Re: The insolence of Office; Hoisting them on their own Petards

Jon Beaver wrote:

> On Thu, 09 Oct 2003 04:53:24 GMT, Ken Smith <[EMAIL PROTECTED]>
> wrote:
> >Larry wrote:
> >> In article <[EMAIL PROTECTED]>, Ken Smith
> >> <[EMAIL PROTECTED]> wrote:
> >> >Merlin wrote:
> >> >> [EMAIL PROTECTED] (Larry) wrote:
> >> >> >In article <[EMAIL PROTECTED]>, [EMAIL PROTECTED]
> >> >> >
> >> >> >For starters, read the eleventh amdendment. (Which I assumed you knew,
> >> Merlin :))
> >> >> >
> >> >> ><http://caselaw.lp.findlaw.com/data/constitution/amendment11/>
> >> >>
> >> >>         Thanks,  Rightly cited.  The OP is in for some big fun now!
> >> >
> >> >  While you two are busy congratulating yourselves on your combined
> >> >"how in the hell did you pass the Bar, anyway?" knowledge of the law
> >> >in this area, you seem to forget that it is not the state, but state officials,
> >> >who are the actual tortfeasors in this arena.  If you want state officials
> >> >to do their job, you sue the state; if you prefer to punish them for their
> >> >misconduct in the business end, you sue them personally.
> >>
> >> Umm, Kenny, read Ex Parte Young.  A suit against a state official will
> >> affect state revenues (i.e. you're seeking damages) then it will be
> >> treated as a suit against the sovereign state, even if the state officials
> >> are personally named as defendants.  Unless you can show they somehow
> >> acted outside of the scope of their authority.
> >
> >  That is the issue, isn't it?   If a government official is acting within the
> >scope of his authority and discretion, he isn't committing "misconduct,"
> >is he?
>
> Bad analysis.  It begs the question.  If immunity were only for acts
> that are not "misconduct" what IS immunity?

  No, I'm simply cutting through a lot of bullshit that wouldn't need
to be stated when addressing competent attorneys.

> The whole concept of
> immunity is about official, even though wrongful, acts.

  Not at all.  There are two subspecies of immunity, which necessarily
address vastly different problems.  The first is qualified or "good faith"
immunity, which covers every governmental agent from judges to jani-
tors acting within the confines of their statutory authority.  The other is
"absolute" or situational immunity, which protects government agents
from liability for even willful misconduct.  At least with respect to the
immunity afforded judges, the latter is narrowly construed, and surely
does not extend to protection from liability for inadequate supervision
of subordinates (as alleged in my tort claim), if Forrester is any guide.

> It's about not
> making OUR government officials answerable privately to YOU for their
> alleged "misconduct."

  Give me a good reason why they shouldn't be, Jon.

  If the government can disregard the law even to the point where our
portfolio of civil liberties can be irreparably damaged, what liberties do
we have left?