The answer, it seems obvious, should be (b). But in the real world, as proven by events of recent days, the answer is (a). And to anyone with a sense of justice, that should be as disturbing as the sound of a thousand vuvuzelas.
The lead characters in this morality play are: (1) Koman Coulibaly, the soccer official who disallowed an apparent game-winning goal in the United States' World Cup match against Slovenia; and (2) Martin Feldman, the U.S. district judge who overturned the Obama administration's moratorium on offshore drilling in the wake of the BP oil spill.
How did the soccer world deal with Coulibaly's apparent gaffe? Assessors gave Coulibaly a poor evaluation and found that it was "highly unlikely" that he would take any further part in the tournament.
How did the justice world deal with Feldman's ruling, which appears to be demonstrably corrupt? With a collective shrug of the shoulders. That's because the doctrine of judicial immunity allows judges to do most anything they want, without personal repercussions.
Prosecutorial immunity, the ugly cousin of judicial immunity, already is under intense scrutiny. The oil-moratorium ruling shows that similar scrutiny should be visited upon judicial immunity.
In theory, judicial immunity sounds like a reasonable idea. It is designed to ensure the "independence" of the judiciary, allowing judges to rule "fearlessly," without concern about being sued in the aftermath of their rulings.
But what about judges who intentionally rule unlawfully and violate the civil rights of those who come before them? In practice, judicial immunity becomes a license to cheat for unethical judges. Martin Feldman apparently is such a judge. And as we have shown through three years' worth of posts here at Legal Schnauzer, he has plenty of company.
How corrupt was Feldman's ruling? Consider this from Yahoo News:
The federal judge who overturned Barack Obama's offshore drilling moratorium reported owning stock in numerous companies involved in the offshore oil industry—including Transocean, which leased the Deepwater Horizon drilling rig to BP prior to its April 20 explosion in the Gulf of Mexico—according to 2008 financial disclosure reports.
U.S. District Judge Martin Feldman issued a preliminary injunction today barring the enforcement of the president's proposed six-month moratorium on deepwater drilling, arguing that the ban is too broad.
Why would Feldman make such a ruling? Because it's likely to have a positive impact on his pocketbook:
According to Feldman's 2008 financial disclosure form, posted online by Judicial Watch [pdf], the judge owned stock in Transocean, as well as five other companies that are either directly or indirectly involved in the offshore drilling business. . . .
The report discloses that in 2008, Judge Feldman held less than $15,000 worth of stock in Transocean, as well as similar amounts (federal rules only require that judges report a range of values ) in Hercules Offshore, ATP Oil and Gas, and Parker Drilling. All of those companies offer contract offshore drilling services and operate offshore rigs in the Gulf of Mexico. Judge Feldman also owned between $15,000 and $50,000 in notes offered by Ocean Energy, Inc., a company that offers "concept design and manufacturing design of submersible drilling rigs," according to its website. None of the companies were direct parties to the lawsuit seeking to overturn the ban.
A judge has a duty to recuse himself when a reasonable person would find that his participation presents the "appearance of impropriety." Would a reasonable person find that Feldman had a conflict of interest in the moratorium case? Would a reasonable person find that Feldman's participation presented an appearance of impropriety? It's hard to see how the answer to both questions is not yes.
So why did Feldman ignore his duty to recuse and participate in a case where he clearly should have stepped aside? Because he knows judicial immunity protects him, as long as he is acting in his judicial capacity.
Feldman's ruling might be overturned by judges up the line. But will Feldman suffer any personal consequences for his bogus ruling, as Coulibaly did simply for making a mistake in a soccer match? Nope.
How perverse is the doctrine of judicial immunity? I recently discovered an Alabama case where a federal judge ruled that a state judge overseeing domestic-relations cases was protected by judicial immunity, even though he was alleged to have participated in a criminal enterprise to fix court cases.
As Dave Barry would say, "I'm not making this up." The ruling found that, even if the state judge were proven to have participated in a criminal enterprise, he still was protected because his corrupt rulings were made in his official capacity.
We soon will be shining significant light on that ugly Alabama case. But for now, here is a sad truth about the world we live in: We care much more about the mistakes of a soccer referee than we do about the clearly corrupt rulings of state and federal judges.
No wonder our justice system is in such a mess.