people have to go through who are nominated
federal appointments? They have to answer questions like, 'Did you
nanny taxes?' 'Is your yard man illegal?'
"In those circumstances, who is going to go out to be a federal
People who have accomplished nothing. In other words, federal
Judge Edith H. Jones has a B.A. from Cornell University and a J.D.
University of Texas School of Law. She was appointed to the Fifth
President Ronald Reagan in 1985. Her office is in the U.S.
The Federalist Society was founded in 1982 when a group of law
from Harvard, Stanford, the University of Chicago and Yale organized
symposium on federalism at Yale Law School. These students were
the academic climate on their campuses for some of the reasons
Judge Jones. The Federalist Society was created to be a forum for a
range of legal viewpoints than they were hearing in the course of
From the four schools mentioned above, the Society has grown to
over 150 law school chapters. The Harvard chapter, with over 250
one of the nation's largest and most active. They seek to contribute
civilized dialogue at the Law School by providing a libertarian and
conservative voice on campus and by sponsoring speeches and debates
on a wide
range of legal and policy issues.
The Federalist Society consists of libertarians and conservatives
interested in the current state of the legal profession. It is
three principles: 1) the state exists to preserve freedom, 2) the
of governmental powers is central to our Constitution and 3) it is
emphatically the province and duty of the judiciary to state what
the law is,
not what it should be.
Back to Index
http://www.martindale.com This link provides
information about attorneys such as their peer review
ratings, their areas of practice, etc. Just because an
attorney doesn't have a Martindale-Hubble rating, doesn't
mean that they are not a good attorney, but this is what the
website has to say about why the ratings are important, "The
Martindale-Hubbell Peer Review Ratings help in-house counsel
and other sophisticated buyers of legal services identify,
evaluate and select the most appropriate lawyer for a
specific task at hand.
Ratings serve as an objective indicator that a lawyer has
the highest ethical standards and professional ability
and are used by buyers of legal services to justify their
I was actually able to find an attorney
that had "Civil Rights Section 1983" under their areas of
practice. A 1983 lawsuit is part of the Title 42, and
is often accompanied by a 1985 lawsuit for violation of
Civil Rights. When you get to this website, just click on
the tab at the top left that says "FIND LAWYERS AND FIRMS"
and select the information that pertains to you (I chose my
state and "Civil Rights").
Please keep in mind that an attorney with
a Martindale-Hubble rating may have a more expensive fee, so
you'll need to find out their fees before you hire them.
Hope this helps someone.
Other Related Sites of Possible Interest
- Great Legal Reference Source
www.findlaw. com It's free and all you have to do is register. There is a lot of
information to be found there. This is for those who are serious about
searching the legal system.
- In the News
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Rate Your Judge
RateTheCourts.com, visitors may anonymously complete judicial
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judicial nominees. Survey criteria is based, in part, upon the
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Evaluation of Judicial Performance (February 2005). Survey responses
and comments are tabulated and displayed instantly.
To vote for the worst judges of 2009, find and select the judge
you are looking for by using the Search features below. Once you
have selected the judge, you will be taken to the page for the judge
where you may cast your vote. You are allowed only one vote per
session. Go There
Back to Index
Legal Immunity for
CPS Workers Who Lie?
The critics and plaintiffs’ attorneys are out there. They
see the with frustration in their assertion that there are
child protection workers who are as dysfunctional and flawed
as some of the abusive and neglectful parents they
investigate. They feel mistreated, ambushed, without
recourse to a neutral oversight authority, and fume that the
courts will believe the word of child protection workers
over their clients. And yet, when there is a credible
allegation that a child protection worker has knowingly made
misleading or false statements which resulted in the
wrongful removal of a child, their criticism and anger seem
justified. Such misrepresentations may involve highly
contested issues of material fact that more properly should
be examined by an agency supervisor or in court on the
merits. The supervisor or court, inadvertently giving
credence to the worker’s misrepresentation, may thereby be
swayed in favor of the worker’s recommendations.
