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STATE OF RHODE ISLAND
SUPREME COURT
ESTATE OF PAUL K. SHERMAN :
Appellant
:
:
v. : Appeal No. 98 - 0157
:
THE HONORABLE ANTONIO S. ALMEIDA, :
IN HIS OFFICIAL CAPACITY, ET. AL. :
Appellee
:
BRIEF OF ESTATE OF PAUL K. SHERMAN
Robert Senville #4289
PO Box 4944
Rumford, RI 02916
401-435-5610
Date: April 16, 1999
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES iv
I. INTRODUCTION 1
II. FACTS AND TRAVEL OF CASE 1
III. SUMMARY OF ARGUMENT 7
IV. STANDARD OF REVIEW 8
V. ARGUMENT
A. A judge who, in his official capacity, violates Article 1, Section 5 of the Rhode
Island Constitution by selling a judicial opinion should be liable to the injured party
in a civil action for damages 9
1. Selling a judicial opinion violates Article 1, Section 5 of the Constitution 9
2. A lawsuit for damages may be brought under Article 1,
Section 5 of the Constitution because Article 1, Section 5 is
self-executing 13
a. The First Criterion
i. The right to justice without purchase is described
in detail 15
ii. A person denied his right to justice without
purchase ought to have a remedy 16
b. The Second Criterion - The General Assembly has
no express mandate to implement the right to justice
without purchase 17
c. The Third Criterion - As in Bivens the legislative history
is silent on the issue of private right of action 17
d. The Fourth Criterion 19
i. Sherman has no other meaningful remedy 19
ii. Judicial immunity peserves judicial
independence, and judicial independence must be
guarded jealously 27
iii. When it is possible in practice to confine the
abrogation of judicial immunity to a complaint
against a judge who was actually guilty of bribery,
it is monstrous to deny recovery 30
VI. CONCLUSION 37
TABLE OF AUTHORITIES
Page
Decisions of this Court
Amaral v. Cabral, 494 A.2d 94 (R.I. 1985) 8
Bandoni v. State, 715 A.2d 580 (R.I. 1998) passim
Bragg v. Warwick Shoppers World, Inc., 102 R.I. 8, 227 A.2d 582(R.I. 1967) 8
Brough v. Foley, 572 A.2d 63 (R.I. 1990) 8
Calhoun v. City of Providence, 390 A.2d 350 (R.I. 1978) 28
Conley v. Woonsocket Inst. for Sav., 11 R.I. 147 (1874) 12
City of Warwick v. Aptt, 497 A.2d 721 (R.I.1985) 8
Estate of Sherman v. Almeida 610 A.2d 104 (R.I. 1992) 22
Fournier v. Miriam Hospital, 175 A.2d 298 (R.I. 1961) 31
Gagnon v. State, 570 A.2d 656 (R.I. 1990) 8
Hudson v. Geary, 4 R.I. 485 (1857) 12
In re Paul K. Sherman, 565 A.2d 870 (R.I. 1989) 3, 6, 37
Jones v. Aciz, 109 R.I. 612, 289 A.2d 44 (R.I. 1972) 12
Joslin Mfg. Co. v. Clarke, 41 R.I. 350, 103 A. 935 (R.I. 1918) 12
Kennedy v. Cumberland Engineering Co., Inc., 471 A.2d 195 (R.I. 1984) 12, 19, 30
Lemoine v. Martineau, 342 A.2d 616 (R.I. 1975) 12, 30
Lewis v. Smith, 21 R.I. 324, 43 A. 542 (R.I. 1899) 12
Littlefield v. Peckham, 1 R.I. 500 (1851) 12
Matter of Almeida, 611 A.2d 1375 (R.I. 1992) 21, 22, 25
Mesolella v. City of Providence, 508 A.2d 661 (R.I. 1986) 8
Nagy v. McBurney, 120 R.I. 925, 392 A.2d 365 (R.I. 1978) 33
Narragansett Elec. Lighting Co. v. Sabre, 50 R.I. 288, 146 A.777, 66 A.L.R. 1553 (1929) 12
Perce v. Hallett, 13 R.I. 365 (1881) 11, 12, 15
Rhode Island Affiliate, ACLU v. Bernasconi, 557 A.2d 1232 (R.I.1989) 8
Salvadore v. Major Elec. & Supply, Inc., 469 A. 353 (R.I. 1983) 8
Soares v. Ann & Hope of Rhode Island, Inc., 637 A.2d 339 (R.I.1994) 33
Solitro v. Moffatt, 523 A.2d 858 (R.I.1987) 33
Spalding v. Bainbridge, 12 R.I. 244 (1878) 12
Thompson v. Thompson, 495 A.2d 678 (R.I. 1988) 8
Vigue v. John E. Fogarty Memorial Hosp., 481 A.2d 1 (R.I. 1984) 8
Provisions of the Rhode Island Constitution
Article 1, Section 5 passim
Article 1, Section 23 16, 17
Rhode Island General Laws
R.I. Gen. Laws § 8-16-1 et. seq. 27
R.I. Gen. Laws § 8-16-7(b) 27
R.I. Gen. Laws § 11-7-3 5
R.I. Gen. Laws § 11-7-5 5
R.I. Gen. Laws §12-25-4 26
Rhode Island Rules and Regulations
R.I. Super. Ct. R. Civ. P. 12(b)(6) 7, 8
United States Supreme Court Decisions
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971)passim
Bradley v. Fisher, 80 U.S. 646 (1872) 22, 29
Davis v. Burke, 179 U.S. 399 (1900) 14
Dennis v. Sparks, 449 U.S. 24 (1980) 27
Forrester v. White, 484 U.S. 219 (1988) 27
Jacobs v. United States, 290 U.S. 13 (1933) 14
J.I. Case Co. v. Borak, 377 U.S. 426 (1964) 13
Hazel-Atlas Glass Co. v. Hartford Empire Co., 322 U.S. 238 (1944) 22
Marbury v. Madison, 1 Cranch 137 (1803) 14, 17
Mireles v. Waco, 502 U.S. 9 (1991) 27
Pierson v. Ray, 386 U.S. 547 (1967) 27, 28, 29
Pulliam v. Allen, 466 U.S. 522 (1984) 25
Stump v. Sparkman, 435 U.S. 349 (1978) 27, 28
Other Court Decisions
Brown v. State, 89 N.Y.2d 172, 652 N.Y.S.2d 223, 674 N.E.2d 1129,1138 (N.Y. 1996)19
Chicago Title & Trust Co. v. Fox Theatre Corp., 182 F. Supp. 18(1960) 22
Cok v. Constentino, 876 F.2d 1 (1st Cir. 1989) 28
Convention Center Referendum Committee v. Board of Elections and
Ethics, 399 A.2d 550 (D.C. Ct. App.1979) 15
Dawkins v. Lord Paulet, LR 5 QB 94, 110, cited in, Pierson v.
Ray, 386 U.S. at 566(1967) (Douglas, J., dissenting) 29
Employers Ins. of Wausau v. Hall, 270 S.E.2d 617 (N.C. 1980)21
Figueroa v. State, 61 Haw. 369, 604 P.2d 1198 (Haw. 1979) 19
Garcia v. Hilton Hotels International, Inc., 97 F.Supp. 5 (D.C.1951) 8
Gregoire v. Biddle, 177 F.2d 579 (2nd Cir.1949) 32
Hurley v. Fuyat, WL 930891 (R.I.Super. 1994) 25, 28
In re Benoit, 487 A.2d 1158 (Me. 1988) 21
Johnson v. Johnson, 424 P.2d 414 (Okl. 1967) 22
Kintz v. Harriger, 99 Ohio St. 240, 124 N.E. 168, 12 A.L.R. 1240 (1919) 31-37
Lewis v. Lewis, 351 N.E.2d 526 (Mass. 1976) 31
Mayle v. Pennsylvania Dept. of Hwys., 479 Pa.. 384, 388 A.2d 709 (Pa. 1978) 31
Root Refining Co. v. Universal Oil Products Co., 169 F.2d 514 (1948) 22
Sax v. Vottelier, 648 S.W.2d 661 (Tex. 1983) 31
Shields v. Gerhart, 658 A.2d 924 (Vt. 1995) 14, 15, 18, 19
Skelly Oil Company v. Universal Oil Products Company, 338 Ill.
App. 79, 86 N.E. 2d 875 (Ill.1949) 20, 21
Spaids v. Barrett, 57 Ill. 289 (1870) 22
Taffe v. Downes, Chief Justice of the King's Bench (Court of
Common Pleas of Ireland 1813), reported in, Calder v. Halket, 13
Eng. Rep. 12 at 18 n.(a) (P.C. 1839) 37
United States v. International Tel. & Tel. Corp., 349 F. Supp. 22(1972) 22
Wilkin v. Sunbeam Corp., 466 F.2d 714 (1972) 22
Provisions of U.S. Constitution and Statutes
Amend 4 13, 14, 15, 16
Amend 5 16
Amend 8 16
Amend 9 11
Provisions of Other Constitutions of Western Civilization
Mag. Char. Joh. chapt. 40 (1215) 9, 11
Mag. Char. Hen.3, chapt. 29 (1225) 9, 11
Provisions of Other State Constitutions
Alabama Const. Art 1, § 13 9
Arkansas Const. Art. 2, § 13 9
Colorado Const. Art. 2, § 6 9
Connecticut Const. Art. 1, § 10 10
Delaware Const. Art. 1, § 9 10
Idaho Const. Art. 1, § 18 10
Illinois Const. Art. 1, § 12 10
Illinois Const. (1870) Art. II, § 19 20
Indiana Const. Art. 1, § 12 10
Kansas Const., Bill of Rights, § 18 10
Kentucky Const., Bill of Rights, § 14 10
Louisiana Const. Art. 1, § 22 10
Maine Const. Art. 1, § 19 10
Maryland Const., Declaration of Rights, § 19 10
Massachusetts Const., Declaration of Rights, § 11 10
Minnesota Const. Art. 1, § 8 10
Mississippi Const. Art. 3, § 24 10
Missouri Const. Art. 1, § 14 10
Montana Const. Art. 2, § 16 10
Nebraska Const. Art. 1, § 13 10
New Hampshire Const. Art. 1, § 14 10
North Carolina Const. Art. 1, § 18 10, 21
Ohio Const. Art. 1, § 16 10, 34
Oklahoma Const. Art. 2, § 6 10
Oregon Const. Art. 1, § 10 10
Pennsylvania Const. Art. 1, § 11 10
South Dakota Const. Art. 6, § 20 10
Tennessee Const. Art. 1, § 17 10
Texas Const. Art. 1 § 17 10
Utah Const. Art. 1, § 11 10
Vermont Const. Art. 1, § 4 10
West Virginia Const. Art. 3, § 17 10
Wisconsin Const. Art. 1, § 9 10
Wyoming Const. Art. 1, § 8 10
Books and Texts
Eliot, J. (ed .), Debates in the Several State Conventions on the
Adoption of the Federal Constitution, Volume 1, 1 Eliot's
Debates 334-37 (1836) 10
Friesen, Jennifer, State Constitutional Law: Litigating
Individual Rights, Claims, and Defenses, § 7.05[1], at 7-14
(1995) 19
Ruffhead, Owen (ed.), Statutes-at-Large, Vol.I (Magna Charta -
End Henry 6) 9
Articles from Law Reviews and Scholarly Journals
Joseph R. Weisberger, The Twilight of Judicial Independence -
Pulliam v. Allen, 19 Suffolk U. L. REV. 537 (1985) 26,
29, 30
Miscellaneous Materials
Jane Munson, guardian of the person of Paul K. Sherman,
et.al v. Thomas C. Hutton et.al., No. 91-7880 (Providence
County Superior Court) 24
Woody Guthrie, Lyric of “Pretty Boy Floyd,” at 30
I. INTRODUCTION
This case arose because a former Justice of the Superior
Court of the State of Rhode Island issued a corrupt decision and
received his payment by exacting money from the proceeds a jury
awarded a severely disabled man. The appellant is the estate of
this disabled man and it claims the right to sue the former
Superior Court Justice because this man’s right to justice
without purchase has been violated. The Superior Court dismissed
the claim on the ground of judicial immunity. Appellant has
appealed because this case does not threaten the independence of
Rhode Island judges, and because denying recovery in this
situation is monstrous.
