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THE JUDGE NEEDS A LAWYER
Frank Q. Nebeker, Associate Judge, District of Columbia
Court of Appeals*
[I]t is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequence to himself. Liability to answer to everyone who might feel himself aggrieved by the action of the judge would be inconsistent with the possession of this freedom and would destroy that independence without which no judiciary can be either respectable or useful.1
Despite our longstanding commitment to the above principle, a present day judge, particularly a trial judge, encounters a new personal and financial risk. I do not mean the diminished purchasing power of judicial salaries which often fail to keep pace with inflation. I refer to a job hazard brought about by the litigation explosion and its handmaiden - the redress neurosis. Whatever a judge does in the courthouse, he runs a substantial risk of becoming embroiled in litigation where he is no longer the dispute-resolver, but rather, the object of the complaint. When this occurs, serious problems arise respecting the nature and source of legal representation for the judge.
It has not been uncommon for judges to be the adversary when parties to a lawsuit have brought extraordinary writs from appellate courts concerning a ruling in their case pending before the judge.2 But increasingly, the judge is apt to be sued in separate private actions for damages or equitable relief.3 Moreover, with the advent of judicial disability and tenure commissions, the judge may be called upon to respond to complaints before these disciplinary bodies.4 The purpose of this article is to expose and explore the scope of the ethical and practical dilemmas created for the judge by the necessity of obtaining legal representation due to this rapidly growing phenomenon of suits and complaints against judicial officers.
(Copyright © Catholic University Law Review. All rights reserved. Frank Q. Nebeker. Issue 4.)
* Judge Nebeker wishes to acknowledge the willing and able assistance of Mary Ellen Craig, Esq. and Cara Nebeker in the preparation of this article.
1 Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347 (1871).
2 See generally Note, Mandamus as a Means of Federal Interlocutory Review, 38 OHIO ST. L.J. 301 (1977); Comment, The Use of Extraordinary Writs for Interlocutory Appeals, 44 TENN. L. REV. 137 (1976).
3 See notes 8-38 and accompanying text infra. See generally Feinman & Cohen, Suing Judges: History and Theory, 31 S.C.L. REV. 201 (1980); Note, Immunity of Federal and State Judges from Civil Suit – Time for a Qualified Immunity?, 27 CASE W. RES. L. REV. 727 (1977).
4 See notes 39-53 and accompanying text infra. See generally Symposium - Judicial Discipline and Disability, 54 CHI.-KENT L. REV. 1 (1977).
It is often believed that judges are absolutely immune from damage actions under the principles established by the Supreme Court in Bradley v. Fisher.5 In Bradley the Court held that, when a judge performs "judicial acts," he cannot be held personally liable for such acts in a civil action.6 The Court recognized that exposure to personal liability would destroy judicial independence, the hallmark of the administration of justice.7 Yet, despite this long-established precedent, there is no guarantee that claimants are not going to file suit for relief from alleged judicial wrongs. When a suit is filed, the judge must still defend the action and obtain counsel in order to apply the judicial immunity defense.
One traditional mechanism through which the acts of trial judges have been subject to appellate scrutiny has been the writ of mandamus.8 This remedy is used to confine the judge to the proper exercise of discretion or to order its exercise where it has been withheld.9 In Kerr v. United States District Court for the Northern District of California,10 the government had sought a writ of mandamus from the United States Court of Appeals for the Ninth Circuit to vacate a district court order granting the plaintiffs discovery motion for the production of prison documents. In upholding the Ninth Circuit's denial of the writ, the Supreme Court reaffirmed the long-established policy that a "writ will issue only in extraordinary circumstances."11 The Court recognized that an important reason for limiting the use of mandamus is that such actions "have the unfortunate consequence of making the [district court] judge a litigant, obliged to obtain personal counsel or to leave his defense to one of the litigants [appearing] before him in the underlying case."12 One could reason that, in most instances, the petition for writ of mandamus is only nominally against the judge. Consequently, it is appropriate to leave the matter of representation in the appellate court to counsel for the parties in the trial proceedings. However, the Supreme Court in Kerr acknowledged the anomalies in this situation and recognized that the judge may in fact have a personal stake in the outcome and thus may require personal representation. Moreover, the judge may believe that counsel for the parties in the case will not capably advocate his interests.13
Absolute judicial immunity is disappearing in favor of more limited immunity, depending on the nature of the judicial act involved.14 Classes of allegations where immunity from suit may not exist include:
acts evidencing a lack of good faith;
acts of a criminal nature;15
acts in the absence of authority or beyond jurisdiction;16 and
acts of an administrative or ministerial nature.17
Moreover, an increasing number of personal actions against judges are being brought under 42 U.S.C. § 1983 (1976),18 alleging denial of constitutionally protected rights under color of law.
The extent of judicial immunity under section 1983 was recently explored in Stump v. Sparkman.19 This suit was brought against a state judge who had approved a parent's petition for sterilization of her "somewhat retarded" fifteen-year-old daughter. In reversing the Seventh Circuit's determination that the judge had not acted within his jurisdiction, the Supreme Court recognized that judicial immunity from damage suits is crucial to the survival of an independent judiciary. Thus, the Court established an immunity rule for judicial acts performed within the court's competence to act.20 In barring the recovery of damages, the Court reasoned that judges must be able to act without fear of personal consequences, including the expenses incident to a suit, in controversial cases.21
The Court, in Stump, identified two factors to be considered in determining whether a judge's act is in fact "judicial." First, the nature of the act itself must be examined to see if it is a function normally performed by the judge. Second, the expectations of the parties should be scrutinized to determine whether they dealt with the judge in his official capacity.22 While this may be the legal rule, there will always be questions as to what constitutes "judicial acts" and what is within the court's competence to act. Thus, although the judge may ultimately prevail, doing so will be a long and expensive process requiring counsel every step of the way.
While the doctrine of judicial immunity bars damage actions under section 1983, it does not necessarily preclude suits under section 1983 for declaratory or injunctive relief.23 In one recent case, Consumers Union of the United States, Inc. v. ABA,24 suit was brought under section 1983 against the Virginia State Bar, the Supreme Court of Virginia, the court's chief justice, and several officials of the state bar association, seeking injunctive and declaratory relief respecting the publication of information concerning the practices and fees of attorneys. The three-judge court granted the relief sought and also awarded the plaintiffs attorney's fees under the Civil Rights Attorney's Fees Act of 1976.25
In awarding attorney's fees, the trial court held that the Act was intended by Congress to abrogate judicial immunity respecting the awarding of such fees.26 Thus, the court ruled that, while the judges would not be personally liable, they would be liable in their official capacity,27 implying that the attorney fee award would actually be paid by the state.28 On appeal, the Supreme Court held the attorney fee award improper where it was based upon the failure of the Virginia court to exercise its rulemaking authority. However, an award against the Virginia court when acting in its "direct enforcement role" in disciplining, suspending, and disbarring attorneys was approved by the Court, thereby, implying official liability of judges in similar circumstances.29
Suits against judges and challenges to the doctrine of judicial immunity arise in other contexts as well. For example, the Supreme Court recently denied certiorari in Rivera v. Cruz,30 a case in which an attorney alleged that the defendants, members of the Puerto Rico Supreme Court, could not participate in a hearing on his appeal. The trial court had summarily dismissed his complaint, which sought to void his suspension from practicing law, as not presenting a justiciable controversy.
Another and relatively new risk of exposure to suit is presented by what might be called a "constitutional tort action," where the immunity defense appears open to question. For example, in Davis v. Passman,31 the plaintiff alleged that a congressman had violated the fifth amendment by dismissing her from his staff solely on the basis of her sex. Damages were sought in the form of backpay, and jurisdiction was predicated only on the existence of a general federal question under 28 U.S.C. § 1331(a) (1976).32 Although Congress has historically exempted itself from coverage under the various civil rights acts, the Supreme Court held that a right of action against the congressman existed under the fifth amendment33 and that damages would be available if the plaintiff prevailed on the merits.34
The Davis Court recognized that all government officers are bound to obey the Constitution but noted that some "special concerns" arise in a "suit against a Congressman for putatively unconstitutional actions taken in the course of his official conduct...."35 Consequently, it may be argued that Davis, when coupled with the Supreme Court's decision in Bivens v. Six Unknown Named Agents,36 establishes a "constitutional tort" equally applicable to the judiciary for violations of fourth and fifth amendment rights.37 The existence or extent of judicial immunity from such suits is yet to be litigated. However, it is not difficult to imagine that a judge may find himself required to respond to a suit alleging similar discrimination in hiring policies or staff administration.38
(Copyright © Catholic University Law Review. All rights reserved. Frank Q. Nebeker. Issue 4.)
5 80 U.S. (13 Wall.) 335 (1871). In an earlier case, Randall v. Brigham, 74 U.S. (7 Wall.) 523 (1868), the Court appeared to carve out an exception to the immunity doctrine "where the acts are palpably in excess of the jurisdiction of the judges, and are done maliciously or corruptly." Id at 537. Any such exception was expressly rejected in Bradley. 80 U.S. (13 Wall.) at 350-51.
6 Judicial immunity attaches only when the judge acts in a discretionary, rather than a ministerial, capacity. See Ex Parte Virginia, 100 U.S. 339, 348 (1879). Moreover, the judge must have subject matter jurisdiction over the action. The Court in Bradley distinguished acts in the absence of jurisdiction from acts in excess of jurisdiction as follows:
Where there is clearly no jurisdiction over the subject-matter, any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible. But where jurisdiction over the subject-matter is invested by law in the judge, or in the court which he holds, the manner and extent in which the jurisdiction shall be exercised are generally as much questions for his determination as any other questions involved in the case, although upon the correctness of his determination in these particulars the validity of his judgments may depend.
80 U.S. (13 Wall.) at 351-52. See Stump v. Sparkman, 435 U.S. 349, 356-59 (1978).
7 80 U.S. (13 Wall.) at 348-49. See also Smith, An Independent Judiciary: The Colonial Background, 124 U. PA. L. REV. 1104 (1976).
8 The All Writs Act, 28 U.S.C. § 1651(a) (1976), provides: "The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." See 16 C. WRIGHT, A. MILLER, E. COOPER & E. GRESSMAN, FEDERAL PRACTICE AND PROCEDURE: JURISDICTION §§ 3932-3936 (1977); Note, Supervisory and Advisory Writs Under the All Writs Act, 86 HARV. L. REV. 595 (1973).
9 See, e.g., Will v. United States, 389 U.S. 90 (1967); Schlagenhauf v. Holder, 379 U.S. 104 (1964); La Buy v. Howes Leather Co., 352 U.S. 249 (1957).
10 426 U.S. 394 (1976).
11 Id at 403. See Will v. Calvert Fire Ins. Co., 437 U.S. 655 (1978).
12 426 U.S. at 402.
13 Under rule 21 of the Federal Rules of Appellate Procedure, all parties in the trial court, except for the petitioner, are deemed respondents for all purposes. As a further means of relieving the trial judge from responding, and in recognition that most petitions are denied, rule 21 also allows denial of the petition without an answer and provides for ordering an answer from the respondents if the appellate court is "otherwise" inclined. Fed. R. App. P. 21.
This is a partial answer to the trial judge's need for counsel but it does not solve the problem of the perceived less capable lawyer. Moreover, for the balance of the proceedings in the trial court, one party is in the unique position, for practical purposes, of having been the trial judge's lawyer. To the lay litigant, this surely appears suspect. The rule 21 provision of naming some parties as additional respondents does not remedy this seeming impropriety.
14 See Stafford, An Overview of Judicial Immunity, STATE CT. J. 3, 5 (Summer 1977). See also Comment, An Intolerable Accommodation: A Fresh Look at the Immunity Doctrine, 27 AM. U.L. REV. 863 (1978).
15 See, e.g., Gregory v. Thompson, 500 F.2d 59 (9th Cir. 1974). The court in Gregory held that "[t]he [judge's] decision to personally evict someone from a courtroom by the use of physical force is simply not an act of a judicial nature." Id at 64. Thus, the judge was not absolutely immune from a suit for assault and battery. See generally Alschuler, Courtroom Misconduct by Prosecutors and Trial Judges, 50 TEX. L. REV. 629 (1972). See also Strawbridge v. Bednarik, 460 F. Supp. 1171 (E.D. Pa. 1978); Luttrell v. Douglas, 220 F. Supp. 279 (N.D. Ill. 1963).
16 See, e.g., Zarcone v. Perry, 572 F.2d 521 (2d Cir. 1978). In Zarcone, the Second Circuit affirmed a district court's award of $80,000 in actual damages against a judge and a sheriff and $60,000 in punitive damages against the judge under 42 U.S.C. §§ 1983, 1988 (1976), because the judge had abused his official powers. See also Raitport v. Provident Nat'l Bank, 451 F. Supp. 522 (E.D. Pa. 1978); O'Bryan v. Chandler, 356 F. Supp. 719 (W.D. Okla. 1973), af'd, 496 F.2d 403 (10th Cir.), cert. denied, 419 U.S. 986 (1974); Wade v. Bethesda Hosp., 337 F. Supp. 671 (S.D. Ohio 1971); Rhodes v. Houston, 202 F. Supp. 624 (D. Neb.), aff'd, 309 F.2d 959 (8th Cir. 1962), cert. denied,383 U.S. 971 (1965).
17 See, e.g., Lynch v. Johnson, 420 F.2d 818 (6th Cir. 1970). The Lynch court found the defense of judicial immunity inapplicable when the judge was presiding over a county fiscal court which was actually a county legislative and administrative body. See also Atcherson v. Siebenmann, 458 F. Supp. 526 (S.D. Iowa 1978); Doe v. Lake County, Indiana, 399 F. Supp. 553 (N.D. Ind. 1975).
18 42 U.S.C. § 1983 (1976) provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
See Castro, Innovations in the Defense of Official Immunity Under Section 1983,47 TENN. L. REV. 47 (1979); Developments in the Law - Section 1983 and Federalism, 90 HARV. L. REV. 1133 (1977); Comment, Quasi-Judicial Immunity - Its Scope and Limitations in Section 1983 Actions, 1976 DUKE L.J. 95; Note, Liability of Judicial Officers Under Section 1983, 79 YALE L.J. 322 (1969).
19 435 U.S. 349 (1978). See Rosenberg, Stump v. Sparkman: The Doctrine of Judicial Immunity, 64 VA. L. REV. 833 (1978).
20 435 U.S. at 357 - 60. In an earlier case, Pierson v. Ray, 386 U.S. 547 (1967), the Supreme Court held that the common law principle of judicial immunity was not abrogated by the enactment of § 1983, noting that errors made by a judge respecting the judicial process could be corrected on appeal. In reaffirming the immunity principle espoused in Bradley, the Court stated that imposing liability on judges under § 1983 would result in intimidation and prevent "principled and fearless decision-making." Id at 554. See generally Kates, Immunity of State Judges Under the Federal Civil Rights Acts: Pierson v. Ray Reconsidered, 65 Nw. U.L. REV. 615 (1970).
21 435 U.S. at 363-64. Although this was the articulated justification for the Court's decision, other considerations such as preservation of judicial dignity, judicial authority, and finality of judicial decisions have been suggested as underpinnings for judicial immunity. See Nagel, Judicial Immunity and Sovereignty, 6 HASTINGS CONST. L.Q. 237 (1978). See generally Note, Judicial Immunity and Judicial Misconduct.: A Proposal for Limited Liability, 20 ARIZ. L. REV. 549, 579-88 (1978).
22 435 U.S. at 362.
23 See Jacobson v. Schaefer, 441 F.2d 127, 130 (7th Cir. 1971). The question of whether the immunity principle extends to actions against judges for declaratory or injunctive relief has been the subject of considerable dispute. One line of cases holds that the doctrine of judicial immunity is not a bar to such relief. See, e.g., Mills v. Larson, 56 F.R.D. 634 (E.D. Pa. 1972); Stambler v. Dillon, 288 F. Supp. 646 (S.D.N.Y. 1968). Other courts, however, maintain that the immunity doctrine bars suits for injunctive or declaratory relief. See, e.g., Woolbridge v. Virginia, 453 F. Supp. 1333 (E.D. Va. 1978); Smallwood v. United States, 358 F. Supp. 398 (E.D. Mo.), aff'd,486 F.2d 1407 (8th Cir. 1973); MacKay v. Nesbett, 385 F. Supp. 498 (D. Alaska 1968), affd, 412 F.2d 846 (9th Cir.), cert. denied,396 U.S. 960 (1969). Except for official action in respect to bar discipline, the Supreme Court left this issue open in its recent decision in Supreme Court of Va. v. Consumers Union of the United States, 48 U.S.L.W. 4620, 4624 (June 2, 1980).
24 470 F. Supp. 1055 (E.D. Va. 1979) (three-judge court), vacated and remanded, Supreme Court of Va. v. Consumers Union of the United States, Inc., 48 U.S.L.W. 4620 (June 2, 1980).
25 42 U.S.C. § 1988 (1976) provides in pertinent part: "In any action or proceeding to enforce a provision of Section... 1983... the Court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." See Hutto v. Finney, 437 U.S. 678 (1978).
26 470 F. Supp. at 1061.
27 Id at 1059.
28 See id at 1061.
29 Supreme Court of Va. v. Consumers Union of the United States, Inc., 48 U.S.L.W. 4020, 4025 (June 2, 1980).
30 P.R. Sup. Ct. (Feb. 1, 1979) (summary at 48 U.S.L.W. 3134), cert. denied, 100 S. Ct. 143 (1979).
31 99 S. Ct. 2264 (1979).
32 Id at 2269.
33 Id at 2276.
34 Id at 2278. See generally Note, "Damages or Nothing," The Efficacy of the Bivens Type Remedy, 64 CORNELL L. REV. 667 (1979).
35 99 S.Ct. at 2277.
36 403 U.S. 388 (1971). In Bivens, the Court held that there was an implied right of action for damages against federal officials when fourth amendment rights are violated under color of law. Id at 397.
37 The concept of a "constitutional tort" was reaffirmed in Butz v. Economou, 438 U.S. 478 (1978). Butz is also significant, however, for its holding that the function of the public official's office controls the nature of the immunity. Id at 508.
38 See generally Davis v. Passman, 99 S. Ct. at 2279 (Burger, C.J., dissenting).
There is currently an expanding effort to curb and discipline what is sometimes perceived as errant judicial behavior.39 This is no doubt the product of society's consuming quest to police all of its officers.40 Thus, judicial disciplinary commissions have become a popular vehicle for reviewing judicial behavior.41
Nothing could more personally involve a judge than a challenge to judicial behavior before a judicial disciplinary body.42 Such a challenge is akin in gravity to a charge of malpractice or sixth amendment ineffectiveness of counsel.43 Few persons would consider entering such a risky arena without counsel, but many judges do so, mainly for financial reasons. Moreover, it is questionable whether an attorney general or the equivalent is the appropriate defender of a judge whose actions are being challenged by another arm of the state - a disciplinary commission.44 The judge's remaining tolerable choices are to retain private counsel or to impose on a professional acquaintance for an indulgence. Faced with such a choice, the judge may well be tempted to appear pro se rather than face the cost of private counsel or the embarrassment of imposing on a friend.
Aside from inquiries into personal and private misconduct, there is the temptation in some quarters to subject decisions of trial judges to review by disciplinary bodies.45 While the line between bench misbehavior and trial error may be troublesome in a few cases, it is unthinkable that a judge should be called before a disciplinary body for asserted errors reviewable on appeal. Judicial disciplinary proceedings are not a substitute for or a corollary to an appeal, and bodies entrusted to conduct those proceedings must avoid being used in such a manner.46 Indeed, one could argue that judges have an obligation to preserve judicial independence by resisting, with the force of prohibitory process if necessary, any attempt by a disciplinary body to bring pressure to bear when it invades the appellate process or threatens judicial independence. By inference, the American Bar Association's approved draft of Standards Relating to Judicial Discipline and Disability Retirement (ABA Standards)47 recognizes this proposition by stating that "[c]laims of error should be left to the appellate process."48
It is disappointing to observe, however, that the ABA Standards have not recognized the judge's problem in securing legal representation in the disciplinary context. Yet, the ABA Standards state that a "judge's conduct on or off the bench" may be the subject of judicial discipline.49 Even more distressing is that, despite an acknowledgment that the judge has the right to counsel in a disciplinary proceeding,50 the ABA Standards state that a judge's "attorney's fees should not be at public expense." 51 Moreover, not only must the judge face the cost of retaining his own counsel, but he may be assessed the costs of the proceeding as a sanction.52
In contrast, under the ABA Standards, a judge appearing in a disability retirement proceeding not only has the right to counsel, but, if he appears before the commission without one, the commission is obligated to appoint an attorney at public expense to represent the judge.53 It is commendable that the ABA Standards recognize the public's responsibility to provide such representation if the judge does not. But why should this policy not be extended to disciplinary proceedings? Perhaps the reason is that an asserted disability does not involve presumed personal fault, which seems to be the case at the beginning of disciplinary proceedings.
(Copyright © Catholic University Law Review. All rights reserved. Frank Q. Nebeker. Issue 4.)
39 See, e.g., W. BRAITHWAITE, WHO JUDGES THE JUDGES? (1971); Comment, Judicial Discipline, Removal and Retirement, 1976 Wis. L. REV.563. See also Traynor, Who Can Best Judge the Judges, 53 VA. L. REV. 1266 (1967).
40 As former Judge Marvin Frankel has noted: "Judicial bad manners is a critical problem which renders a disciplinary technique vital. Although circumstances will not normally permit or justify removal, the public needs a tool to assert the standards of decency." Frankel, Judicial Discipline and Removal, 44 TEXAS L. REV. 1117, 1123 (1966) (footnotes omitted). For an examination of cases decided under the Code of Judicial Conduct, see Thode, The Code of Judicial Conduct - The First Five Years in the Courts, 1977 UTAH L. REV. 395.
41 See, e.g., Gasperini, Anderson & McGinley, Judicial Removal in New York. - A New Look, 40 FORDHAM L. REv. 1 (1971); Gillis & Fieldman, Michigan's Unitary System of Judicial Discipline." A Comparison with Illinois' Two-Tier Approach, 54 CHI.- KENT L. REV. 117 (1977); Comment, Judicial Tenure in the District of Columbia, 27 CATH. U.L. REV. 543 (1978); Note, Discipline of Judges in Maryland,34 MD. L. REV. 612 (1974); Note, Judicial Discipline - The North Carolina Commission System, 54 N.C.L. REV. 1074 (1976); Note, The Chandler Incident and Problems of Judicial Removal, 19 STAN. L. REV. 448 (1967).
42 See generally Overton, Grounds or Judicial Discipline in the Context of Judicial Disciplinary Commissions, 54 CHI-KENT L. REV. 59, 61-65 (1977). See also Comment, The Procedures of Judicial Discipline, 59 MARQ. L. REV. 190 (1976).
43 Cf. In re Ruffalo, 390 U.S. 544, 551 (1968) (disbarment proceedings against lawyer are quasi-criminal in nature). See also Spevack v. Klein, 385 U.S. 511, 514-16 (1967) (disbarment of lawyer is a penalty such that right against self-incrimination attaches and person cannot be penalized for invoking it).
44 See notes 54-59 and accompanying text infra.
45 The resignation of Judge Charles W. Halleck from the Superior Court of the District of Columbia was inextricably intertwined with the disciplinary proceedings pending against him. See Comment, supra note 41, at 543, 561-77.
46 Chief Justice Ben F. Overton of the Supreme Court of Florida has noted:
To allow disciplinary proceedings to evaluate judicial decisions could force the judge to walk an ill-defined and standardless line between propriety and impropriety. Clearly, such a sword over a judge's head would have a tendency to chill his independence. A judge would have to be as concerned with what is proper in the eyes of the disciplinary commission as with what is the just decision.
Overton, supra note 42, at 66.
47 ABA STANDARDS RELATING TO JUDICIAL DISCIPLINE AND DISABILITY RETIREMENT (1978) [hereinafter cited as ABA STANDARDS].
48 ABA STANDARDS § 3.4.
49 Id § 1.2 commentary.
50 Id § 4.17. See In re Complaint Against "Judge Anonymous," 590 P.2d 1181, 1188 (Okla. 1978), where the court held that "fundamental fairness and fair play dictate that Judge Anonymous be permitted to appear as a witness with counsel" in a hearing before a disciplinary council on a complaint against him.
51 ABA STANDARDS § 5.29 commentary. For a defense of this provision, see Peskoe, Procedures for Judicial Discipline. Type of Commission, Due Process and Right to Counsel, 54 CHI.-KENT L. REV. 147, 164 (1977).
52 ABA STANDARDS § 6.7(g). In a disciplinary proceeding, the expense of witnesses are to be paid by the party calling the witnesses. If the judge is exonerated and can prove financial hardship, he may be relieved of the burden. Id § 5.26(b).
53 Id § 8.3.
Most states and the federal government provide judges with legal representation when they are sued in their official capacity.54 In 1977, the National Center for State Courts compiled data regarding state judicial representation. Samuel P. Stafford summarized the results of the study as follows:
[T]he data showed that the office of the attorney general serves as the official counsel for all but six states and one territory (The Virgin Islands have no provisions for legal representation). In the District of Columbia, corporation counsel handles legal representation of judges; in Kansas, local or private counsel provide legal representation; and in Montana, the Insurance and Legal Division. The legal department of the State Court Administrator's Office provides legal service for Pennsylvania judges; in South Dakota and Texas, judges challenged in their official capacity must choose a private attorney to represent them.
With two exceptions, local or state funds cover the costs of official counsel for judges. In South Carolina, either state money or the state's liability insurance finances any judicial representation. In Texas, the individual judge is personally responsible for securing and paying for counsel.
When substitute legal counsel is necessary, all but six of the states use private attorneys. The six exceptions are Illinois (special assistant), Kansas (attorney general when requested and if there is a conflict), Michigan (special or county attorney), Virginia (special counsel), and Wyoming (local or state bar association).
Six states have provisions requiring individual judges to pay for any substitute counsel if the official counsel declines. In Louisiana, Missouri, Oklahoma, and Texas, the challenged judge is personally responsible for funding substitute counsel. In Michigan and New York, judges who prefer private attorneys as substitute counsel must personally assume all costs.55
Although legal representation for judges presently exists, there are numerous difficulties and conflicts when a public attorney represents a judge defendant.56 The tremendous workload facing every state and federal legal officer is readily apparent. The judge's defense must wait its turn or, if given priority, other work will be neglected. Consider also that due to the nature of government service by lawyers, the judge's defense will generally be in the hands of less experienced, though dedicated, attorneys. Surely an overworked, understaffed, and less experienced public legal office is not the best source for a judge's defense where his reputation and monetary liability are at stake.
The appearances of impropriety and judicial bias that may result from the subsequent appearance before the judge of an attorney who defended him presents a more subtle, but insidious problem.57 This dilemma is not limited to the government's legal officers; it also applies to privately retained counsel.58 But the problem is exacerbated because the government appears much more regularly before the court.
Finally, the governmental legal officer cannot serve as a true personal counsel to the judge. His duties are first and foremost to the public and not to the judge as a client. Clearly, the government's attorney has a different relationship with the client-judge than a private lawyer would. Moreover, there are significant practical and ethical considerations extant if the judge is damaged by malpractice. Such a relationship also can be rife with conflict of interest questions.
(Copyright © Catholic University Law Review. All rights reserved. Frank Q. Nebeker. Issue 4.)
54 In the federal system the United States Attorney, or a member of his staff, usually represents federal judges sued in their official capacity.
55 Stafford, supra note 14, at 37.
56 Both federal and state courts have rejected challenges to the legality of representation of judges by public legal officers. See, e.g., Weiss v. Bonsal, 344 F.2d 428 (2d Cir. 1965); Booth v. Fletcher, 101 F.2d 676 (D.C. Cir.), cert. denied, 307 U.S. 628 (1938); Moity v. Louisiana State Bar Ass'n, 414 F. Supp. 180 (E.D. La. 1976); Mundy v. McDonald, 216 Mich. 444, 185 N.W. 877 (1921); O'Regan v. Schermerhorn, 25 N.J. Misc. 1, 50 A.2d 10 (1946); Heath v. Cornelius, 511 S.W.2d 683 (Tenn. 1974).
57 See Peskoe, supra note 51, at 162-63.
58 ABA STANDARDS § 4.17 commentary states:
While the judge has an absolute right to counsel of his own choice at all stages of the proceeding, it is inappropriate for the judge, thereafter, to hear matters in which his counsel appears; at least until considerable time has passed between the commission proceedings and the appearance. When it happens, the judge should disqualify himself.