Guest Feature Article by Daniel Pollack, MSW, JD
Legal Aspects of Immunity for Government Social
It is an accepted principle that a parent has a
constitutionally protected interest in the custody and care
of his or her child. This interest does have exceptions,
especially when the child may be in immediate or apparent
danger. This is when child protection services gets
involved. Crucial to every child protection investigation is
to establish the facts and circumstances of the case. When
these are presented to the court at a dependency hearing,
the evidence may become proof.
The best professional judgment of child protection workers
may, in hindsight, be wrong. For this and other reasons,
child protection workers usually have some level of immunity
from prosecution. 
individual government officials are sued for monetary
damages they generally are granted either absolute or
qualified immunity. The United States Supreme Court has
stated that qualified immunity is the norm, absolute
immunity is the exception. 
Should that immunity disappear when, in their official
capacities as child protection workers, they make knowingly
inaccurate or false statements which result in the wrongful
removal of a child? California law provides for public
employee immunity from liability for an injury caused by the
employee instituting or prosecuting any judicial or
administrative proceeding within the scope of their
employment, even if he or she acts maliciously and without
probable cause. 
public employee has no such immunity if he or she acted with
malice in committing perjury, fabricating evidence, failing
to disclose exculpatory evidence or obtaining evidence by
Generally, whether an employee is acting within the scope of
his or her employment is ordinarily a question of fact to be
determined in light of the evidence of the particular case.
Some courts hold that immunity for child protective workers
exists as long as they act responsibly in the performance of
their duties. The immunity applies even where a complaint
alleges caseworker misconduct or intentional wrongdoing.
Others hold that the worker
must be involved in a function critical to the judicial
process itself. In either case, the more outrageous the
employee's alleged tortuous conduct, the less likely it
could be described as foreseeable, and the less likely the
social service agency could be required to assume
responsibility for the act as a general risk of doing
In Doe v. Lebbos
the Ninth Circuit held that a social worker was entitled to
absolute immunity for allegedly failing to investigate
adequately the allegations of abuse and neglect against a
father and in allegedly fabricating evidence in a child
dependency petition because those actions had the "requisite
connection to the judicial process' to be protected by
absolute immunity (at 826)." In Van Emrik v. Chemung
County Dep't of Soc. Servs.
the court found that child protective caseworkers
were entitled to qualified immunity in connection with the
removal of a child from the custody of her parents during a
child abuse investigation. In the Sixth Circuit and the
District of Columbia Circuit the type of immunity depends on
the particular task the worker is doing. In Gray v.
the court held
that qualified immunity covers social workers acting as
investigators, while social workers testifying as witnesses
are protected by absolute immunity. In Rippy ex rel.
Rippy v. Hattaway
court ruled that absolute immunity protects social workers
who initiate proceedings on behalf of a child. In Austin
ruled that child protection workers were not entitled to
absolute immunity when they filed an "allegedly false
verified complaint seeking the removal of two children" from
the family home (at 1363).
There is, of course, a difference between misrepresentation
of a piece of physical or verbal evidence and the actual
creation of false evidence. Misrepresentation involves the
willful giving of a misleading representation of the facts.
Creation of false evidence involves the act of improperly
causing a ‘fact’ to exist. More often, critics and attorneys
accuse workers of a willingness to misrepresent, selectively
quote, and misconstrue information to support their claims
and therefore to present an entirely misleading case. Rather
than sticking to agency protocols and training the workers
sensationalize their documentation and findings in a
To what extent are such allegations true? Do workers
consciously or unconsciously misrepresent evidence, and
selectively engage in systematic distortion? How often do
they may make deliberate efforts to mislead, deceive, or
confuse their own supervisor or the court in order to
promote their own personal or ideological objectives? How
frequently are workers omitting or concealing material
facts? Under the guise of vigilance, are there child
protection workers whose adherence to rules and procedures
is purposely excessive?