II. FACTS AND TRAVEL OF THIS CASE
Appellant, Estate of Paul K. Sherman, is a guardianship
estate. Appellee, Antonio S. Almeida, is a former Justice of the
Rhode Island Superior Court. Paul K. Sherman (“Sherman”) has
been in a persistent vegetative state since September 12, 1981
when he unsuccessfully attempted suicide at the Adult
Correctional Institution. In July, 1983 Paul K. Sherman
(“Sherman”) sued the State of Rhode Island for negligence,
claiming that breaches of duty of care by correctional officers
caused his injuries. On March 13, 1987 a jury awarded Sherman
One Million Seven Thousand Dollars ($1,007,000.00). The
purpose of the jury award was to pay Sherman’s medical bills, to
pay for necessary medical care, and to pay for durable medical
equipment that would alleviate Sherman’s pain and suffering. On
April 22, 1987 the Superior Court Justice who conducted the
trial, Justice Calderone, denied Sherman’s motion for prejudgment
interest. On June 11, 1987 a private law, 1987 R.I. Acts &
Resolves 187, was introduced to require the State of Rhode
Island to pay Sherman pre and post judgment interest on the jury
verdict. This private law was approved by the General Assembly
on July 11, 1987. On October 26, 1987, Mr. Justice Antonio S.
Almeida (“Almeida”) was assigned to hear a post-trial motion
which would determine the gross amount of the proceeds, the net
amount of the proceeds, and which would apportion the net
proceeds between Sherman and his attorney, Thomas C. Hutton.
Judge Almeida and Thomas C. Hutton, who was Sherman’s attorney
and his probate co-guardian, entered a corrupt agreement that in
return for money the Judge would issue a decision that would
reverse Justice Calderone’s decision on post-judgment interest,
and award prejudgment interest and thereby add approximately
$600,000.00 to the jury award. Judge Almeida would then
corruptly apportion the award the $1,600,000 in the following
manner: litigation costs and 45% of the net proceeds would be
paid to Attorney Hutton, and 55% of the net proceeds would be
paid to the Estate of Paul K. Sherman. On November 16, 1987
Judge Almeida issued his corrupt decision, and authorized the
partial disbursements to Attorney Hutton. Judge Almeida
received his payment from Attorney Hutton for the issuance of
this corrupt decision from the money the jury awarded Sherman in
three instalments, and the amount he received was $18,000, more
or less.
On October 5, 1987 Judge Almeida authorized a partial
disbursement of $10,000.00 to Sherman and $40,000.00 to attorney
Hutton. On January 12, 1988, pending a ruling by the Rhode
Island Supreme Court to review Judge Almeida’s apportionment of
the jury verdict, net proceeds in the amount of $227,987.31 were
awarded to Attorney Hutton, along with checks of $9,260.04 to
Attorney Hutton, and $14,246.89 to Attorney Hutton, and net
proceeds in the amount of. $143,070.16 were awarded to Sherman.
Beginning on February 28, 1988 Attorneys Hutton and Hickey began
to embezzle funds from the $143,070.16 that had been awarded,
under this corrupt decision, to Sherman’s probate estate.
On November 9, 1989, in reviewing the apportionment of the
jury award between Sherman and Attorney Hutton authorized by
Justice Almeida, Ms. Justice Murray, without knowledge of the
corrupt arrangement between Attorney Hutton and Judge Almeida and
without knowledge of Attorney Hutton’s and Attorney Hickey’s
embezzlement of Sherman’s probate estate funds, writing for the
Court, made the following prophetic and compassionate statement:
We find this conclusion (that the attorney is entitled
to an amount equivalent to 76% of the net verdict) to
be unreasonable as a matter of law. If plaintiff’s
theory were carried to its logical conclusion, the
attorney’s fee agreement could exceed the actual
recovery ... In considering the figures in this case,
we believe that the current arrangement jeopardizes
Paul’s future. The 1985 private act, the jury verdict,
and the lawsuit itself were all intended to benefit the
incompetent Paul. We fail to see how Paul could
benefit from an arrangement wherein the attorney
collects more than the individual whose interest and
future the attorney is hired to protect. (Emphasis
supplied).
In re Paul K. Sherman, 565 A.2d 870, 873 (R.I. 1989). On May 9,
1990, pursuant to the decision of the Rhode Island Supreme Court
in In re Paul K. Sherman, an additional One Hundred Fifty One
Thousand and Six Hundred Fifty Five Dollars ($151,655.00) was
paid by the State of Rhode Island to Sherman’s guardianship
estate. On May 24, 1990 Attorney Hutton began to embezzle money
from this $151,655 award to Sherman.
Within a year of this $151,655 payment to Sherman’s probate
estate the nursing home in Johnston, Rhode Island where Sherman
resided, the Morgan Health Care Center, wanted to evict Sherman
because his bills were not being paid. Sherman was in a
persistent vegetative state and required specialized medical
equipment and services. The attorney who was handling Sherman’s
affairs, Thomas C. Hutton, informed the nursing home that there
were no funds to pay for Sherman’s care.
The Rhode Island Protection and Advocacy System
(“RIPAS”)(now the Rhode Island Disability Law Center), a law
office that receives federal and state funds to advocate the
rights of individuals with severe disabilities, on referral from
the Morgan Health Care Center, petitioned the Providence Probate
Court to cite Attorney Hutton and Hope Sherman, Sherman’s mother,
who were co-guardians of the estate, to file an accounting.
Attorney Hutton refused to produce an accounting and resigned his
guardianship. As Hutton had custody of all the financial records
of the estate, Hope Sherman was directed to obtain and did obtain
from Fleet Bank microfiche copies of the checks that had been
drawn on Sherman’s estate. The microfiche checks showed
embezzlement by Hutton and his associate Hickey of over One
Hundred Thousand Dollars ($112,000.00) of Sherman’s money.
Hutton and Hickey’s embezzlement of Sherman’s estate funds
was reported to the Attorney General’s office. As Hutton and
Hickey were attorneys, Chief Disciplinary Counsel (now United
States District Court Judge) Lisi began her investigation.
On July 17, 1991 Chief Disciplinary Counsel filed a petition
for the interim suspension of Attorney Hutton from the practice
of law. She also filed a petition for the suspension of Hickey
from the practice of law. Attorney Hutton was interviewed by
Disciplinary Counsel and by the Attorney General’s Office, and,
facing disciplinary proceedings and criminal charges, Hutton
alleged that he and Judge Almeida had a corrupt relationship in
the Sherman case as well as in other cases in which Hutton had
been appointed by Judge Almeida as a receiver.
As part of a deal between Attorney Hutton and the Attorney
General, and at the direction of the Attorney General, on Sunday,
July 21, 1991 Attorney Hutton wore a wiretap and, through pre-
arrangement, met with Judge Almeida for breakfast at “Everybody’s
Favorite Restaurant” in Cumberland, Rhode Island. Prior to the
meeting Attorney Hutton was given a sealed envelope containing
fifteen one hundred dollar bills. Prior to sealing the envelope,
the Attorney General’s Office recorded the serial numbers and
treated the bills with materials which would leave a detectable
residue if the treated bills were handled. At the breakfast
meeting Judge Almeida’s conversation with Attorney Hutton was
electronically monitored and recorded. At the time of Judge
Almeida’s arrest shortly after this meeting, Judge Almeida had
the $1,500 in treated money that Attorney Hutton had given him at
the breakfast meeting in his pants pocket. Judge Almeida’s
conversation with Attorney Hutton regarding the purpose of the
receipt of this money was audio taped. Upon leaving the
restaurant, Judge Almeida was arrested, and on the same day Judge
Almeida was arraigned at an unusual Sunday afternoon session of
the Superior Court.
The next day, July 22, 1991 Attorney Hutton was suspended
from the practice of law by Order of the Rhode Island Supreme
Court. Attorney Hickey was also suspended from the practice of
law.
On July 23, 1991 the Probate Court of the City of
Providence, Sciarretta, Probate Judge, found that Attorney
Hutton had breached his fiduciary duties to Paul K. Sherman and
Hutton was removed as Sherman’s guardian.
On August 2, 1991, the Commission on Judicial Tenure and
Discipline prepared and submitted to the Rhode Island Supreme
Court its preliminary investigation report regarding Judge
Almeida. In December, 1991 the Commission on Judicial Tenure and
Discipline found as fact that Judge Almeida had engaged in
dishonorable service, including the receipt of a bribe in the
Paul K. Sherman case, and issued its recommendation that Judge
Almeida be removed from office and that his pension payments be
terminated retroactive to the date of his retirement.
On November 18, 1991 the Statewide Grand Jury of the State
of Rhode Island, issued an eight count indictment against Antonio
S. Almeida. Count One charged that:
ANTONIO S. ALMEIDA, of Providence County, while
employed by the State of Rhode Island as a public
official in the capacity of Associate Justice of the
Superior Court of the State of Rhode Island, on diverse
days and dates between and including March 13, 1988 and
November 10, 1988, the exact days and dates unknown to
the grand jurors, at Providence, in Providence County
and elsewhere, did corruptly obtain for himself from
Thomas C. Hutton ... valuable consideration, to wit,
United States currency totaling $18,000, more or less,
as a reward for having done an act in relation to the
business of the State of Rhode Island, to wit, ruling
on matters in the case of Paul K. Sherman v. State of
Rhode Island, C.A. 83-2729 (P.M. 83-2092, C.A. 87-
2264), and for showing favor to Thomas Hutton and to
the party1 represented by Thomas C. Hutton in the
Sherman case, in violation of §§11-7-32 and 11-7-5 of
the General Laws of Rhode Island, 1956, as amended
(Reenactment of 1981).[Appendix Exhibit 2].