In view of the problems created for judges by the existing forms of legal representation and their impact on the integrity of the judicial process, it may be that a publicly financed "judicial defender" is needed for judges.59 The busy workload of the state's attorneys' offices or their federal counterpart, combined with their inability to provide a true attorney-client relationship with the judge, makes them a less than appropriate personal counsel. Retaining private counsel is an option for the judge, but it poses a severe financial burden unless a publicly financed insurance plan is adopted. This is probably the ideal solution.
A judge should not be left to the benevolent dispensation of legal representation by either a lawyer friend or an executive branch lawyer. He is, like anyone else, entitled to have a professional relationship with all the attendant rights and obligations.
(Copyright © Catholic University Law Review. All rights reserved. Frank Q. Nebeker. Issue 4.)
59 This idea was suggested by Allen Ashman, Assistant Executive Director of the American Judicature Society, at the Sixth National Conference for Judicial Conduct Organization in Phoenix, Arizona, on November 8-11, 1978. See Hoelzel, A Report on the Sixth National Conference for Judicial Conduct Organization,62 JUDICATURE 362 (Feb. 1979).
Judicial misconduct has increasingly become the subject of public and legal scrutiny. The American Bar Association has promulgated rules that restrict judges' personal and professional conduct.1 Presumably, judges' personal and professional lives are inseverable because judges are neutral public servants. Society entrusts judges with the duty of providing an outcome based on fair and impartial evaluation of a given dilemma. If the outcome is unfair and partial, society expects the legal and political systems to provide a remedy. Judges, however, generally are not subject to civil liability for acts of misconduct because the doctrine of judicial immunity protects them.
In American jurisprudence, the doctrine of judicial immunity is very inclusive; therefore, any actual instance of civil liability for a judge is rare. Our society, however, has a very broad based system of judicial accountability for acts of misconduct, including appeal, criminal prosecution, and various kinds of discipline. Because these sanctions intend to correct the system rather than compensate individual loss, society views judicial misconduct primarily as an offense against the public and the legal system, rather than an offense against any individual member of society.
Ancient Roman culture experienced a remarkably similar phenomenon. In ancient Rome, the public held judges accountable under very limited circumstances, similar to the limited accountability of judges under the American doctrine of judicial immunity today. Initially, Roman judges were liable only for intentional conduct, such as bribery, that received a punishment of death. Eventually, the basis for judicial liability extended to unintentional conduct, such as negligence, which coincided with a less severe punishment - a fine as opposed to the death penalty. Concurrent with this growth of a more broad-based accountability for judicial misconduct was the development of an appeals system in Roman law.
This Article proposes that although the basis for judicial liability in Roman culture broadened to allow an aggrieved litigant to redress a wrong, the corresponding sanctions diminished in severity in an effort to define judicial misconduct as an offense to society rather than a personal wrong deserving of violent retribution. First, this Article discusses the American doctrine of judicial immunity and the legal system's response to the problem of judicial misconduct today. Then, this Article examines the basis of the American doctrine: the Roman approach to judicial misconduct, and the corresponding sanctions through the Republican, Classical, and post-Classical Periods.
(Copyright © Catholic University Law Review. All rights reserved. Marie Adornetto Monahan. 2000.)
* Assistant Professor of Law, The John Marshall Law School.
1 See generally MODEL RULES OF PROFESSIONAL CONDUCT (1983); MODEL CODE OF PROFESSIONAL RESPONSIBILITY (1980).
A. Development of the Doctrine of Judicial Immunity
The doctrine of American judicial immunity has its immediate roots in English common law.2 Relevant to the origins of the doctrine in Roman law, the doctrine of judicial immunity developed in English law in historical and political symmetry with the development of an appeal system. Before an established system of appeal, litigants were limited to attacking the judgment as false and seeking a fine or amercement against the judge in question.3 Once the appellate process granted litigants a means of recourse, it was no longer procedurally necessary to seek relief from erroneous or unfounded judgments by attacking the source of those decisions: the judge. In a seminal decision during the development of the English doctrine, Lord Coke articulated one of the policy reasons underlying judicial immunity as the need for finality of judgments, an "end of causes.",4 Significantly, the historical development of an appeals system parallels the concept of judicial immunity as it expanded in both the American legal system and in Roman law.
In 1871, the United States Supreme Court decided Bradley v. Fisher,5 defining judicial immunity as it exists in the United States today. Under this doctrine, judges are immune from civil liability for judicial acts performed within the jurisdiction of the court, no matter how erroneous the act or how harmful its consequences.6 This immunity applies to state and federal judges of all levels,7 whether of general or specific jurisdiction.8
In addition to the need for finality of judgments, a primary purpose of the doctrine in the American legal system is to protect judicial independence.9 Underlying this policy is the assumption that in order for judges to be truly impartial, they must be free to exercise their authority without fear of personal consequences.10 In keeping with this policy, judges remain immune from civil liability for judicial acts regardless of their motive in performing such acts.11 If the law held judges liable upon a requisite showing of intent, disappointed parties could force judges into court merely by alleging partiality, malice, or corruption, and thereby defeat the goal of judicial independence.12 Thus, to ensure judicial independence, the doctrine must protect even the occasional corrupt judge.
Because the doctrine ensures that judges will decide cases impartially, rather than out of fear of being sued, it benefits society as a whole.
Commentators often criticize judicial immunity as a doctrine imposed by the judiciary for its own benefit to hide negligence and intentional misconduct. 13 Judicial immunity, however, is not for the protection of judges, but for the protection of the public, which has a strong interest in an independent judiciary.14 Although individually wronged litigants cannot collect damages for a judge's wrongful conduct, an alternative remedy through the appeal system protects them.15 Similarly, the impeachment process, the criminal system, and disciplinary proceedings protect the public from corrupt or inept judges.16
Under the doctrine as it exists today, two delimited requirements determine whether judges may incur civil liability.17 First, judges may be subject to civil liability when they perform a non-judicial act.18 Second, judges may be subject to civil liability for any act performed in complete absence of jurisdiction.19
To decide whether an act is judicial, courts look to "the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity."20 In making this determination, courts have relied on a number of factors, including whether "the events involved occurred in the judge's chambers [and whether] the controversy centered around a case then pending before the judge."21 As one scholar has noted, in ascertaining whether conduct constitutes a judicial act, courts generally construe the facts broadly in favor of immunity,22 and in fact, courts have found immunity to exist even where one or more of these factors is not present.23
Despite the tests formulated by the courts, authorities agree that it is still somewhat unclear what constitutes a judicial act.24 Although no precise definition of a judicial act exists, clearly the immunity attaches to the act itself, not the person performing the act.25 Thus, an act is not judicial merely because a judge performs it.
Legal scholars and jurists have characterized non-judicial conduct as 1) conduct not requiring judicial discretion, or 2) highly aberrational behavior.26 Conduct which commentators consider non-judicial because it does not require an exercise of judicial discretion or a determination of parties' rights includes ministerial, administrative, and legislative acts.27 As one court noted, a judge does not "utilize his education, training, and experience in the law" to perform such acts.28 Typically, a layperson could perform these non-judicial acts. 29 Because these acts do not involve any exercise of judicial discretion, the goal of judicial independence does not require that the law extend absolute immunity to them.30 Additionally, unlike traditional judicial acts, no alternative means of review exists for such non-judicial acts.31 Thus, the law would provide no remedy for a party wronged by a judge's administrative, ministerial, or legislative acts if judges were immune from liability for such acts.
Courts have also characterized acts as non-judicial when judges have engaged in "highly aberrational" behavior, such as performing arrests and summary trials.32 Other examples include intentionally misleading police officers as to the identity of a person named on an arrest warrant,33 physically evicting a person from the courtroom,34 and making derogatory comments about a defendant to the press and city officials.35
Finally, the judge's motive does not factor into determining whether an act is judicial.36 Even a prior agreement defining the outcome of a case, whether made out of malice or partiality, or pursuant to a bribe, will not transform a judicial act into a non-judicial one.37 The judicial act analysis focuses on the judge's ultimate act, such as rendering judgment in the case, rather than on any underlying motive, such as bribery.38
In addition to the judicial act requirement, the doctrine of judicial immunity has a jurisdictional component. The courts generally agree that if a judge does not lack subject matter jurisdiction completely, he is judicially immune.39 There is also a distinction between acts performed in excess of jurisdiction and those performed in complete absence of jurisdiction. Judicial immunity protects the former, but not the latter acts.40 In Bradley v. Fisher,41 the Court gave a helpful example to distinguish the two: a probate judge presiding over a criminal prosecution acts in complete absence of jurisdiction; however, a criminal court judge who convicts a person for a non-existent offense merely acts in excess of jurisdiction.42
In Bradley, the Court stated that a judge is not immune from civil liability when no subject matter jurisdiction exists and the judge is aware of its absence.43 Subsequently, some courts have held that a judge can only act in complete absence of jurisdiction when he is aware that he lacks jurisdiction or when he acts in the face of a clearly valid statute or case law that deprives him of jurisdiction.44 Other courts, however, have held that a judge's imputed knowledge plays no role in determining whether the judge acted in complete absence of jurisdiction.45
Some of the most difficult questions a judge must consider relate to his jurisdiction; therefore, courts broadly construe jurisdiction to achieve the purposes of judicial immunity.46 Even grave procedural errors will not deprive a judge of full jurisdiction for judicial immunity purposes.47 In fact, a judge of general jurisdiction has jurisdiction over any matter unless the law specifically denies jurisdiction.48 Given this broad construction of the jurisdictional requirement, lack of jurisdiction rarely breaches judicial immunity.49
B. Methods of Ensuring Judicial Accountability
Although judicial immunity is an absolute bar to recovering monetary damages against judges, the legal and political systems make judges accountable through other methods. First, judges are not immune from awards of injunctive relief.50 Because judges need not fear the personal consequences of an injunction, such immunity is not necessary to protect judicial independence.51 Further, the Supreme Court has ruled that parties may hold judges liable for attorneys' fees under the Civil Rights Attorney's Fees Awards Act.52 While such liability seems to threaten judicial independence, the Court found that Congress specifically intended to impose such liability upon the judiciary.53 As the Court noted, it is within Congress' authority and discretion to abrogate the common law doctrine.54
Although judges are generally not subject to civil liability, they are subject to criminal liability. Judges remain criminally liable for fraud, conspiracy, or any other crimes, even when they commit those crimes in pear in court); Ross v Arnold, 575 F. Supp. 1494, 1495 (E.D. Wis. 1983) (detailing how judge in a divorce proceeding ordered the husband to vacate the couple's residence, and upon the husband's refusal to vacate, ordered him incarcerated) connection with the judicial office.55 The courts have found that providing judges with immunity from criminal liability would pose too great a risk to the public interest in law enforcement.56 The limited exception to this rule is that the law will not hold judges criminally liable for erroneous judicial acts performed in good faith.57
In addition to liability for their criminal behavior, society can hold judges accountable for their misconduct through several other methods. These methods include impeachment or removal from office and sanctions imposed by organizations that regulate judicial conduct. For example, Article II, Section IV of the United States Constitution provides for removal of federal judges upon impeachment and conviction for bribery, treason, or other high crimes and misdemeanors.58 Most state constitutions have similar provisions for legislative impeachment of state judges.59
Some states provide additional methods of removing judges from office, although such methods are infrequently used.60 One procedure, "Address to the Executive," occurs where both houses of the state legislative body formally request that the governor remove a judge from office.61 A few states also provide for removal of judges by recall election.62 Under this procedure, only a designated number of voters' signatures will secure that the recall proposition is put on the ballot.63 The general voting population then determines whether to remove the judge from office.64 Finally, most states now have at least some elected judges, allowing the public to "remove" judges by choosing not to re-elect them.65
Commentators have criticized the above methods of impeachment and removal,66 labeling them cumbersome, time-consuming, and politically motivated. 67 Additionally, the methods provide only for the extreme penalty of removal from office, which is inappropriate in many cases.68 If the judge remains in office, he or she remains unpunished. Consequently, state lawmakers rarely use these methods of judicial removal, which contributes to their ineffectiveness.69
Recently, states have addressed the problem of judicial discipline by adopting codes of judicial conduct and creating judicial conduct organizations to enforce them. The Model Code of Judicial Conduct, promulgated by the American Bar Association, has been adopted in full or in part by forty seven states, the District of Columbia, and the Federal Judicial Conference.70 Thus, virtually all state and federal judges are subject to the Code,71 which provides that judges must uphold the integrity and independence of the judiciary,72 avoid impropriety and the appearance of impropriety,73 and perform their duties impartially and diligently.74
Finally, all fifty states and the District of Columbia have established judicial conduct organizations to investigate and adjudicate complaints of judicial misconduct.75 These organizations can compel sanctions or recommend sanctions to a higher body that imposes them.76 Possible sanctions include censure,77 suspension,78 and removal from office.79 In the federal system, a judicial council in each circuit imposes sanctions for judicial misbehavior80 Unlike the state judicial conduct organizations, these councils do not enjoy the power of removal, although they can recommend the initiation of impeachment proceedings.81 Other sanctions the council can enforce include recommendations to retire, suspending caseloads, and censuring judges privately and publicly.82 Commentators consider sanctions the most effective method of disciplining judicial misconduct.83
Society, therefore, holds judges accountable to the public in a number of ways. The legal system is designed to correct itself either through a system of appeals or through the few limited circumstances when litigants can hold a judge liable for his or her conduct through criminal prosecution or disciplinary proceedings. Elected judges are also subject to the political system, where opponents may expose judicial conduct in an effort to prevent his or her re-election. These accountability measures ensure that the legal system supports both individual and societal reliance on the judicial process. Therefore, while the doctrine of judicial immunity greatly protects judges from civil liability, limited practices of judicial accountability help to preserve the integrity and workability of our legal system.
(Copyright © Catholic University Law Review. All rights reserved. Marie Adornetto Monahan. 2000.)
2 For a thorough history of judicial immunity in our legal system and its origins in English law, see J. Randolph Block, Stump v. Starkman and the History of Judicial Immunity, 1980 DUKE L.J. 879, 881-96 (1980). See generally Jay M. Feinman & Roy S. Cohen, Suing Judges: History and Theory, 31 S.C. L. REV. 201 (1980); Jeffrey M. Shaman, Judicial Immunity from Civil and Criminal Liability, 27 SAN DIEGO L. REV. 1 (1990).
3 See Shaman, supra note 2, at 3.
4 Floyd v. Barker, 77 Eng. Rep. 1305, 1306 (K.B. 1907); see also Block, supra note 2, at 885-87; Shaman, supra note 2, at 3; Michael Robert King, Note, Judicial Immunity and Judicial Misconduct: A Proposal for Limited Liability, 20 ARIZ. L. REV. 549, 551-52 (1978).
5 80 U.S. (13 Wall.) 335 (1871). The Supreme Court first addressed the issue of judicial immunity in Randall v. Brigham, 74 U.S. (7 Wall.) 523, 537 (1868), where the Court suggested that judges might be liable for judicial acts performed both maliciously or corruptly and in excess of jurisdiction. In Bradley, however, the Court clearly rejected this notion. See Bradley, 80 U.S. (13 Wall.) at 350-51.
6 See Bradley, 80 U.S. (13 Wall.) at 347; see also Stump v. Sparkman, 435 U.S. 349, 355-56 (1978).
7 See Ammons v. Baldwin, 705 F.2d 1445, 1447 (5th Cir. 1983); Brewer v. Blackwell, 692 F.2d 387, 396 (5th Cir. 1982); Turner v. Raynes, 611 F.2d 92, 94-97 (5th Cir. 1980).
8 See Turner, 611 F.2d at 97. When the Supreme Court first adopted the doctrine of judicial immunity, it distinguished between courts of general and limited jurisdiction. See Randall,74 U.S. (7 Wall.) at 535-36. For an explanation of the abolishment of this distinction, see Block, supra note 2, at 892-96.
9 See Forrester v. White, 484 U.S. 219, 226-27 (1988); Bradley, 80 U.S. (13 Wall.) at 347; Randall,74 U.S. (7 Wall.) at 536. Some courts offer the need for finality of judgments as another policy reason justifying the doctrine of judicial immunity. See Pierson v. Ray, 386 U.S. 547, 564 & n.4 (1967) (Douglas, J., dissenting); Holloway v. Walker, 765 F.2d 517, 522 (5th Cir. 1985); Harper v. Merckle, 638 F.2d 848, 856 & n.10 (5th Cir. 1981); see also Shaman, supra note 2, at 4.
10 See Pierson, 386 U.S. at 564 & n.4; Holloway, 765 F.2d at 522; Harper, 638 F.2d at 856 & n.10.
11 See Forrester, 484 U.S. at 228; Stump, 435 U.S. at 355-56; Bradley, 80 U.S. (13 Wall.) at 347.
12 See Bradley, 80 U.S. (13 Wall.) at 349; Holloway,765 F.2d at 522; O’Neil v. City of Lake Oswego, 642 F.2d 367, 370 (9th Cir. 1981).
13 See Shaman, supra note 2, at 4.
14 See Pierson, 386 U.S. at 554; Bradley, 80 U.S. (13 Wall.) at 349; Randall, 74 U.S. (7 Wall.) at 536.
15 See Forrester, 484 U.S. at 227; Holloway, 765 F.2d at 522.
16 See Forrester, 484 U.S. at 227; Holloway, 765 F.2d at 522.
17 See Stump v. Sparkman, 435 U.S. 349, 356-57, 360 (1978).
18 See id. at 355-57; see also Bradley, 80 U.S. (13 Wall.) at 347.
19 See Stump, 435 U.S. at 356-57.
20 Id. at 362.
21 McAlester v. Brown, 469 F.2d 1280, 1282 (5th Cir. 1972). This case introduced a four-part test to determine whether:
(1) the precise act complained of, use of the contempt power, is a normal judicial function;
(2) the events involved occurred in the judge's chambers;
(3) the controversy centered around a case then pending before the judge; and
(4) the confrontation arose directly and immediately out of a visit to the judge in his official capacity.
Id. The Ninth and Eleventh Circuits have since used this test as well. See Ashelman v. Pope, 793 F.2d 1072, 1075-76 (9th Cir. 1986); Dykes v. Hosemann, 776 F.2d 942, 946 (11th Cir. 1985); Adams v. McIlhany, 764 F.2d 294, 297 (5th Cir. 1985); Brewer v. Blackwell, 692 F.2d 387, 396-97 (5th Cir. 1982).
22 See Ashelman, 793 F.2d at 1076; Adams, 764 F.2d at 297; Shaman, supra note 2, at 9.
23 See Harris v. Deveaux, 780 F.2d 911, 915 (11th Cir. 1986); Holloway v. Walker, 765 F.2d 517, 524 (5th Cir. 1985); Adams, 764 F.2d at 297; Shaman, supra note 2, at 9.
24 See Block, supra note 2, at 916-21; Shaman, supra note 2, at 8; Joseph Romagnoli, Note, What Constitutes a Judicial Act for Purposes of Judicial Immunity?, 53 FORDHAM L. REV. 1503, 1504 (1985).
25 See Shaman, supra note 2, at 8; see also Forrester v. White, 484 U.S. 219, 228-29 (1988).
26 See Shaman, supra note 2, at 9.
27 See Forrester, 484 U.S. at 228-30 (noting that hiring and supervising court personnel is an administrative duty not entitled to the protection of judicial immunity); Supreme Court of Virginia v. Consumers Union of the United States, Inc., 446 U.S. 719, 731 (1980) (recognizing that promulgating attorney disciplinary rules is a legislative rather than a judicial act); Ex Parte Virginia, 100 U.S. 339, 348 (1879) (concluding that jury selection is a ministerial act); see also Romagnoli, supra note 24, at 1508. For a discussion of the distinctions between ministerial, administrative, and judicial acts, see ABIMBOLA A. OLOWOFOYEKU, SUING JUDGES: A STUDY OF JUDICIAL IMMUNITY 34-38 (1993).
28 McMillan v. Svetanoff, 793 F.2d 149, 155 (7th Cir. 1986).
29 See Forrester, 484 U.S. at 229; Ex Parte Virginia, 100 U.S. at 348.
30 See McMillan,793 F.2d at 155.
31 See id.
32 See Shaman, supra note 2, at 9-10; see also Brewer v. Blackwell, 692 F.2d 387, 396-98 (5th Cir. 1982) (finding that a justice of the peace's alleged arrest of four men at a garbage dump, who then engaged in an automobile chase with one of the men and conducted a summary trial was not a judicial act); Harper v. Merckle, 638 F.2d 848, 859 (5th Cir. 1981) (concluding that a judge's jailing of a man for contempt when he entered the judge's chambers to make an alimony payment to a court employee was not a judicial act); Lopez v. Vanderwater, 620 F.2d 1229, 1235 (7th Cir. 1980) (determining that a judge's prosecutorial conduct in determining the charges against an arrested man was not a judicial act); Zarcone v. Perry, 572 F.2d 52, 53 (2d Cir. 1978) (describing how a traffic judge had a coffee vendor brought to his chambers handcuffed, and then interrogated and harassed the vendor about coffee the judge considered "putrid"); Krueger v. Miller, 489 F. Supp. 321, 329 (E.D. Tenn. 1977) (holding that a justice of the peace acted outside the limits of his lawful authority when he displayed a false badge and arrested a woman).
33 See King v. Love, 766 F.2d 962, 968 (6th Cir. 1985).
34 See Gregory v. Thompson, 500 F.2d 59, 64 (9th Cir. 1974).
35 See Harris v. Harvey, 605 F.2d 330, 336 (7th Cir. 1979).
36 See King, 766 F.2d at 968 (finding that judge deliberately misled police into believing the man named on an arrest warrant was a man who had filed a complaint against the judge); Harris,605 F.2d at 333-36 (reporting that judge made repeated derogatory and racially-based comments about police lieutenant to the press and city officials).
37 See Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986) (holding that a conspiracy does not pierce judicial immunity); Dykes v. Hosemann, 776 F.2d 942, 946 (11th Cir. 1985) (concluding that judges who conspire are immune if performing a judicial act); Holloway v. Walker, 765 F.2d 517, 523 (5th Cir. 1985) (finding complaint alleging that harm was inflicted by judicial acts to which absolute immunity would apply, although caused by bribe or conspiracy, was insufficient to avoid judicial immunity); Sparks v. Duval County Ranch Co., 604 F.2d 976, 980-81 (5th Cir. 1979) (determining that the advantages of punishing those who subvert the judiciary outweigh any good conferred by a derivative judicial immunity rule).
38 See Ashelman, 793 F.2d at 1077-78.
39 See id. at 1076; Dykes, 776 F.2d at 948; Green v. Maraio, 722 F.2d 1013, 1017 (2d Cir. 1983). But see Rankin v. Howard, 633 F.2d 844, 849 (9th Cir. 1980) (holding that acts taken in the absence of personal jurisdiction are not protected by judicial immunity).20001 Judicial Immunity and Judicial Liability
40 See Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351-52 (1872); see also Stump v. Sparkman, 435 U.S. 349, 356 n.6 (1978) (quoting Bradley, 80 U.S. (13 Wall.) at 351-52).
41 80 U.S. (13 Wall.) 335 (1872).
42 See id. at 352.
43 See id.
44 See Rankin, 633 F.2d at 849; Turner v. Raynes, 611 F.2d 92, 95 (5th Cir. 1980). In Turner, the Fifth Circuit stated that one possible interpretation of Stump is that a judge is only liable if he exercised unconferred jurisdiction in such a crass manner as to indicate he did so either knowingly or recklessly. See Turner, 611 F.2d at 95. In the same year, the Ninth Circuit, in Rankin, clearly stated a judge was immune unless he was aware he lacked jurisdiction, or he acted in the face of a clearly valid law depriving him of it. See Rankin, 633 F.2d at 849. The Sixth and Eleventh Circuits also adopted this position. See Mills v. Killebrew, 765 F.2d 69, 71 (6th Cir. 1985); Dykes v. Hosemann, 743 F.2d 1488, 1497 (11th Cir. 1984).
45 See O’Neil v. City of Lake Oswego, 642 F.2d 367, 370 (9th Cir. 1981). In O’Neil, the Ninth Circuit contradicted its holding in Rankin by holding that a judge's intent does not factor into the jurisdictional analysis. See id. The court reasoned that the Stump court neither stated nor implied that a judge's knowledge of his jurisdiction affected his immunity. See id.
46 See Ashelman v. Pope, 793 F.2d 1072, 1076 (9th Cir. 1986).
47 See Stump v. Sparkman, 435 U.S. 349, 359 (1978); Bradley, 80 U.S. (13 Wall.) at 357; King v. Myers, 973 F.2d 354, 359 (4th Cir. 1992) (describing how judge ordered warrantless arrest); King v. Love, 766 F.2d 962, 965 (6th Cir. 1985) (explaining that judge jailed party for contempt when he was only authorized to impose fine); Lopez v. Vanderwater, 620 F.2d 1229, 1234 (7th Cir. 1980) (noting that judge conducted a trial in a police station that fell outside his jurisdiction); King v. Thornburg, 762 F. Supp. 336, 338 (S.D. Ga. 1991) (discussing how magistrate ordered the arrest of an attorney who failed to appear in court); Ross v Arnold, 575 F. Supp. 1494, 1495 (E.D. Wis. 1983) (detailing how judge in a divorce proceeding ordered the husband to vacate the couple’s residence, and the husband’s refusal to vacate, ordered him incarcerated).
48 See Stump, 435 U.S. at 358.
49 But see Maestri v. Jutkofsky, 860 F.2d 50, 53 (2d Cir. 1988) (denying judicial immunity when town judge issued an arrest warrant for persons who committed offenses outside his territorial jurisdiction); Hoppe v. Klapperich, 28 N.W.2d 780, 789 (Minn. 1947) (explaining that judge acted wholly without jurisdiction by issuing an arrest warrant when no written complaint had been made); State ex rel. Little v. United States Fidelity & Guar. Co., 64 So. 2d 697, 702-03 (Miss. 1953) (finding judge liable where he knowingly drafted an affidavit to state that an offense occurred within his jurisdiction when it clearly had not); Vickrey v. Dunivan, 279 P.2d 853, 855-56 (N.M. 1955) (detailing how judge tried person for an act performed outside the judge's territorial jurisdiction and which was not even an offense); Utley v. City of Independence, 402 P.2d 91, 94 (Or. 1965) (describing how judge completely lacked jurisdiction when he issued an arrest warrant without a written complaint).
50 See Pulliam v. Allen, 466 U.S. 522, 541-42 (1984).
51 See id. at 536-38. The Court noted that judges have never been held absolutely immune from injunctive relief and that there is no evidence that this policy has chilled judicial independence. See id. at 536. Furthermore, the stringent requirements for obtaining equitable relief minimize the risk that judges will be harassed and judicial independence compromised. See id. at 537-38.
52 See id. at 543-44.
53 See id. at 543.
54 See id.
55 See United States v. Chaplin, 54 F. Supp 926, 930, 933 (S.D. Cal. 1944).
56 See id. at 934 (quoting Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 226-27 (1821)).
57 See Braatelien v. United States, 147 F.2d 888, 895 (8th Cir. 1945).
58 "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." U.S. CONST. art. II, § 4. It has never been disputed that judges are civil officers for purposes of impeachment. See Harry T. Edwards, Regulating Judicial Misconduct and Divining "Good Behavior" for Federal Judges, 87 MICH. L. REV. 765,773 (1989).
59 See Russell R. Wheeler & A. Leo Levin, Judicial Discipline and Removal in the United States (July 1979) (paper prepared for the Fed. Jud. Ctr.), available in 1979 WL 24794.
60 For a general discussion of these methods, see Wheeler & Levin, supra note 59, and Edward J. Schoenbaum, A Historical Look at Judicial Discipline, 54 CHI.-KENT L. REV. 1 (1977).
61 See Schoenbaum, supra note 60, at 4.
62 See Wheeler & Levin, supra note 59, at 4-5.
63 See Schoenbaum, supra note 60, at 8.
64 See id.
65 See Wheeler & Levin, supra note 59, at 5.
66 For an evaluation of several of the impeachment and removal methods discussed, see generally Wheeler & Levin, supra note 59, and Schoenbaum, supra note 60.