From a social work, legal, or judicial perspective, making a
knowing misrepresentation in a child protection case is a
serious ethical breach. The NASW Code of Ethics, 4.01(c),
notes that: “Social workers should base practice on
recognized knowledge, including empirically based knowledge,
relevant to social work and social work ethics.” At 4.04 the
Code goes on to state: “Social workers should not
participate in, condone, or be associated with dishonesty,
fraud, or deception.” Dishonesty, shading the truth, or a
lack of candor cannot be tolerated in child protection
services, a field of endeavor built upon trust and respect
for the law. Whether or not child protection workers deserve
immunity from prosecution when they misrepresent or
fabricate evidence is a question each states’ courts are
dealing with. Similarly, each court must decide whether such
misconduct warrants setting aside the decision to remove the
child from his or her home. In the final analysis, the
question might soon find itself before the U.S. Supreme
A worker’s misrepresentation or fabrication of evidence is
particularly pernicious because it puts the whole field of
child protection in a negative light. Whether or not
immunity is granted, there is simply no excuse for this kind
of willful and egregious conduct.
 See, e.g., Abdouch v.
, 426 F.3d 982 (8th Cir. 2005) and Babcock v.
(884 F.2d 497 (9th Cir. 1989) (absolute immunity
shields social workers to the extent that their role is
functionally equivalent to that of a prosecutor); but
see Burton v. Richmond
, 276 F.3d 973 (2002) (when a
state department of human services affirmatively places
children in an abusive foster care setting, the state may be
liable for damages); Gray v. Poole
, 275 F.3d 1113,
(D.C. Cir. 2002) (qualified immunity covers social service
workers acting as investigators, but when testifying as
witnesses they are protected by absolute immunity).
Qualified immunity is often afforded if the social work is
involved in a “discretionary function” unless his or her
conduct is clearly a violation of a statute or
constitutional principle (Snell v. Tunnell
, 698 F.
Supp. 1542 (W.D. Okla. 1988).
 Harlow v. Fitzgerald
457 U.S. 800 (1982) (absolute immunity is appropriate in
limited circumstances -- judicial, prosecutorial, and
legislative functions-- whereas executive officials usually
receive qualified immunity).
Cal. Gov't Code ß 821.6
 Cunningham v. Wenatchee
214 F. Supp. 2d 1103 (E.D. Wash. 2002).
348 F.3d 820 (9th Cir.
911 F.2d 863, (2d Cir.
275 F.3d 1113 (D.C. Cir
270 F.3d 416 (6th Cir.
830 F.2d 1356, 1363 (5th
This article originally appeared in the
: Do child protection workers
deserve immunity when they misrepresent or fabricate
, American Professional Society on the
Abuse of Children Advisor
, 21(2), 18-19.
Daniel Pollack, MSW, JD
is full professor at Yeshiva
University School of Social Work in New York City and is a
and contributer to
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Development of Legal Assistance Site
Getting Started ~
Filing Cases ~
Case Examples ~
- "We ARE NOT attorneys so there are "NO" holds or worry about LOSING our bar cards which is SO IMPORTANT to attorneys. "WE" can "quote" the law as good as any attorney and "WE" are "NOT" practicing law without a license but are FOLLOWING guidelines the laws that has been set down for us to use."
- "TO ME" if a judge attempts to control what evidence can be presented -- the judge is attempting to cover up the crimes being committed by the legal system. This is why we have to be able to represent ourselves in court. I strongly believe we can beat the legal system at their own game.
- Please don't be afraid to speak out and offer suggestions,
we're building and growing in knowledge of the law. We've been
through nightmares, the heart aches, the tears, sleepless
nights and becoming stronger with the very broad shoulder of the
group to lean on. We're digging into State and Federal Law and
hoping to make things really HOT for the corrupt legal system.