On February 27, 1992 Sherman filed this civil lawsuit
against Judge Almeida. Count 3 alleges that Justice Almeida, in
his official capacity as a Justice of the Superior Court of the
State of Rhode Island, sold a judicial opinion in violation of
Article 1, Section 5 of the Rhode Island Constitution. Count 3
of Sherman’s civil action seeks restitution and punitive damages
against Almeida in his official capacity.
On April 6, 1992, the Rhode Island Supreme Court issued an
order accepting the findings and recommendations of the
Commission terminating petitioner's pension rights and benefits
as of that date, with an opinion to follow.
On May 7, 1992 Attorney Hutton pled nolo contendere to
charges that he had embezzled money from the Estate of Paul K.
Sherman, and was sentenced to prison.
On May 18, 1992 Almeida appeared with his counsel before
Justice Darigan and pled guilty to the eight counts as charged
in the indictment and the Court having asked the defendant
whether he had anything to say why judgment should not be
pronounced, and no sufficient cause to the contrary having been
shown or appearing to the Court, it was ADJUDGED that Antonio S.
Almeida was guilty as charged and Almeida was convicted. Almeida
was sentenced to prison. [Appendix Exhibit 3].
On November 26, 1997 the Superior Court, Justice Judith C.
Savage presiding, granted Judge Almeida’s 12(b)(6) motion to
dismiss. The Superior Court summarily dismissed Sherman’s claim
on the ground that Article 1, Section 5 of the Rhode Island
Constitution does not by its terms create a private right of
action by a litigant against a judge in his official capacity who
allegedly sells justice nor does it provide for a civil damages
remedy in that instance. [Appendix Exhibit 1]. Sherman appeals to
this Court because he contends that the decision of the Superior
Court misconstrues the fundamental purpose and operative effect
of Article 1, Section 5 of the Rhode Island Constitution. III.
SUMMARY OF ARGUMENT
A judge who, in his official capacity, violates Article 1,
Section 5 of the Rhode Island Constitution by selling a judicial
opinion should be liable to the injured party in a civil action
for damages. A judge who is in fact guilty of using his powers
for a personal motive not connected with the public good should
not escape liability for injuries he so caused. Requiring that a
plaintiff prove that the judge sued has been convicted of bribery
and removed from office for soliciting or accepting bribes will
confine the abrogation of judicial immunity to judges who
actually sell justice. To deny a disabled man a remedy against a
judge who corruptly took a portion of the money a jury awarded
for the purpose of providing medical care and durable medical
equipment that would alleviate the pain and suffering of this
man is monstrous, and should not be countenanced by this Supreme
Court.
Ironically, the Superior Court’s ruling also threatens the
independence of the judiciary, (the very value which the Superior
Court says it is seeking to preserve), by undermining public
confidence in the integrity of the judiciary.
IV. STANDARD OF REVIEW
The standard of review on appeal from a trial court granting
a 12(b)(6) motion for failure to state a claim is to test the
sufficiency of the complaint by assuming that all the factual
allegations are true and by resolving any legal doubts in favor
of the plaintiff. Rhode Island Affiliate, ACLU v. Bernasconi,
557 A.2d 1232, 1232 (R.I.1989); Bragg v. Warwick Shoppers World,
Inc., 102 R.I. 8, 227 A.2d 582 (1967) quoting Garcia v. Hilton
Hotels International, Inc., D.C., 97 F.Supp. 5, 8. See also,
Brough v. Foley, 572 A.2d 63 (R.I. 1990); Gagnon v. State, 570
A.2d 656, 657 (R.I. 1990); Thompson v. Thompson, 495 A.2d 678
(R.I. 1988); Mesolella v. City of Providence, 508 A.2d 661 (R.I.
1986); Amaral v. Cabral, 494 A.2d 94 (R.I. 1985); Vigue v. John
E. Fogarty Memorial Hosp., 481 A.2d 1 (R.I. 1984); Salvadore v.
Major Elec. & Supply, Inc., 469 A. 353 (R.I. 1983). Generally,
dismissal of a civil complaint under Rule 12(b)(6) is proper only
if it "appears beyond a reasonable doubt that a plaintiff would
not be entitled to relief under any conceivable set of facts."
Id., 557 A.2d at 1232 (quoting, City of Warwick v. Aptt, 497 A.2d
721, 723 (R.I.1985). In Count 3 of Sherman’s complaint it was
alleged that Almeida’s receipt of money from Sherman’s judgment
proceeds for the issuance of a judicial opinion was a corrupt
sale of justice. The issuance of this decision was also alleged
to be an act performed within Almeida’s official capacity as a
Superior Court Justice, and it was further alleged that Almeida,
in his official capacity, had jurisdiction over the post-judgment
motion he corruptly decided.
V. ARGUMENT
A. A judge who, in his official capacity, violates Article 1,
Section 5 of the Rhode Island Constitution by selling a
judicial opinion should be liable to the injured party in a
civil action for damages.
1. Selling a judicial opinion violates Article 1, Section
5 of the Constitution.
The second sentence of Article 1, Section 5 of the Rhode
Island Constitution provides a right to justice:
Right to justice ... Every person ought to obtain
right and justice freely, and without purchase,
completely and without denial; promptly and without
delay; conformably to the laws.
Every Rhode Island judge who has construed the “right to justice”
provision of Article 1, Section 5 of the Rhode Island
Constitution has agreed that, at a minimum, it guarantees every
person in this state a right to obtain justice freely, and
without purchase.
The right to justice established in Article 1, Section 5
derives from Magna Charta. In 1215 A.D. civilization
established its first constitutional form of government. In the
Great Charter a fundamental legal principle was established:
"nulli vendemus, nulli negabimus, aut differemus rectum aut
justiciam3,” there shall be right and justice without sale,
denial or delay. Mag. Char. Joh. chapt. 40 (1215); Mag. Char.
Hen.3, chapt. 29 (1225).
This principle is widely incorporated into the declaration
of rights provisions of state constitutions. Alabama Const. Art
1, § 13; Arkansas Const. Art. 2, § 13; Colorado Const. Art. 2,
§ 6; Connecticut Const. Art. 1, § 10; Delaware Const. Art. 1, §
9; Idaho Const. Art. 1, § 18; Illinois Const. Art. 1, § 12;
Indiana Const. Art. 1, § 12; Kansas Const., Bill of Rights, §
18; Kentucky Const., Bill of Rights, § 14; Louisiana Const.
Art. 1, § 22; Maine Const. Art. 1, § 19; Maryland Const.,
Declaration of Rights, § 19; Massachusetts Const., Declaration
of Rights, § 11; Minnesota Const. Art. 1, § 8; Mississippi
Const. Art. 3, § 24; Missouri Const. Art. 1, § 14; Montana
Const. Art. 2, § 16; Nebraska Const. Art. 1, § 13; New
Hampshire Const. Art. 1, § 14; North Carolina Const. Art. 1, §
18; Ohio Const. Art. 1, § 16; Oklahoma Const. Art. 2, § 6;
Oregon Const. Art. 1, § 10; Pennsylvania Const. Art. 1, § 11;
South Dakota Const. Art. 6, § 20; Tennessee Const. Art. 1, § 17;
Texas Const. Art. 1 § 17; Utah Const. Art. 1, § 11; Vermont
Const. Art. 1, § 4; West Virginia Const. Art. 3, § 17;
Wisconsin Const. Art. 1, § 9; Wyoming Const. Art. 1, § 8.
The right to justice in Rhode Island precedes the Rhode
Island Constitution, and precedes Rhode Island’s ratification of
the United States Constitution. In Rhode Island's Convention,
held between May 24, 1790 and May 29, 1790, ratifying the United
States Constitution, the Convention declared certain rights that
could not be "abridged or violated" and declared their
"impression" that said rights were "consistent with the
Constitution." Among the rights declared at this Convention was
the following:
"That every freeman ought to obtain right and justice,
freely and without sale, completely and without denial,
promptly and without delay; and that all establishments
or regulations contravening these rights are oppressive
and unjust."
1 Eliot's Debates 334-37, Debates in the Several State
Conventions on the Adoption of the Federal Constitution (J. Eliot
ed. 1836), Volume 1 at 334-37. Therefore, as early as 1790 Rhode
Island had declared that every freeman enjoyed the right to
justice without sale, and that all laws contravening this right
were oppressive and unjust. Rhode Islanders conditioned their
ratification of the United States Constitution on, inter alia,
this understanding. As such, the right to justice without sale
appears to be one of the "other rights" retained by the people
and is affirmatively protected by the Ninth Amendment to the
United States Constitution. If so, the federal government is
without power to contravene this right.
A thorough explanation of the second sentence of Article 1,
Section 5 of the Rhode Island Constitution is found in Perce v.
Hallett, 13 R.I. 365 (1881). In that case Durfee, C.J. upheld a
dismissal of an action for nonpayment of the entry fee prescribed
by statute. Chief Justice Durfee described the purpose of this
provision in chapter 40 of the Magna Charta:
"The better opinion is that it was designed to abolish,
not fixed fees, prescribed for the purpose of revenue,
but fines which were anciently paid to expedite or
delay law proceedings and procure favor. See Thompson's
Essay on the Magna Charta, p.230. The character of
those fines is copiously exemplified by Madox in the
twelfth chapter of his History of the Exchequer. They
appear to have been arbitrary exactions, often
outrageously oppressive. Madox concludes his twelfth
chapter with the following language: 'Some men used to
pay fines to have to obtain justice or right; others,
to have their right or their legal proceedings or
judgment speeded; others, for stopping or delaying the
proceedings at law; and others were obliged to pay
great and excessive fines (viz., a fourth part, a third
part, or half of the debt sued for) to obtain justice
and right, according to their several cases, so that
the king seemed to sell justice and right to some and
delay or deny it to others. Against these mischiefs a
remedy was provided by a clause in the great charters
of liberties, made by King John and King Henry III.
That clause in each of those charters runs in the same
or consonant words, which are these: Nulli vendemus,
nulli negabimus, aut differemus rectum aut justiciam.'
Mag. Char. Joh. 40; Char. Hen. III. 33 (sic.)"
Perce v. Hallett, supra, 13 R.I. at 365. After reviewing the
historical purpose of this provision, Perce analyzed legislative
practice and held: "[W]e think the legitimate conclusion is, that
the declaration of the Constitution was intended to prohibit ...
gratuities, or exactions, given or demanded for the direct
purpose of influencing the course of legal proceedings." Id. at
365.