67 See Jeffrey M. Shaman, Judicial Ethics, 2 GEO. J. LEGAL ETHICS 1, 10 (1988).
68 See id.
69 See id.
70 See id. at 3; see also Yvette Begue & Candice Goldstein, How Judges Get Into Trouble: What They Need to Know About Development in the Law of Judicial Discipline, 26 JUDGES J. 8, 9 (1987). Montana, Rhode Island, and Wisconsin have not adopted the Model Code. See id. The ABA revised the Code in 1990, and since that time, nearly 20 jurisdictions have adopted new codes of judicial conduct modeled on the 1990 revision. See STEPHEN GILLERS & ROY D. SIMON, REGULATION OF LAWYERS: STATUTES AND STANDARDS, 573-75 (2000).
71 See Shaman, supra note 67, at 3.
72 See Begue & Goldstein, supra note 70, at 9.
73 See id.
74 See id.
75 See Shaman, supra note 67, at 11.
76 See id.
77 See generally In re Inquiry Concerning a Judge, 788 P.2d 716 (Alaska 1990) (privately reprimanding a judge for creating appearance of impropriety by self-validating reduced airline tickets); Quinn v. State Comm'n on Judicial Conduct, 430 N.E.2d 879 (N.Y. 1981) (censuring a judge in connection with convictions for public intoxication); In re Roth, 645 P.2d 1064 (Or. 1982) (censuring a judge in connection with conduct constituting criminal mischief); In re Larsen, 616 A.2d 529 (Pa. 1992) (publicly reprimanding an associate judge for ex parte communications).
78 See generally In re Schenck, 870 P.2d 185 (Or. 1994) (suspending judge from office for ex parte communications, failure to disqualify himself, and publishing comments on pending cases); West Virginia Judicial Inquiry Comm'n v. Dostert, 271 S.E.2d 427 (W. Va. 1980) (censuring and suspending judge for assisting officers with arrests and carrying a weapon without proper license).
79 See generally In re Peck, 867 P.2d 853 (Ariz. 1994) (removing justice of the peace for ex parte communications and failure to disqualify himself); In re Callanan, 355 N.W.2d 69 (Mich. 1984) (removing judge from office in connection with convictions for conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (RICO), aiding and abetting RICO violations and aiding and abetting mail fraud); In re Duncan, 541 S.W.2d 564 (Mo. 1976) (removing judge from office for breaking and entering); In re Coruzzi, 472 A.2d 546 (N.J. 1984) (removing judge from office after conviction for four counts of bribery).
80 See Shaman, supra note 67, at 16. These councils are authorized by the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980, Pub. L. No. 96-458, 94 Stat. 2035.
81 See Shaman, supra note 67, at 16-17. Some question exists as to whether impeachment of judges, as provided in the Constitution, is the only constitutional method of removing judges from office. See id. at 17.
82 See 28 U.S.C. § 372(c)(6)(B) (1994); Shaman, supra note 67, at 17.
83 See generally Schoenbaum, supra note 60, at 1-2; Shaman, supra note 67, at 11.
In ancient Rome, the concept of judicial liability developed as one means of self-correction within the judicial process. Judges enjoyed a kind of immunity from acts of misconduct arising out of their official duties in an effort to protect the independence of the judiciary. Roman law, however, held judges liable for dishonest and wrongful conduct relative to their resolution of cases brought before them. Over time, a system of self-correction for judicial misconduct developed within the Roman judiciary.
In the Roman legal system, parties established liability based upon fault in a cause of action called the delict, which means "wrong." Generally, actions that arose ex delicto were civil as opposed to criminal wrongs and usually threatened the security of an individual's rights. Originally, a violent retribution requited a delictal wrong; eventually, less violent means, such as monetary recompense, satisfied requital for such a wrong. Significantly, the delict encompassed injury to an individual's rights as well as harm to the state, and thereby served both a civil and criminal function in society.
The ancient Romans also established tort-like judicial liability in actions that arose "as if from a delict" or quasi ex delicto. The quasi-delicts encompass liability for careless conduct including liability for judicial dishonesty. In Roman law, judicial liability was created by a quasi-delict termed the iudex qui litem suam facit, which translates as a judge who "make[s] a case his own.84 This legal action has garnered substantial scholarly recognition, but only in an attempt to reconcile it with the other three quasi-delicts.85 Scholars, however, have given less attention to a detailed study of the legal significance of the iudex qui litem suam facit, which merits a close examination. This Article analyzes this action as it developed from the Republican through the post-Classical Periods in Roman law. The scope of the iudex qui litem suam facit and its corresponding sanctions during each period will receive particular scrutiny.
A. Republican Period: A Focus on Intentional Misconduct
During the Republican Period, beginning in approximately the fifth century B.C. and extending to about 200 A.D., Rome defined itself as a strong political entity both in Italy and abroad.86 At this time, the Romans codified centuries-old legal customs and traditions into a formal written expression of the law known as the Twelve Tables. The Twelve Tables is the source for one of the few proceedings in the Republican Period that accomplished a limited type of judicial review.87 Roman law invoked this proceeding against the iudex qui litem suam facit. The Twelve Tables states:
Dure autem scriptum esse in istis legibus quid existimaripotest? nisi duram esse legem putas, quae iudicem arbitrumve iure datum, qui ob rem dicendam pecuniam accepisse convictus est, capitepoenitur...?88
How is it possible that these laws be considered harsh? Unless you think that a law is harsh that punishes a judge or arbiter with capital punishment, if he had clearly been shown to have accepted money to influence his decision.89
The tone of this passage implies that the Romans considered capital punishment a suitable penalty for a judge who accepted a bribe. An understanding of the Twelve Tables in their entirety clarifies the appropriateness of the sanction during the Republican Period. Many of the customs codified in the Twelve Tables reflected a primitive culture that often used the death penalty as a means of retributive vengeance.90 The sanction of capital punishment against a misbehaving judge preserves this retributive purpose. As a legal penalty, it formally gave a wronged litigant the opportunity to requite an injury caused by a judge's misbehavior.
Significantly, in the Twelve Tables, the sanction focuses on the manner in which the judge acted rather than the correctness of his opinion. The text does not discuss whether the decision of the corrupt judge is legally correct.91 Rather, the passage stresses the behavior of the judge by use of the Latin phrase ob rem dicendam accepisse convictus est. This phrase means that the judge took money "for the purpose of making a biased opinion." The Latin makes it very clear that the judge must have acted intentionally because the grammatical function of the gerundive clause, ob rem dicendam, indicates the purpose behind the verbal action of accepting money. Hence, by accepting the money with the purpose of favoring one party, the judge committed an intentional wrong.92 Thus, the Romans limited judicial liability during the Republican Period to the intentional deviation from judicial impartiality motivated by the acceptance of a bribe.
It is significant that the scope of judicial misbehavior subject to punishment during the Republican Period was so limited. No system of appeal existed during this period, and the alternative type of judicial review available was narrow in scope.93 The combination of these factors explains why a misbehaving judge endured such a severe sanction. By creating an action that harshly punished judicial misconduct, Republican Rome produced a strong deterrent against such misconduct while giving some means of recourse to litigants.
B. Classical Period: Judicial Liability Extended
The scope of judicial liability broadened during the Classical Period of Roman law.94 A review of the sources from this period reveals that during the Classical Period, a judge was liable for intentional, and perhaps unintentional, acts of judicial malfeasance. One of the Classical sources for the iudex qui litem suam facit is a passage in the Digest attributed to Ulpian:95
Iudex tunc litem suam facere intellegitur, cum dolo malo in fraudem legis sententiam dixerit (dolo malo autem videtur hoc facere,si evidens arguatureius vel gratia vel inimicitia vel etiam sordes), ut veram aestimationemlitispraestarecogatur.96
A judge makes the case his own when from evil intent, that is a bias due to friendship, hatred, or corruption, he gives a fraudulent judgment, and he is condemned to pay the market value of the thing in dispute.
Of central importance to this passage is the fraudamsentientiam or the "fraudulent judgment" rendered by the judge. In the context of this passage, a fraudulent judgment is not necessarily a legally incorrect opinion. Rather, the Latin word fraudam implies that the opinion was in some way tainted or cheated of honest and impartial deliberation by the judge.
Ulpian further clarifies the nature of the fraudulent judgment by stating that the judge must intentionally depart from his duty to judicial impartiality. Ulpian establishes this by the phrase dolo malo, which means injurious "evil intent."97 Dolus, a noun that refers to the judge's state of mind, is in the ablative case, which functions here to stress the conditions under which the fraud was committed. Thus, regardless of the legal correctness of the decision, the judge would incur liability if a deceitful or evil state of mind tainted his opinion.
To underscore the fact that the judge's perspective or evil intent is the gravamen of the offense, Ulpian lists particular circumstances that may have motivated the fraud: friendship (gratia),hatred (inimicitia),and corruption (sordes). For example, the judge's impropriety may have involved an affirmative action, such as the taking of a bribe. Under such circumstance, the presumption of dolus on the part of the judge would be great.98 Alternatively, the judge's behavior could involve a less obvious wrong, such as a narrow or harsh decision in a case due to a personal bias.99 Because Ulpian establishes dolus malus as the source of fault for the iudex qui litem suam facit, a number of different circumstances involving intentional judicial partiality may give rise to judicial liability. Consequently, the Classical Period witnessed a broader scope of judicial liability than the Republican Period, which limited the scope to intentional fraud, such as accepting a bribe of money.
Another passage of Ulpian speaks of the need for judicial liability due to the possibility of unfairness or unskillfulness of a judge.100 Still, Ulpian does not mention the necessity of dolus. This passage reveals that one should not read the foregoing passage of Ulpian as a definitional limitation upon the iudex qui litem suam facit as it was known during his lifetime. Rather the inconsistencies between the two passages evidence a transitional state of the law of judicial liability during the Classical Period.101
A passage in the Digest, attributed to Gaius, illustrates this fluctuation in the state of the law:
Debet autem iudex attendere,ut cum certaepecuniae condemnatio posita sit, neque maioris neque minoris summa posita condemnet, alioquin litem suam facit; item si taxatio posita sit, ne pluris condemnet quam taxatum sit; alias enim similiter litem suamfacit. Minoris autem damnareeipermissum est.102
When a certain sum is laid in the condemnatio, a judge must be careful not to condemn the defendant in a greater or lesser sum, else he makes himself liable to damages: and if there is a limitation he must be careful not to exceed the maximum, else he is similarly liable.
If a judge improperly set damages, the judge assumed liability for damages, which would be determined in accordance with the judge's degree of fault.103 Curiously, Gaius makes no mention of intent in this passage. Such silence as to the judge's state of mind would allow liability to attach whether the judge acted with dolus or mere negligence in the performance of his duty.
Another passage attributed to Gaius, further defines the scope of the iudex qui litem suam facit. It reads:
Si iudex litem suam fecerit, non proprie ex maleficio obligatus videtur. Sed quia neque ex contractu obligatusest, et utiquepeccasse aliquid intellegitur licet per imprudentiam: ideo videtur quasiex maleficio teneri infactum actione, et in quantum de ea reaequum religioniiudicantisvisum fueritpoenam sustinebit.104
If a judge make a case his own, the obligation he incurs is not created by delict, nor yet by contract, but as he commits a fault, though it may be without intention, he is liable in an action in factum for a quasi-delict to such damages as may be assessed.
The difficulty presented is that Gaius extends judicial liability to acts that occurred unintentionally (per imprudentiam). Because Ulpian and Gaius were contemporaries, it is unlikely that the former would limit judicial liability to intentional acts, while the latter would extend such liability to negligence. To reconcile this inconsistency, scholars have regarded the portion of Gaius' passage from "the obligation" to "quasidelict" as an interpolation, or an insertion of text from an outside source.105 Such reasoning is persuasive not only from a linguistic perspective, but also from an historical one.106
One scholar regards the interpolation itself as evidence of the transitional state of the law during the Classical Period.107 Nevertheless, even if one disregards the interpolated portions of the passage, Gaius still makes no specific reference to the necessity of dolus. The lack of such specificity leads to differing interpretations of the passage. One may read it with strict adherence to prior custom and argue that if the quasi-delict were to extend its liability to unintentional acts, the author would have mentioned it specifically. An alternative reading favors the trend of the law at that time and argues that because the quasi-delict broadened its scope over time, the vagueness of Gaius' passage intended to allow for broad interpretations including both intentional and unintentional acts.
Based on this passage of Gaius, however, the scope of judicial liability was probably the same during the lifetimes of Gaius and Ulpian because both authors of the Digest aimed to collect and interpret legal customs as they had developed up to the second century A.D. As the empire grew, a system of appeals began to emerge;108 Gaius and Ulpian wrote during a transitional period between the Republican Period, when there were no appeals, and the later empire, when a system of appeals was fully developed. A legal system that lacked a system of review, as in the Republican Period, posited greater power in the judiciary. Correspondingly, the legal system of that period provided an alternative to a right of appeal, the iudex qui litem suam facit, which provided a remedy for a specific judicial misbehavior, i.e., bribery. The death penalty sanction underscores the importance vested in this remedy during the Republican Period.
Similarly, during the Classical Period, the iudex qui litem suam facit existed as a remedy that served as an alternative to appeals. However, because a system of appeals began to emerge during the Classical Period, the pressure was not as great on that society to provide an alternative method of review. Thus, although the iudex qui litem suam facit was still a very viable action against a misbehaving judge, its symbolic value as the guardian of judicial integrity diminished. Reducing the sanction from the imposition of the death penalty to the assessment of a fine clearly illustrates this point.109
C. Post-Classical Period: Focus on Unintentional Misconduct
A final source of the iudex qui litem suam facit, which establishes judicial liability during the post-Classical Period, appears in the Institutes of Justinian.110 The text is almost identical to that of Gaius in the Digestand commentators have long agreed that Justinian relied heavily upon Gaius' work.111 It is certain, however, that by Justinian's time the scope of judicial liability extended to unintentional acts of the judge.112 A close reading of the Institutes elucidates what types of judicial misbehavior the Romans included within the ambit of the iudex qui litem suam facit during the later empire.
During that period, Roman law held the judge responsible for a maleficium although he was viewed as not having acted strictly from maleficium. The word maleficium is very close in meaning to delict, that is, a wrong or an evil deed. Because the "male" part of the word means evil, maleficium means a deed that is evil in and of itself. In the Institutes of Justinian, maleficium refers to judicial bias.113 Justinian introduces the idea of fault by use of the verb pecasse, which means to do amiss, to mistake, or to transgress. Thus, during the post-Classical Period, the judge was liable for an error that rose to the level of a maleficium even though he may have committed it through ignorance or imprudence.
Clearly, the scope of judicial liability broadened during the later empire. The phrase per imprudentiam (unintentionally), which is definitely a part of the Justinian passage and not an interpolation as it was during the time of Gaius, imposed additional liability on a judge for a good faith procedural error such as missing the day of trial or making a minimal error in setting damages.114 Because the law required neither proof of harmful intent (dolus) nor any mention of the degree of harm to a litigant, the judge's vulnerability to suit was great. Two developments during the later empire, however, balanced this vulnerability. First, litigants had recourse to an appellate court if they felt wronged by a decision.115 Such a development would reduce the number of actions for personal liability against a judge. Second, the sanction imposed upon the judge was a fine in the amount of the litigation (if caused by dolus) or set by the judge himself (if prompted by negligence).116 The lack of severity of this sanction is inversely related to the broadness of the judge's liability. Therefore, while the scope of judicial liability was broadest during the post-Classical Period, the penalty for judicial misbehavior was most lenient.
(Copyright © Catholic University Law Review. All rights reserved. Marie Adornetto Monahan. 2000.)
84 J. INST. 4.5. The Institutes of Justinian are the source for the term quasi-delict. According to Justinian's compilation, a quasi-delict imposes liability on a defendant regardless of whether that defendant caused the harm in question. See id.; see also BARRY NICHOLAS, AN INTRODUCTION TO ROMAN LAW 224-25 (1962); J.A.C. THOMAS, TEXTBOOK OF ROMAN LAW 377-79 (1976).
85 The four quasi-delicts are: iudex qui litem suam facit; res deiectaevel effusae; res suspensae; and nautae caupones stabularii. See J. INST. 4.5; see also WILLIAM W. BUCKLAND, A TEXTBOOK OF ROMAN LAW FROM AUGUSTUS TO JUSTINIAN, 598-99 (1950); R.W. LEAGE, ROMAN PRIVATE LAW 421 (1961); Peter Stein, The Nature of Quasi-delictal Obligationsin Roman Law, in 5 REVUE INTERNATIONAL DES DROITS DE L'ANTIQUITE' (1958); 8 DRAGONIR STOJCEVIC, SUR LE CHACTERE DES QUASI-DELITS EN DROIT ROMAIN 57-58 (1957).
86 For extensive treatments of ancient Roman history, see generally 2 DONALD KAGEN, PROBLEMS IN ANCIENT HISTORY (1966), CARL ROEBUCK, THE WORLD OF ANCIENT TIMES (1966), MICHAEL CORANT, HISTORY OF ROME (Prentice Hall 1978), and DAVID JOHNSTON, ROMAN LAW IN CONTEXT (Cambridge 1999). The historical background for this Article is derived from these sources.
87 Besides the iudex qui litem suam facit the only proceedings in the nature of review were the revocatio in duplum and a restitutio in integrum. Neither of these proceedings addressed the wrong of judicial misbehavior. See ROSCOE POUND, APPELLATE PROCEDURE INCIVIL CASES 7 (1941).
88 AULUS GELLII, NOCTES ATTICAE, 20.1.7.
89 All of the English translations in this text are from the following texts, with some modification: THEODOR MOMMSEN, DIGEST OF JUSTINIAN (Paul Krueger & Alan Waston eds., Univ. of Pa. Press 1985), and EDWARD POSTE, INSTITUTES OF ROMAN LAW BY GAIUS (Oxford 1890).
90 See HANS JULIUS WOLFF, ROMAN LAW, 57-58 (1951).
91 See J.M. KELLY, ROMAN LITIGATION 110 (1966); see also RUDOLPH SOHM, THE INSTITUTES, A TEXTBOOK OF THE HISTORY AND SYSTEM OF ROMAN PRIVATE LAW 424 (1907). See generally OTTO LENEL, DAS EDICTUM PERPETUUM 136 (1927).
92 See KELLY, supra note 91, at 108-112.
93 See SOHM, supra note 91, at 288-89, 300-01.
94 See WOLFF, supra note 90, at 103-17. The Classical Period of Roman Law extended from the coming of the Principate to around the middle of the third century B.C. See id. at 103.
95 See H.F. JOLOWICZ, HISTORICAL INTRODUCTION TO THE STUDY OF ROMAN LAW 398-99 (1932). Ulpian's works are dated around the third century B.C. See id.
96 DIG. 1.15.1 (Ulpian, Edict 21).
97 See A.M. HONORE, GAIUS 103 (1962).
98 For a full discussion of dolus type situations, see the chapter on The Misbehaving Judge in KELLY, supra note 91, at 102-17.
99 See id.
100 See DIG. 49.1.1. (Ulpian, Appeals 1).
101 See KELLY, supra note 91, at 111-13.
102 G. INST. 4.52; see POSTE, supra note 89, at 501-02.
103 See POSTE, supra note 89, at 510.
104 G. INST. 44.7.5; 50.13.6.
105 See Stein, supra note 85, at 569-70.
106 See KELLY, supra note 91, at 111-14.
107 See id. at 112-14.
108 See POUND, supra note 87, at 8; see also THOMAS, supra note 84, at 121 n.25.
109 For a discussion of the death penalty as an appropriate sanction, see KELLY, supra note 91, at 109. For the evolution of the sanction to a monetary penalty, see DIGEST OF JUSTINIAN 1.15.1, and POSTE, supra note 89, at 510.
110 The post-Classical Period begins with Diocletian and ends with Justinian's compilation in 534. See FRITZ SCHULTZ, HISTORY OF ROMAN LEGAL SCIENCE 262-65 (1946).
111 See WILLIAM W. BUCKLAND, THE MAIN INSTITUTIONS OF ROMAN PRIVATE LAW 341 (1931).
112 See KELLY, supra note 91, at 114-15; see also WILLIAM W. BUCKLAND, A MANUAL OF ROMAN PRIVATE LAW 330 (1925); JAMES MACKINTOSH, ROMAN LAW IN MODERN PRACTICE 169 (1934).
113 For a discussion of maleficium, see HONORE, supra note 97, at 101-04.
114 See SOHM, supra note 91, at 424.
115 See THOMAS, supra note 84, at 121; see also POSTE, supra note 89, at 632.
116 See POSTE, supra note 89, at 510; see also J.B. MOYLE, INSTITUTES OF JUSTINIAN 172-73 (Oxford 4th ed. 1906).
The scope of judicial liability in Roman law covered a range of activity including intentional and unintentional judicial misbehavior. The extension of judicial liability from clearly intentional acts of wrongdoing to imprudent error created a broader base of judicial accountability. Two other changes in the law accompanied this chronological development. As the judge incurred greater liability for judicial misbehavior, the sanctions imposed upon the judge became less severe and more compensatory in nature. During the Republican Period, the scope of the iudex qui litem suam facit was very narrow, yet its sanction was very harsh. Hence, its legal purpose during that time was deterrence and retribution. During the Classical and post-Classical Periods, its scope broadened, while its sanction diminished. Roman law increasingly directed the sanction at compensation of the litigant in an effort to preserve the integrity of the legal system.
This phenomenon in Roman law parallels the development of the doctrine of judicial immunity in the American legal system, where the availability of an appeal system gave rise to the concept of judicial immunity. Currently, the status of judicial immunity is rather broad, thus providing little recourse to litigants for misconduct arising from a judge's official duties. However, similar to the philosophical and historical underpinnings of Roman society, American legal and political systems provide numerous other measures of accountability in an effort to balance the judiciary's need for independence with society's duty to redress the wronged litigant.
(Copyright © Catholic University Law Review. All rights reserved. Marie Adornetto Monahan. 2000.)
In the American judicial system, few more serious threats to individual liberty can be imagined than a corrupt judge. Clothed with the power of the state and authorized to pass judgment on the most basic aspects of everyday life, a judge can deprive citizens of liberty and property in complete disregard of the Constitution. The injuries inflicted may be severe and enduring. Yet the recent expansion of a judge-made exception to the landmark Civil Rights Act of 1871, chief vehicle for redress of civil rights violations, has rendered state judges immune from suit even for the most bizarre, corrupt, or abusive of judicial acts.1 In the last decade this “doctrine of judicial immunity” has led to a disturbing series of legal precedents that effectively deny citizens any redress for injuries, embarrassment, and unjust imprisonment caused by errant judges. Consider the following examples.
• In 1978, the Supreme Court in Stump v. Sparkman2 held that the doctrine forbade a suit against an Indiana judge who had authorized the sterilization of a slightly retarded 15-year-old girl under the guise of an appendectomy. The judge had approved the operation without a hearing when the mother alleged that the girl was promiscuous. After her marriage two years later, the girl discovered she was sterile.
• In 1980, the Seventh Circuit Court of Appeals in Lopez v. Vanderwater3 held a judge partially immune from suit for personally arresting a tenant who was in arrears on rent owed the judge’s business associates. At the police station, the judge had arraigned the tenant, waived the right to trial by jury, and sentenced him to 240 days in prison. Six days of this sentence were served before another judge intervened. The Seventh Circuit found the judge immune for arraigning, convicting, and sentencing the tenant but not for conducting the arrest and “prosecution.”
• In 1985, the Eleventh Circuit Court of Appeals held in Dykes v. Hosemann4 that the immunity doctrine required dismissal of a suit against a Florida judge who had awarded custody of a child to its father, himself the son of a fellow judge. This “emergency” order had been entered without notice to the mother or a proper hearing when the father took the boy to Florida from their Pennsylvania home after a series of marital disputes.
• In 1985, the Tenth Circuit Court of Appeals in Martinez v. Winner5 held a federal judge immune who, during a trial, had conducted a secret meeting with prosecutors without notifying the defendant or his attorneys. Expressing concern that the jury would be “intimidated” into a not-guilty verdict, the judge agreed to declare a mistrial after the defense had presented its case so the government could prosecute anew with full knowledge of the defense’s strategies.
In just 20 years, these precedents and others like them have established near-total judicial immunity as a settled feature of American law. Under the current doctrine, any act performed in a “judicial capacity” is shielded from suit.6 Thus, the simple expedient of disguising a corrupt act as a routine judicial function guarantees immunity from suit. In no other area of American life are public officials granted such license to engage in abuse of power and intentional disregard of the Constitution and laws they are sworn to defend. Those who are harmed, no matter how extensive and irreparable the injury, are deprived of any method of obtaining compensation. They are confined to disciplinary actions that only rarely result in the judge’s removal from office despite the troubling frequency of judicial abuses (see Alschuler 1972).
As will be shown below, this sweeping new immunity doctrine is at odds both with American legal history and the Constitution. Congress never intended to exempt state judges from suit when it passed the 1871 Civil Rights Act. Moreover, the judiciary is wrong when it asserts that immunity was a settled doctrine, incorporated into the 1871 Act by implication. To the contrary, the doctrine in its present form did not exist in the United States or England when the civil rights legislation was passed in 1871. Moreover, the immunity doctrine is inconsistent with the due process clause of the Fourteenth Amendment. Even if the doctrine had existed in common law, constitutional supremacy dictates that it must bow before the American idea of procedural justice embodied in the guarantee of due process.
(Copyright © Cato Institute. All rights reserved. Robert Craig Waters)
Cato Journal, Vol.7, No.2 (Fall 1987). Copyright © Cato Institute. All rights reserved.
The author is Judicial Clerk to Justice Rosemary Barkett of the Florida Supreme Court.
1 The doctrine of judicial immunity from federal civil rights suits dates only from the 1967 Supreme Court decision in Pierson v. Ray, 386 U.S. 547(1967), which found a Mississippi justice of the peace immune from a civil rights suit when he tried to enforce illegal segregation laws. Until this time, several courts had concluded that Congress never intended to immunize state-court judges from federal civil rights suits. See, for example, McShane v. Moldovan, 172 F.2d 1016 (6th Cir. 1949).
2 435 U.S. 349 (1978).
3 620 F.2d 1229 (7th Cir.1980).
4 776 F.2d 942 (11th Cir. 1985) (rehearing en banc).
5 771 F.2d 424 (10thCir. 1985).
6 See Stump v. Sparkman 435 U.S. 349, 360 (1978).
The Fourteenth Amendment was enacted soon after the Civil War as a reaction to abuses by Southern officials.7 Its effect was no less than a revolution in American law. For the first time, the states were obligated to observe a minimum standard of justice imposed by the federal courts. Previously, the Bill of Rights had bound only the federal government. Absent a direct affront to federal powers, the pre—Civil War Supreme Court had refused to interfere in the judicial proceedings of any state, even to preserve due process rights created by the Fifth Amendment.8 If state courts ignored personal liberties, no redress was possible in the federal courts.
When adopted in 1868, the Fourteenth Amendment expressly bound state officials to observe the minimum standards of justice being developed by the federal courts. In time, the Supreme Court held that the amendment’s due process clause obligated state courts to obey virtually every provision of the Bill of Rights. Under this evolving concept, due process embodied at least the specific liberties guaranteed by the Constitution.9 By the centennial of the Fourteenth Amendment in 1968, state courts were required at a minimum to provide adequate notice and a right to be heard through counsel before deciding the rights or liabilities of any person.
In effect, the Fourteenth Amendment integrated the federal and state courts into a single judicial system adhering to a uniform minimum standard. This new system immediately generated problems without precedent in American law. When state courts asserted jurisdiction over out-of-state residents or their property, the federal courts frequently found themselves called upon to decide the validity of such acts. Ignoring the underlying due process concerns at first, the Supreme Court tried to resolve the problem with a theory of jurisdiction based largely on pre—Civil War notions of state sovereignty. Under this conception, the right of a court to exercise its authority over specific persons — its “personal jurisdiction” — extended only as far as the state borders and were of no force beyond them.10
As the 20th century progressed, the Supreme Court soon found the state-sovereignty theory inadequate. New forms of transportation and communication blurred the significance of state boundaries. An increasingly integrated national economy soon made it possible for activities in one state to produce profound disruption in another. Moreover, the Supreme Court was unable to resolve a perplexing inconsistency in its theory: if state sovereignty was the only issue, then an out-of-state resident could never confer jurisdiction on a state court merely by giving consent. In theory, sovereignty could be waived only by the sovereign that possessed it.11 Yet the Supreme Court, bowing to a rule of practicality, consistently had held that a litigant could confer personal jurisdiction on any state court by consent, even if the consent was implied by out-of-court activities.12
Finally in 1982, the Supreme Court swept aside the sovereignty theory and held that the jurisdiction of state courts was circumscribed solely by the due process clause.13 A state court’s authority over anyone, including out-of-state residents, was restricted not by political boundaries but by the conception of fair play and procedural justice embodied in the Constitution.14 Thus, personal jurisdiction was an aspect of due process. State judicial power was directly limited by individual liberties guaranteed by the Bill of Rights. As an important consequence, the right to challenge improper activities of a state court took on a new and as yet unexplored constitutional dimension.