If you have knowledge concerning law--writing legal briefs and
such. Please don't be afraid, just jump in and get your feet wet
as the rest of us are doing and you are very welcome. CH
- I say we are not lawyers, attorneys and they may try to say
"we're practicing law without a license." sorry Charlie, I know
how to read, how to do research and we are following the law and
doing what the law says. Have you ever notice that doctors and
lawyers always say they're "practicing?" CH
- Every case is different and is decided on 1) the law
and 2) case law. What's important is finding other cases
where the issues are close or identical and the judge ruled in
favor of the client. This is research. A great resource are
paralegals. These are professional research people and do most
of the research for attorneys. Good ones even write briefs. If
interested I'll tell you what I know about possibly securing one
for a fraction of the cost of an attorney if you want to
represent yourself. Once you have a good brief, the chance of
attracting an attorney just for court time are good. JH
Getting Started on Your Brief
Simply put, you need the Who, What, When, Where, and Why of your case
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Filing Civil Suits
The next thing I'm going to suggest is learning how to file civil suits and somehow manage to get the cases before juries. I believe there would be enough cases that could be filed to gridlock the legal system. Possibly the attorneys listed on the Glennsacks.com website might be interested in assisting in filing civil suits. I know all of this takes money. One thing I've thought about is getting behind one case and go from there.
Going to have to do some studying on this--I believe there are ways of stopping them from doing anything until the case is settled by filing a mechanical lien. Maybe someone in the group knows something about this and how to make it work. I know we're going up against a bunch of slick entrenched crooks that's taken over the legal system so we've got to learn how to beat them at their own game.
How many of the group has a BLACK'S LAW DICTIONARY? This book should be in every home. You can find it in most large bookstores about $75.00 if I remember right. Also, start a file on cases like the legal system uses. Have you noticed how they will refer to other cases instead of using the merits of the case before them? Well, we can do the same.
All of these people are public employees and have supervisors so complaints should be filed with the supervisors and higher ups.
I hope I can find this attorney in New York that had a lot of information on his website (about 80 or so pages). He almost lays out a guideline we would be able to follow.
I'm going to make a suggestion that everyone might need to start doing. MAKE BACK UP DISKS AND COPY RECORDS, DATA, DOCUMENTS AND ETC. I've lost more material than you can shake a stick at so I'm a really great one to be giving this advise.
Law Suit Flow Chart
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We've got to
build a library of cases we can use. You have to remember I'm not a
foster parent and in general the info I talk about is from being a
parent. We need to figure out how to combine criminal "penal"
codes with Admin Codes if this is possible. I found the CA CHILD
ABUSE ACT. If a person didn't know it exists, they'd never find
it. It makes *good* reading..
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Your brainstorm may be very a very valuable asset.May I offer some alternative suggestions for your consideration:
Create another group site ie *fosterparentallegationbriefs* for example. I mention this since working on briefs would mean a lot of correspondence and another group would keep this specific information in one place. (Please note there is a limitation on the amount of words you can post on the web and all the wording of a brief might not be displayed
Email by attachment the actual briefs that members want to become involved in. If you have a word program and if you save it as an *rtf* (Rich Text Format) file, this can be read with most popular word programs.
Create a link on the NFPCAR site, ie *Legal* Tab. (This page is the WebPage. Currently it is just one page, but as more develops, will add more pages)
I can set up a link, plus I can set up a section within the site as Password protected. This way the Public can not see the briefs, just those that are actually involved. (Link is http://rScrapZ.com/NFPCAR/Lawyer/ )
However, for starters, it would be very beneficial if you could send me a template or fill in the blank file for starting your brief.
So think about it and let me know, Plus thanks for your wonderful contributions you have made to this group.