Perce is the law. For over a century since its issuance the
Rhode Island Supreme Court has repeatedly held that the purpose
of the second sentence of Article 1, Section 5 of the Rhode
Island Constitution is to prohibit gratuities or exactions given
or demanded for the direct purpose of influencing the course of
legal proceedings. It has been so held in cases regarding the
right of poor litigants to proceed in forma pauperis.
Littlefield v. Peckham, 1 R.I. 500 (1851); Hudson v. Geary, 4
R.I. 485 (1857); Conley v. Woonsocket Inst. for Sav., 11 R.I.
147 (1874) ("To require security for costs is not a purchasing of
justice"); Spalding v. Bainbridge, 12 R.I. 244 (1878); Perce v.
Hallett, 41 R.I. at 365 (1881)("[T]he declaration of the
Constitution was intended to prohibit... gratuities, or
exactions, given or demanded for the direct purpose of
influencing the course of legal proceedings."); Lewis v. Smith,
21 R.I. 324, 43 A. 542 (1899); Joslin Mfg. Co. v. Clarke, 41
R.I. 350, 103 A. 935 (1918) ("...this section is intended to
prohibit the exactions of money from litigants for the granting
of justice"); Narragansett Elec. Lighting Co. v. Sabre, 50 R.I.
288, 146 A. 777, 66 A.L.R. 1553 (1929); Jones v. Aciz, 109 R.I.
612, 289 A.2d 44 (1972), appeal dismissed, 409 U.S. 1094, 93
S.Ct. 704, 34 L.Ed.2d 678 (1972). It has been so held in cases
in which other purposes for Article 1, Section 5 have been
discerned. Lemoine v. Martineau, 342 A.2d 616 (1975) (“[O]ne of
the purposes of this constitutional mandate [R.I. Const. art I, §
5] was to prevent the sovereign from selling justice ...”);
Kennedy v. Cumberland Engineering Co., Inc., 471 A.2d 195 (1984)
(Murray, J. dissenting) ("Historically, art. I, sec 5's
'purchase' clause was borrowed directly from the Magna Charta and
'was designed to abolish, not fixed fees, prescribed for the
purposes of revenue, but the fines which were anciently paid to
expedite or delay law proceedings and procure favor' Perce v.
Hallett, 13 R.I. 363, 364 (1881). In this sense, 'the king
seemed to sell justice and right to some and to delay or deny it
to others.'”).
While the Superior Court acknowledges that the purpose of
the second sentence of Article 1, Section 5 is to prohibit the
sale of right and justice, the Court fails to find that former
Justice Almeida violated Sherman’s right to justice without
purchase under Article 1, Section 5. Rather, the Court below
ruled that whatever the facts may be this provision of the
Constitution may not be enforced by a civil action for damages
by a litigant against a judge. Appellant disagrees with the
Superior Court’s refusal to acknowledge that former Judge
Almeida’s conduct violated Article 1, Section 5 of the
Constitution. Because the Superior Court never acknowledged that
the constitution was violated, it never balanced the
plaintiff’s claim to justice without purchase against the
defendant’s claim of judicial immunity.
2. A lawsuit for damages may be brought under Article 1,
Section 5 of the Constitution because Article 1, Section 5 is
self-executing.
The Superior Court decision holds that: "Article 1, Section
5 does not by its terms create a private right of action by a
litigant against a judge in his official capacity who allegedly
sells justice nor does it provide for a civil damages remedy in
that instance." (Decision pp. 12-13). Appellant respectfully
disagrees.
First, Article 1, Section 5's right to justice without
purchase is enforceable by a civil action for damages. It is law
that even without a statute authorizing a private right of
action, a private right of action may arise directly from acts
violating a fundamental right secured by a constitution. Bivens
v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388, 29 L.Ed.2d 619, 91 S.Ct.1999 (1971). Bivens held that
a violation of the Fourth Amendment by federal agents acting
under color of their authority gave rise to a private right of
action for money damages:
"The question is merely whether petitioner, if he can
demonstrate an injury consequent upon the violation by
federal agents of his Fourth Amendment rights, is
entitled to redress his injury through a particular
remedial mechanism normally available in the federal
courts. Cf. J.I. Case Co. v. Borak, 377 U.S. 426, 433
(1964); Jacobs v. United States, 290 U.S. 13, 16
(1933). 'The very essence of civil liberty certainly
consists in the right of every individual to claim the
protection of the laws whenever he receives an injury.'
Marbury v. Madison, 1 Cranch 137, 163 (1803). Having
concluded that petitioner's complaint states a cause of
action under the Fourth Amendment, we hold that
petitioner is entitled to recover money damages for any
injuries he has suffered as a result of the agents'
violation of the Amendment."
403 U.S. at 397.4 According to the United State Supreme Court,
from Chief Justice Marshal in 1803 through Bivens, in 1971 to
deny an individual a remedy consequent upon a violation of his
constitutional rights would be to deny that individual "the very
essence of civil liberty." 403 U.S. at 397.
However, before permitting a private right of action under
the Rhode Island Constitution, this Court has recently held that
it must first be determined whether the Constitutional provision
is self-executing. Bandoni v. State, 715 A.2d 580 (R.I. 1998).
In Bandoni this Court adopted the standard enunciated by the
United States Supreme Court in Davis v. Burke, 179 U.S. 399, 403,
21 S.Ct. 210, 212, 45 L.Ed. 249, 251 (1900): does the
constitutional provision supply “a sufficient rule by means of
which the right given may be enjoyed and protected, or the duty
imposed enforced * * * [or does] it merely indicate[] principles,
without laying down rules by which those principles may be given
the force of law.” Bandoni v. State, 715 A.2d at 587 citing
Davis, 179 U.S. 399, 403, 21 S.Ct. 210, 212, 45 L.Ed. 249, 251
(1900). Bandoni further held that the standards enunciated by
the Vermont Supreme Court in Shields v. Gerhart, 658 A.2d 924,
928 were helpful as guidelines in analyzing whether a
constitutional provision was self-executing:
First, a self-executing provision should do more than
express only general principles; it may describe the
right in detail, including the means for its enjoyment
and protection. * * * [S]econd, ordinarily a
self-executing provision does not contain a directive
to the legislature for further action. * * * [T]hird,
the legislative history may be particularly informative
as to the provision's intended operation. * * *
Finally, a decision for or against self-execution must
harmonize with the scheme of rights established in the
constitution as a whole." Shields, 658 A.2d at 928
(citing Convention Center Referendum Committee v.
Board of Elections and Ethics, 399 A.2d 550, 552 (D.C.
Ct. App.1979)). (Emphasis added).
Bandoni v. State, 715 A.2d at 587 (R.I. 1998).
a. The First Criterion
i. The right to justice without purchase is
described in detail.
Bandoni’s first criterion is: “a self-executing provision
should do more than express only general principles; it may
describe the right in detail, including the means for its
enjoyment and protection.” Article 1, Section 5 meets Bandoni’s
first criterion: there is a description of the right, and there
is included within Article 1, Section 5 the means for its
enjoyment and protection. As has earlier been shown in the
opinion of Chief Judge Durfee in Perce there is a Constitutional
right to justice without purchase. This is not an abstract
right, or a right based upon general principles. Rhode Islanders
enjoy the right not to be asked or compelled to pay for justice.
Article 1, Section 5 of the Rhode Island Constitution protects
citizens from having to pay state officials for justice, just as
surely as the Fourth Amendment to United States Constitution
protects citizens from unauthorized searches and seizures.
Moreover, Sherman’s right not to have a judge take a portion of
the money a jury awarded him, is as clear and as fundamental as
Bivens’ right not to have FBI agents search his home without a
warrant5. The right to justice without purchase is a “concrete”
right. Indeed, the trial court holds that Article 1, Section 5's
right to justice without purchase is a clear mandate: “[the
language of Article 1, Section 5 clearly mandates that every
person should be able to procure justice without purchase – a
fundamental principle of our judicial system with which,
obviously, there can be no quarrel.” [Appendix, Exhibit 1, p.
14].
ii. A person denied his right to justice without
purchase ought to have a remedy.
To be self-executing, not only must there be an actual right
in issue, but the Constitutional provision should provide the
means for its enforcement and enjoyment. The Court, in Bandoni,
analyzed whether the framers of the victims’ rights amendment
expressly provided a cause of action for damages.6 In Bandoni
the Court concluded that the deletion of a sentence expressly
providing that crime victims “shall have recourse in the laws”
and the insertion in its place of the clause “such other
compensation as the state may provide” was the substantive
amendment that proved that the framers of the victims’ rights
amendment had considered a private right of action as an
enforcement mechanism and that the Committee on Style and
Drafting had specifically rejected it.7 Unlike Article 1,
Section 23, interpreted in Bandoni, Article 1, Section 5
specifically provides that there shall be a a remedy for wrongs
suffered, and that remedy shall be by recourse to the laws. The
first sentence of Article 1, Section 5 states:
“Entitlement to remedies for injuries and wrongs ... –
Every person within this state ought to find a certain
remedy, by having recourse to the laws, for all
injuries or wrongs which may be received in one’s
person, property or character.”
This right to a remedy by recourse to the laws contained within
Article 1, Section 5 is an express constitutional private right
of action. 'The very essence of civil liberty certainly consists
in the right of every individual to claim the protection of the
laws whenever he receives an injury.' Marbury v. Madison, 1
Cranch 137, 163 (1803). Sherman has a Constitutional right to a
remedy for all injuries and wrongs committed against him by
Almeida, in his official capacity, and the means provided for
Sherman’s enjoyment of this right is specified in Article 1,
Section 5 as by having recourse to the laws.
b. The Second Criterion - The General Assembly
has no express mandate to implement the right to
justice without purchase.
Bandoni states that the lack of an express mandate directing
the General Assembly to implement the right, ordinarily tips the
scales in favor of a conclusion that the constitutional right is
self-executing. Whereas Article 1, Section 5 of the Rhode
Island Constitution lacks an express mandate that the General
Assembly implement this right, the second criterion also supports
the conclusion that this provision is self-executing.
c. The Third Criterion - As in Bivens the
legislative history is silent on the issue of
private right of action.