(Copyright © Cato Institute. All rights reserved. Robert Craig Waters)
7 See Pierson v. Ray,386U.S. 547,559 (1967) (Douglas, J., dissenting) (1871 Act passed in response to Southern lawlessness).
8 See, for example, Barron v. The Mayor & City of Baltimore, 7 Pet. 243,8 L. Ed. 672 (1833), holding that the Fifth Amendment does not apply to state action.
9 See Duncan v. Louisiana, 391 U.S. 145(1968), 391 U.S. 145(1968), holding that the Fourteenth Amendment “incorporates” specific provisions of the Bill of Rights.
10 See, for example, Pennoyer v. Neff, 95U.S. 714, 720 (1878).
11 See Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinea, 456 U.S.694, 702 n. 10 (1982).
12 See, for example, McDonald v. Mabee, 243 U.S. 90 (1917).
13 456 U.S. at 702 n. 10 and accompanying text.
14 1d. at 703.
The Supreme Court’s holding that the due process clause limited state courts’ power was surprising only in that it had taken so long. Many legal commentators had argued for years that jurisdiction of state courts over specific people was a due process problem, not a question of the competing sovereignties of two or more states.15 Indeed, the older sovereignty theory, a relic of pre-Civil War jurisprudence, virtually had ignored an ancient line of English case law extending back to Article 39 of Magna Charta, ancient predecessor of the due process clause. These cases, dealing with the question of judicial immunity, long ago had established virtually the same due process limitation on judicial power announced in 1982 by the Supreme Court.
As early as 1613, English courts had recognized that Article 39 restricted the power of judges. Early English decisions had found that judges lost immunity from suit for acts clearly beyond their jurisdiction.16 Only in a single area did the English common law grant a broad form of immunity to judges, Recognizing a need to protect judges from the displeasure of the Crown and its ministers, the Star Chamber in Floyd v. Barker17 had held that a judge could not be prosecuted in another court for an alleged criminal conspiracy in the way he had handled a murder trial. In refusing to try the case, the judges of Star Chamber held simply that if the king wished to discipline a judge, the king must do so himself without resort to a criminal prosecution.18
Despite this narrow focus, Floyd frequently is cited as the foundation of the American judicial immunity doctrine.19 The federal courts’ lavish reliance on this Star Chamber decision is puzzling. While the immunity doctrine focuses exclusively on civil liability for judicial acts, Floyd is concerned not with liability but with the proper method of disciplining alleged misconduct of judges. Indeed, Floyd’s central concern is not judicial immunity at all, but judicial independence from the executive branch of government. The American constitutional system largely has resolved the problem that preoccupied the judges who wrote Floyd.
The current American immunity doctrine not only was a serious departure from its common law antecedents but also broke with early American case law. As early as 1806, the Supreme Court in Wise v. Withers20 had recognized a right to sue a judge for exercising authority beyond the jurisdiction authorized by statute. In 1869, one year after passage of the Fourteenth Amendment and long before due process had assumed its modern contours, the Supreme Court made its first effort to define the limits imposed on state judges. The Court held that state judges possessing general powers were not liable “unless perhaps when the acts... are done maliciously or corruptly.”21 Then in 1872, one year after the civil rights laws were passed, the Supreme Court overruled its earlier dictum and announced that judges would not be liable even for malicious or corrupt acts.22
This 1872 expansion of the immunity doctrine was an abrupt departure even from the common law recognized by a majority of the states in the Civil War era. By the time civil rights legislation passed in 1871, only 13 states had granted their judges a broad form of judicial immunity, while six states had found judges unquestionably liable for malicious acts in excess of jurisdiction.23 Eighteen other states had not addressed the issue at all,24 although many recognized English common law as binding precedent. Thus, from 1869 to 1872 the Supreme Court extended a sweeping form of immunity to state-court judges that a majority of the states themselves would not have recognized under their own law.
(Copyright © Cato Institute. All rights reserved. Robert Craig Waters)
15 See, for example, Lewis (1983) for a discussion of the historical development of the Supreme Court’s theory of state-court jurisdiction.
16 See The Case of the Marshalsea, 77 Eng. Rep. 1027 (K.B. 1613) (no immunity when Court of the Marshalsea asserted jurisdiction over persons outside the king’s household, its sole jurisdiction). The Marshalsea court specifically traced jurisdictional limits to Article 39 of Magna Charta (Id. at 1035).
17 77 Eng. Rep. 1305 (Star Chamber 1608).
18 Id. at 1307.
19 See, for example, Pulliam v. Allen, 104 S. Ct. 1970, 1975 (1984). The Supreme Court first relied on Floyd as a precedent for judicial immunity in Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351 (1872).
20 7 U.S. (3 Cranch) 331 (1806).
21 Randall v. Brigham, 74 U.S. (13Wall.) 523,535-36 (1869).
22 Bradley v. Fisher, 80 U.S. (13 Wall.)335, 351 (1872).
23 Liability of Judicial Officers” (1969, pp. 326-27 and nn, 29-30).
24 Id. at327 nn.31, 32 and accompanying text.
Nor was this emerging doctrine recognized by the post—Civil War Congress. Ample evidence shows that Congress intended to make all state officials, including judges, subject to its new civil rights legislation, even in those states recognizing a broad form of immunity. The congressman who introduced the Civil Rights Act of 1871 announced that his bill was modeled after the Civil Rights Act of 1866,25 which had created criminal penalties for anyone engaging in state-sponsored efforts to violate the civil rights of citizens. Indeed, the 1871 Act was written to provide a civil remedy — the right to sue for damages — in every instance in which the 1866 Act offered a criminal penalty.26
One fact is clear about the 1866 Act: it unquestionably had abolished judicial immunity from criminal prosecution, in effect overruling the precedent in Floyd. Partly because of this feature, President Andrew Johnson had vetoed the bill,27 and Congress promptly had overridden the veto amid indignant cries about the tyranny of local Southern officials. During the vote to override, one representative had sharply responded to the President’s concern:
I answer it is better to invade the judicial power of the States than permit it to invade, strike down, and destroy the civil rights of citizens, A judicial power perverted to such uses should be speedily invaded.... And if an officer shall intentionally deprive a citizen of a right, knowing him to be entitled to it, then he is guilty of a willful wrong which deserves punishment.28
Others declaimed that immunity for any state official must be abolished because immunity “is the very doctrine out of which the rebellion was hatched.”29
The debate on the Civil Rights Act of 1871 itself was no less critical of the wrongs perpetrated by Southern officials. In biting rhetoric, one representative characterized local judges in the former Confederate states as despots prone to violate the rights of Republicans without regard for law or justice.30 Many others vehemently agreed.31 On three occasions, congressmen plainly stated that state-court judges would be unable to claim immunity under the 1871 Act.32 Yet another representative expressly noted that the legislation would correct a specific injustice: the use of harassing litigation and unjust prosecutions in Southern courts meant to silence political opponents or chase them from the state.33
Despite this evidence from the congressional debates, a majority of the Supreme Court in Pierson v. Ray,34 96 years after the 1871 Act was passed, decided that Congress never had intended to subject state-court judges to suit. Arguing that judicial immunity was “solidly established at common law,” the Court presumed that Congress would have incorporated specific language into the statute had it wished to abolish the doctrine.35 This perplexing conclusion utterly ignored the remedial purposes of the 1871 Act36 and the long-standing rule that a remedial statute will be construed liberally to achieve its purpose (see Liewellyn 1950).
Not only did the majority offer a complete distortion of congressional intent37 but it also decided that the phrase “[e]very person.. shall be liable” meant every person except judges.38 Yet Congress clearly had intended to remedy a serious injustice being inflicted on innocent people by corrupt local officials, including judges. In effect, the Supreme Court created a new rule of statutory construction that judicial immunity is to be favored over congressional intent, and only express language in a statute will limit the doctrine.
Finally, in 1978 in Stump the Supreme Court wielded its ever expanding immunity doctrine to prevent suit against a state-court judge who had authorized sterilization of a mildly retarded 15-yearold girl after her mother had “petitioned” for the sterilization “to prevent unfortunate circumstances.”39 The judge had authorized the procedure without a hearing, notice to the girl, or appointment of a guardian ad 1item to represent the girl’s interests.40 Recognizing that the judge had violated the most elementary principles of due process, the Supreme Court majority nonetheless found him immune from a suit later filed by the girl and her new husband. Even “grave procedural errors” do not deprive a judge of immunity, ruled the Court, because immunity attaches to any act performed in a judicial capacity.41 The Court noted that the judge had signed the sterilization petition as a judge; and it dismissed objections that failure to observe formalities rendered the act non-judicial.
Instead, the Court concluded that an act is “judicial” if it possesses two traits: first, the act is one normally performed by a judge, and, second, the parties intended to deal with the judge in an official capacity.42 The Court, however, interpreted the first of its requirements very broadly, The majority noted that the judge in Stump possessed “general jurisdiction,” the ability to decide any matter not specifically withheld from him. Since no statute expressly denied him the power to hear sterilization petitions, he was immune even though such a petition was unprecedented in the history of the state and not authorized by any statute.43 In this way, the Supreme Court excused a gross departure from due process that would have subjected virtually any other state official to suit. The effect was plain: under the doctrine of judicial immunity, a victim can be forced to bear the full burden of a serious, irreparable injury inflicted by a state-court judge in blatant violation of the Constitution.
(Copyright © Cato Institute. All rights reserved. Robert Craig Waters)
25 Congressional Globe, 42d Cong., 1st sess. 68 app. (1871) (remarks of Rep. Shellabarger).
26 Id.
27 Congressional Globe, 39th Cong., 1st sess. 1680 (1866) (presidential veto message to Congress).
28 Id. at 1837 (remarks of Rep. Lawrence).
29 Id. at 1758 (remarks of Rep. Trumbull).
30 Congressional Globe,, 42d Cong., 1st sess. 394 (1871) (remarks of Rep. Platt).
31 For example: Id. at 394 (remarks of Rep. Rainey), 429 (remarks of Rep. Beatty), and 153 app. (remarks of Rep. Garfield).
32 Id. at 217 app. (remarks of Sen. Thurman), 385 (remarks of Rep. Lewis), and 365—66 (remarks of Rep. Arthur).
33 Id. at 185 app. (remarks of Rep. Platt).
34 386 U.S. 547 (1967).
35 Id. at 554—55.
36 See id. at 560 (Douglas, J., dissenting).
37 Id, at 558—67 (Douglas, J., dissenting).
38 The 1871 Act provides that “every person” who violates the civil rights of a citizen by acting under state authority is liable for a federal civil action for money damages. 42 U.S.C. § 1983 (1985).
39 435 U.S. 349, 351 n. 1.
40 Id. at 360.
41 Id.
42 Id. at 360.
43 Id. at 367—68 (Stewart, Marshall and Powell, JJ., dissenting).
The Stump test for immunity affords no impediment to a corrupt judge. At best, it cloaks a judge with immunity if he merely indicates his official status while performing any act not expressly prohibited by law.44 At worst, it offers a road map for corruption with total impunity. Those subject to a corrupt judge’s power may find little comfort in the Supreme Court’s pronouncements that judicial immunity in effect is a necessary evil, the price to be paid for a “fearless” judiciary.45 With power to abridge liberty and seize property, state court judges are the masters of everyday life in America. They are capable of causing enormous and irremediable harm to someone who, like the 15-year-old girl in Stump, simply is not given a chance to protect his or her own interests before the judge irreparably abridges them.
Yet the Supreme Court insists in the strongest of language that a sweeping immunity shield is necessary for an impartial judiciary. Permitting dissatisfied litigants to sue judges, argues the Court, “would contribute not to principled and fearless decision-making but to intimidation.”46 Under this viewpoint, immunity is not for the benefit of the malicious and corrupt but for the benefit of the public, whose best interests are protected by an independent judiciary.47 If errors are committed, the proper remedy is appeal.48
Few would question the worthiness of such abstract principles as impartiality and fearlessness, even if the Supreme Court’s assessment of judicial courage is surprisingly pessimistic. However, highflying abstractions often serve only to hide the underlying issue, which in this case is the injury a corrupt judge can inflict on innocent people. Congress and the courts must seriously question any device that affords greater protection to the unscrupulous than to the principled. In this instance, the risk of such a disturbing result is very grave. By resort to the current immunity doctrine, an unscrupulous judge could escape liability even for acts of revenge, gross favoritism, improper seizure of property, unjust incarceration, or serious injuries inflicted “in a judicial capacity.” Most disturbing are those instances in which a judge ensures that an appeal cannot remedy the wrong inflicted. In Stump, for instance, the judge’s actions allowed no appeal prior to court-ordered surgery that would prevent a woman from ever having a family. If appeal indeed is the proper method of challenge, the judiciary cannot justify granting immunity to judges who have prevented an appeal from occurring.
The history of judicial immunity makes the doctrine even more suspect, since Congress clearly believed it was imposing liability on local judges under the 1871 Act.49 By judicial fiat, the doctrine was conjured out of a few old English cases such as Floyd that were not themselves concerned with judicial immunity from suit, but with judicial independence from the Crown. The Supreme Court, citing dicta in these cases, invented a completely new immunity doctrine far more expansive than the Civil War-era precedents would warrant.
Most troubling of all are the strong due process interests that necessarily are involved in any judicial immunity controversy. By wielding its expansive doctrine, the Supreme Court in effect has declared that every organ of state government except local courts must observe the dictates of the Fourteenth Amendment. The irony is unmistakable: those who are the guardians of the Constitution are themselves privileged to violate it with corrupt impunity. Any damage inflicted on innocent citizens must be borne by the injured, not by the state or its insurers. Due process, one of the most hallowed and ancient of rights, apparently has no place in the law when a citizen attempts to seek recompense from a judge who has wrongfully caused an injury.
Nor has the Supreme Court made any effort to reconcile its new theory of state-court jurisdiction with judicial immunity. If a state court’s power over persons is defined and limited by the due process clause, the current immunity doctrine assumes a deeply suspicious character. The judiciary in effect is wielding a judge-made rule of law to limit a constitutional right, turning the idea of constitutional supremacy on its head. When a local judge chooses to act corruptly, the logical result of any sweeping immunity doctrine is the destruction of due process rights. Instead of fearless impartiality, the doctrine thus protects only malice and arbitrary administration of the laws.
(Copyright © Cato Institute. All rights reserved. Robert Craig Waters)
44 0ne federal appeals court has required the weighing of four separate factors similar to the Stump test: (1) whether the act was a normal judicial function; (2) whether the events transpired in the judge’s chambers; (3) whether the controversy was then pending before the judge; and (4) whether the confrontation arose directly and immediately out of a visit to the judge in his official capacity. McAlester v. Brown, 469 F.2d 1280, 1282 (5th Cir.1972). See also Dykes v. Hosemann, 776 F.2d 942, 945—46 (11th Cir. 1985) (rehearing en banc) (quoting McAlester with approval); Harper v. Merckle, 638 F.2d 848, 858(5th Cir.), cert. denied, 454 U.S. 816 (1981) (quoting McAlester with approval).
45 See Fern v. Ackerman, 444 U.S. 193 (1979).
46 Pierson v. Ray, 386 U.S. 547, 554 (1967).
47 Id.
48 See Pulliam v. Allen, 104 S. Ct. 1970, 1975-76 (1984).
49 Pierson v. Ray, 386U.S. 547,562 (Douglas, J.,dissenting) (“every member of Congress who spoke on the issue assumed... that judges would be liable”).
If judicial immunity truly is to serve as a bulwark of justice, some more clearly defined limit must be placed on it. Logically this limit must arise from the due process clause itself. Clothing a judge with immunity simply because he has performed a “judicial act” overlooks the real-world probability that even judicial acts can be utterly inconsistent with due process. Important personal rights, such as the right to have a family in Stump, can be destroyed by the mere nod of a judge’s head. Judges should not be privileged to violate the rights of citizens unfortunate enough to find themselves in a biased, corrupt, or irresponsible court. When unjust injuries are inflicted by improper judicial acts, the state or its insurers should be forced to bear the cost of the wrongful act, not the individual. Indeed, the history of the 1871 Act reveals that Congress intended to provide just such a remedy.
Instead of the abstract and ambiguous factors used in Stump to determine the existence of immunity, the courts should use a simpler inquiry founded on the fundamental principles embodied in the due process clause. To preserve the integrity of the judicial process, the courts always should presume that a trial court properly exercised its jurisdiction. But they should permit a plaintiff to overcome this presumption by showing that the judge acted with actual malice, consisting of a knowing or reckless disregard of due process. Specifically, if the court is to enjoy immunity, it must afford three things — notice, a chance to be heard, and a method of appeal. Then, and only then, would an irrebuttable presumption of immunity exist requiring dismissal of any subsequent suit against the judge.
Of these three requirements, the opportunity to appeal should be the most crucial based on the policy that appeal, not a suit for damages, is the preferred method of challenging a judge’s improper actions. Deprivation of an opportunity to appeal effectively renders this policy meaningless and makes some other remedy necessary for proper redress. Moreover, the right to appeal usually can correct due process violations. Even errors in notice and opportunity to be heard should not of themselves subject a judge to suit as long as the opportunity to appeal is present. In effect, the appeal itself will afford a new opportunity for a proper hearing with proper notice.
Nor should routine ex parte orders create any liability for the judiciary. In emergency hearings for the seizure of property, the court could preserve the irrebuttable presumption of immunity by affording as soon as possible the required notice, a hearing, and the right to appeal.50 In summary incarcerations, as for contempt of court, the judge could preserve his immunity by affording the defendant an immediate opportunity for further review, such as in a habeas corpus hearing. Mere failure of the plaintiff to exercise these rights should never subject the judge to suit. Nor should a judge be liable for errors of judgment, even those plainly forbidden by law or precedent, as long as his acts did not deliberately preclude the possibility of appeal before constitutionally protected rights were completely foreclosed.
The test proposed above also addresses the question of subject matter jurisdiction — the statutory authority of judges to hear specific kinds of disputes. Although the Supreme Court suggested in Stump that a clear lack of subject-matter jurisdiction will subject a judge to liability, it was plainly troubled by the possibility that a judge might be subjected to suit for an honest and harmless mistake.51 A test based on the ability to appeal necessarily will shield good-faith errors. As long as the judge does not take actions that prevent appeal, he will be protected by an irrebuttable presumption of immunity.
(Copyright © Cato Institute. All rights reserved. Robert Craig Waters)
50 The courts have long recognized a right of creditors to obtain prejudgment “attachment” of property in which they have an enforceable interest if the debtor is likely to flee from the court’s jurisdiction. The U.S. Supreme Court has imposed rigorous due process limits on the use of such remedies, generally requiring notice and an opportunity to be heard immediately after the disputed property has been seized. See, for example, Sniadach v. Family Finance Corp., 395 U.S.337(1969).
51 Stump v. Sparkman, 435 U.S. 349, 356 (1978).
American courts have agonized over the due process problems created in recent years by the doctrine of judicial immunity.52 A variety of ill-conceived approaches to the issue have resulted in “tests” that grant immunity to state-court judges in such sweeping terms as to amount to no test at all. The Supreme Court, troubled by threats to judicial independence, has developed its own test that invests judges with immunity for any act performed in an official capacity where the act itself is not expressly prohibited by existing law. Under this approach, corrupt and malicious local judges may easily shield even the most serious abuses behind a wall of immunity, leaving the victim unable to seek compensation from the state and its insurers.
Yet a state court’s jurisdiction is limited by due process guarantees of notice and a chance for an impartial hearing. Ignoring this fact, the Supreme Court has misconceived the problem by basing judicial immunity purely on statutory concerns and distorted readings of common law history. Like the jurisdiction of local courts, immunity itself — a judge-made doctrine — must be limited by due process, which is of constitutional dimension. The supremacy clause unquestionably nullifies even the most ancient of common law principles and even the most popular of state statutes to the extent they are inconsistent with due process.
The best solution is to give judicial immunity a firm root in due process guarantees. To achieve this result, the simplest approach is to create an irrebuttable presumption of immunity where the state court judge’s acts did not deliberately terminate a citizen’s rights without notice, hearing, and opportunity to appeal. Of these three requirements, the chance to appeal is the most important because it provides a means of curing defects in any other due process violation. A judge thus remains unquestionably immune as long as he does not take actions that intentionally and plainly prevent further review. The duty imposed on a state-court judge, then, is only to recognize that his own decisions may sometimes be in error and to ensure that orders affecting important constitutional rights can be reviewed in another court.
(Copyright © Cato Institute. All rights reserved. Robert Craig Waters)
52 0ne of the cleanest examples was in Dykes v. Hosemann, where the Eleventh Circuit at first stripped a Florida judge of judicial immunity for actions clearly violating the due process clause (743 F.2d 1488, 1496 [11th Cir. 1984]). Then, in a rehearing en banc, the full panel completely reversed the prior decision and held that judicial independence was so strong a concern that due process must yield before it (776 F.2d 942, 949 [11th Cir. 1985]). In a sharp dissent, Judge Hatchett criticized the majority for holding everyone liable for due process violations except the very people trained in due process — judges (Id. at 954—55).
“Courtroom Misconduct of Prosecutors and Trial Judges.” Alschuler, Albert W. Texas Law Review 50 (April 1972): 629—735.
“The Three Deaths of ‘State Sovereignty’ and the Curse of Abstraction in the Jurisprudence of Personal Jurisdiction.” Lewis, Harold S., Jr. Notre Dame Law Review 58 (April 1983): 699—742.
“Liability of Judicial Officers under Section 1983.” Unsigned student note. Yale Law Journal 79 (December 1969): 322—37.
“Remarks on the Theory of Appellate Decision and the Rules or Canons about How Statutes Are to Be Construed.” Llewellyn, Karl N. Vanderbilt Law Review 3 (April 1950): 395—406.
(Copyright © Cato Institute. All rights reserved. Robert Craig Waters)
Suits brought under section 1983 of title 42 of the United States Code have provided additional protection of constitutional rights. Recently, the use of this statute has increased markedly resulting in new areas of controversy. In this Article, Professor Nahmod examines the issue of absolute individual immunity under section 1983. He explores the doctrine's historical background, the distinction between actions for damages and injunctions, and projects the doctrine's effect on certain individuals in the future.
Section 1983 of Title 42 of the United States Code, a powerful constitutional "sword" for plaintiffs, makes "persons" liable for violations of the Fourteenth Amendment.1 Its broad facial language admits no exceptions. Yet until recently local governmental entities were considered by the United States Supreme Court not to be "persons" and thus not liable under the statute's provisions.2 More surprisingly, certain individuals who are clearly "persons" in the common understanding of that term have been given an absolute immunity from liability for damages under 1983.3 The purpose of this Article is to examine and analyze who is entitled to this immunity.
The difference between absolute and qualified immunity is of immense practical significance for the individual. No inquiry into the absolutely immune defendant's state of mind is permitted, while qualified immunity, an affirmative defense, necessitates such an inquiry after the plaintiff has made out a 1983 cause of action.4 Typically, an action against an absolutely immune defendant will be dismissed on motion which simply sets out his status and his having acted within his official capacity.
The Supreme Court to date has established three classes of absolutely immune individual defendants:
state legislators,5
judges,6 and
prosecutors.7
This Article will deal with the Court's reasoning in the leading cases, and consider its implications. It will also explore the scope of absolute immunity, and analyze the use made by the circuits of the Court's decisions. As will be seen, certain line drawing problems emerge which are not alleviated, especially in judicial immunity cases, by the Court's use of jurisdictional terminology.
(Copyright © Depaul University Law Review. All rights reserved. Sheldon H. Nahmod. 1978)
* Professor of Law, IIT/Chicago-Kent College of Law; A.B., University of Chicago; LL.B., LL.M., Harvard University. This Article is based on a chapter from my forthcoming book, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: A GUIDE TO SECTION 1983, to be published by Shepard's, Inc. in 1979 [hereinafter referred to as A GUIDE TO SECTION 1983]. @1978 Sheldon H. Nahmod.
1 The section provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983 (1970). For a discussion of relationship between § 1983 and the Fourteenth Amendment, see generally Nahmod, Section 1983 and the "Background" of Tort Liability, 50 IND. L.J. 1 (1974) and A GUIDE TO SECTION 1983 chapters 2 & 3. Liability under the "laws" is beyond the scope of this Article. See A GUIDE TO SECTION 1983 chapter 2.
2 Monroe v. Pape, 365 U.S. 167, 191 (1961) (holding that municipalities are not "persons" within section 1983), overruled in Monell v. Dep’t of Soc. Serv., 98 S. Ct. 2018, 2041 (1978) (holding that local governments are "persons" for purposes of section 1983). See also City of Kenosha v. Bruno, 412 U.S. 507 (1973).
3 The emphasis is intentional. As stated in Rowley v. McMillan, 502 F.2d 1326, 1331 (4th Cir. 1974): "the doctrine of immunity... has no application to a suit for declaratory or injunctive relief.... See the discussion in notes 52-55, 124-133, 178-180 and accompanying text infra.
4 Wood v. Strickland, 420 U.S. 308 (1975). The Court stated that the qualified immunity test contains both objective and subjective elements and held that a school board member is not immune from liability for damages under § 1983 if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the student.
Id. at 322. See generally A GUIDE TO SECTION 1983 chapter 8.
5 Tenney v. Brandhove, 341 U.S. 367 (1951).
6 Pierson v. Ray, 386 U.S. 547 (1967).
7 Imbler v. Pachtman, 424 U.S. 409 (1976).
The Supreme Court first established an absolute immunity for persons from section 1983 actions in Tenney v. Brandhove.8 The plaintiff sought damages under section 1983 against various individuals, including the members of the California Senate Fact-Finding Committee on Un-American Activities. He claimed they had intimidated him in the exercise of his constitutional rights by wrongfully interrogating him and prosecuting him for contempt in the course of their investigation. The Court, per Justice Franldurter, held that state legislators have an absolute immunity from liability for damages when they act "in a field where legislators traditionally have power to act.... "9 Characterizing the Committee's investigation as within those bounds,10 the Court found the Committee's members absolutely immune despite a claim of "unworthy purpose."
The Court's reasoning is worth noting. It interpreted 1983's "person" language against a common law background of absolute legislative immunity from tort liability derived from English law and early American history. The Court also emphasized the policy underlying the Speech or Debate Clause of the United States Constitution,11 suggesting that it "was a reflection of political principles already firmly established in the States."12 Against this background the Court examined the legislative intent behind 1983 and concluded that it would be implausible to infer that Congress intended to overturn the historical tradition of legislative freedom by subjecting legislators to civil liability for acts performed while engaging in legislative activity.13 The Court noted: "We cannot believe that Congress-itself a staunch advocate of legislative freedom-would impinge on a tradition so well grounded in history and reason by covert inclusion in the general language before us."14
Despite the broad language of section 1983 and Justice Douglas' dissent,15 the result in Tenney is probably justified for its concern with the democratic process and the chilling effect potential litigation might have upon the independence of legislators. Tenney prevents any inquiry into legislative motive, no matter how allegedly corrupt, so long as the legislator is acting in a traditional legislative field. Thus, the remedies for such corruption must be the political process and the criminal laws.16
While Tenney establishes that legislators are absolutely immune from section 1983 damages liability under appropriate circumstances, it fails to delineate what those circumstances might be and what acts of such an individual are protected. Tenney tells us that a legislative committee's investigation is within the field to which absolute immunity attaches,17 but it does not address the question of whether legislative employees or local legislatures such as city councils are within the sphere of absolute immunity. Tenney also gives no real indication of the standards which courts should use in distinguishing between traditional and nontraditional legislative fields. Finally, and more generally, Tenney leaves open the question of which other governmental officials might be absolutely immune because of a similar background of absolute immunity.
(Copyright © Depaul University Law Review. All rights reserved. Sheldon H. Nahmod. 1978)
8 341 U.S. 367 (1951).