God Bless, GranPa Chuck
Just thought I would share
this information on this blog from Fight CPS, before you go to this
I’m getting a lot of requests for referrals
to lawyers who take CPS cases. If you know of any lawyers who do
CPS defense, please tell us about them here. If you are a
lawyer, please sign in by using the comment link below this
Please give us contact
information… website links are very welcome. We need to know
what state CPS defense attorneys are in, so at least tell us
I’d like to make this page a permanent
resource for people looking for lawyers who do CPS defense. Your
referrals can help.
To those who don’t have competent
attorneys, who can’t find a referral here, I have a suggestion:
Go to your county courthouse or to federal court (if you intend
to file a lawsuit there) and look through the cases, which
should be listed in some kind of computer database. You can ask
the county clerk for help locating cases. Look for cases that
have the Department of Social Services (or whatever they call it
there) as a defendant. Then find out who the attorneys for the
CPS victims are. In this way you’ll probably find lawyers who
are willing to take on CPS cases.
If there’s nobody available in your
county, try nearby counties. Sometimes getting an attorney from
another county is the best thing you can do - they are less tied
into local politics and not worried about staying friends with
local CPS workers and judges.
P.S. - This is NOT the post to make
attorney requests on. This post should have comments with
attorney referrals only. If you need an attorney, please do not
tell us about it in the comments to this post as I will have to
delete those comments. This post should create a page with lots
of attorney names for referrals only.
Go to Site Now
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U.S. Supreme Court Media
The Oyez Project is a multimedia archive
devoted to the Supreme Court of the United States and its work. It
aims to be a complete and authoritative source for all audio
recorded in the Court since the installation of a recording system
in October 1955. The Project also provides authoritative information
on all justices and offers a virtual reality 'tour' of portions of
the Supreme Court building, including the chambers of some of the
Link to Site:
- Here is an example of a search using the
terms child abuse VS CPS
http://www.oyez.org/search/apachesolr_search/child abuse VS CPS
Simple click on the above link and you will be
taken to this page and you will see all the cases containing these
words. Great site if you want to learn more about the decisions made
by the U.S. Supreme Court. You may want to take the
you can learn more about this site.
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In the News
Judge told to appear in court Case: Whether
17-year-old should be sent back to father
By DAVE STEPHENS
Tribune Staff Writer
- Two judges are embroiled in a legal battle that could force
one judge to appear before the other in court next week, as part
of a case filed by a formerly homeless man seeking custody of
Circuit Judge Michael Gotsch has ordered County Probate Judge
Peter Nemeth, who handles juvenile cases, to appear in court
Thursday to explain why a 17-year-old boy hasn't been released
from a foster home and returned to his father.
Gotsch made the order after a
writ of habeas corpus
petition was filed by
Walter Jennings, who is seeking the custody of his son.
Also ordered to appear are Linda Cioch, director of the county's
Division of Child Services, and foster parent Christine Jacobs.
According to court and child services documents, Jennings lost
custody of his two sons in June 2007 after they were found to be
homeless and living out of his car. Since that time, Jennings
has established a residence and found work, but his youngest son
has not been returned to his custody.
James Masters, Nemeth's law partner and attorney, said
Gotsch has no jurisdiction in the case and cannot make Nemeth
appear in court.
On Friday, Masters filed a motion to quash the writ of habeas
corpus, and he said he is confident Gotsch will rescind the writ
once he reads the motion to quash.
“Nobody is going to appear (Thursday),” Masters said. “My motion
to dismiss has been filed. My motion to quash has been filed.
Judge Nemeth is not going to waste his time appearing before a
judge who has no jurisdiction.”
Gotsch declined to comment on the case.
But the writ of habeas corpus does included language that would
make it possible for an arrest warrant to be issued for Nemeth,
forcing him to attend the proceeding.
‘I can hold my own'
According to Tim Lahrman, who calls himself a family rights
advocate who is helping Jennings with his legal filings, the
case began two years ago when the Jennings family moved to South
Lahrman said Walter Jennings, along with two teenage sons, moved
Michigan seeking work. With little money, the family went
to South Bend's Center for the Homeless seeking shelter.