In Bandoni there was legislative history for the Court to
review to assess the intent of the framers of Article 1, Section
23, the victims’ rights amendment. Article 1, Section 5 was
adopted at the time of our original Constitution as one of the
fundamental rights of Rhode Islanders, and appellant knows of no
specific discussion regarding whether the General Assembly should
be given exclusive authority to provide remedies for the
violation of this right. As such, legislative history is absent,
and the analysis is more akin to the problem the United States
Supreme Court faced in Bivens.
d. The Fourth Criterion
As the first three criteria lead to the conclusion that
Article 1, Section 5 is self-executing, Bandoni requires that
this conclusion then be analyzed to determine if it “harmonize[s]
with the scheme of rights established in the constitution as a
whole.8" Bandoni v. State, 715 A.2d at 587 (R.I. 1998), citing,
Shields, 658 A.2d at 928. The Superior Court denied Sherman his
constitutional right to sue Almeida for damages because it found
the remedy of damages against Judge Almeida in his official
capacity to be unnecessary and inappropriate. The Superior Court
held that a damage action against Judge Almeida is unnecessary
because other remedies are available to Sherman, and the Court
also found the claim to be inappropriate because, in the Court’s
view, it undermined judicial independence. Sherman respectfully
disagrees. Sherman needs a damage claim against Judge Almeida
to vindicate his rights: there is no other meaningful remedy. In
this case, a damage claim against a judge in his official
capacity is also entirely appropriate because Judge Almeida was
actually guilty of selling a judicial opinion. In this case
abrogation of judicial immunity is appropriate because it is
Judge Almeida’s conduct, not Sherman’s conduct, that poses the
real threat to judicial independence. Sherman’s damage claim
against a corrupt Judge harmonizes with the scheme of rights
established in the constitution as a whole, because it provides a
needed remedy to vindicate an individual’s constitutional rights,
while to serves to promote public confidence in the judiciary by
showing that the judiciary will allow no man to place himself
above and beyond the remedies provided for by law.
i. Sherman has no other meaningful remedy.
The Superior Court finds a damage action unnecessary because
it holds that Sherman has other remedies under Article 1, Section
5. The Superior Court’s search for remedies other than money
damages which may be available to secure the right to justice
without purchase is in accord with Bandoni which held the
conclusion that a right secured by our Constitution is self-
executing, in itself, “would not necessarily support a claim
for damages.” Bandoni, 715 A.2d at 594. According to Bandoni
Article 1, Section 5, only forbids the total denial of access to
the courts for the adjudication of a recognized claim. See, e.g.,
Kennedy v. Cumberland Engineering Co., 471 A.2d 195, 200
(R.I.1984)(statute requiring personal-injury claim to be
commenced within ten years of the date product was first
purchased, regardless of the date of injury, completely denied
the plaintiff access to court). See Figueroa v. State, 61 Haw.
369, 604 P.2d 1198, 1206 (1979); Brown v. State, 89 N.Y.2d 172,
652 N.Y.S.2d 223, 674 N.E.2d 1129, 1138 (1996); Shields, 658
A.2d at 930. See also Jennifer Friesen, State Constitutional
Law: Litigating Individual Rights, Claims, and Defenses, §
7.05[1], at 7-14 (1995) (court may provide injunctive or
declaratory relief, as opposed to the specific remedy of
damages).
First, courts have held that a damage action may be a
necessary and appropriate means to vindicate the right to justice
without purchase provision of a state constitution. Courts
construing provisions in their state constitutions similar to
Article 1, Section 5 of the Rhode Island Constitution recognize
that these cases frequently involve flagrant abuses of official
power, and that the remedy of money damages is both necessary and
appropriate to prevent fraud. An Illinois appellate court has
addressed this precise issue in a case arising out of the bribery
of a United States Circuit Court Judge. Skelly Oil Company v.
Universal Oil Products Company, 338 Ill. App. 79 (1949)
(Feinberg, P.J.). Defendant Universal Oil Products ["Universal"]
bribed a United States Circuit Court Judge to obtain a favorable
judgment in a patent infringement suit. Universal then set up
the corrupt opinion and judgment as res judicata in a series of
other patent infringement suits. Skelly Oil Company, one of the
victims of this corrupt scheme, sued Universal for litigation
costs expended in defending against Universal's claim of res
judicata and for exemplary damages. In refusing to dismiss the
complaint on defendant's theory that no cognizable claim was
stated under law against Universal the appellate panel in Skelly
Oil Company based its legal analysis on Article II, § 19 of the
Illinois State Constitution of 1870, a provision virtually
identical to Article 1, Section 5 of Rhode Island's Constitution.
Skelly Oil Company relied on the "shocking" and "unprecedented
type of fraud" to conclude that the "situation demands a remedy."
The court held that the right to justice without purchase
provision in its state constitution is self-executing and
supports a claim for damages:
The designation of the action is of no moment. If the
facts, as set up in the instant complaint, disclose the
unprecedented type of fraud we are dealing with, then
the situation demands a remedy. The framers of the
State Constitution of 1870, Article II, §19, wisely
inserted this provision:
'Every person ought to find a certain remedy in the
laws for all injuries and wrongs which he may receive
in his person, property or reputation; he ought to
obtain, by law, right and justice freely, and without
being obliged to purchase it, completely and without
denial, promptly and without delay.'
This is a clear mandate to the courts, that wherever
the legislature has failed to provide a remedy the
courts must. This constitutional protection should be
here invoked, especially when the legislature has not
provided a remedy. Courts should not be helpless to
find a remedy for a fraud of the instant type. If the
statute fails to provide a remedy, the court can, as it
has in many instances under the common law and
equitable principles. In the cases of fraud and deceit
the remedy is generally provided for by the courts, not
by statute. It is perfectly clear that the
Constitution had not in mind only remedies created by
legislative enactment..."
Id., at 84-85. In allowing plaintiff to proceed with it’s damage
action, Skelly also held that: "courts of justice had better be
abolished if they can afford no redress in such situations." Id,
at 92 citing Spaids v. Barrett, 57 Ill. 289.
Similarly, a North Carolina appellate court, interpreting
the “right to justice” provision of that state's constitution,
Article 1, Section 18, held that a person who commits an act of
embracery is liable to the one damaged thereby. Employers Ins.
of Wausau v. Hall, 270 S.E.2d 617 (1980), cert. denied, 276
S.E.2d 283 (1981). An attorney, who was representing a plaintiff
in a tort claim against a hospital, personally contacted a juror
and attempted to influence her verdict. Thereafter, the attorney
pled guilty to the common law felony of embracery and was
sentenced to prison. His law license was subsequently suspended.
The insurance company which paid for the hospital's defense in
the tort claim brought suit against the attorney to recover its
costs. The Court found that this constitutional provision
provided a money damages remedy to one harmed by embracery.
Fraud upon litigants, upon the Courts and upon the
Constitution are matters serious enough that both equitable and
legal remedies may be necessary and proper. In Matter of
Almeida, 611 A.2d 1375 (R.I. 1992) the Court found it necessary
and appropriate to analyze a broad array of remedies to
vindicate the public’s interest when Judge Almeida committed a
fraud upon our Courts. Both equitable and legal remedies should
be considered because the offense of selling justice undermines
the constitutional basis of judicial power: "It is our clear
duty, however, to ensure that no judge attempts to put himself
above the law. Judicial power has its limits. A judge who
transcends those limits strikes at the vitality of the very
constitution under which he holds his judicial office." In re
Benoit, 487 A.2d at 1162.” Matter of Almeida, 611 A.2d at 1382.
Similarly, a broad array of remedies should be available to a
litigant when a Judge has committed fraud upon the litigant by
exacting money from his jury award. Regarding violations of
Article 1, Section 5 the Superior Court said: “Obviously, the
aggrieved person should be able to set aside any judgment or
order obtained by the unauthorized purchase or sale of justice,
on appeal or otherwise. See Bradley v. Fisher, 80 U.S. 646, 651
(1872).” [Appendix, Exhibit 1, p. 14]. That is precisely true
and it is what Sherman attempted to do. Upon learning of
Almeida’s corrupt decision and his corrupt disbursements from the
jury verdict, Sherman, over one year before filing this damage
action, filed a petition in equity in the Rhode Island Supreme
Court seeking to set aside the judgment obtained by the
unauthorized purchase of justice. Estate of Sherman v. Almeida
610 A.2d 104 (R.I. 1992). In that case, the Rhode Island
Supreme Court ruled that if fraud had been committed by Judge
Almeida upon Sherman and upon the Courts, the corrupt judgment
issued by Almeida must be set aside for fraud, and the Court,
considering the matter factually premature, remanded the equity
petition for further proceedings consistent with its opinion.
The Estate of Sherman v. Almeida 610 A.2d 104 (1992); See also,
Hazel-Atlas Glass Co. v. Hartford Empire Co., 322 US 238, 64 S
Ct 997, 88 L Ed 1250 (1944) reh den 322 US 772, 64 S Ct 1281, 88
L Ed 1596 (1944). Fraud, once disclosed, “demands the exercise
of the historic power of equity to set aside fraudulently
begotten judgments.”9 Hazel-Atlas Glass Co., 322 U.S. at 245.
But, the fact that Sherman may have an equitable remedy
should not exclude a damage remedy against Judge Almeida for the
violation of his constitutional right to justice without
purchase. Moreover, in this particular bribery situation, the
equitable relief afforded through setting aside the judgment is
inadequate because the bribe was paid using money belonging to
the victim of the bribery scheme. Equitable relief is
inadequate because it will not help Sherman get back from Judge
Almeida the money Judge Almeida exacted from Sherman’s jury
award. Basic principles of restitution require that Judge
Almeida pay back the Eighteen Thousand Dollars ($18,000.00), more
or less, that he took. After all, the money the jury awarded
was supposed to be used by Sherman, not by Almeida. Moreover,
equitable relief would not provide Sherman with the opportunity
to ask a jury to award him punitive damages against former Judge
Almeida. Sherman’s claim against Almeida is much like Bivens’
claim against the unknown named agents of the Federal Bureau of
Narcotics: “[i]t is apparent that damages in some form is the
only possible remedy for someone in Bivens’ alleged position.”
Bivens, supra, 403 U.S. at 409-10 (Harlan, J. concurring)
The Superior Court also indicates that Sherman need not sue
Judge Almeida under Article 1, Section 5 because this provision
provides Sherman with the remedy of money damages against “non-
judicial actors.” [Appendix, Exhibit 1, p. 14]. Appellant
disagrees because a remedy under Article 1, Section 5 against non-
judicial actors should not exclude the possibility of a remedy
against judicial actors. It is imperative that anyone who
commits a fraud upon our courts by selling justice, whether the
wrongdoer be a litigant, an attorney, a juror, or a judge, be
accountable to the injured party in damages. While Sherman
should also be able to, and indeed has, sued the attorneys who
participated with Judge Almeida in the fraud, it does not follow
that Article 1, Section 5 is limited to actions against non-
judicial actors. Moreover, while Sherman can sue the attorneys
for the money they corruptly took from Sherman’s judgment
proceeds, he cannot sue these attorneys for the money Judge
Almeida corruptly took from Sherman’s judgment proceeds.10 Suing
the “non judicial actors” does not vindicate Sherman’s
constitutional rights with respect to the judicial actor who took
his money, and the remedy the Superior Court offers is inadequate
because it does not address the wrong Sherman suffered.