9 Id. at 379.
10 The Court noted:
Investigations, whether by standing or special committees, are an established part of representative government.... To find that a committee's investigation has exceeded the bounds of legislative power it must be obvious that there was a usurpation of functions exclusively vested in the Judiciary or the Executive. The present case does not present such a situation. Id. at 377-78.
11 U.S. CONST. Art. I, § 6.
12 Tenney v. Brandhove, 341 U.S. 367, 373 (1951).
13 Id. at 376.
14 Id.
15 He argued that "when a committee perverts its power, brings down on an individual the whole weight of government for an illegal or corrupt purpose, the reason for the immunity ends." Id. at 383. His argument appears in effect to be for a qualified immunity, although he never used that term.
16 "[W]e have never held that the performance of the duties of judicial, legislative, or executive officers, requires or contemplates the immunization of otherwise criminal deprivations of constitutional rights." O'Shea v. Littleton, 414 U.S. 488, 503 (1974). See also Gravel v. United States, 408 U.S. 606, 627 (1972).
17 Tenney v. Brandhove, 341 U.S. 367, 378 (1951).
Once the defendant's status is found to be that of a state legislator, the next issue is whether the challenged act is legislative in nature. The extreme cases are relatively easy to deal with. At one extreme the act of a state legislator in driving negligently and injuring another is not a legislative act and, moreover, it may not even be an act under color of law.18 At the other extreme is the situation in which the state legislator is sued under section 1983 for enacting certain state legislation. Here it is unquestioned that absolute immunity attaches. Tenney is obviously closer to the latter extreme than to the former. The Court first asked whether investigative hearings were a traditionally legislative function. Then, as a way of determining whether there was a legislative act, it asked whether the specific investigation had exceeded the "bounds of legislative power." The test for such a conclusion was: "it must be obvious that there was a usurpation of function exclusively vested in the Judiciary or Executive."19 On the merits the Courts had little difficulty in answering these questions in defendant's favor.
Following Tenney, courts in 1983 cases readily applied its reasoning to state legislators who voted for certain legislation20 or housekeeping resolutions.21 Legislators' participation in committee work22 and on a statutory commission23 has also been covered by the Tenney reasoning. These activities are clearly legislative acts and are properly protected. Furthermore, since Tenney, the Supreme Court has elaborated on the attributes of legislative acts under the Speech or Debate Clause upon which Tenney so heavily relied.24 It stated that for purposes of congressional immunity, protected matters under that clause "must be an integral part of the deliberative and communicative processes by which members participate in Committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House."25 Applying this standard to "legislative acts," the Court held in one case that Speech or Debate Clause absolute immunity does not extend to a Senator's alleged private arrangement with a private publisher to publish the Pentagon Papers,26 and indicated in a subsequent case that a congressman who arranges for the public (as distinguished from internal) distribution of committee materials allegedly infringing upon the rights of individuals is similarly not absolutely immune.27 The Court's reasoning in these cases is that, despite arguments for a legislative "informing function," such acts go beyond the reasonable requirements of the legislative function.
Circuit courts have also been sensitive to those situations in which legislators act officially but not legislatively. Several circuits have held that under those circumstances absolute immunity is inappropriate. In a recent New Jersey district court decision,28 the court concluded that absolute immunity did not protect state legislators who were accused of improperly excluding another legislator from a party caucus. While sufficient state involvement was found for state action purposes, the court merely asserted that this was an area in which legislators traditionally did not act.
Davis v. Passman,29 a better reasoned opinion, involved the official immunity of a congressman sued for damages for sex discrimination against a staff employee. The Fifth Circuit curtly rejected the congressman's defense of absolute immunity. The court first observed that "the constitutional proscription of blatant sex discrimination does not impair [the defendant's] legitimate control over his staff to any extent at all."30 Next, after canvassing the Speech or Debate Clause cases, the court concluded that "legislators are not legislating when they dismiss staff members. For the same reasons that the Speech and Debate clause does not extend to staff dismissals, [the defendant] cannot invoke absolute immunity."31
The Fifth Circuit's insistence that "the immunized act must be intimately cognate to the legislative process"32 is similarly appropriate in a 1983 context. As observed, the Tenney Court reasoned from both the historical purpose of the Speech or Debate Clause and the concern, in the Fifth Circuit's words, "that the prospect of an unsuccessful but burdensome lawsuit might affect a legislator's performance of his or her legislative duties, thus distorting the democratic process."33 There is thus a class of cases in which a state legislator acting within his official capacity may be denied an absolute immunity because his act is not legislative in nature. Further, such a result may occur even where the state legislator has acted with a reasonable good faith belief that he has absolute immunity. It is true that this is not discussed in Davis, Tenney, or any of the Speech or Debate Clause cases (perhaps because it was not raised). Still, these cases appear to use an objective test for the "legislative act" inquiry, with no attention paid to the legislator's state of mind.34 However, the state of mind of a legislator denied an absolute immunity is certainly relevant to the application to him of a qualified immunity.35
(Copyright © Depaul University Law Review. All rights reserved. Sheldon H. Nahmod. 1978)
18 Clearly these two inquiries are often factually related. An affirmative finding on state action will tend to lead to a similar finding on official capacity. However, this does not mean that the two inquiries are identical. In regard to state action, see generally A GUIDE TO SECTION 1983 chapter 2, and J. NOVAK, R. ROTUNDA, & J. YOUNG, CONSTITUTIONAL LAW 451-75 (1978).
19 Tenney v. Brandhove, 341 U.S. 367, 378 (1951).
20 City of Safety Harbor v. Birchfield, 529 F.2d 1251, 1256 (5th Cir. 1976); Johnson v. Reagan, 524 F.2d 1123, 1124 (9th Cir. 1975).
21 Eslinger v. Thomas, 476 F.2d 225, 228 (4th Cir. 1973).
22 Gambocz v. Subcommittee on Claims of Joint Legislative Comm., 423 F.2d 674, 675 (3d Cir. 1970).
23 Bergman v. Stein, 404 F. Supp. 287, 299 (S.D.N.Y. 1975).
24 See, e.g., Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 501 (1975) (holding that the Speech or Debate Clause protected the actions of the Senate Subcommittee on Internal Security in issuing a subpoena for bank records involving respondent in order to determine whether respondent's coffee houses and underground newspapers were potentially harmful to the morale of the U.S. Armed Forces); Doe v. McMillan, 412 U.S. 306, 313, 315 (1973) (holding that the Speech or Debate Clause protected the actions of the members and staff of the House Special Select Subcommittee in the preparation and distribution of a report on the District of Columbia public school system that documented disciplinary problems of named students. The Court found further that the public dissemination of the report by the Superintendent of Documents and Public Printer was not a legislative act and, therefore, not protected by the Speech or Debate Clause); Gravel v. United States, 408 U.S. 606, 625 (1972) (holding that a Senator's arrangement for private publication of a report prepared by the Department of Defense is not an act within the legislative sphere and, therefore, not protected by the Speech or Debate Clause).
25 Id. at 625.
26 Id. at 622.
27 Doe v. McMillan, 412 U.S. 306 (1973). The arrangement must go beyond merely voting for it. Id. at 315.
28 Ammond v. McGahn, 390 F. Supp. 655 (D. N.J. 1975), rev'd on other grounds, 532 F.2d 325 (3d Cir. 1976).
29 544 F.2d 865 (5th Cir. 1977), cert. granted, 47 U.S.L.W. 3301 (October 30, 1978).
30 Id. at 870.
31 Id. at 881.
32 Id. at 879.
33 id.
34 See notes 103-05 and accompanying text infra regarding "judicial acts."
35 An issue which has apparently not as yet arisen is the possibility of a Fourteenth Amendment action for damages against state legislators, judges and prosecutors who have an absolute immunity under both the common law and section 1983. Cf. Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) (recognizing a federal cause of action for damages caused be federal agents' violation of the Fourth Amendment). However, it is likely that absolute immunity will survive such a Fourteenth Amendment challenge. Cf. Bivens v. Six Unknown Named Agents, 456 F.2d 1339 (2d. Cir. 1972).
There has been some confusion in the cases about the proper treatment of section 1983 suits for damages against legislative employees. Tenney, standing alone, suggests that such employees are "persons" for 1983 purposes.36 Courts generally have held, however, that legislative employees are protected only by a qualified immunity.37 Several have gone so far as to hold certain legislative employees absolutely immune from personal liability. The Fifth Circuit, relying on Tenney, has said that employee-investigators of a statutorily established investigative commission are absolutely immune from liability for damages.38 An Indiana District Court has held the same for legislative employees.39 These decisions are questionable not only in light of Tenney's dictum but also because legislative employees are different from legislators in that they do not require the same autonomy in decision making so necessary for the effective operation of representative government. A qualified immunity appears sufficient for most purposes to ensure that employees are not unduly hampered by litigation and deterred from performing their jobs.40
A significant qualification, however, to the suggested general applicability of a qualified immunity to legislative employees must be made. In several Speech or Debate Clause cases, the Supreme Court put a gloss on its language in Tenney and extended absolute immunity to Congressional aides, committee staff and committee consultants who investigated and introduced material at committee hearings.41 In determining whether these acts were legislative acts and thus absolutely immune, the Court was concerned with "freeing the legislator from executive and judicial oversight that realistically threatens to control his conduct as a legislator."42 It therefore asked whether the acts would have been protected had they been done by the legislator himself. To the extent that these Speech or Debate Clause cases are relevant to the 1983 legislative immunity issue by analogy, the inquiry must focus not only on the defendant's status but also on the nature of the act itself. Viewed in this light, a legislative employee is only absolutely immune from liability under 1983 when his act is legislative in nature, such that, had the legislator himself performed it, he would have been immune.43
(Copyright © Depaul University Law Review. All rights reserved. Sheldon H. Nahmod. 1978)
36 The Tenney Court cited Kilbourn v. Thompson, 103 U.S. 168 (1881), in which a judgment was entered against the House's Sergeant-at-Arms for an illegal arrest, the court said: "Legislative privilege in such a case [where the defendants are members of a legislature] deserves greater respect than where an official acting on behalf of the legislature is sued.... " 341 U.S. at 378. This proposition was reiterated in Dombrowski v. Eastland, 387 U.S. 82, 85 (1967).
37 See, e.g., Eslinger v. Thomas, 476 F.2d 225, 229-30 (4th Cir. 1973). The Eslinger defendant, Clerk of the South Carolina Senate, who, in good faith reliance on official custom, refused plaintiff temporary employment as a page in the Senate because she was female, was held immune from liability for damages but not immune from suit for equitable relief.
38 Martone v. McKeithen, 413 F.2d 1373, 1376 (5th Cir. 1969) (per curiam).
39 Porter v. Bainbridge, 405 F. Supp. 83, 91 (S.D. Ind. 1975). The court neither set forth reasoning for nor offered citations in support of this holding. Also, while the court spoke of immunity, the case actually seemed to involve injunctive relief and federalism concerns. Id. at 85, 90-91.
40 See note 4 supra. See generally on qualified immunity A GUIDE TO SECTION 1983 chapter 8. A case with an interesting twist is Saffioti v. Wilson, 392 F. Supp. 1335, 1343 n.10 (S.D. N.Y. 1975), in which the court in dictum compared a governor, who was sued for injunctive relief after exercising his veto power, with a legislator. This suggests that the governor should be protected by an absolute immunity. This result seems questionable after Scheuer v. Rhodes, 416 U.S. 232 (1974), which held that executives are protected only by a qualified immunity, and Wood v. Strickland, 420 U.S. 308 (1975), which held the same for school board members regardless of whether they acted in quasi-legislative or quasi-judicial functions. In any event, the court resolved the matter on the merits in favor of the governor. 392 F. Supp. at 1347.
41 Gravel v. United States, 408 U.S. 606 (1972); Doe v. McMillan, 412 U.S. 306 (1973).
42 Gravel v. United States, 408 U.S. at 618 (emphasis added). 1978
43 This approach to a legislative employee's immunity is similar to the approach used for determining the scope of immunity of a judicial employee who is following a judge's order or direction. See notes 120-123 and accompanying text infra. An additional factor justifying these approaches is the unfairness to a legislative or judicial employee in withholding an absolute immunity while the person responsible for the challenged conduct - the person ordering it gets its protection.
The current general rule is that local legislators are not given the Tenney absolute immunity. A leading Sixth Circuit case, Nelson v. Knox,44 involved a suit for damages against city commissioners and others for allegedly intentionally destroying the plaintiff's garage business by enacting and enforcing arbitrary and discriminatory ordinances. Judge (later Justice) Stewart, writing for the court, said first that the scope of the commissioners' immunity under 1983 was a question of federal, not state, law. Then, relying in part on the Supreme Court's decision in Hague v. Committee for Industrial Organization,45 Judge Stewart held that the commissioners "were not clothed with complete immunity but enjoyed instead a qualified privilege."46 Judge Stewart acknowledged that Hague involved injunctive relief, not damages, but contended that this made no difference. More to the point, Judge Stewart accepted the view of Judge Magruder in Cobb v. City of Malden47 who concluded that local legislators should not be absolutely immune under section 1983 because they only have a qualified immunity at common law.
It is not at all clear what the Supreme Court would do if the scope of immunity for local government legislators was presented for review. Tenney involved state legislators and the Court compared the historical functions of state legislators and congressmen. Also, according to Judge Magruder in Cobb, the common law rule regarding the immunity of local legislators from liability is that it is qualified, not absolute. Further, even if this were not so, later Supreme Court decisions have made it clear that while common law immunity rules for governmental officials may be relevant, they are not dispositive of 1983 immunity.48 On the other hand, Tenney may be read as functionally emphasizing the need for absolute immunity for legislators, regardless of governmental level.49 Additionally, the common law immunity rules may not have been correctly interpreted by Judge Magruder in Cobb. It has been stated50 that only a "scant majority" of the states accord a qualified immunity for defamation. For other torts the general rule seems to grant absolute immunity for inferior legislative bodies and for state and national legislators.
What the Court should do when confronted with this issue depends in part on whether expansion or limitation of absolute legislative immunity under 1983 is considered preferable. On balance, local legislators should not be accorded absolute immunity. Unlike state legislatures, local legislatures are creations of the states and do not possess that independence which is to be furthered by an absolute immunity rule. Thus, the Speech or Debate Clause analogy is not applicable to local legislators. Also, because they frequently exercise a mix of legislative and administrative powers, local legislators are more akin to state and local administrative agency members who are entitled only to a qualified immunity.51 Furthermore, it must be remembered that an expansion of the category of absolutely immune defendants flies in the face 1983's "person" language. Additional expansion requires weighty justification, justification which is not present for local legislators. Finally, in contrast to the settled common law absolute immunity of state legislators, the common law immunity rules for local legislators are, as noted, somewhat unclear.
It should be noted that legislative immunity, even for state legislators, is limited to damages and does not extend to prohibitory injunctive relief. As the Fourth Circuit recently stated:
"we have found [no case] which holds that the immunity doctrine insulates a public official or public employee from injunctive relief to prevent what would otherwise be an illegal act on his part."52
This is also the clear implication of a Supreme Court decision53 which permitted injunctive relief under 1983 against certain members of the Georgia State Legislature. Furthermore, limiting legislative immunity in this way follows from the emphasis in Tenney and the decisions in the circuits on avoiding the chilling effect of' potential 1983 damages litigation upon legislative independence. At least one circuit court has been reluctant, however, to issue a mandatory injunction with the apparent effect of forcing legislators to vote in a certain way.54 The court said: "Quite simply, it would have been a violation of the separation of powers with the court acting as a legislature."55 A comparable reluctance to issue mandatory injunctions interfering with judicial discretion appears in several judicial immunity cases.56
(Copyright © Depaul University Law Review. All rights reserved. Sheldon H. Nahmod. 1978)
44 256 F.2d 312 (6th Cir. 1958).
45 307 U.S. 496 (1939).
46
256 F.2d 312, 315 (6th Cir. 1958). Later circuit court cases have applied Nelson and a narrow reading of Tenney to a variety of fact situations. See, e.g., Thomas v. Younglove, 545 F.2d 1171, 1173 (9th Cir. 1976) (applied to county supervisors allegedly discriminating against public employees who were members of a union); Lane v. Inman, 509 F.2d 184, 186 (5th Cir. 1975) (applied to the members of an aldermanic police committee accused of illegally revoking a cab driver's city permit); Curry v. Gillette, 461 F.2d 1003, 1005 (6th Cir. 1972) (applied to a city's aldermen accused of racial discrimination against plaintiff's ambulance service); Lynch v. Johnson, 420 F.2d 818, 821 (6th Cir. 1970) (applied to the members of a county's fiscal court accused of violating procedural due process). The Lynch court was not an ordinary judicial tribunal but rather had entirely legislative and administrative powers. Federal district courts have usually done the same. See, e.g., Kucinich v. Forbes, 432 F. Supp. 1101 (N.D. Ohio 1977); Owen v. City of Independence, 421 F. Supp. 1110 (W.D. Mo. 1976) aff'd, 560 F.2d 925 (8th Cir. 1977), cert. granted, 98 S. Ct. 3118 (1978). Smetanka v. Borough of Ambridge, 378 F. Supp. 1366 (W.D. Pa. 1974).
There are several cases which have taken a contrary view, based either upon reading Tenney broadly to protect individuals who legislate at any governmental level or on an interpretation of the common law which confers absolute immunity. See, e.g., Shannon Fredericksburg Motor Inn, Inc. v. Hicks, 434 F. Supp. 803 (E.D. Va. 1977); Teamsters Local Union No. 822 v. City of Portsmouth, 423 F. Supp. 954, 956 (E.D. Va. 1975). The Shannon court, after canvassing the relevant cases and arguments, concluded: "If indeed there is a rational basis for distinguishing the safeguards necessary to permit local legislators to carry out their legislative duties from those which have been clearly accorded the state legislators, same escapes the Court." 434 F. Supp. at 805.
47 202 F.2d 701, 707 (1st Cir. 1953) (concurring opinion). This is apparently the current rule in the First Circuit. Gaffney v. Silk, 488 F.2d 1248 (1st Cir. 1973), applied a qualified immunity to local legislators for legislative acts.
48 E.g., Scheuer v. Rhodes, 416 U.S. 232 (1974).
49 Pierson v. Ray, 386 U.S. 547 (1967), the Court's post-Tenney decision on absolute judicial immunity, may also be relevant because there the judge was a "'municipal police justice." The Court in Pierson was concerned, however, not with the level of government at which the individual judged, but rather with the judicial function. See text accompanying notes 57-66 infra. Cf. Jacobson v. Tahoe Regional Planning Agency, 566 F.2d 1353, 1365 (9th Cir. 1977 cert. denied, 99 S. Ct. 91 REH denied, 99 S. Ct. 599) (1978), in which the court, in a case of first impression, stated that officers legislating under the authority of an interstate compact have absolute immunity because "such compacts, by their very nature, establish regional legislatures.... [and we] discern no reason why these 'regional legislators' should not be accorded the same immunity as their state and national counterparts.
50 W. PROSSER, HANDBOOK OF THE LAW OF TORTS 782, 788 (4th ed. 1971).
51 E.g., Wood v. Strickland, 420 U.S. 308 (1975) (school board members who "execute," i.e. administer, "legislate," i.e. promulgate regulations, and "judge," i.e. adjudicate, are entitled only to qualified immunity).
52 Rowley v. McMillan, 502 F.2d 1326, 1332 (4th Cir. 1974).
53 Bond v. Floyd, 385 U.S. 116 (1966).
54 Mahaley v. Cuyahoga Metropolitan Hous. Auth., 500 F.2d 1087 (6th Cir. 1974).
55 Id. at 1092.
56 See notes 138-149 and accompanying text infra.
Pierson v. Ray57 established absolute judicial immunity from liability for damages under section 1983. In Pierson, the plaintiffs had been arrested by the defendant police officers, convicted and given the maximum sentence by the defendant municipal police justice for violating a Mississippi breach of the peace statute.58 After plaintiffs had been vindicated in a trial de novo, they sued the defendants for damages under 1983 as well as for false arrest and imprisonment at common law.
In holding that the municipal police justice was absolutely immune from liability for damages under 1983,59 the Court compared judicial immunity at common law with legislative immunity. Following Tenney's approach, the Court stated that the legislative history of section 1983 did not indicate an intention to abolish the common law immunity of judges.60 The Court also observed that the only role the police justice played was to find plaintiffs guilty. It then went on to hold that judges should be absolutely immune from liability for damages for acts within their judicial jurisdiction in order to preserve the autonomy of judicial decision-making.61
An interpretation of section 1983 as excluding judges62 is more questionable than Pierson's interpretation excluding state legislators. As Justice Douglas, dissenting in Pierson, pointed out, the legislative history of section 1983 and its criminal law counterpart, now 18 U.S.C. § 242, indicates that it is to apply to judges and that, indeed, "[i]t was recognized that certain members of the judiciary were instruments of oppression and were partially responsible for the wrongs to be remedied."63 It has also been suggested that, in contrast with the history of legislative immunity set out in Tenney,64 judicial immunity at common law was not so well established as the Court thought in Pierson.
Nevertheless, the result in Pierson was probably inevitable given Tenney's approach to reading section 1983 against a background of common law immunity. It is worth noting in this connection that with few exceptions,65 federal courts, especially after Tenney, and even before Pierson, began to apply the doctrine of absolute judicial immunity consistently.66 Consequently, after Pierson, the question is no longer the existence of absolute judicial immunity, but rather its scope. Pierson indicates that the immunity only applies to acts within "judicial jurisdiction." This, however, does little to define the scope of judicial immunity. Pierson, a relatively easy case which involved a judge who clearly acted in a traditional judicial capacity, held, not surprisingly, that a judge acts within his judicial jurisdiction even if he applies a statute unconstitutionally.
"Judicial Jurisdiction," Bradley v. Fisher and Stump v. Sparkman: The Scope of Judicial Immunity from Liability for Damages
While it was relatively easy in Pierson to find that the police justice acted within his "judicial jurisdiction," Pierson did not determine the scope of judicial jurisdiction. This term was coined in Bradley v. Fisher,67 an 1871 Supreme Court decision cited with approval in Pierson, in which a criminal court judge for the District of Columbia was sued for damages by a lawyer whom he removed from practice before his court without notice and the opportunity to defend. The Court elaborately set out the general rules which define judicial jurisdiction:
[J]udges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly. A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter. Where there is clearly no jurisdiction over the subject-matter any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible. But where jurisdiction over the subject-matter is invested by law in the judge, or in the court which he holds, the manner and extent in which the jurisdiction shall be exercised are generally as much questions for his determination as any other questions involved in the case, although upon the correctness of his determination in these particulars the validity of his judgments may depend.68
In applying these principles to the facts before it, the Supreme Court in Bradley observed that while the defendant judge had the power to remove a lawyer from the bar, this should not ordinarily be done without notice and the opportunity to explain and defend. Nevertheless, even though the defendant judge erred in not giving plaintiff such notice, this constituted at most an excess of jurisdiction but "did not make the act any less a judicial act;... [it was not] as though the court had proceeded without any jurisdiction whatever over its attoreys."69 Thus, the defendant judge was absolutely immune from liability for damages for the allegedly wrongful disbarment.
Several matters are noteworthy. First and foremost is the distinction the Court draws between "excess of jurisdiction" and the "clear absence of all jurisdiction" over the subject matter. Second, the Court mentions subject matter jurisdiction several times, but mentions jurisdiction over the person only once. In Bradley, it appears that while the defendant judge may not have given the plaintiff notice of the disbarment, the judge retained personal jurisdiction over the plaintiff although the jury in the case in which plaintiff and defendant were involved had already been discharged.70 However, the relevance of personal jurisdiction is nowhere made clear.
Moreover, the two examples set forth by the Court71 are intriguing. The first concerns a probate judge who tries criminal offenses; he acts, according to Bradley, in clear absence of all jurisdiction. In its discussions, the Court may have intimated that the probate judge's state of mind is relevant to a finding of clear absence of all jurisdiction because it spoke at one point of this clear absence as "necessarily known" to the probate judge, and at another juncture similarly qualified its clear absence rule by adding "when the want of jurisdiction is known to the judge."72 The Court may have set out a test for judicial immunity that includes both objective and subjective elements: the judge must know of a clear absence of subject matter jurisdiction which exists in fact before he loses his immunity.
The Court's second example concerns a judge with general criminal jurisdiction who either convicts a person of an act which is not in fact criminal or gives a person an unauthorized sentence.73 This judge, according to the Court, has acted only in excess of jurisdiction and does not lose his judicial immunity. The puzzling aspect is why the Court characterizes this as jurisdictional, when it appears to be an error of law going to the merits. Further, suppose it is somehow jurisdictional. If the judge knows in fact that the act is not a crime or that the sentence is unauthorized, does he then act in clear absence of jurisdiction?
Pierson retained the jurisdictional language of Bradley in holding that the police justice acted within his "judicial jurisdiction." Indeed, as mentioned, applying the Bradley approach in Pierson is rather straightforward and poses no serious problems, because the police justice clearly had both subject matter jurisdiction and personal jurisdiction. In Bradley's terms, he acted, at most, only in excess of his jurisdiction when he convicted the plaintiffs under an unconstitutionally applied statute. Also, because the Pierson court did not even inquire whether he knowingly did so, this suggests a judge's state of mind is irrelevant when he makes a legal error. He would not lose his absolute immunity regardless of his alleged state of mind; he would still have acted only in excess of jurisdiction in Bradley's terms.74 Such a result seems consistent with the emphasis in both Bradley and Pierson on preventing litigants from challenging a judge's motivation and on encouraging resort instead to the appellate process to correct legal errors.
In considering the implications of Bradley and Pierson, those relatively few cases in which courts have held that judges lose their absolute immunity are helpful in evaluating the proper scope of judicial immunity.75 A Sixth Circuit decision, Lucarell v. McNair, held that a plaintiff who alleged that a juvenile court referee illegally incarcerated him in connection with traffic court proceedings stated a cause of action. The referee acted in "absence of all jurisdiction" because, according to the complaint, he lacked power to incarcerate under state law.76 A similar and much cited Ohio district court case, Wade v. Bethesda Hospital,77 involved a 1983 claim against a probate judge who allegedly conspired with others to sterilize the plaintiff.78 In considering whether the defendant "acted outside the scope of his jurisdiction," the court set out the following three pronged test:
The cases are clear that the term jurisdiction means that the judge must have both [1] jurisdiction over the person and [2] subject matter if he is to be immune from suit for an act performed in his judicial capacity... [3] A third element . .. [which] enters into the concept of jurisdiction... is the power of the Court to render the particular decision which was given... [that is] whether the defendant's action is authorized by any set of conditions or circumstances.79
After finding that no Ohio statute authorized a judge to order sterilization for any purpose and no judicial precedent for such an order existed absent a specific statute, the court concluded: "Because there was no set of circumstances or conditions under Ohio law which would permit defendant Gary to order plaintiff to submit to sterilization, the Court determines that defendant Gary acted wholly without jurisdiction in this matter. Consequently, defendant Gary is not protected by the doctrine of judicial immunity."80
These decisions seem to go beyond the Bradley-Pierson approach in treating the defendant judges as acting in clear absence of jurisdiction. First, they apparently considered their fact situations to be substantially similar to Bradley's example of a probate judge who tries criminal cases but substantially different from the other Bradley example of a criminal court judge who either convicts a person of an act which is not a crime or imposes an unauthorized sentence upon a person. Why this is so is unclear since in Lucarell the incarceration might be termed an unauthorized sentence and in Wade the sterilization might be termed an illegal order. Unlike the Bradley probate judge example, these judges had the power to do something with the plaintiffs in connection with the reasons the plaintiffs were before them at the outset.81
Thus, Lucarell and Wade appear in fact to be cases where the judges acted in "excess of jurisdiction" and not in "clear absence" of it. The errors made by these judges as to their powers in the particular cases before them should not be treated as acts in clear absence of jurisdiction. As Bradley itself recognized, "some of the most difficult and embarrassing questions" for a judge involve his jurisdiction and powers.82 This was also acknowledged in a Second Circuit decision predating Lucarell and Wade which involved a claim based upon plaintiff's conviction for assault by a justice of the peace who did not have subject matter jurisdiction over this offense.83 In holding that absolute immunity attached, the court stated that absolute immunity is lost only in those exceptional circumstances when it is perfectly clear that a judge acts in the absence of jurisdiction.84
That a judge with general subject matter jurisdiction loses his absolute immunity if he errs grossly and issues an unauthorized order - the proposition for which Lucarell and Wade stand - was thus questionable even before the Supreme Court's 1978 decision in Stump v. Sparkman.85 After Stump, which reversed a Seventh Circuit decision holding that a judge had lost his absolute immunity, it is clearly untenable. Stump concerned the issue, similar to that in Wade, of the judicial immunity of a judge who ordered the sterilization of a fifteen year old girl upon her mother's petition.86 The facts in Stump apparently shocked the Seventh Circuit which noted that the order was issued in an ex parte proceeding. Further, no guardian ad litem was appointed to represent the child's interests and no hearing was held. She never received notice of the petition and neither the petition nor the order was ever filed in the circuit court.87
Applying the Bradley-Pierson test, the Seventh Circuit reversed the district court and found that the defendant had acted in clear absence of subject matter jurisdiction, even though the Circuit Court of DeKalb County was by statute a court having original and exclusive jurisdiction in all cases at law and in equity.88 In order for the judge's act to come within the statute, the court said, it must have either a statutory or common law basis.89 After examining Indiana law, the court found no such basis. Further, it rejected the defendant's argument that he was exercising his power to fashion new common law.90 First, judges "may not use the power to create new decisional law to order extreme and irreversible remedies such as sterilization in situations where the legislative branch of government has indicated that they are inappropriate... [Otherwise] we would be sanctioning tyranny from the bench."91 Alternatively, the court stated that the defendant's exercise of his common law power was illegitimate "because of his failure to comply with elementary principles of procedural due process."92
The Supreme Court reversed. As it had in Pierson, the Court cited Bradley for its approach distinguishing between excess of jurisdiction and the clear absence of all jurisdiction. It then noted the difficult nature of jurisdictional questions and concluded: "We cannot agree that there was a 'clear absence of all jurisdiction' in the DeKalb County Circuit Court to consider the petition presented....93 In reaching this conclusion, the Court mentioned the broad jurisdictional grant and, turning the Seventh Circuit's argument around, observed that "there was no Indiana statute and no case law in 1971 prohibiting a circuit court, a court of' general jurisdiction, from considering a petition of the type presented to Judge Stump."94 The Court, citing Bradley again, also rejected the Seventh Circuit's due process argument as "misconceiv[ing] the doctrine of judicial immunity. A judge is absolutely immune from liability for his judicial acts even if his exercise of' authority is flawed by the commission of grave procedural errors."95 In short, the Court broadly construed the scope of the judge's jurisdiction because "the issue is the immunity of the judge."