Lahrman said the Division of Child Services was contacted
because Jennings had no job and home. The two boys were
designated as “children in need of services” and placed in a
By February 2009, according to
transcripts, Jennings said he had been living in a home
for four months and employed for six months but that his
youngest son had not been returned to his custody. Jennings'
other son returned to his care when he turned 18.
Jennings argued then that his son should be released from state
care, but Nemeth denied that request and set a status hearing
At that hearing, Walter Jennings and his son both asked to be
According to court documents, Walter Jennings' son, who turned
17 in June, told Nemeth that he was a straight-A student who had
secured a summer job and who hopes to attend Ball State
University to study architecture someday.
The Tribune is not printing the teen's name because he is
“I think I am getting a little too old for foster care, since
I'll get out when I'm 18 anyway,” the teen told Nemeth in May.
“And I don't see any need for any of this … and, I believe, I
can hold my own if you want me to say I can take care of
But Nemeth denied the boy and his father's request, in part
because social workers said Walter Jennings refused to sign a
“safety plan,” which required in-home visits by social workers
and an agreement to attend family counseling.
Masters said that refusal was enough cause for Nemeth to deny
the teen's release.
“(Jennings) admits in his (court) response that he never signed
that safety plan … he doesn't think it's necessary …
consequently the child hasn't been released from foster care and
placed with him,” Masters said.
But even though Jennings' son remains in foster care, the teen
is hoping to have a say in his future.
On Friday, the teen filed his own motion, asking that he be
allowed to attend next week's writ of habeas corpus hearing to
speak on his own behalf.
“I wish to waive my right and privilege of confidentiality and
privacy in this matter, and I do so that the courtroom may be
open for the world to see what a scam the State of Indiana is
running,” the boy wrote. “In sum, I don't mind being the poster
boy for what is so wrong about my experiences with these
- Another Champion of Justice - Thank you, Barbara Hollingsworth!
Posted: 06 Jun 2008 10:51 AM CDT
This week I received email with links to a series of news articles written by Barbara Hollingsworth about CPS injustice. She’s looking for cases in and around Washington DC, to profile them in future news articles.
Here are her article links:
Bureaucrats running down the clock against parents
- this is about ASFA, the Orwellian law passed in 1996 that allows CPS to terminate parental rights after keeping a child in foster care for only 15 months. This has encouraged the CPS tactic of delaying reunifications until the time limit is reached so they can adopt out children even if the parents are adequate and have done everything required. This law also gives states bonus money for each child adopted out.
= “The Adoptions and Safe Families Act” - ostensibly written to keep children from having to live in long term foster care, by encouraging adoptions. In practice it has encouraged states to rip apart young families to get the babies because they are most easily adopted out. Older “hard to adopt” children are featured on meat-market type websites where people can look through to see if they want any featured children. The states get thousands of dollars for each adoption, from the federal treasury. “Child collectors”… aka Adopters… get thousands of dollars in adoption subsidy payments. Social workers get jobs since they are the front-line in taking children from their families. It is a win-win situation for everyone except parents and children who are used, abused, and traumatized for life by this pathetic rush for money by greedy systemites.
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Please do your homework.
- Look things
up for you to use in your case.
- Do your
Understand what a
law means - use a
- Write your
term paper. Education is the key to
success! Do your own work.
If you check sites like ,
http://caught.net/ , ? or blog?, (appellate Court info) or
google "court reform", "legal system reform", "judicial
accountability", or similar terms and you'll find info and
discussions regarding the type issues that have been raised.
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Disclaimer: This is for informational purposes only. We are not
lawyers or affilated with any lawyers shown. It the the responsiblity of
the user to check the accuracy and validity of this information.
If you are interested in joining our support group, use the link below to subscribe.
God Bless, GranPa Chuck
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