Moreover, the plain language of Article 1, Section 5 states that
when justice is sold in the State of Rhode Island a person ought
to find a remedy for all injuries and wrongs he suffers as a
result of this violation of his constitutional rights, and not
just for injuries and wrongs committed by “non-judicial actors.”
The Superior Court also asserts that Sherman need not sue
Judge Almeida in his official capacity for damages because
Sherman may have a remedy against Judge Almeida “for any action
taken by him with regard to the purchase and sale of justice that
was not taken in his official capacity.” [Appendix, Exhibit 1, p.
14]. On this issue the Superior Court is incorrect because the
facts in this case show that Judge Almeida’s corrupt issuance of
a judicial opinion was committed in his official capacity as a
Judge.
The Rhode Island Supreme Court has already found that the
corrupt acts committed by Almeida were "integrally intertwined
with his judicial role:"
The petitioner (Judge Almeida) admittedly committed
acts violative of these high ethical standards when
serving as a justice of the Superior Court, abusing his
position as a judge and betraying the confidence of
both the public and the profession by acting
unethically in the interest of personal gain. The acts
committed by petitioner were grave indeed and
integrally intertwined with his judicial role. These
offenses, abusive of his position, were not single or
isolated but rather continued on a regular basis until
a complaint was ultimately filed and certain facts were
revealed. (emphasis supplied).
Matter of Almeida, 611 A.2d at 26. Almeida was corrupt in his
judicial capacity:
"By his judicial misconduct, petitioner has breached
the public trust by committing acts violative of his
honored position as a respected jurist. His actions
motivated by the desire for personal gain have operated
to harm public trust and confidence in the Judiciary as
a whole and to affect adversely the honor and integrity
of the very position he held and the capacity in which
he served. (emphasis supplied).
Id. at 27. In Count 3 Almeida is properly sued in the "capacity
in which he served," as a former Associate Justice of the
Superior Court.11.
The Superior Court, citing Pulliam v. Allen, 466 U.S. 522,
104 S.Ct. 1970 (1984) states that injunctive relief might be
available against Judge Almeida. However, an injunction is not a
remedy that was or is of realistic value to Sherman. Sherman was
in a persistent vegetative state at the time Judge Almeida issued
his decision corruptly dividing up the jury award between Sherman
and his attorney, Thomas Hutton. There was no realistic
possibility that Sherman could seek an injunction against Judge
Almeida because Almeida’s corrupt acts were done in secret. For
an injunction to be effective Sherman would have had to have
known that Judge Almeida was going to exact money from his jury
award prior to the issuance of Almeida’s corrupt decision12. An
injunction against Almeida does Sherman no good now because Judge
Almeida has already taken Sherman’s money, and has been convicted
of bribery and removed from his judicial office. Accordingly,
the damage to Sherman is already done, and there is no
continuing, ongoing wrong by former Judge Almeida against
Sherman. As Mr. Justice Harlan said regarding Bivens: “It would
be a rare case indeed in which an individual in Bivens’ situation
will be able to obviate the harm by securing injunctive relief
from any court.” Bivens, supra, 403 U.S. at 410 (Harlan, J.,
concurring). Moreover, requests for injunctive relief against
judges must be strictly scrutinized, as injunctions against
judges undermine judicial independence as surely as do damage
awards. See Joseph R. Weisberger, The Twilight of Judicial
Independence - Pulliam v. Allen, 19 Suffolk U. L. REV. 537
(1985).
The Superior Court also states that Article 1, Section 5 of
the Constitution could give rise to the removal or suspension of
a Judge who violates its provisions, and that Judge Almeida may
have criminal responsibility or liability under the victims’
indemnity fund.13 [Appendix, Exhibit 1, p.14]. First, the right
to justice without purchase established in Article 1, Section 5
is not a criminal statute, it is a constitutional right of the
people. The remedy of removal or suspension of a judge is not an
individual right for which there is a private cause of action.
Removal and suspension of judges is entrusted exclusively to the
Rhode Island Supreme Court,14 and the Rhode Island Supreme Court
only makes such determinations after thorough investigation by
the Commission of Judicial Tenure and Discipline. See R.I. Gen.
Laws § 8-16-1 et. seq. The remedy of removal or suspension is
used for judges who violate the Canons of Judicial Ethics or who
commit crimes, and this remedy is not a part of enforcing an
individual’s constitutional right to justice without purchase.
In fact, the disciplinary proceedings against Almeida in the
Commission on Judicial Tenure and Discipline and in the Rhode
Island Supreme Court did not provide Sherman with a remedy for
the wrong Almeida committed against him. Sherman sought
restitution from Almeida in the disciplinary proceedings.
Sherman filed a petition to intervene in that disciplinary
proceeding both before the Commission and in this Court. By
Order dated January 9, 1992 the Rhode Island Supreme Court
rejected this petition stating simply: “After careful
consideration of the motion, we are of the opinion that the
Estate of Paul K. Sherman lacks standing to intervene as prayed.
Accordingly, the motion to intervene is denied.” [Appendix,
Exhibit 4].
ii Judicial immunity preserves judicial independence, and
judicial independence must be guarded jealously.
ii
Judicial immunity is a common law defense available to a
judge acting in his official capacity. Mireles v. Waco, 502 U.S.
9, 116 L.Ed 2d 9, 112 S.Ct 286 (1991); Forrester v. White, 484
U.S. 219, 98 L.Ed 2d 555, 108 S.Ct 538 (1988); Dennis v. Sparks,
449 U.S. 24, 66 L.Ed 2d 185, 101 S.Ct 183 (1980); Stump v.
Sparkman, 435 U.S. 349, 55 L.Ed 2d 331, 98 S.Ct 1099 (1978);
Pierson v. Ray, 386 U.S. 547, 18 L.Ed 2d 288, 87 S.Ct 1213
(1967). Not only is the doctrine of judicial immunity law in
Rhode Island, Calhoun v. City of Providence, 390 A.2d 350 (R.I.
1978); Cok v. Constentino, 876 F.2d 1 (1st Cir. 1989); Hurley v.
Fuyat, WL 930891 (R.I.Super. 1994), but it has recently been
stated that the “concept of judicial ... immunity remains alive
and well.” Bandoni, supra, 715 A.2d at 595. However, until the
decision of the Superior Court below, no Rhode Island Court had
ever extended the concept of judicial immunity to hold that it is
proper to apply the doctrine to a judge who has has pled guilty
to felony charges of solicitation of a bribe and has been
convicted of the offense.
The Superior Court's ruling is purportedly grounded on the
importance of judicial immunity in maintaining judicial
independence.15 The trial court states the importance of the
doctrine:
"As the U.S. Supreme Court observed in Pierson v. Ray,
when speaking of judicial immunity, 'the immunity is not for
the benefit of a malicious or corrupt judge, but for the
benefit of the public, whose interest it is that the judges
should be at liberty to exercise their functions with
independence and without fear of consequences. It is the
judges duty to decide all cases within his jurisdiction that
are brought before him, including controversial cases that
arouse the most intense feelings in the litigants. His
errors may be corrected on appeal, but he should not have to
fear that unsatisfied litigants may hound him with
litigation charging malice or corruption. Imposing such a
burden on judges would contribute not to fearless decision-
making but to intimidation.' 386 U.S. 547, 554. Such
judicial independence as recognized by the Rhode Island
Supreme Court in Calhoun v. City of Providence, 390 A.2d at
356, is at the very core of our judicial system and courts
have guarded it jealously. Stump v. Sparkman, 435 U.S. 349."
[Appendix, Exhibit 1, pp. 8-9]. The trial court is correct:
judicial immunity helps preserve judicial independence, judicial
independence is at the very core of our judicial system, and
courts have guarded it jealously. However, appellant cannot
believe that Rhode Island judges would fail to discharge their
duties faithfully and fearlessly should this Supreme Court rule
that a lawsuit may be brought against a judge who is actually
guilty of perverting his judicial power by selling a judicial
opinion. Chief Justice Cockburn long ago addressed this issue:
I cannot believe that judges ... would fail to
discharge their duty faithfully and fearlessly
according to their oaths and consciences ... from any
fear of exposing themselves to actions at law. I am
persuaded that the number of such actions would be
small and would be easily disposed of. While on the
other hand, I can easily conceive cases in which
judicial opportunity might be so perverted and abused
for the purpose of injustice as that, on sound
principles, the authors of such wrong ought to be
responsible to the parties wronged.”
Dawkins v. Lord Paulet, LR 5 QB 94, 110 (C.J. Cockburn,
dissenting), cited in, Pierson v. Ray, 386 U.S. at 566 (Douglas,
J., dissenting).
In his law review article Mr. Chief Justice Weisberger
explains the importance of the doctrine of judicial immunity in
part, by quoting from Mr. Justice Field in Bradley v. Fisher, 80
U.S. (13 Wall.) 335 (1871). In Bradley it is said that the
doctrine of judicial immunity is needed because it is easy for a
losing party, whose deepest feelings may have been excited by the
controversy, to ascribe improper motives on the part of the
judge:
Controversies involving not merely great pecuniary
interests, but the liberty and character of the
parties, and consequently exciting the deepest
feelings, are being constantly determined in [superior
courts], in which there is great conflict in evidence
and great doubt as to the law which should govern their
decisions. It is this class of cases which impose upon
the judge the severest labor, and often create in his
mind a painful sense of responsibility. Yet it is
precisely in this class of cases that the losing party
feels most keenly the decision against him, and most
readily accepts anything but the soundness of the
decision in explanation of the actions of the judge.
Just in proportion to the strength of his convictions
of the correctness of his own view of the case is he
apt to complain of the judgment against him, and from
complaints of the judgment to pass to the ascription of
improper motives to the judge ... If civil actions
could be maintained in such cases against the judge,
because the losing party should see fit to allege in
his complaint that the acts of the judge were done with
partiality, or maliciously, or corruptly, the
protection essential to judicial independence would be
entirely swept away. Few persons sufficiently
irritated to institute an action against a judge for
his judicial acts would hesitate to ascribe any
character to the acts which would be essential to the
maintenance of the action. Justice Field further
stated that if a judge could be compelled to answer in
a civil action for his judicial acts his office would
be degraded and his usefulness destroyed. [footnotes
omitted].
Joseph R. Weisberger, The Twilight of Judicial Independence -
Pulliam v. Allen, 19 Suffolk U. L. REV. at 541-542. It is for
these compelling reasons that the right to justice without
purchase secured by Article 1, Section 5 may be said to conflict
with the doctrine of judicial immunity. Accordingly, a lawsuit
for damages brought by a litigant against a judge under Article
1, Section 5 is, generally, not appropriate because it wrongfully
undermines judicial independence, and in such cases judicial
immunity should act as a complete bar.