The Court then considered and rejected the argument that the judge was nevertheless not entitled to immunity because his approval of' the petition was not a "judicial act" as a result of' the informality of the judge's approval of the petition.96 Noting that this was the first time such an issue was ever before it in connection with immunity, the Court agreed that judicial immunity would only attach to a judicial act. Relying on one of its decisions in a different context97 and on several circuit court decisions,98 the Court stated:
[The factors determining whether an act by a judge is a 'judicial' one relate to the nature of the act itself, i.e., whether it is a function usually performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity.99
The Court applied these factors to the facts before it and concluded that despite the informality of the proceedings and their ex parte nature, the approval of the petition was a judicial act and hence protected.
Justices Stewart, Marshall and Powell vigorously dissented, arguing that what the judge did "was beyond the pale of anything that could sensibly be called a judicial act."100 They criticized the majority's factors and instead contended that the meaning of a "judicial act" derives from those considerations set out in Pierson which support absolute immunity in the first place.101 Justice Powell added what he considered to be central: the defendant's "preclusion of any possibility for the vindication of [plaintiff's] rights elsewhere in the judicial system."102 He emphasized that the major reason for absolute immunity is the existence of "alternative forums and methods for vindicating [private] rights," and that absent such forums, "the underlying assumption of the Bradley doctrine is inoperative."103
Stump indicates clearly that the Lucarell and Wade cases were incorrectly decided. In both cases there was general subject matter jurisdiction and the defendant's acts were judicial in nature under the Stump majority's reasoning. However, in continuing to use the "jurisdiction" approach of Bradley and Pierson, the Court did little to clarify the factors which distinguish between "excess of jurisdiction" and "clear absence of all jurisdiction" and the confusing relation between those factors and the merits. In any event, since the Court addressed the judicial act question in Stump, the inquiry into judicial immunity is now roughly parallel to the inquiry into legislative immunity. After ascertaining that the defendant's status is that of a legislator or a judge, an inquiry must be then made into whether the defendant legislator's act was performed in a traditional legislative field or the defendant judge's act was within his jurisdiction. If so, the next question requires characterization of the act performed in order to decide whether it was a legislative act or a judicial act. Thus, despite the "jurisdiction" jargon of the judicial immunity cases, in reality the same general kinds of questions are being asked for both legislative and judicial immunity.
However, what is especially disturbing about Stump is the Court's failure104 to answer Justice Powell's point about the unavailability of an alternative forum to plaintiff because of the judge's conduct. Where there is a physical assault by a judge upon a person, an act which the Court agreed is not a judicial act, there is no alternative forum available to the injured person to stop the judge; the damage has already been done. Thus, it makes sense to hold that judicial immunity is not applicable. In Stump, the sterilization of plaintiff' was the equivalent of a physical assault as to which there was also no recourse. In both cases the only remedy was retrospective. For this reason, both acts were similarly not functions "normally performed by a judge," contrary to the majority's characterization of the judge's approval of the petition.
In this light, Stump's message is clear: it will be a rare case indeed in which a judge will lose his absolute immunity. The Court may be saying about judges what it said long ago about the immunity under federal law of the Postmaster General:
As in the case of a judicial officer, we recognize a distinction between action taken by the head of a department in reference to matters which are manifestly or palpably beyond his authority, and action having more or less connection with the general matters committed by law to his control or supervision.105
(Copyright © Depaul University Law Review. All rights reserved. Sheldon H. Nahmod. 1978)
57 386 U.S. 547 (1967).
58 This statute was held unconstitutional by the Supreme Court as applied to similar facts several years later. Thomas v. Mississippi, 380 U.S. 524 (1965).
59 386 U.S. 547, 553 (1967).
60 The Court noted:
The legislative record gives no clear indication that Congress meant to abolish wholesale all common-law immunities.... The immunity of judges for acts within the judicial role is [as] equally well established [as absolute legislative immunity], and we presume that Congress would have specifically so provided had it wished to abolish the doctrine.
Id. at 554.
61 The Court reasoned that judges are absolutely immune from liability for damages for acts committed within their judicial jurisdiction... even when the judge is accused of acting maliciously and corruptly.... It is a judge's 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 principled and fearless decision-making but to intimidation.
Id. (emphasis added).
62 There is no serious question as to Congress' power to impose criminal sanctions upon state judges for constitutional violations. Ex parte Virginia, 100 U.S. 339 (1879). The same is true for civil liability. In Pierson, of course, the question was one of congressional intent, not power.
63 386 U.S. at 563. He argues in effect for a qualified immunity for judges. See also Kates, Immunity of State Judges Under the Federal Civil Rights Act: Pierson v. Ray Reconsidered, 65 Nw. U. L. REv. 615 (1970).
64 341 U.S. 367, 372-375. See Comment, Liability of Judicial Officers Under Section 1983, 79 YALE L.J. 322 (1969), in which the author states that "judicial immunity was not a universal doctrine." Id. at 325. Under common law, although superior judges were "absolutely immune... justices of the peace... were liable to civil suit if they acted maliciously." Id. See also Note, Developments in the Law - Section 1983 and Federalism, 90 HARV. L. REV. 1133 (1977).
65 One early exception was Picking v. Pennsylvania R.R. Co., 151 F.2d 240 (3d Cir. 1945), overruled Bauers v. Heisel, 361 F.2d 581 (3d Cir. 1966), cert denied, 386 U.S. 1021 (1967). 1978]
66 So noted in Pierson. 386 U.S. at 555 n.9.
67 80 U.S. 335 (1871). Bradley is, of course, not a 1983 case.
68 id. at 351-352 (emphasis added). The Court continued, illustrating the dichotomy between acts in excess of jurisdiction and acts performed in the absence of all jurisdiction: Thus, if a probate court, invested only with authority over wills and the settlement of estates of deceased persons, should proceed to try parties for public offences, jurisdiction over the subject of offences being entirely wanting in the court, and this being necessarily known to its judge, his commission would afford no protection to him in the exercise of the usurped authority. But if on the other hand a judge of a criminal court, invested with general criminal jurisdiction over offences committed within a certain district, should hold a particular act to be a public offence, which is not by the law made an offence, and proceed to the arrest and trial of a party charged with such act, or should sentence a party convicted to a greater punishment than that authorized by the law upon its proper construction, no personal liability to civil action for such acts would attach to the judge, although those acts would be in excess of his jurisdiction, or of the jurisdiction of the court held by him, for these are particulars for his judicial consideration, whenever his general jurisdiction over the subject-matter is invoked. Indeed some of the most difficult and embarrassing questions which a judicial officer is called upon to consider and determine relate to his jurisdiction, or that of the court held by him, or the manner in which the jurisdiction shall be exercised. And the same principle of exemption from liability which obtains for errors committed in the ordinary prosecution of a suit where there is jurisdiction of both subject and person, applies in cases of this kind, and for the same reasons.
Id. at 352 (emphasis added).
69 Id. at 357.
70 Id. at 356-57.
71 Id. at 352.
72 id.
73 Id.
74 The Mississippi statute involved in Pierson was, it is true, held unconstitutional as applied to similar facts only after the police justice convicted the plaintiffs. See note 58 supra. However, the Supreme Court, in Boynton v. Virginia, 364 U.S. 454 (1960), had previously held a similar statute unconstitutional as applied to virtually identical facts. Boynton was apparently brought to the timely attention of the police justice. See Kates, Immunity of State Judges Under the Federal Civil Rights Acts: Pierson v. Ray Reconsidered, 65 Nw. U.L. REV. 615, 617 (1970).
75 Also illustrative of the proper scope of judicial immunity are those circuit court cases which, following the Bradley-Pierson jurisdictional approach, have held absolute judicial immunity applicable to section 1983 allegations. See, e.g., Humble v. Foreman, 563 F.2d 780, 781 (5th Cir. 1977) (per curiam) (judge conspired with prosecutor and defense counsel during plea bargaining to deny plaintiff effective assistance of counsel); Conner v. Pickett, 552 F.2d 585, 586 (5th Cir. 1977) (per curiam) (judge violated plaintiff's civil rights by convicting him for possession of narcotics paraphernalia); Dean v. Shirer, 547 F.2d 227, 230 (4th Cir. 1976) (judge, following a trial and the plaintiff's disparaging comments about him to a crowd outside the courtroom, had plaintiff, an attorney, brought back into the courtroom, threatened him with bodily harm and jail, and forced him to retract his earlier comments; judge still retained subject matter jurisdiction over the case and his acts were judicial acts because they were part of his exercise of the contempt power); Keeton v. Guedry, 544 F.2d 199, 200 (5th Cir. 1976) (per curiam) (judge issued a warrant for the arrest of plaintiff for stopping payment on a check after discovering defects in a purchased truck, an act which was not a criminal offense; court emphasized that judge "clearly believed that criminal conduct possibly had occurred."); Harley v. Oliver, 539 F.2d 1143, 1145 (8th Cir. 1976) (probate judge, who had statutory jurisdiction over guardianships, caused emotional distress when he improperly denied plaintiff custody of her minor son); Grundstrom v. Darnell, 531 F.2d 272, 273 (5th Cir. 1976) (per curiam) (justice of the peace, who has subject matter jurisdiction and is to be treated like any other judge, improperly denied bail to plaintiff); Wiggins v. Hess, 531 F.2d 920, 921 (8th Cir. 1976) (per curiam) (judge from one county who specially presided over plaintiff's criminal trial in another county improperly issued an order for his arrest and commitment under the seal of the first county and also improperly imprisoned him for a crime which carried no prison sentence); Waits v. McGowan, 516 F.2d 203, 205 (3d Cir. 1975) (judge improperly withheld information regarding plaintiff's illegal extradition from Canada, thereby resulting in plaintiff's imprisonment); Duba v. McIntyre, 501 F.2d 590, 591 (8th Cir. 1974) (justice of the peace ordered the attachment and sale of plaintiff's entire stock of hogs on the pretext of satisfying a $55 misdemeanor fine; conceding that justice of the peace acted in excess of jurisdiction, the court held that his acts were within the general power of judges to issue executions to recover fines imposed for violations of municipal ordinances); Barnes v. Dorsey, 480 F.2d 1057, 1060 (8th Cir. 1973) (judge who presided at a burglary trial conspired with others in order to suppress certain exonerating information in a police report); Mississippi ex rel Giles v. Thomas, 464 F.2d 156, 158-59 (5th Cir. 1972) (justice of the peace wrongfully entered a default order evicting plaintiff because the summons contained an erroneous return date); Robinson v. McCorkle, 462 F.2d 111, 113 (3d Cir. 1972) (judge ordered the plaintiff committed under a repealed statute "such judicial miscue does not remove the shield of immunity."); Jacobson v. Schaefer, 441 F.2d 127, 130 (7th Cir. 1971) (judge improperly attached certain conditions to plaintiff's bail; although judge did not in fact have authority to do what he did-court emphasized that he had general jurisdiction over the subject matter); Berg v. Cwiklinski, 416 F.2d 929, 931 (7th Cir. 1969) (judge improperly imprisoned a traffic court defendant for contempt for refusing to answer a prosecutor's questions on the ground of self-incrimination).
76 453 F.2d 836 (6th Cir. 1972).
77 The court emphasized that it relied solely on the complaint and thus it did not have to reach the issue of the scope of the defendant's contempt power. The court also did not discuss the assault contention in connection with immunity. But see Gregory v. Thompson, 500 F.2d 59 (9th Cir. 1974), cited with apparent approval Stump v. Sparkman, 435 U.S. 349, 361 n.10 (1978), in which the court characterized such an act as not of a judicial nature and denied absolute immunity to the defendant. The court said:
The decision to personally evict someone from a court room by the use of physical force is simply not an act of a judicial nature, and is not such as to require insulation in order that the decision be deliberately reached.... [W]hen a judge exercises physical force in a courtroom, his decision is not amenable to appellate correction. 500 F.2d at 64.
78 337 F. Supp. 671 (S.D. Ohio 1971), reconsideration of motion to dismiss denied, 356 F. Supp. 380 (S.D. Ohio 1973).
79 Id. at 673.
80 Id. at 674.
81 In Lucarell, the defendant could have fined the plaintiff; in Wade, there was a statute giving the defendant general subject matter jurisdiction over mentally retarded persons.
82 Bradley v. Fisher, 80 U.S. 335, 352 (1851).
83 Fanale v. Sheehy, 385 F.2d 866 (2nd Cir. 1967).
84 The court stated explicitly that "[w]here jurisdiction depends on the resolution of factual issues or involves debatable questions of law, judges do not lose their immunity... [E]xceptions must be confined to situations in which it is perfectly clear that the court acted wholly without jurisdiction." Id. at 868.
85 Stump v. Sparkman, 435 U.S. 349 (1978), reversing Sparkman v. McFarlin, 552 F.2d 172 (7th Cir. 1977).
86 Plaintiff was not told the true reason for her hospitalization. Instead, a pretext was used. 435 U.S. at 353.
87 552 F.2d at 173.
88 Id.
89 Id. at 174.
90 Id. at 175-76.
91 Id. at 176.
92 Id.
93 Stump v. Sparkman, 435 U.S. 349, 357.
94 Id. at 358.
95 Id. at 359.
96 The Court noted that "the petition was not given a docket number, was not placed on file with the clerk's office, and was approved in an ex parte proceeding without notice to the minor, without a hearing, and without the appointment of a guardian ad litem." Id. at 360.
97 In re Summers, 325 U.S. 561 (1945), in which the Court held that the lack of formality involved in a state court's consideration of an application for admission to the bar did not prevent it from constituting a case or controversy reviewable by the Court.
98 Gregory v. Thompson, 500 F.2d 59 (9th Cir. 1974) (judge's physical assault upon plaintiff was held not to be a judicial act); McAlester v. Brown, 469 F.2d 1280 (5th Cir. 1972) (judge was entitled to judicial immunity even though he had plaintiffs arrested, in the apparent exercise of his contempt power, when he was not in his robes, not in the courtroom, and in apparent violation of procedural requirements for contempt citations); Lynch v. Johnson, 420 F.2d 818 (6th Cir. 1970) (judge serving on a board with only legislative and administrative powers was not acting in a judicial capacity).
99 Stump v. Sparkman, 435 U.S. 349, 362 (1978).
100 Id. at 365.
101 The dissenters stated:
[There was no "case," controversial or otherwise. There were no litigants. There was and could be no appeal. And there was not even the pretext of a principled decision-making. [There was a] total absence of any of these normal attributes of a judicial proceeding... [thus] the conduct complained of... was not a judicial act. Id. at 368-69.
102 Id. at 369.
103 Id. at 370.
104 The Court mentions the issuance of search warrants as an example of an ex parte proceeding without recourse to appeal. Id. at 363 n.12. However, while the issuance cannot be undone by appeal, its adverse effect, if any, can be by a motion to suppress. This sharply distinguishes search warrants from the ex parte approval of the sterilization petition in Stump.
105 Spalding v. Vilas, 161 U.S. 483, 498 (1896) (emphasis added).
Judges at all levels who act in a judicial capacity106 are protected by absolute immunity. This includes justices of the peace,107 municipal referees,108 and presumably judges at both the trial and appellate level.109 Occasionally it becomes necessary to decide whether what is formally called a court in fact exercises a judicial function; if it does not, but is, for example, "entirely legislative and administrative," then its members are not considered judges - even if they are so called - and thus are not protected by absolute immunity.110 Some courts have applied absolute immunity to members of quasi-judicial agencies, comparing them functionally with judges even though they are clearly not judges. This questionable tendency is especially marked in connection with parole boards and with courts emphasizing their quasi-judicial functions as well as their relation "to the operation of a state judicial and penal system.111
There is language in some of the cases suggesting that acts of persons "in the performance of an integral part of the judicial process" are protected by absolute judicial immunity.112 This reasoning has been applied to
clerks of court,113
sheriffs,114
probation officers,115
court reporters,116 and
court-appointed medical examiners.117
However, as the Fourth Circuit has pointed out in McCray v. Maryland,118 this reasoning is flawed because the functions of absolute immunity for judges are not applicable to these other officials who do not make judicial decisions. It makes considerably more sense to hold that clerks and others are protected only by a qualified immunity.119 They should, however, be protected by an absolute judicial immunity when they act pursuant to court order or direction.120 This exception to the qualified immunity rule, acknowledged by the Fourth Circuit in McCray and suggested by the Supreme Court in O'Connor v. Donaldson121 is fair and prevents disruption of the judicial process.122 Furthermore, it explains the result in many of the cases purporting to apply an absolute immunity rule.123
(Copyright © Depaul University Law Review. All rights reserved. Sheldon H. Nahmod. 1978)
106 See generally notes 67-105 and accompanying text infra.
107 Pennebaker v. Chamber, 437 F.2d 66 (3rd Cir. 1971).
108 Lucarell v. McNair, 453 F.2d 836 (6th Cir. 1972).
109 Clark v. Washington, 366 F.2d 678 (9th Cir. 1966).
110 Lynch v. Johnson 420 F.2d 818 (6th Cir. 1970) (finding a fiscal court to be nonjudicial in nature).
111
Silver v. Dickson, 403 F.2d 642, 644 (9th Cir. 1968). See also, Johnson v. Wells, 566 F.2d 1016 (5th Cir. 1978); Pate v. Alabama Bd. of Pardons and Paroles, 409 F. Supp. 478 (M.D. Ala. 1976).
This approach is questionable in view of Wood v. Strickland, 420 U.S. 308 (1974), in which the Supreme Court applied only a qualified immunity to school board members though they acted in a quasi-judicial capacity.
112 Burkes v. Callion, 433 F.2d 318, 319 (9th Cir. 1970).
113 Denman v. Leedy, 479 F.2d 1097 (6th Cir. 1973); Smith v. Rosenbaum, 460 F.2d 1019 (3d Cir. 1972); Marcedes v. Barrett, 453 F.2d 391 (3rd Cir. 1971); Davis v. McAteer, 431 F.2d 81 (8th Cir. 1970).
114 People ex rel. Giles v. Thomas, 464 F.2d 156 (5th Cir. 1972).
115 Burkes v. Callion, 433 F.2d 318 (9th Cir. 1970).
116 Stewart v. Minnick, 409 F.2d 826 (9th Cir. 1969).
117 Burkes v. Callion, 433 F.2d 318 (9th Cir. 1970).
118 456 F.2d 1 (4th Cir. 1972).
119 The Eighth Circuit followed McCray in Barnes v. Dorsey, 480 F.2d 1057 (8th Cir. 1973).
120 In Lockhart v. Hoenstine, 411 F.2d 455, 460 (3rd Cir. 1969), the court emphasized both the "manifest unfairness of subjecting one to suit as a consequence of action taken at the direction of officials over whom the individual actor has no power or control," and the likelihood of dismissal if the defendant refuses to comply. See also Smith v. Martin, 542 F.2d 688 (6th Cir. 1976); Robinson v. McCorkle, 462 F.2d 111 (3rd Cir. 1972); Sullivan v. Kelleher, 405 F.2d 486 (1st Cir. 1968).
121 422 U.S. 563, 577 (1975). The Court applied a qualified immunity to a state psychiatrist after it observed that he did not contend he acted pursuant to court order in keeping the plaintiff confined.
122 Note, The Doctrine of Official Immunity Under the Civil Rights Acts, 68 HARV. L. REV. 1229, 1239 (1955). See also Hazo v. Geltz, 537 F.2d 747 (3rd Cir. 1976), where a deputy sheriff was sued under 1983 for allegedly causing an invalid levy against plaintiff's personal property pursuant to a default judgment. In remanding, the court held that only a qualified immunity would apply unless evidence of "direct judicial supervision," not simply administrative convenience, was shown. Id. at 751.
123 See, e.g., Smith v. Rosenbaum, 460 F.2d 1019 (3d Cir. 1972); People ex rel. Giles v. Thomas, 464 F.2d 156 (5th Cir. 1972).
It has been accepted in the circuits, and implied by the Supreme Court,124 that judicial immunity is limited to damages and does not extend to injunctive relief. Littleton v. Berbling,125 a leading case from the Seventh Circuit, so held where class discrimination based on race was alleged in connection with the application of the criminal laws. It relied primarily on two decisions, also involving class discrimination based on race, which found that judicial immunity extended only to immunity from damages.126 However, the injunctive relief exception is apparently not limited to class discrimination cases. The Second Circuit, in a case which involved plaintiff's attempt to enjoin disciplinary proceedings instituted against him by the judges of the Appellate Division of New York, has stated:
"[N]o sound reason exists for holding that federal courts should not have the power to issue injunctive relief against the commission of acts in violation of a plaintiff's civil rights by state judges acting in their official capacity."127
The Fourth Circuit has more recently taken a similar position.128
Despite this general acceptance of an injunctive relief exception,129 concern has been expressed about interfering with the exercise of state judicial discretion. As stated by Judge Dillion, dissenting in Littleton:
[In the cases... in which this [exception] has been applied, the equitable relief granted has invariably been in the form of a prohibitory injunction, confining such officials to the limits of their legal authority. There is a great difference between ordering an official not to do a particular act, measurable by objective standards, and in ordering him to exercise his discretion in a certain general way, measurable only by subjective standards.130
The Fifth Circuit has expressed a similar note of caution in a case where the plaintiff in effect was asking the federal court to hold the decision of a state appellate court to be unconstitutional. While it ended up relying on collateral estoppel, the court did observe that the plaintiff's "requested relief would directly and irrebutably interfere with a discretionary judicial function."131 However, the concern reflected in such cases is not with the threat to judicial independence stemming from unhappy litigants, as it is in cases involving actions for damages. The concern is rather with the sensitive relationship between state and federal courts when the latter attempt to regulate state judicial conduct. Indeed, the Supreme Court raised this federalism and comity concern in connection with injunctive relief directed against judges and prosecutors who were allegedly enforcing the criminal laws in a racially discriminatory way.132
The injunctive relief exception to judicial immunity seems to be the equivalent of a bifurcated approach to the meaning of "person" under section 1983; that is, a judge, because he is absolutely immune, is treated as if he were not a "person" for damages purposes, but is treated as a "person" for injunctive relief purposes. Despite the difficulty in another context with such a bifurcated approach,133 there is no such difficulty here. The Court would use the Ex parte Young134 fiction and consider the judge being sued for injunctive relief as an individual stripped of his official functions and thus as a "person" for 1983 purposes. Furthermore, applying judicial immunity to a judge does not mean that he is not a "person," but only that he is a "person" who is absolutely immune from liability for damages and not from injunctive relief.
(Copyright © Depaul University Law Review. All rights reserved. Sheldon H. Nahmod. 1978)
124 O'Shea v. Littleton, 414 U.S. 488, 499 (1974). The Court implied that if there is a showing of irreparable injury which is both great and immediate there is the possibility that injunctive relief will issue. It is clear that the Supreme Court is reluctant to permit federal equitable intervention in proceedings involving state officials. See generally A GUIDE TO SECTION 1983 chapter 5.
125 468 F.2d 389 (7th Cir. 1972), rev'd on other grounds sub. nom. O'Shea v. Littleton, 414 U.S. 488 (1974).
126 United States v. Clark, 249 F. Supp. 720, 722 (S.D. Ala. 1965) (three judge court) and United States v. McLeod, 385 F.2d 734, 738 n.3 (5th Cir. 1967).
127 Erdmann v. Stevens, 458 F.2d 1205, 1208 (2d Cir. 1972), cert. denied, 409 U.S. 889 (1972). See also Law Students Civil Rights Research Council, Inc. v. Wadmond, 299 F. Supp. 117, 123 (S.D.N.Y. 1969) (three judge court), aff'd, 401 U.S. 154 (1971).
128 Timmerman v. Brown, 528 F.2d 811 (4th Cir. 1975). See also Fowler v. Alexander, 478 F.2d 694 (4th Cir. 1973) which relied on Littleton. Id. at 696. Fowler did not involve class discrimination.
129 See Shipp v. Todd, 568 F.2d 133 (9th Cir. 1978), in which the court held that while a court clerk acting pursuant to judicial direction was absolutely immune from liability for damages, he was not immune from injunctive relief ordering him to expunge the plaintiff's state criminal conviction.
130 Littleton v. Berbling, 468 F.2d 389, 415 (7th Cir. 1972), rev'd sub. nom. O'Shea v. Littleton, 414 U.S. 488 (1974).
131 Cheramie v. Tucker, 493 F.2d 586, 588 (5th Cir. 1974), cert. denied, 419 U.S. 868 (1974).
132 O'Shea v. Littleton, 414 U.S. 488, 499-502 (1974). This was the second ground used in reversing the Seventh Circuit. See note 125 and accompanying text supra. The first ground was the absence of a case or controversy.
Federalism and comity concepts are beyond the scope of this Article. These concepts are however, of considerable significance in cases involving attempts by 1983 plaintiffs to secure declaratory or injunctive relief in connection with the constitutionality of state statutes involved in pending state criminal proceedings. See Younger v. Harris, 401 U.S. 37 (1971) and its numerous progeny. So-called "Younger abstention" is discussed briefly in C. WRIGHT, LAW OF FEDERAL COURTS 229-36 (3d ed. 1976). See generally A GUIDE TO SECTION 1983 chapter 5.
133 City of Kenosha v. Bruno, 412 U.S. 507 (1973), which rejected a similar approach for municipalities, appears to undercut the rationale of the foregoing cases. In holding that municipalities are not "persons" for section 1983 purposes regardless of the relief sought, the Court stated that a bifurcated approach to the meaning of "person" was without support. Id. at 513. However, this has all been changed since Monell v. Department of Soc. Serv., 98 S. Ct. 2018, 2041 (1978), which held that cities and counties are "persons" for 1983 damages purposes. See n.2 supra. Such "persons" can also now be sued for injunctive relief.
134 209 U.S. 123 (1908).
