An attorney asked me today “I know that declaratory judgments are not really “suing the judge”. Please explain to me why it isn’t technically (or really) suing the judge. For example, if it’s technically suing the judge and that’s a NECESSARY act, because the act requires it, please tell me how I can explain it to a layperson or to a lawyer who cannot get it through their head (especially a lawyer who thinks that we’re “suing the judge” because we didn’t get our way).”
My response was the following:
First, we sued before final orders and even before temp orders because it wasn’t about the judge’s decisions. It was about a fair process and the judge’s duty to provide a fair process. Judges have a duty to the constitution and swear an oath to the constitution as required in Article VI.
In our federated democracy, nobody is above the law. Every government official must be held accountable. No government official belongs on an untouchable pedestal. We are not challenging the state’s statutes when suing a judge. We are challenging what the judge does, the judge’s actions, the judge’s duty. Even judges are accountable to the U.S. Constitution and are not above the law.
We are not challenging the judge’s rightful discretion to make judicial decisions. We are challenging the judge’s unlawful ministerial actions in failing to do what they must do as a ministerial duty. If a higher court says in a controlling opinion that the judge must ready a person their rights before proceeding and the judge fails to do so, that judge is violating the law. It is the unlawful act we are challenging.
We are suing family law judges because judges are violating the constitution. They have allowed themselves to be used by the Legislature. They traded their independence, neutrality, and impartiality for power.
The bargain is this. The federal government gives the state money for collecting child support. The more child support ordered the more the state gets paid. If the state follows the constitution the money they get paid is greatly reduced. The problem is, how to violate the constitution without having the judges declare it unconstitutional. The answer is to give the judges something to look the other way.
The best interest of the child policy is the perfect solution. It gives judges unlimited power to screw with the lives of people the state hates—divorced parents of minor children. Government officials, even judges, like power and will bend or even break rules to get it. The Legislature made a deal with judges where the legislature passes the details of crafting specific policy solutions for each family to judges instead of the executive branch. The judges are given unlimited power to impose this policy, so long as they don’t declare the policy unconstitutional.
You would think that the executive branch would be upset at this power grab and would challenge it. The answer to that problem is found in how child-support is enforced. The legislature assigns this duty to the Attorney General’s office. The Attorney General gets a much larger agency to run and all the power and prestige that goes along with it. All the Attorney General has to do is to not challenge the system. In this way, each of the three branches of state government gets a financial or power benefit for violating the constitution, provided they all collude to keep from overturning this scheme as unconstitutional.
One of the benefits of this scheme is that judges enjoy absolute judicial immunity and since they are the only state actor involved, parents have nobody to sue over the unconstitutionality of the arrangement. If they go to the Attorney General and complain, they will get no help. If they go to their legislator and complain, they will get no help. If they try to complain in court, the judge will punish them for their impertinence.
Even if you can get your legislators to change the law, they will only do so in minor meaningless ways, and the judges simply ignore the law citing best interest of the child. Who is going to stop them? It is not in their best interest to overturn a law that gives them absolute power.
The only solution is to sue in federal court. The problem is, though, who do you sue, and what do you sue them for?
Declaratory relief is a cause of action that allows people to sue state governments even though state governments have sovereign immunity. You cannot get damages but you can get clarification on the constitutionality of laws and of the actions of government officers. Because the laws change from state to state and we would have to challenge 50 different sets of laws to effectively change things nationally, we have, instead, chosen to challenge the constitutional judicial duty to provide constitutional guarantees irrespective of what the law says or does not say. To do this, we use a legal fiction created by the U.S. Supreme Court.
The technical legal mechanism, the U.S. Supreme Court has established, to ensure the Fourteenth Amendment has teeth, while not neutering the Eleventh Amendment, is to create a legal fiction, as one justice put it. They allow us to sue any government official who is responsible for enforcing or defending a statute or government act, in their official capacity, not personally, for proscriptive relief. Meaning, we use them and their controversy with us, in terms of enforcing or defending, as a foundation for a declaratory suit.
They represent the government but are not the government. This protects the Eleventh Amendment and the state’s sovereignty and immunity. They are not being sued for past acts or for damages, although past acts may need to be used to establish the harm and thus the controversy. States may not be punished by taking money from the state’s treasury, thus maintaining sovereignty. The declaratory judgement clarifies the law so that when that government official goes to enforce or defend, their boundaries are clear. If they exceed their boundaries, then injunctive relief may ensue.
It is only through the injunction that an official can be punished, and only the official will be punished not the state. The declaratory relief ensures that the government official has fair warning regarding what they can be punished for. It is a compromise, and a bit of a complicated compromise, but it is effective.
This is a complicated bit of balancing designed to maintain the essence of two constitutional amendments that are often at odds with one another. The fundamental reasoning is that NO government official of any kind anywhere is above the supreme law of the land, while the sovereign state itself, in a way, is above the law. This is the legal fiction part. This system is designed to ensure that the federal constitution does not become a meaningless document, unenforceable in the states.
However, human nature being what it is, judges naturally protect their own. The rules developed over time by the federal courts in response to this balancing have tended to favor and shield state judges and family law. Recent opinions from the Supreme Court have begun to remove much of this favor and shielding and have opened the doors of the courts to this kind of suit. We are among the first to walk through these newly opened doors.
In responding to this issue, we need to balance difficult issues as well. We need to be sensitive to peoples’ sensitivity towards suing judges while maintaining that no government official is above the law. Where judges are allowed to be above the law, we get the conditions we see in family law. If that sickness is allowed to spread, our republic will fall.
Every government official is susceptible to the allure of absolute power, even a judge. The Legislature has created both an irritable allure but also a system designed to make it nearly impossible for individual good judges to correct the system. Over time the good judges leave, to be replaced with judges who only care about the power. The only way to protect the few remaining good judges is to give them a solid excuse for challenging the system. If the good judges can say, I have to challenge your unconstitutional system, or I will be punished by federal injunction, those good judges are empowered.
It is ironic that we have to attack judges to protect judges but government systems are nothing if not ironic. We are not trying to destroy the judiciary by attacking judges. On the contrary, we are trying to protect the judiciary by giving those few good judges who remain the power to stand up to a corrupt system and to force that system to change. We are helping those good judges to restore the integrity of the judiciary because a strong, independent, uncorrupted judiciary is necessary for our form of government to thrive.
Pioneering isn’t for the faint of heart. There are many challenges that are thrown at us as the system attempts to defend itself from public exposure. We are facing and defeating these challenges one-by-one so that you will have an easier time of it. If we are successful, your parental rights in divorce will one-day be protected by default and divorcing parents will no longer fear losing their children in divorce.