But, what if a Judge stands up in the courtroom, pulls out a
firearm, and demands a litigant to turn over the cash in his
wallet? Would the Rhode Island Supreme Court say that such a
judge is protected by the doctrine of judicial immunity from a
civil action seeking to recover the cash stolen from the wallet?
In reality, Judge Almeida’s act of exacting money from Sherman’s
jury award is no different. Indeed, the amounts stolen from the
plaintiff were far greater than if Sherman were robbed of his
wallet16.
iii. When it is possible in practice to confine the
abrogation of judicial immunity to a complaint against
a judge who was actually guilty of bribery, it is
monstrous to deny recovery.
Rhode Island courts interpreting Article 1, Section 5 have
at times abrogated an immunity or other bar to a remedy, on other
occasions the immunity or bar has been preserved. Compare,
Lemoine v. Martineau, 342 A.2d 616 (R.I. 1975) and Kennedy v.
Cumberland Engineering Co., Inc., 471 A.2d 195 (R.I. 1984) to
Fournier v. Miriam Hospital, 175 A.2d 298 (R.I. 1961). This same
case by case review balancing the need for a remedy against the
public policy expressed in the immunity doctrine is, generally,
found in all states with similar constitutional provisions.
Appellant submits that a general rule that might be said to
harmonize the diverse holdings is that if there is injury courts
should attempt to provide a remedy unless strong arguments of
public policy justify legislative or judicially created immunity.
Cases demonstrating this principle include Lewis v. Lewis, 351
N.E.2d 526 (Mass. 1976) (Massachusetts Supreme Judicial Court
opinion abrogating common-law rule of interspousal immunity),
Mayle v. Pennsylvania Dept. of Hwys., 479 Pa. 384 (1978)
(Pennsylvania Supreme Court decision abrogating sovereign
immunity); Sax v. Vottelier, 648 S.W.2d 661 (Tex .1983) (Texas
Supreme Court opinion abrogating statute of limitations).
Sherman respectfully submits that a proper decision should
balance the worth of Almeida’s judicial immunity defense against
the worth of the constitutional right in issue. In this
balancing process the court should determine whether the doctrine
of judicial immunity should be applied, and whether the doctrine
could be tailored as the facts and natural equities of this
particular case demand. Kintz v. Harriger, 99 Ohio St. 240, 124
N.E. 168, 12 A.L.R. 1240 (1919) (abrogating common law immunity
granted individuals testifying before grand juries with respect
to an individual actually guilty of perjury).
When the immunity involves the independence of a state
official in the conduct of his official duties, when balancing
the harms, it has been thought in the end better to leave
unredressed the wrongs done by dishonest officers than to subject
those who do try to do their duty to the constant dread of
retaliation. But, this is only so because in most cases it is not
possible in practice to confine such complaints to the guilty.
Then Chief Judge of the Second Circuit, Learned Hand in Gregoire
v. Biddle, 177 F.2d 579 (2nd Cir.1949), states the rule:
It does indeed go without saying that an official, who
is in fact guilty of using his powers ... for any ...
personal motive not connected with the public good,
should not escape liability for the injuries he may so
cause; and if it were possible in practice to confine
such complaints to the guilty, it would be monstrous to
deny recovery. The justification for doing so is that
it is impossible to know whether the claim is well
founded until the case has been tried, and that to
submit all officials, the innocent as well as the
guilty, to the burden of a trial and to the inevitable
danger of its outcome, would dampen the ardor of all
but the most resolute, or the most irresponsible, in
the unflinching discharge of their duties.
Gregoire, 177 F.2d at 581.
According to Chief Judge Hand immunity should only be
abrogated when it is possible in practice to confine such
complaints to the guilty. In Sherman's original brief he argued:
"Many of the compelling reasons for judicial immunity become
significantly less compelling subsequent to a judge's removal
from office, indictment and criminal conviction." It is
possible in practice to confine lawsuits against judges to cases
where the judge is actually guilty of violating Article 1,
Section 5 of the Constitution. By requiring that a plaintiff be
required to prove that the judge sued has been disbarred, removed
from office, indicted, and criminally convicted for bribery, it
is possible to confine lawsuits against judges to lawsuits
against corrupt, guilty judges17. Such lawsuits would not have
improper motive because it is impossible to conceive that the
Attorney General, the Superior Court, the Commission on Judicial
Tenure and Discipline, and the Rhode Island Supreme Court would
all allow a judge to be disbarred, removed from office,
convicted of bribery, and sentenced to jail had that judge not
actually been guilty of corruption and bribery.
There is nothing novel about requiring that a civil action
for damages be contingent on the outcome of a criminal
proceeding. Malicious prosecution lawsuits are contingent on
proof that the criminal proceeding terminated in plaintiff’s
favor. Soares v. Ann & Hope of Rhode Island, Inc., 637 A.2d
339, 345 (R.I. 1994); Solitro v. Moffatt, 523 A.2d 858, 861-62
(R.I.1987); Nagy v. McBurney, 120 R.I. 925, 392 A.2d 365 (R.I.
1978). Similarly, the standard should be that no suit under
Article 1, Section 5 could be brought against a Rhode Island
judge absent proof that a criminal proceeding against that judge
terminated in an adjudication of guilt for bribery. This
standard is needed because to permit Judge Almeida to escape
liability, and to deny Sherman restitution and punitive damages
when it is possible in practice to confine the abrogation of
judicial immunity to a judge who is actually guilty of taking
money from the proceeds that a jury awarded this severely
disabled man would be monstrous.
In reviewing the case law in states with provisions similar
to Article 1, Section 5 of the Rhode Island Constitution, the one
case demonstrating an analysis closest to the one that plaintiff
believes should be applied by this Court in assessing the
legitimacy of defendant Almeida's judicial immunity defense is
Kintz v. Harriger, 99 Ohio St. 240, 124 N.E. 168, 12 A.L.R. 1240
(1919). In Kintz the Ohio Supreme Court resolved a conflict
between the constitutional right to a remedy for injury and the
common-law immunity afforded to grand jury testimony. Like
judicial immunity, the immunity afforded grand jury testimony was
steeped in history and judicial precedent and there was a
compelling purpose underlying the doctrine.
In Kintz the Ohio Supreme Court ruled that perjured
testimony given before a grand jury may be used as a basis for a
civil action in tort and is not privileged, that is, such
perjured testimony is not protected by public policy. The Ohio
Supreme Court in Kintz set forth the methodology of balancing the
right to remedy secured by their Constitution with the public
policy, expressed in common-law, of preserving the secrecy of
grand jury testimony. While noting that the weight of precedents
for a century or more undoubtedly held grand jury testimony to be
privileged, the Ohio Supreme Court held that the issue should be
resolved, not upon "mere precedent," but upon "fundamental facts
and primary principles." Id., 12 A.L.R. at 1241.
The Court in Kintz found that the primary principle was
enunciated in the language of § 16 of the Bill of Rights of the
Ohio Constitution of 1851, a provision similar to Article 1,
Section 5 of the Rhode Island Constitution. On the issue of
common-law immunity afforded to grand jury testimony the Court
said:
Precedents are valuable for information, admonition,
and as milestones in the nation's progress. But they do
not necessarily imply the last word of wisdom. They
are not always to be adopted. They are frequently to
be avoided. They are worth exactly what they weigh in
right and reason when applied to the particular
circumstances in each particular case. They must
always have due regard to the natural equities of each
special case.
Id., 12 A.L.R. at 1243. While Almeida has certainly provided
common-law precedent establishing the defense of judicial
immunity, the worth of this defense should be assessed in regard
to its right and reason when applied to the particular
circumstances of this case. Further, in deciding whether to
apply judicial immunity as a bar to Sherman's claim, this Court
should give due regard to the natural equities of the case.
In balancing a common law immunity against a right secured
by § 16 of the Ohio Bill of Rights, the Court stated:
Our written public policies are put into our
constitutions, our statutes, and ordinances, but our
unwritten public policies rest largely in judicial
judgment and public opinion. Manifestly, when the
Constitution of the state declares and defines certain
public policies, such policies must be paramount,
though a score of statutes conflict and a multitude of
judicial decisions be to the contrary. No general
assembly is above the plain potential provisions of the
Constitution, and no court, however sacred or powerful,
has the right to declare any public policy that clearly
contravenes or nullifies the rights declared in the
Constitution.
Id., 12 A.L.R. at 1244. The Constitutional prohibition against
the sale of justice is in our written Constitution and
maintenance and preservation of this right is the paramount
obligation of this Court. When Justice Almeida, acting in his
capacity as an Associate Justice of the Superior Court, sold a
judicial opinion, Almeida violated Paul K. Sherman's right to
justice without sale as secured by our written Constitution. In
Kintz the Ohio Supreme Court stated that courts do not have the
right to declare any public policy that clearly contravenes or
nullifies the rights declared in the Constitution. In this case,
a declaration that Judge Almeida is immune from suit would
contravene and nullify Sherman's right to justice without
purchase as secured by our written constitution.
Kintz found that the application of the common law doctrine
immunizing grand jury testimony would be improper "jugglery"
because applying this doctrine to perjured testimony was
inconsistent with the administration of justice itself, namely,
that justice must be administered based upon truth:
What is the particular policy under whose mask it is
sought to invoke the absolute privilege of protection
to the perjured witness in this case? It is
undoubtedly regard for the ancient doctrine of giving
absolute immunity and protection to judicial
proceedings in due course of law. But surely such a
doctrine can by no possible jugglery be applied to a
court of justice or to any of its proceedings - a
court, which is charged first, last, and all the times
with administering justice, based upon truth - when it
has before it an obvious and palpable case of the
grossest injustice, based upon the grossest untruth.
Id., 12 A.L.R. at 1244-1245. Kintz further notes that the
application of an immunity doctrine to particular facts may
result in the grossest injustice, and when courts announce public
policy that works such gross injustice, it undermines public
confidence in our courts:
The egregious evil that would result to society, to the
public, and to every private citizen from announcing
and sustaining such a doctrine of absolute privilege of
immunity to perjurers before grand juries is so
manifest that no further argument would seem necessary.
The whole duty of courts is to ascertain the facts, the
truth, in any given controversy, and then apply the
fundamental principles of justice to that truth, and
when by any species of jugglery it is claimed that the
courts should announce a public policy that works out
the greatest injustice, bottomed upon the grossest
untruth - well, it is just such hairsplitting
distinctions as these that have too frequently
undermined, and justly undermined, public confidence in
our courts.