The Supreme Court's recent decision in Imbler v. Pachtman135 granting prosecutorial immunity from liability for damages under section 1983 relied on Tenney v. Brandhove,136 Pierson v. Ray137 and later cases involving the immunity of various governmental officials.138 In Imbler, the plaintiff sued a state prosecutor for allegedly knowingly using perjured testimony and suppressing material evidence at plaintiff's trial which resulted in his conviction for murder. The matter at issue was "whether a state prosecuting attorney who acted within the scope of his duties in initiating and pursuing a criminal prosecution is amenable to suit under 42 U.S.C. § 1983 for alleged deprivations of the defendant's constitutional rights."139 The Court held the prosecutor absolutely immune.
The Court first canvassed its earlier decisions on immunities under 1983, saying that Tenney "established that § 1983 is to be read in harmony with general principles of tort immunities and defenses rather than in derogation of them."140 It then generalized by observing that "each [earlier decision on 1983 immunities] was predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it."141 Using this approach, the Court next asserted that at common law prosecutors were absolutely immune from tort liability with respect to their decisions to initiate and conduct prosecutions142 for at least two reasons:
(1) harassment by unfounded litigation which would divert attention from their duties; and
(2) the effect of litigation on their independence in making decisions.
Finally, in concluding that for the same reasons this should be the 1983 immunity rule as well, the Court mentioned the following additional considerations: the danger to the honest prosecutor from those suits which would survive a pleadings challenge; the virtual retrial of criminal offenses in a new forum, with the resolution of technical cases by the jury; the adverse effect on the criminal justice system because often the finders of fact would be denied relevant evidence; and the availability to the convicted defendant of various post-trial procedures, and to the public of criminal prosecution and professional discipline.
Imbler is expressly limited to those activities of a prosecutor which are
"intimately associated with the judicial phase of the criminal process, and thus were functions to which the reasons for absolute immunity apply with full force."143
The Court left open the question of whether Imbler's rationale would also apply to
"those aspects of the prosecutor's responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate."144
It did, however, note that a prosecutor in his role as advocate frequently acts outside of the courtroom as well as in it,145 thereby suggesting that this role is quite broad and is protected in its entirety by absolute immunity.
The Court also rejected the distinction suggested in the concurring opinion between a prosecutor's knowing use of perjured testimony - to which immunity should attach - and his knowing suppression of evidence - to which the three concurring Justices argued it should not.146 Further, the Court hinted that a public defender and perhaps even court appointed defense counsel likewise share in absolute immunity when it stated:
"Attaining the system's goal of accurately determining guilt or innocence requires that both the prosecution and the defense have wide discretion in the conduct of the trial and the presentation of evidence."147
(Copyright © Depaul University Law Review. All rights reserved. Sheldon H. Nahmod. 1978)
135 424 U.S. 409 (1976).
136 341 U.S. 367 (1951).
137 386 U.S. 547 (1967).
138 Scheuer v. Rhodes, 416 U.S. 232 (1974) (executives) and Wood v. Strickland, 420 U.S. 308 (1975) (school board officials exercising quasi-judicial functions).
139 424 U.S. 409, 410 (1976).
140 Id. at 418.
141 id. at 421.
142 Judge Learned Hand wrote of prosecutorial immunity in the much cited case of Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949), cert. denied, 339 U.S. 949 (1950) as follows:
As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.
143 424 U.S. 409, 430 (1976).
144 Id. at 430-31.
145 Id. at 431 n.33. Included in the prosecutor's role as advocate, according to the Court, are the following: deciding whether to present a case to a grand jury or to file an information, deciding whether and whom to prosecute, deciding what evidence and witnesses to present, and obtaining, reviewing and evaluating evidence in connection with all the above.
146 Justices White, Brennan and Marshall, concurring in the judgment, reasoned that absolute immunity should not extend to claims of unconstitutional suppression of evidence because to do so would discourage the disclosure of evidence by prosecutors and thereby injure the judicial process as well as the defendant in a criminal case. However, the majority rejected this approach in part because it believed that a claim of using perjured testimony could easily be converted into a claim of suppressing evidence. Id. at 432-33.
147 Id. at 426 (emphasis added).
Since Imbler, it is clear that prosecutorial immunity from liability for damages attaches to those acts of the prosecutor in his role as advocate.148 Not so clear, however, is where the prosecutor's role as advocate ends and his other roles begin. This was a recurring issue in the circuits before Imbler and remains so because Imbler expressly left open the question of the scope of' prosecutorial immunity in non-advocacy situations.
For example, the prosecutor as investigator has been the subject of considerable litigation. In Robichaud v. Ronan,149 a much quoted pre-Imbler decision which involved a prosecutor accused of various attempts to intimidate the plaintiff while in custody to confess to a murder she didn't commit, despite the lack of probable cause to hold her, the Ninth Circuit held that the investigative activities of a prosecutor are protected only by a qualified immunity.150 The Seventh Circuit, in another pre-Imbler case, Hampton v. City of Chicago,151 explicitly used the Robichaud approach to reject the prosecutors' claim of absolute immunity. In Hampton, plaintiffs' complaint could have been read as alleging that the prosecutors and others had conspired to plan and execute a raid in order to kill certain members of the Black Panther party. The court read the complaint more narrowly as alleging the planning and execution of the raid in order simply to obtain evidence. Still, the court rejected the contention that "evidence gathering is so closely related to the presentation of evidence at trial that it should also be clothed with immunity."152
A recent post-Imbler district court decision followed Robichaud and Hampton in holding that absolute immunity was not available to a prosecutor who allegedly forced the plaintiff to become a police agent and informant through threats and coercion.153 The court simply characterized this activity as "of a police/investigative nature,"154 However, Imbler casts some doubt upon the propriety of a "bright line" test which simply asks whether the activity is of the kind in which police engage.155
In addition to the investigatory role of prosecutors, courts have distinguished the advocacy role from still other prosecutorial activities.156 The District of Columbia Circuit held, albeit in a non-1983 case, that the U.S. Attorney General's role in directing law enforcement activity was not absolutely protected from liability for damages for alleged Fourth and Fifth Amendment violations.157 The prosecutor's role as advocate has also been distinguished from situations in which a corporation counsel allegedly failed to issue an advisory opinion which would have permitted plaintiff to speak at a public gathering.158 A similar conclusion was reached when a prosecutor sent a critical letter to a legislative investigating committee, with copies to the press, about the plaintiff against whom a murder charge had been dismissed and no judicial proceedings were pending or contemplated.159 It was stated in these post-Imbler cases that there was no judicial or quasi-judicial significance to the defendants' conduct. A pre-Imbler Ninth Circuit case reached a similar conclusion about an allegedly wrongful advisory opinion given by a city attorney which resulted in plaintiff's discharge from his job.160 The court refused to extend absolute immunity "to a lawyer in a public law office giving legal advice to a public entity in respect of matters that are not the subject of pending litigation. The purpose of according judicial immunity is to protect the integrity of the judicial process... not to shield lawyers... when the alleged invasion did not occur during the performance of acts that are an integral part of the judicial process."161
The Third Circuit recently noted what it called the "thorny issue" of prosecutorial immunity in connection with still another prosecutorial role: the defendant's firing of plaintiff, his first assistant, for publicly contradicting him about his role concerning a concluded criminal case.162 The defendant argued "that prosecutorial immunity should be held to cloak administrative actions such as the discharge involved here. The hiring and firing of the subordinates through whom he acts... is the District Attorney's ultimate discretionary act in his service to the public..."163 But the court avoided being "pricked", and ruled against plaintiff on the merits. It would appear, though, that the defendant's act was clearly administrative and not taken in his role as advocate. Just as a legislator's discharge of an employee was held not protected by a legislator's absolute immunity, because it was not a legislative act,164 so too in all likelihood would this defendant's conduct be unprotected by a prosecutor's absolute immunity because it was not an advocate's act.
Situations may arise in which the prosecutor is found to have acted not as a prosecutor, but rather as an individual. A 1977 Third Circuit decision indicated that a special prosecutor without authority to act as prosecutor in the plaintiff's case would not be absolutely immune from liability for damages arising from a claim that he had conspired with others to bring false criminal charges against the plaintiff'.165 In another Third Circuit decision that same year, the plaintiff, a former congressman, sued a United States Attorney for allegedly attempting to destroy him politically by deliberate leaks to the press of false information in connection with grand jury proceedings.166 In holding that the defendant was protected only by a qualified immunity, the court left open the scope of prosecutorial immunity in a non-advocate context. Instead, the court found that the allegations of deliberate leaks not only went beyond the advocate's role but also exceeded that of the prosecutor as investigator and administrator.167 The court failed to mention the prosecutor's role as a public official who is accountable to the public at large.
This concern with the varied roles of the prosecutor is unique. Unlike legislators and judges whose exposure to potential liability will generally arise in connection with either legislating or judging, the prosecutor not only prosecutes, but investigates, administers, executes and the like. His exposure to potential liability will arise in varied situations which seem to admit of no straightforward immunity approach which is relatively easy to apply.168 Therefore, to the extent that Imbler's rationale is tied to the prosecutor's broadly construed role as advocate and is based on a concern with independent decision making, retrying criminal offenses and the adverse impact on the criminal justice system, distinctions will inevitably have to be drawn between this role and all the others. If, however, the policy underlying Imbler's rationale is based more on protecting honest prosecutors and avoiding the diversion of a prosecutor's attention, then so long as the prosecutor is acting within a traditional prosecutorial role,169 he will be accorded an absolute immunity. It is a fair prediction that at least the prosecutorial role of investigator will be accorded absolute immunity and assimilated into the advocate's role, in part because of the difficulty in drawing a satisfactory line between the prosecutor as advocate and as investigator where there are pending or contemplated criminal matters. The Supreme Court may eventually hold that if absolute immunity for prosecutors is to be effective, a prosecutor should not have to guess whether what he is doing is advocative or investigative.170
Regardless of where the Imbler absolute immunity line is drawn, it is clear that one of the major purposes of absolute immunity is to avoid implicating the merits of the allegations of unlawful conduct against a prosecutor. Thus, the reasoning in pre-Imbler cases about prosecutorial conduct which is "clearly beyond the proper exercise of his authority and exceed[ing] any possible construction of the power granted to this office"171 is no longer to be followed. It improperly focuses on the unauthorized or ultra vires nature of the conduct and not on the role of the prosecutor. Such reasoning led to a result in a 1974 Seventh Circuit decision which is also now clearly incorrect after Imbler.172 There, the refusal of a prosecutor to assist the plaintiff in regaining his property by prosecuting those unlawfully possessing it was characterized as outside the scope of the prosecutor's duties and illegal and hence protected by qualified immunity only.
Consequently, it is surprising that the Ninth Circuit recently used this very approach in a post-Imbler case. Briley v. State of California173 was a 1983 action for damages brought against a trial judge, prosecuting attorneys and others for alleged violations of the plaintiff's constitutional rights. The plaintiff had been charged with child molestation but was offered the opportunity to plead guilty to a lesser offense provided he consent to castration. The plaintiff consented to this surgery even though the plea bargain was never recorded and a court order was never entered approving it. As to the immunity issue, the plaintiff' argued that there was no legal authority whatever for district attorneys to require castration and therefore absolute immunity was inappropriate. Agreeing with this approach to prosecutorial immunity, the Ninth Circuit remanded to determine whether the state trial judge "would have arguably had some common-law or statutory basis for ordering Briley to submit to castration had he been convicted for the child molestation charge. If such authority is found and, thus, judicial immunity attaches, the district attorneys... would be immune from §1983 liability for misrepresentations.... "174 The court cited the Seventh Circuit opinion in Stump v. Sparkman (prior to reversal by the Supreme Court)175 and the district court decision in Wade v. Bethesda Hospital176 as "persuasive authority that a court, at least when ordering the extreme remedy of sterilization, must have specific legislative or common-law authority for doing so,"177 and then made the district attorneys' immunity dependent on the judge's.
After Imbler, however, and even without the Court's decision in Stump, it is clear that district attorneys should be immune when they act as advocates in connection with a specific criminal case. To make their immunity dependent solely upon the judge's not only misdirects the inquiry but also, to the extent it focuses on statutory or common law authority, necessarily implicates the merits. Yet Imbler was designed to preclude just such an inquiry where a prosecutor acts as an advocate. Furthermore, the Court's decision in Stump now makes abundantly clear that the "legislative or common law authority" approach to judicial immunity is wrong. Consequently, Briley's approach is similarly incorrect.
It should be noted, finally, that this discussion of Imbler and its reception in the circuits is limited to prosecutorial immunity for liability for damages. For reasons similar to those discussed earlier in connection with injunctive relief against legislators and judges,178 it is likely that injunctive relief is also available even after Imbler against prosecutors in appropriate situations.179 A post-Imbler Third Circuit decision broadly stating the contrary in connection with the plaintiff's request for injunctive relief' against a prosecutor appears incorrect.180 Because there the plaintiff sought to have his conviction set aside, the case is better treated more narrowly as one in which the prosecutor did not have authority to grant the requested relief.
The Immunity of Public Defenders
The circuits discussing the immunity of public defenders have generally concluded that they, like prosecutors, are protected by absolute immunity in their role as advocates. A significant pre-Imbler decision of the Third Circuit, Brown v. Joseph,181 which involved an allegedly improperly induced guilty plea, justified this result on the ground that assuming prosecutors and public defenders act in analogous although opposite roles, the policies sought to be achieved by prosecutorial immunity apply to public defender immunity as well.182
In two post-Imbler cases involving claims that public defenders had breached a plea bargain and had failed to respond to requests for help in connection with the preparation of a habeas corpus petition, the Fourth and Ninth Circuits 183 followed Brown and the clear implication of the Court's language in Imbler regarding the need for broad trial discretion for "both the prosecution and the defense."184 They accordingly held that public defenders are protected by absolute immunity. The Seventh Circuit's contrary result in a pre-Imbler case185 was always suspect, because it both relied on a qualified immunity rule for prosecutors186 and misread the Third Circuit's decision in Brown.187 It has now been expressly repudiated by the Seventh Circuit.188 The trend therefore is to apply absolute immunity to both prosecutors and public defenders. It is worth noting, however, that the previously discussed line drawing problems relating to different prosecutorial roles will similarly arise in connection with public defenders.
(Copyright © Depaul University Law Review. All rights reserved. Sheldon H. Nahmod. 1978)
148 See, e.g., Ledwith v. Douglas, 568 F.2d 117, 119 (8th Cir. 1978) (immunity protects a prosecutor acting in a civil enforcement proceeding to enjoin deceptive trade practices and obtain restitution for defrauded consumers. Although Imbler dealt with criminal proceedings, the civil enforcement proceeding in Ledwith is functionally comparable to a criminal proceeding. As such, the result in Ledwith is sound); Perez v. Borchers, 567 F.2d 285, 287 (5th Cir. 1978) (per curiam) and Jennings v. Schuman, 567 F.2d 1213, 1221 (3d Cir. 1977) (immunity protects the prosecutor who allegedly conspired to bring false criminal charges against the plaintiff); Hilliard v. Williams, 540 F.2d 220, 221 (6th Cir. 1976) (per curiam) (immunity protects a prosecutor who allegedly withheld evidence favorable to plaintiff and instructed a witness to testify evasively, if not falsely); Bruce v. Wade, 537 F.2d 850, 852 (5th Cir. 1976) (immunity protects a prosecutor who allegedly improperly had the plaintiff' indicted and, at the trial, suborned perjury and filed false affidavits); Flood v. Harrington, 532 F.2d 1248, 1251 (9th Cir. 1976) (immunity protects government attorneys involved in litigation in connection with the collection of income taxes. Although Flood was not a 1983 case, Imbler's reasoning was found applicable).
149 351 F.2d 533 (9th Cir. 1965).
150 The court reasoned as follows:
We believe, however, that when a prosecuting attorney acts in some capacity other than his quasi-judicial capacity, then the reason for his immunity- integral relationship between his acts and the judicial process-ceases to exist. If he acts in the role of a policeman, then why should he not be liable, as is the policeman, if, in so acting, he has deprived the plaintiff of rights, privileges, or immunities secured by the Federal Constitution and laws?... To us, it seems neither appropriate nor justifiable that, for the same act, immunity should protect the one and not the other.
Id. at 536-37. Robichaud relied on the earlier similar case of Lewis v. Brantigam, 227 F.2d 124 (5th Cir. 1955), in which the defendant prosecutor allegedly attempted to coerce a guilty plea from a criminal charge. The Fifth Circuit held that prosecutorial immunity does not extend to such investigative activity.
151 484 F.2d 602 (7th Cir. 1973).
152 Id. at 609.
153 Tomko v. Lees, 416 F. Supp. 1137 (W.D. Pa. 1976).
154 Id. at 1139.
155 In a possibly significant footnote, the Supreme Court observed:
We recognize that the duties of the prosecutor in his role as advocate for the State involve actions preliminary to the initiation of a prosecution and actions apart from the courtroom... Preparation, both for the initiation of the criminal process and for a trial, may require the obtaining, reviewing and evaluating of evidence... Drawing a proper line between these functions may present difficult questions, but this case does not require us to anticipate them. 424 U.S. 409, 431 n.33 (emphasis added). This language strongly suggests that the Court realizes both that prosecutorial functions may overlap and that the scope of the prosecutor's role as advocate is quite broad. If it is taken literally, then the prosecutorial activities in Robichaud and Hampton may be outside the scope of 1983 liability for damages.
156 A commentator categorized the various roles as follows: executive, ministerial, investigatory, civil/advisory, public official and individual. Note, Delimiting the Scope of Prosecutorial Immunity from Section 1983 Damage Suits, 52 N.Y.U.L. REV. 173, 187-188 (1977).
157 Apton v. Wilson, 506 F.2d 83 (D.C. Cir. 1974).
158 Shifrin v. Wilson, 412 F. Supp. 1282 (D. D.C. 1976).
159 Cahalan v. Walker, 542 F.2d 681 (6th Cir. 1976), cert. denied, 430 U.S. 966 (1977).
160 Donovan v. Reinhold, 433 F.2d 738 (9th Cir. 1970).
161 Id. at 743.
162 Sprague v. Fitzpatrick, 546 F.2d 560, 564 (3d Cir. 1976).
163 Id. at 564.
164 Davis v. Passman, 544 F.2d 865 (5th Cir. 1977). See notes 29-32 and accompanying text supra.
165 Jennings v. Schuman, 567 F.2d 1213 (3d Cir. 1977).
166 Helstoski v. Goldstein, 552 F.2d 564 (3d Cir. 1977) (per curiam) (United States Attorney).
167 Id. at 566.
168 If, for example, a "jurisdiction" approach were taken, comparable to that for judges, then absolute immunity would extend to all the traditional prosecutorial roles. Whatever difficulties the "jurisdiction" approach presents, and there are many, see notes 57-134 and accompanying text supra, it seems somewhat easier to apply in many situations than an approach to prosecutorial immunity which focuses on a particular role.
169 This includes the role of an administrator or investigator acting within his "jurisdiction," by analogy to the judiciary.
170 Compare Stump v. Sparkman, 435 U.S. 349 (1978), in which the Court indicated that a judge's jurisdictional errors are to be treated the same as other legal errors for purposes of absolute judicial immunity.
171 Martin v. Merola, 532 F.2d 191, 195 (2d Cir. 1976) (Lumbard, J., concurring) (per curiam).
172 Holton v. Boman, 493 F.2d 1176 (7th Cir. 1974).
173 564 F.2d 849 (9th Cir. 1977).
174 Id. at 858.
175 Sparkman v. McFarlin, 552 F.2d 172 (7th Cir. 1977), rev'd sub. nom. Stump v. Sparkman, 435 U.S. 349 (1978).
176 337 F. Supp. 671 (S.D. Ohio 1971).
177 564 F.2d at 854.
178 See notes 52-56, 124-133 and accompanying text supra.
179 The Supreme Court has, however, expressed reservations about injunctions which appear either to interfere unnecessarily with a prosecutor's discretion, O'Shea v. Littleton, 414 U.S. 488 (1974), or to impinge upon comity concerns. See generally note 132 supra.
180 Brawer v. Horowitz, 535 F.2d 830 (3d Cir. 1976).
181 463 F.2d 1046 (3d Cir. 1972), cert. denied, 412 U.S. 950 (1973).
182 The court stated:
We perceive no valid reason to extend this immunity to state and federal prosecutors and judges and to withhold it from state-appointed and state-subsidized defenders... [This reflects] a public policy encouraging free exercise of professional discretion in the discharge of pre-trial, trial and post-trial obligations... There are other considerations of public policy. First, there is the desirability of encouraging able men and women to assume Public Defender roles.... Moreover • .. if a civil rights suit... is a constant threat to the Attorney involved, then there would be a chilling effect upon Defense Counsel's tactics. Defense Counsel would be caught in an intrinsic conflict of protecting himself and representing his client.
Id. at 1048-49.
183 Miller v. Barilla, 549 F.2d 648 (9th Cir. 1977); Minns v. Paul, 542 F.2d 899 (4th Cir. 1976).
184 424 U.S. at 426. The Fourth and Ninth Circuits mentioned additional concerns with frivolous claims by inmates, the use of defender time to defend against such claims when other inmates need help, and the effect of 1983 litigation on the limited resources of public defender agencies.
185 John v. Hurt, 489 F.2d 786 (7th Cir. 1973) (per curiam).
186 Id. at 788.
187 Id.
188 Robinson v. Bergstrom, 579 F.2d 401 (7th Cir. 1978) (per curiam). This decision also exhaustively discussed a troublesome state action issue and concluded that state action was present. See generally A GUIDE TO SECTION 1983 chapter 2.
Of the Supreme Court's three 1983 absolute immunity cases, the one most worth pondering is Imbler v. Pachtman which extended absolute immunity to prosecutors. Legislators and judges are sui generis and both as a matter of historical background and 1983 policy, their absolute immunity is understandable. Furthermore, 1983 remains largely intact despite this absolute immunity. In Imbler, however, the Court seems to have embarked on a policy oriented approach to absolute immunity in which 1983 policy gets lost in the shuffle. This approach, though, downplays the "person" language of 1983 which must be broadly construed if 1983 liability is to have an effect on official conduct. Moreover, this "person" language indicates that Congress already made the policy determination that most individuals are "persons" for 1983 purposes. Furthermore, to the extent that the issue arises in the future, it may prove unworkable to draw a line around the prosecutor and stop there. As was seen, public defenders are the next likely candidates for absolute immunity protection, and there may be others.
On the other hand, the Court may ultimately limit the absolute immunity categories to state legislators, judges and prosecutors and public defenders involved in criminal trials. This would narrow the scope of 1983, but not significantly undercut it, because all other individuals not involved in legislating, judging, or trying criminal cases would still be considered "persons" for 1983 damages liability purposes. What the Supreme Court will in fact do remains to be seen.189
(Copyright © Depaul University Law Review. All rights reserved. Sheldon H. Nahmod. 1978)
189 As this Article went to print, the United States Supreme Court decided Lake County Estates v. Tahoe Regional Planning Agency, no. 7-1327 (U.S. Sup. Ct. 1979). Although the opinion has not been published, the Court held that absolute immunity under the Eleventh Amendment is applicable to local and regional legislatures. See notes 44-56 and accompanying text supra.
Most developed legal systems, including our own, have long reflected a belief that suits against judges by dissatisfied litigants are an unsatisfactory method of correcting judicial error. In the common law, that belief became the doctrine of judicial immunity. In recent years, traditional immunity doctrines have been criticized more and more, especially by activist sectors of the bar and academe;1 naturally, judicial immunity has not avoided censure.2
In Stump v. Sparkman,3 decided in 1978, the Supreme Court held that a judge is absolutely immune from suits for damages for his judicial acts, unless he acted in the clear absence of subject matter jurisdiction. No doubt the Court intended to affirm the validity of the doctrine of judicial immunity, but the most apparent effect of the Sparkman decision has been to reduce the stature of the doctrine and to call into question the integrity of the judiciary and of the judicial process. Writers in both the popular and the scholarly press4 responded sharply (aroused perhaps not so much by the decision itself as by the facts of the case, which involved the involuntary sterilization of a fifteen-year old girl), attacking the decision as an example of the worst sort of self-dealing by the judiciary and arguing that judicial immunity as it now stands cannot find its justification in public policy.
In one of the more dispassionate of these articles,5 two authors — Jay Feinman and Roy Cohen — examine the history of judicial immunity. They conclude that “English law began with a position of general judicial liability and developed only limited exceptions on grounds that are irrelevant to a discussion of judicial liability today.”6 These authors also discuss the policies underlying the judicial immunity doctrine: “We conclude that immunity is indefensible on policy grounds as well, but that conclusion does not convince us that any of the suggested reforms should be adopted. Instead, we draw on contemporary jurisprudential thinking to argue that no convincing policy resolution is possible.”7
An examination of the history of the doctrine of judicial immunity leads to quite contrary conclusions. English law began not from a position of general judicial liability for damages but from a position of very limited liabilities that resulted in only nominal penalties.8 Moreover, the doctrine of judicial immunity was developed primarily to eliminate collateral attacks on judgments and to confine procedures in error to the hierarchy of the king’s courts; these grounds are relevant to discussions of judicial immunity today and are especially relevant to an analysis of Sparkman. Finally, this history does lead to a legitimate resolution of conflicting policies, and to a reform proposal that implements the policies underlying the doctrine of judicial immunity. These policies in turn show, as argued below,9 that the error the Court committed in Sparkman was not the perpetuation of the doctrine of judicial immunity, as some critics have asserted,10 but rather the misstatement, misinterpretation, and misapplication of the doctrine.
(Copyright © Duke Law Journal. All rights reserved. J. Randolph Block. 1980)
* Assistant Professor, DePaul University College of Law. A.B. 1974, Princeton University; J.D. 1977, University of Chicago; member of the Illinois Bar. James Lundgren, William Marshall, and Douglas Laycock provided helpful comments on intermediate drafts. My fellow students in Prof. Laycock’s seminar on governmental immunities stimulated my thinking with their vigorous and enthusiastic criticism; I am especially grateful to Joel Eisen-Stein for his ideas on official immunity.
THE FOLLOWING CITATIONS WILL BE USED IN THIS ARTICLE:
S. DE SMITH, JUDICIAL REVIEW OF ADMINISTRATIVE ACTION (1959), hereinafter cited as S. DE SMITH;
Dobbs, The Decline of Jurisdiction by Consent, 40 N.C.L. REV. 49 (1961), hereinafter cited as Dobbs;
Feinman & Cohen, Suing Judges: History and Theory, 31 S.C.L. REV. 201 (1980), hereinafter cited as Feinman & Cohen;
Note, Liability of Judicial Officers Under Section 1983 79 YALE LJ. 322 (1969), hereinafter cited as Yale Note.
1 See generally Cramton, Nonstatutory Review of Federal Administrative Action: The Need for Statutory Reform of Sovereign Immunity; Subject Matter Jurisdiction, and Parties Defendant, 68 MICH L. REV.387 (1970); Scalia, Sovereign Immunity and Non-Statutory Review of Federal Administrative Action: Some Conclusions From the Public-Lands Cases 68 MICH. L. REV. 867 (1970).
2 See, e.g., Kates, Immunity of State Judges Under the Federal Civil Rights Acts: Pierson v. Ray Reconsidered 65 Nw. U.L. REV.615 (1970); Note, Immunity of Federal and State Judges from Civil Suit — Time for a Qualified Immunity 27 CASE W. RES. L. REV. 727 (1977); Yale Note.
3 435 U.S. 349 (1978).
4 See, e.g., Falk, The Mandarins: Judges Seek Shield from Public, Wall St. J.t Apr. 28, 1978, at 16, coL 3; Laycock, Civil Rights and Civil Liberties, 54 CHI.-KENT L. REV. 390 (1977); Nagel, Judicial Immunity and Sovereignty, 6 HASTINGS CONST.L.Q. 237 (1978); Nahmod, Persons Who Are Not “Persons”; Absolute Individual Immunity Under Section 1983, 28 DEPAUL L. REV.1 (1978); Rosenberg, Stump v. Sparkman: The Doctrine of Judicial Impunity, 64 VA. L. REV. 833 (1978); Young, Supreme Court Report, 64 A.B.A.J. 740 (1978); Note, Torts—Judicial Immunity: A Sword for the Malicious or a Shield for the Conscientious?, 8 U. BALT. L. REV. 141 (1978); 11 IND. L. REV. 489 (1978); 47 U. Mo. KAN. CITY L. REV. 81 (1978).