Id., 12 A.L.R. at 1245-1246. Similarly, announcing and
sustaining as public policy that Judge Almeida enjoys judicial
immunity for his act of selling justice in his capacity as a
Justice of the Superior Court when Judge Almeida pled guilty to
soliciting a bribe in the Sherman case and was adjudicated by the
Superior Court as being actually guilty of having solicited a
bribe in the Sherman case would constitute a gross injustice that
might well undermine, and might be said to justly undermine,
public confidence in our courts. The very foundation of our
judicial system is that justice is not for sale, and the use of
judicial immunity to bar a claim against a judge who in his
official capacity is actually guilty of selling justice is a
"species of jugglery" that is improper and should not be
countenanced by this Court.
The superior court misidentifies the conduct in this case
that poses the true threat to judicial independence. Sherman's
civil action against a corrupt judge poses no threat to judicial
independence. It was Judge Almeida's dishonorable conduct that
posed a threat, and, for so long as full remedy is not had by an
individual harmed by his corrupt acts, Almeida's misconduct
continues to pose a threat to judicial independence.
At the core of the superior court's opinion is the assertion
that judicial immunity must be applied because of the "wide,
wasting and harassing persecution [of judges]" that the judge
fears will occur "if once you break down the barrier [of judicial
immunity]." Taffe v. Downes, Chief Justice of the King's Bench
(Court of Common Pleas of Ireland 1813), reported in, Calder v.
Halket, 13 Eng. Rep. 12 at 18 n.(a) (P.C. 1839). The superior
court's opinion that it must deny relief in this individual case,
regardless of the justice of Sherman's cause, because once the
barrier of judicial immunity is broken down, there is no way to
prevent other judges from being subjected to harassing
persecution by disgruntled litigants overstates the case. In
this case relief can be tailored in a way that will leave the
barrier that protects judges intact. The barrier that prevents
lawsuits against judges will remain impenetrable, unless the
judge is actually guilty of soliciting bribes.
The Court in Kintz concluded by noting: "[I]t is
inexcusable, especially on the part of a court, to extend its
powers for the protection of such infamy." Id., 12 A.L.R. at
1247. Similarly, this Court should not extend its powers for
the protection of Judge Almeida's infamous acts. Judicial
immunity is not warranted where, as here, a Justice has sold the
rights of an individual who was without power to protect his own
interests. This Court has prevented and should continue to
prevent improper actions that “have jeopardized Paul’s future.”
In re Paul K. Sherman, supra,565 A.2d at 873. To bar Sherman
from recovering money that a jury awarded for his use and benefit
on the ground that the judge who wrongfully exacted the money
from the jury award is immune is monstrous, and it violates the
protection afforded by Article 1, Section 5 of our Constitution.
VI. CONCLUSION
The decision of the Superior Court should be reversed, and
the matter should be remanded to allow Sherman the opportunity to
proceed in his claim under Article 1, Section 5 of the Rhode
Island Constitution for money damages against Antonio S. Almeida
in his official capacity as a (former) Justice of the Superior
Court.
Respectfully submitted,
The Estate of Paul K. Sherman
By its Attorney,
Robert Senville, Esq.
Sup. Ct. No. 4289
PO Box 4944
Rumford, RI 02916
401-245-0488
Dated:
Certification
I hereby certify that I have this 16th day of April, 1999 sent a
true copy of this Brief of Estate of Paul K. Sherman by first
class mail postage prepaid addressed as follows:
J. Renn Olenn, Esq.
Olenn & Penza
530 Greenwich Ave.
Warwick, RI 02886
Thomas C. Angelone, Esq.
128 Dorrance St.
Providence, RI 02903
Richard Gonnella, Esq.
The Remington Building
91 Friendship St.
Providence, RI 02903
Peter A. DiBiase, Esq.
The Remington Building
91 Friendship St.
Providence, RI 02903
Mark W. Freel, Esq.
Edwards & Angell
2700 Hospital Trust Tower
Providence, RI 02903
_______________________________
1 The portion of Justice Almeida’s decision that showed favor to
both Hutton and Sherman, the award of pre and post-judgment
interest was reversed by the Supreme Court, the portion of
Justice Almeida’s decision that apportioned the jury award
between Hutton and Sherman, and which awarded Hutton 45% of the
net proceeds, was not reversed on appeal, and to date stands as
the final Order of the this Court. In re Paul K. Sherman, 565
A.2d 870 (R.I. 1989).
2 R.I. Gen. Laws § 11-7-3, regarding solicitation or acceptance
of a bribe by a public official provides, in part: “No ... public
official shall corruptly accept, or obtain or agree to accept, or
attempt to obtain from any person, for him[self] [or] for any
other person, any gift or valuable consideration as an inducement
or reward for doing or forbearing to do, or for having done or
forborne to do, any act in relation to his ... principal, master,
employer, or state, city, or town of which he or she is an
official, or for showing or forbearing to show favor or disfavor
to any person in relation to the business of his ... principal,
master, employer, or state, city, or town of which he ... is an
official.”
3 Ruffhead translates the pertinent language of Mag. Char.
Hen. III, chapt. 29 as follows: "We will sell to no man, we will
not deny, or defer, to any man, either Justice or Right."
Ruffhead, Owen (ed.), Statutes-at-Large, Vol.I (Magna Charta -
End Henry 6) p.8.
4 The Fourth Amendment targets abusive infringements on an
individual's right to privacy, and by implication provides a
private right of action against those officials, including
federal agents, who violate this right. By analogy to Bivens,
Article 1, Section 5 of the Rhode Island Constitution targets
abusive infringements of an individual's right to obtain justice
freely, without purchase, and by implication provides a private
right against those officials, including judges, who violate this
right.
5 The right to justice without purchase is unlike the crime
victims’ rights secured under Article 1, Section 23 where there
is only a general statement that a crime victim was entitled to
be treated “with dignity, respect, and sensitivity” and to
receive from the state such “other compensation as the state may
provide.”
6 This criterion should be prudently applied, as neither the
Fourth Amendment, the Fifth Amendment due process clause, nor the
Eighth Amendment cruel and unusual punishment clause contain
express provision permitting a private right of action for
damages, but the United States Supreme Court has nonetheless
recognized that enjoyment and protection of these rights requires
a private right of action. Bandoni recognizes that the failure
to expressly provide for a private right of action does not ipso
facto defeat an argument that a Constitutional provision is self-
executing.
7 But see, Justice Flanders argument that the victims’ right
amendment is self-executing and that these revisions were made
for the purpose of “economy of language.” Id., 715 A.2d at 624
(Fanders, J. dissenting).
8 The Trial Court’s decision was issued prior to this Court’s
decision in Bandoni, and therefore it did not have the benefit of
this Court’s guidelines for analyzing a claim to a private right
of action under the Constitution. However, it is readily
discernible that the Trial Court focused on the issue of
harmonizing the right asserted with the scheme of rights
established in the constitution as a whole.
9 Cases following Hazel-Atlas recognize that bribery and
corruption of a judge constitute a fraud upon the court, which
may require that the underlying judgment be set aside. Johnson v.
Johnson, 424 P.2d 414 (Okl. 1967); Chicago Title & Trust Co. v.
Fox Theatre Corp., 182 F. Supp. 18 (1960); United States v.
International Tel. & Tel. Corp., 349 F Supp 22, affd without op
410 US 919, 93 S Ct 1363, 35 L Ed 582 (1972); Root Refining Co.
v. Universal Oil Products Co., 169 F.2d 514, cert den 335 US 912,
69 S Ct 601, 93 L Ed 444; Wilkin v. Sunbeam Corp., 466 F.2d 714
(1972) cert den 409 US 1126, 93 S Ct 940, 35 L Ed 2d 258; .
10 Prior to initiating this lawsuit, Sherman did sue Attorney
Hutton and the insurance company that issued Hutton’s probate
bond to recover damages for Hutton’s embezzlement of estate
funds, and the Superior Court did provide a remedy for that
injury. Jane Munson, guardian of the person of Paul K. Sherman,
et.al v. Thomas C. Hutton et.al., No. 91-7880 (Providence County
Superior Court). Not only did Attorney Hutton and Judge Almeida
corruptly apportion the jury award, Attorney Hutton then
embezzled over One Hundred Thousand Dollars of the money that did
go into Sherman’s probate estate.
11 In another Superior Court opinion on judicial immunity it
was said that suing a judge in his indiv idual capacity for acts
which allegedly infected a court case was superficially appealing,
but was wrong and demonstrated a misunderstanding of the doctrine
of judicial immunity:
Focusing on the conduct of [the] former justice ... in
soliciting and receiving loans from lawyers - including
attorneys involved directly and indirectly in a contested
matter over which the judge presided - has great superficial
appeal in the instant debate over judicial immunity. It is
hard to see how such conduct, when viewed in isolation,
could be characterized as 'a function normally performed by
a judge.'
Yet the act of which plaintiff ... complains is not simply
that of the former justice's solicitation and receipt of
loans from attorneys involved directly or indirectly in a
contested matter over which he presided. Indeed, such
activity, while highly improper, causes plaintiff ... no
injury unless and until it infects the judicial proceeding
to which he is a party. Plaintiff ... seeks instead to hold
defendant [justice] liable for his act of presiding over the
... divorce action at a time when he was secretly soliciting
and receiving loans and favors from the lawyer counselling
plaintiff's adversary and his law partner.
Hurley v. Fuyat, WL 930891 at 930896 (R.I.Super. 1994) (Savage,
J.).
12 Realistically, attorneys or litigants who have reason to
believe that a judge hearing their case is accepting bribes, are
far more likely to file a complaint with the Commission on
Judicial Tenure & Discipline than filing a complaint in Superior
Court seeking an injunction. The Commission is a more
appropriate forum to review such allegations.
13 Regarding the victims’ indemnity fund bribery is not an
offense covered by the Act. R.I. Gen. Laws § 12-25-4.
14 Removal of a Supreme Court Justice requires impeachment which
is entrusted to the General Assembly on recommendation from the
Supreme Court. R.I. Gen. Laws § 8-16-7(b).
15 The other cornerstones of judicial independence are
separation of powers principles, life tenure for judges, and
public confidence in the court system.
16As America's legendary folklorist, Woody Guthrie, observed:
"Well, as through the world I've rambled, I've seen lots of funny
men. Some rob you with a sixgun, some with a fountain pen."
[lyric from "Pretty Boy Floyd"]. Woody Guthrie’s lyrics to
“Pretty Boy Floyd” can be found at
http://www.artsci.wustl.edu/~davida/Ofloyd.
17 With this test of “actual adjudicated guilt of bribery”
enunciated as law there would be no reason to believe that
abrogating Almeida's judicial immunity will result in any judge
of the Supreme Court, the Superior Court, or any other court
becoming fearful of deciding cases. Sensible judges will surely
understand that Almeida has been sued, not to vex and harass
Almeida, but because he took money that a jury awarded Sherman,
and because he violated the Rhode Island Constitution's
prohibition on selling justice. Allowing a lawsuit against
Almeida in his official capacity under such circumstances will
not interfere with other judges’ liberty to exercise their
functions with independence and without fear of consequences.