5 Feinman & Cohen.
6 Id. 203.
7 Id. 204.
8 See note 12 infra and accompanying text.
9 See notes 197-233 infra and accompanying text.
10 See, e.g.,Feinman & Cohen 204; Nagel, supra note4,at 238-39; Rosenberg, supra note 4, at 836; Young, supra note 4, at 740; Note, supra note 4, at 156-58; 47 U. Mo. KAN. CITY L. REV. 81, 81, 94 (1978).
A. The English Origins of the Doctrine: Judicial Immunity and the Development of Appellate Procedures.
Disappointed suitors will exert pressure upon any legal system to provide relief for the mistakes of its judges. The relief provided, however, will not necessarily take the form of appellate proceedings as we know them today. In early English law, the now familiar proceedings in error by appeal from one court to a higher court were completely unknown. A litigant challenged the correctness of a decision by an accusation against those who decided the case; for instance, a complaint against the verdict of a jury took the form of a charge of perjury under the procedure of attaint.11 Under Anglo-Saxon law of the tenth and eleventh centuries, a judgment (doom) could be impeached by charging the official proposing the judgment (the doomsman) with falsehood. This proceeding, known as “forsaking the doom,” developed into the complaint of “false judgment,” whereby a dissatisfied litigant obtained a writ commanding the challenged court to cause a record of its proceedings to be made and brought before the court of the litigant's superior lord. The complainant could accept the court’s record and thus confine the issues to errors of law. But this record could be challenged by anyone willing to engage in physical combat with the champions of the challenged court. If the challenge succeeded, the lower court’s judgment was annulled and the court was amerced.12
These challenges to the record were costly and lengthy. Moreover, the fact that the challenged court — rather than the successful party to the original action — had to defend against the action of false judgment meant that such actions could be, and often were, brought to intimidate a judge.13 Gradually, false judgment proceedings were transformed: combat was avoided (usually by agreement of the parties), and both parties were heard on review,14 but the burdensome attacks on the record were still possible.
Other features of the system of correcting errors by false judgment were also unsatisfactory to the central government. False judgments in the local courts were redressed in the court of the lord immediately superior to the original court, and the appeal proceeded upwards through the ranks of the feudal courts.15 This meant that the king’s courts received no amercements from lower courts and could redress errors only after long delays, if at all. That the system of false judgment did not permit an authoritative declaration of law by the central government also became apparent when compared with the ecclesiastical courts:
In the twelfth century, under the influence of the canon law, Englishmen became familiar with appeals (appellationes) of a quite other kind [than criminal appeals of felony]; they appealed from the archdeacon to the bishop, from the bishop to the archbishop, from the archbishop to the pope. The graduated hierarchy of ecclesiastical courts became an attractive model. The king’s court profited by this new idea; the king’s court ought to stand to the local courts in somewhat the same relation as that in which the Roman curia stands to the courts of the bishops.16
The attractiveness of the ecclesiastical model lay in its hierarchical structure. Both a hierarchical system of review and a horizontal one (in which rehearing is by another inferior court) offer correction of errors, but proceedings in a hierarchical system enable the higher court to authoritatively ascertain and declare legal precepts.17 For the judges of the king’s courts to stand in such a hierarchical relation to the local courts, they needed to monopolize the existing means of correcting errors, the complaint of false judgment. By statute, therefore, false judgment was made a royal plea, which could be heard only in the king’s courts.18
A judgment of a king’s court could not be challenged through a complaint of false judgment, however, because of the doctrine of the sanctity of records. From a very early time, the proceedings of the king’s court had been written in Latin on rolls of parchment.19 This process of recording, coupled with royal prerogative, led to the view that the king’s record of factual findings concerning what took place before him, whether maintained on parchment or stated viva voce, was superior to every other record. This very useful doctrine of the finality of the record was first applied in the court in which the king sat in person, and remained with the king’s courts as they expanded their functions.20 The doctrine of the sanctity of records of courts of record, which originated by virtue of royal prerogative, thus survived because it eliminated time-consuming attacks on the findings of fact in the record.21
Nonetheless, the need for correction of the royal courts’ errors of law remained; indeed, it increased as the local courts dwindled and were replaced by the royal justices of the peace and assizes. Inevitably a method for correcting the errors of the royal courts developed in response. Because a complainant could not challenge the truth of the king’s courts’ findings of fact,
the only manner in which such a complaint could be distinctly formulated was [for a complainant] to look at the formal record of the case, and indicate clearly some error or errors [of law] appearing thereon. It followed therefore that a complainant could only succeed if he could point out an error on the record.... The first step was the removal of the record into the higher court. Then came the assignment of errors by the plaintiff in error, the summoning of the defendant in error by writ of Scire Facias to hear the errors assigned, and the joinder of issue on the question whether the errors so assigned were really errors.22
Thus the writ of error came into being.
In the development of the writ of error lay the seeds of the doctrine of judicial immunity. Although the benefits of finality that the doctrine of the sanctity of records brought about appeared most clearly in the context of proceedings in error, the scope of the doctrine was not confined to that context. The factual findings of a court of record could not be traversed by anyone in any proceeding, whether the proceeding was appellate in nature or a collateral attack.
In the case of courts of record ...it was held, certainly as early as Edward III.’s reign [1326-1377], that a litigant could not go behind the record, in order to make a judge civilly or criminally liable for an abuse of his jurisdiction. This is shown by a case reported in one of the books of Assizes, which runs as follows: “J de R was arraigned for that, whereas he was a justice to hear and terminate felonies and trespasses, and whereas certain persons were indicted for trespass, he made entry in his record that they were indicted for felony. And judgment was demanded for him [for all that he did] from the time that he was justice by commission, and that which he [the accuser] presents will be to undo his record, which cannot be by law, if to such a presentment the law puts him to answer. And it was the opinion of the justices that the presentment was bad.” The only recourse open to the suitor in such a case was to attack the [legal conclusions in the] record by writ of error, founded either on the record or on a bill of exceptions to a ruling of the judge.23
Other case from the Year Books show that it was soon accepted that no action would he against a judge of record for that which he did as judge.24 The case reveal that judicial immunity was an integral part of the development of a hierarchical appellate system in England. The doctrine of the sanctity of records had provided the legal system with a necessary, though limited, finality by eliminating attacks on the record. It enabled, in Coke’s phrase, an “end of causes.”25 Under the old procedure of false judgment, that end came only after long delays, if at all. The monopolization of procedures in error by the king’s courts was intended in part to remedy this situation; it was also intended to give the royal courts the last word in legal controversies, thus adding another dimension to the concept of finality: authoritativeness.
In sum, as the hierarchical appellate system developed, the king’s courts found that attacks on the record of die royal courts were unnecessary and intolerably wasteful. The doctrine of the sanctity of records thus came to be established and lent a degree of finality to judgments. The system of appeal which these steps created had to monopolize the correction of errors in order to be authoritative;26 collateral attacks framed as actions against judges were therefore eliminated by the development of the doctrine of judicial immunity. Judicial immunity followed naturally from the doctrine of the sanctity of records27 but was ultimately accepted because it strengthened the appellate system by cutting off collateral attacks on judgments.28
B. The Development of the Doctrine of Judicial Immunity.
1. The Restriction of Immunity to Judicial Acts.
(a) Lord Coke: Floyd v. Barker.29
The failure of the common law courts to administer effectively the criminal law led to the subsequent growth of the courts of the Privy Council and the Star Chamber. , The success of those courts attracted more business. As part of the rivalry that thus developed, the common law courts’ supporters, especially Lord Coke, tended to magnify various consequences of the common law courts’ status as courts of record.30 In Floyd v. Barker31 Coke established the immunity of judges of courts of record, thus ensuring the independence of those courts from review by their newer rivals, especially the Star Chamber, which were under the control of the king. In so doing, Coke stated for the first time what are now considered the modern public policy bases of the doctrine of judicial immunity.32
First,
[I]f the judicial matters of record should be drawn in question ...there never will be an end of causes: but controversies will be infinite; et infinitum in jure reprobatur....33
Second, Coke noted that
insomuch as the Judges of the realm have the administration of justice, under the King, to all his subjects, they ought not to be drawn into question for any supposed corruption, which extends to the annihilating of a record, or of any judicial proceedings before them... except it be before the King himself; for they are only to make an account to God and the King, and not to answer to any suggestion in the Star-Chamber...34
Third, a judge’s having to answer to a collateral court such as the Star Chamber
would tend to the scandal and subversion of all justice 35
And fourth,
those who are the most sincere, would not be free from continual calumniations... ,36
Coke’s policy bases for judicial immunity can be summarized as follows:
(1) the need for finality (which, as discussed earlier,37 covers at least two policy concerns);38
(2) the need for protecting the independence of common law courts from rival courts controlled by the king;39
(3) the need for maintaining public confidence in the system of justice; and
(4) a recognition that independent, conscientious judges would be most subject to prosecutions in the Star Chamber.
Coke also stated a limiting principle in Floyd v. Barker, a judge is immune “for anything done by him as Judged.”40 This restriction of immunity to judicial acts, in one form or another, continues to be applied by today’s courts, including the Supreme Court.41 The statement appears to define the scope of judicial immunity as encompassing all the official acts of a judge, but the history of the judicial-act requirement after Coke’s time shows that the concept was more specific and limited.
(b) The judicial-act requirement after Lord Coke.
Until rather recently, most functions of the British government were carried out by the justices of the peace. The duties of these judicial officers have historically been classified as either judicial or ministerial. As Clerk and Lindsell’s statement of the dichotomy reveals, “ministerial” is not synonymous with “administrative”:42
Officers of courts of justice act either judicially or ministerially. A judicial act is one which involves the exercise of a discretion, in which something has to be heard and decided. A ministerial act is one which the law points out as necessary to be done under the circumstances, without leaving any choice of alternative courses.43
Three hundred years earlier, Dalton had described the duties of a justice of the peace in almost identical terms:
The Power and Authority of the Justices of Peace... is in some case Ministeriall or Regular, and limited as a Minister onely; and in some other case Judicial or Absolute, and as a Judge.
Ministeriall, when he is thereto commanded by a higher Authority:
As upon {
A Supplicavit...
A Writ upon the Statute of Northhampton...
In the execution of which two writs, the Justice of Peace may proceed no further, or otherwise, than he is authorized by such Writ; and is also to return the Writ, and to certifie his doings therein, into the Court whence the Writ came.
But in all other case within their authority, the power of the Justices of Peace, seemeth to be Absolute (in some manner) so as they and every of them, may of their owne power proceed ex officio, and as a Judge; yet this their power is also limited, for they may neither hang a man for a trespasse, nor fine him for a felony, but must proceed in all things according as they are prescribed by the Commission, and by the said several Statutes.44
This distinction was necessary to determine the appropriate means of control by the King’s Bench. Mandamus issued only to compel the performance of ministerial duties, while certiorari and prohibition could issue only to control the exercise of judicial power.45 Ministerial actions were largely beyond the effective control of the King’s Bench, because such actions could not be restrained through certiorari and prohibition. In their determination to supervise the actions of public authorities, “the courts ...chose to assume that [these new public authorities] were controllable in the same manner by means of certiorari and prohibition. Hence almost all non-ministerial functions vested in statutory bodies were treated as judicial for the purpose of review by certiorari and prohibition”.46
The same classification used in the extension of judicial review of administrative action was used also to determine whether the public authority was immune from tortious liability. As to justices of the peace, for example, Hawkins stated the rule thus:
Justices of the peace are not punishable civilly for acts done by them in their judicial capacities, but if they abuse the authority with which they are entrusted, they may be punished criminally at the suit of the king by way of information. But in case where they proceed ministerially rather than judicially, if they act corruptly, they are liable to an action at the suit of the party, as well as to an information at the suit of the king.47
This rule extending immunity to all of a justice’s discretionary acts cannot be regarded as anything but a mistake, for the administrative duties of justices of the peace were extensive and diverse; in Maitland’s phrase, they were the “rulers of the county,”48 at least by the sixteenth century. A justice’s duties were all performed through the use of judicial procedures. Routine matters like bridge repairs, for example, were handled through the machinery of the quarter sessions requiring charging, presentment, indictment, and trial, under the forms and rules of the criminal law.49 Much of the work of a justice of the peace also required some exercise of discretion. Thus, under the judicial-ministerial dichotomy, most of a justice’s administrative acts were classified as judicial and therefore qualified for absolute immunity as judicial acts.50
Although it had early been recognized that an officer’s discretion was not absolutely unlimited in matters given over to his authority,51 the force of the distinction between judicial and ministerial actions remained. Administrative actions of justices, as long as they were discretionary, were protected within very wide limits. In time, Parliament and the courts came to realize that drawing the line of liability according to the discretion with which a judicial officer could act resulted in too much protection for the justices of the peace and the other inferior judicial officers and tribunals that executed the great bulk of the laws of Great Britain. In Bernardiston v. Some,52 for example, the plaintiff argued that the sheriff of Suffolk had acted ministerially in making a double return of an election writ.53 The court decided that the sheriff was acting as a judge in the declaring of a majority of the election, and that no action would lie against a judge for what he did judicially.54 This decision demonstrates the basic weakness in the judicial-ministerial dichotomy: Clearly the sheriff’s duties were administrative and had been circumscribed by statute; he had no discretion beyond the application of arithmetic rules. Yet under the rule of Bernardiston, almost any administrative action performed by an officer of justice (even an officer like a sheriff, whose duties are usually ministerial) could be characterized as judicial and thus be immunized. The outcry against this decision resulted in the enactment of a statute that created a cause of action against officials for making false returns willfully, or for making double returns falsely, willfully, and maliciously.55
Over time, as more authority was entrusted to the justices of the peace, seventeenth and eighteenth century courts also came to realize that many of a justice’s administrative duties were not judicial in the accepted sense, and that the mere exercise of discretion should not automatically insulate a justice from the consequences of an arbitrary exercise of his administrative powers. Courts facing problems of the liability of justices of the peace relied less and less on the doctrine of judicial immunity and more on judicial review of administrative acts. Superior courts became more willing to deny immunity to justices of the peace who maliciously abused their powers in administrative matters. A rule developed giving justices of the peace immunity for judicial functions exercised in good faith, even when not exercised in a court of record;56 in practice this good faith immunity encompassed many of their administrative duties.
There are numerous obiter dicta in the case law to the effect that justices are liable for malicious actions, and these are so broad in scope that they seem to apply to both ministerial and judicial acts.57 These dicta have led some critics of judicial immunity to argue that the English rule of immunity for judicial acts done within jurisdiction extended only to judges of superior courts; their argument for an “actual malice” , standard of liability rests in part on assertions that “inferior judges were liable for malicious acts within their jurisdiction.”58 There are, however, numerous equally broad dicta to the contrary.59 To reconcile this apparent conflict, one must turn to the decisions. An examination of the case law in Britain leads to the conclusion that inferior judicial officers were held liable for malicious acts when they were not performing judicial functions as judges of courts of record. Most often the acts for which such magistrates were held liable were clearly administrative.60
Seen in perspective, then, the case of justices of the peace is not an exception to or an evolution of the general rules of judicial immunity; rather it is the case of an officer subjected to more than one rule of immunity by the varied nature of his duties. Present-day judicial officers have administrative duties, although not as extensive as those of a justice of the peace in former times, and their liability should also vary in accordance with the nature of their duties.61
(c) Later evolution of the judicial-act concept.
As British courts repeatedly tried to define the nature of a multitude of statutory functions (usually for the purpose of determining the proper scope of judicial review), they came to realize, late in the nineteenth century, that the judicial-ministerial dichotomy was a caricature rather than a definition of official duties; that the duties of justices of the peace did, indeed, include merely administrative functions; and that Parliament possessed the power to vest in any public authority a combination of administrative, legislative, and judicial functions.62
Various definitions of a judicial act were developed; often, when a definition appeared patently unsuitable in a particular context, the courts would discard it and adopt another definition, also supposedly universal in its application.63 Such flexibility resulted in ambiguities and inconsistencies. A particular act or function might be called “judicial” for purposes of review but be called “administrative” for purposes of determining liablity.64
The courts eventually ceased their attempts to state a conclusive test and came to rely on a flexible approach that emphasized the different characteristics of judicial, administrative, and legislative functions.65 Judicial functions were typically characterized by the exercise of the power to make a binding and conclusive decision, the exercise of power to hear and determine a controversy, the application of objective standards for the determination of an issue, the declaration or alteration of the rights and obligations of individuals, and certain procedural attributes.66 Administrative functions, on the other hand, were directed more toward public affairs and service than to disputes between individuals, and legislative functions were concerned with the institution of a general rule of conduct without reference to particular case.67 The development and use of such guides for classification has been discussed elsewhere.68 For the purposes of this Article, it is sufficient to note that British courts realized that not all of a judge’s official acts are judicial, and that therefore not all of them should be protected by absolute judicial immunity.69
2. The Jurisdictional Limit on Immunity.
The restriction of jurisdictional immunity to judicial acts, as developed by Lord Coke in Floyd v. Barker, was followed shortly by another major opinion, The Marshalsea70 in which Coke set forth a second limit on the doctrine. The court of the Marshalsea had tried a case in assumpsit and had found against the defendant, whose “bail,” or surety, was imprisoned until the judgment was paid. The surety then brought an action against the officers responsible for his imprisonment. Coke sustained the suit, finding that the Marshalsea court lacked jurisdiction over actions in assumpsit, and consequently that proceedings conducted in the absence of jurisdiction were void ab initio. For the latter proposition, Coke relied on the fifteenth-century case Bowser v. Collins,71 which stated that an action taken by a court lacking the power to take it was coram non judice (before a person who was not a judge). In fact, Bowser more likely meant that such an action would be avoidable by plea, rather than void.72
Despite its lack of strong precedential underpinning, The Marshalsea was taken not only for the proposition that lack of jurisdiction over the subject matter renders a proceeding void ab initio, but also for the further proposition that lack of subject matter jurisdiction makes a judge liable for the consequences of his judicial acts.73 Even this limitation on the doctrine of immunity, however, was undercut in subsequent case.
In Peacock v. Bell74 the burden of pleading and proving that the judge of a superior court had exceeded his jurisdiction was placed on the plaintiff. In Hamond v. Howell75 the court refused to apply the jurisdictional limit rule of The Marshalsea to a judge of a superior court acting “quatenus a judge.”76 In 1692 Gwinne v. Poole77 established that an inferior court judge retained immunity unless he was aware of facts suggesting a lack of jurisdiction.
These case developed a distinction between judges of inferior and superior courts, although the distinction would not be fully stated for another century.78 Scholars have found it difficult to justify the rule of The Marshalsea79 and almost impossible to reconcile the distinction that subsequently developed between the complete immunity for judicial acts that was enjoyed by judges of superior courts with the immunity limited to acts within jurisdiction that was allowed judges of inferior courts.80
An understanding of what “jurisdiction” meant to courts of the seventeenth and eighteenth centuries, and how it was used by them, may be helpful. According to modern theories,81 a court’s jurisdiction — its power to decide a case — depends only upon its authority over the subject matter of the general class of controversies of which the particular dispute at hand is a member, the territorial limits on its power, and its power over the person of the defendant. These elements of a controversy are capable of initial determination by a court. If these conditions are met the court has jurisdiction, and its decision, even if erroneous, is binding unless and until an appellate court overturns its order. Under this theory the court’s jurisdiction does not and cannot depend on anything the court might do in its subsequent disposition of the case. In short, “[t]he jurisdiction of a court depends upon its right to decide a case and never upon the merits of its decision.”82
These ideas did not prevail in the seventeenth century: the courts of that era never developed a theory of jurisdiction. As an eminent British writer explained, “the problem of defining the concept of jurisdiction for the purposes of judicial review has been one of public policy rather than one of logic.”83 The kings’ courts from the sixteenth century through the eighteenth century used prohibition and mandamus against the ecclesiastical courts to require them to apply common law and statutory rules of procedure and decision.84 The fiction that these writs were used to confine those courts to their proper jurisdiction was maintained by a requirement that an applicant for a writ of prohibition allege that the king’s interest was threatened.85
In controlling the proceedings of justices of the peace and other administrative tribunals, the practice of the King’s Bench was even less confined. Style’s Practical Register stated that “[the King’s Bench] hath authority to Quash Orders of Sessions, Presentments, Endictments &c made in inferior Courts, or before Justices of the Peace, or other Commissioners, if there be cause, that is, if they be defective in matter or form....”86 This use of an expansive sense of “jurisdiction” was made necessary by the shortcomings of the writ of error. Not all the decisions of justices of the peace could be appealed by writ of error, but only those “formal” or “plenary” decisions resulting in a traditional, extensive record that could be examined in King’s Bench.87 Statutes had increased the use of summary proceedings by both justices of the peace and the newer administrative tribunals; the records of these proceedings gave few details except the fact of the order.88 “[T]he significant fact is that it was held, or rather taken for granted, that error lay neither to justices out of sessions, nor to all the new statutory tribunals, such as the Commissioners of Sewers and Excise which came to life in the sixteenth century.”89 The King’s Bench could, however, effectively review administrative decisions by the use of a prerogative writ if it confined its review to jurisdictional defects. The eventual result was almost inevitable, given the constraints of the writ system: “The plain fact is that the High Court wanted to exercise as much control over these administrative bodies as possible, and has greatly extended the concept of jurisdiction for this purpose.”90
While this expansion of review authority over the jurisdictional errors of administrative tribunals was taking place, a tremendous growth in statutory law was underway. Much of this law created additional local administrative bodies and expanded the duties of the justices of the peace.91 The increasingly pervasive effects on a local society of these agents of the central government predictably put greater pressure on the legal system to provide a tort remedy for those damaged by administrative actions. Judicial immunity barred direct suit against a justice of the peace for administrative actions — unless a higher court found that the justice had acted without jurisdiction. The jurisdictional limit on judicial immunity was therefore retained because its application to inferior judicial officers provided a tort remedy for administrative wrongdoing.92
With respect to judges of superior courts there was no comparable need for a jurisdictional limit on immunity, because these courts played little part in the administration of local government. In any case, a jurisdictional limit on the immunity of superior court judges would have had little practical effect, because courts of general jurisdiction were, naturally enough, not subject to similar statutory jurisdictional requirements.93
Not until the twentieth century did common law courts develop an adequate method of reviewing administrative action;94 until that time, administrative action within a court’s jurisdiction was regarded as unreviewable by writ of error absent specific legislative provision for review.95 The recent development of judicial review of administrative action has now removed the need for the judicial control of administrative action by expansive use of the prerogative writs and of jurisdictional fictions.96 Similarly, the shift of administrative authority from justices of the peace to statutory agencies during the nineteenth and twentieth centuries has removed the barriers of res judicata and judicial immunity from the path of those seeking redress for damage from administrative action. As a result of these developments, the jurisdictional limit on judicial immunity no longer serves the purpose it served for so many centuries; there is no longer any reason to distinguish between the immunity of superior and inferior court judges.
C. The Doctrine of Judicial Immunity in America.
1. Judicial Immunity Before the Civil Rights Acts.
The first major reported American case involving judicial immunity was the Connecticut Supreme Court’s 1804 decision in Phelps v. Sill.97 Feinman and Cohen note that Phelps is “frequently ...regarded as the first American judicial liability case ....”98 In fact, at least three case preceded it. The Pennsylvania Supreme Court in 1792 decided Ross v. Rittenhouse 99 a case involving events that occurred just before the ratification of the Constitution. Congress had passed a law encouraging the states to set up state courts of admiralty, but directing that appeals from the judgments of these courts be taken in the Court of Appeals of the United States. Justice Shippen summarized both the facts and the court’s reasoning:
What is the case before us? A judge of an inferior [state] Court of Admiralty condemns a prize, declares who are the captors, and orders a distribution accordingly. On appeal to the Superior Court of Admiralty [a court of appeals of the United States], that Court reverses his judgment, and directs a different distribution. The Judge below refuses to obey the sentence, and persists in distributing the proceeds of the prize agreeably to his own decree. A suit is brought here, to compel the Judge to perform the decree of the Superior Court.... Can ours be a proper Court to decide between the sentences of two contending Courts of Admiralty, or to enforce the sentence of either? It is in vain to say, the times were such, that the Supreme Court could not, or would not, proceed to extremities with the Judge of the inferior Court. We are not authorized to aid a defective, or unwilling jurisdiction, by assuming an extraordinary power, unknown to the law .... In whatever light I view this question, I am satisfied, that the Court of Common Pleas were incompetent to carry into effect the decree of the reversal of the superior Court of Appeals, and that an action for money, had and received against the Judge who distributed the money according to his own decree, could not be sustained in a Court of law.100
All the justices who authored opinions in Ross v. Rittenhouse agreed that the Court of Common Pleas, as a common-law court, had no jurisdiction to carry out a judgment of a court of appeals acting in admiralty, “and also,” added Chief Justice McKean, “that an action will not lie against a Judge for what he does as such.”101 Obviously the court’s decision did not rest on the doctrine of judicial immunity alone, but Ross v. Rittenhouse is a clear example of application of the doctrine in preventing improper collateral attack on a judgment.
Two South Carolina case were also decided before Phelps v. Sill. In Lining v. Bentham102 the plaintiff sued a justice of the peace in an action on the case for imprisoning him for contempt. Counsel for the defendant justice urged the distinctions between a justice’s ministerial and judicial acts, and his liability for actions taken in those capacities. The court held “that a justice of the peace is not answerable in an action for what he does by virtue of his judicial power.”103 The next case, Brodie v. Rutledge,104 was an attempted suit for libel against the recently deceased Justice Rutledge. The report of the case is brief, but it shows clearly that South Carolina adopted the English rule of complete immunity from defamation accorded all judges for any words spoken from the bench: “[N]o suit will lie against a judge for any opinion delivered by him in his judicial capacity, either supreme or subordinate.”105 The English rule of immunity for defamation was broader than the general rules of judicial immunity;106 the court’s decision is thus not a rejection of the English distinction between the immunity accorded judges of superior courts and that granted judges of inferior courts.
The Supreme Court did not face the issue of judicial immunity until 1868.107 In the meantime, the doctrine of judicial immunity had often been affirmed in state court decisions that are of little interest today. Nevertheless, a brief summary of these decisions is necessary because knowledge of the status of the doctrine in the common law of the nineteenth century aids in understanding the context in which Congress enacted the 1871 Civil Rights Act.108 Some authors have underestimated that status. Feinman and Cohen assert that “American courts ...held many, if not most, judicial officers liable for their wrongful acts much, if not most, of the time.”109 They are joined in this evaluation of nineteenth century law by a student author who states that the doctrine of judicial immunity was not uniformly accepted in state courts. This writer offers as evidence the results of a survey of decisions in those courts before the passage of the Civil Rights Act of 1871: “By 1871, thirteen states had adopted the absolute immunity rule [and] six states had ruled that judges were liable if they acted maliciously....110 judgment of Chief Justice Cooley of the Michigan Supreme Court, an observer more familiar with the courts of the day: “There are dicta in some case that a justice is civilly responsible when he acts maliciously or corruptly, but they are not well founded, and the express decisions are against them ....”111
One can reach a proper interpretation only by examining the case themselves. The case cited by the authors noted above deal with justices of the peace (or other quasi-judicial officers) who, as previously discussed,112 were liable under the traditional rule of qualified immunity for some abuses of their administrative authority. These case are fully consistent with the traditional rules of judicial immunity; none of them resulted in a judicial officer’s being held liable for a judicial act done within his jurisdiction.113 The very case cited by these authors” With these assertions one can compare the for the contrary point strongly suggest that the doctrine of judicial immunity and the rules of that doctrine that had been developed in England were indeed universally accepted in the state courts of the United States.
In 1868 the Supreme Court of the United States decided the case of Randall v. Brigham,114 an action for damages against a Massachusetts judge who had disbarred the plaintiff. The Court, by Justice Field, concluded that judges of general jurisdiction were not liable to civil suit for their judicial acts, even when they acted outside their jurisdiction, “unless, perhaps, when the acts in excess of jurisdiction are done maliciously or corruptly.”115 One author has used this phrase of tentative qualification to attack the continued validity of the doctrine of judicial immunity;116 in light of the historical development of the rules of judicial immunity as applied to justices of the peace and other inferior officers of justice, however, these words of qualification are not surprising.117 In fact, such a qualification would have to appear in any statement of a rule of immunity that attempted to cover all the functions of both judges and justices of the peace, and would enable the Court to account for the state court dicta discussed above without undertaking a thorough re-examination of those case.
Three years after Randall, in Bradley v. Fisher,118 Justice Field withdrew his qualifying remarks and explained:
The qualifying words were inserted upon the suggestion that the previous language laid down the doctrine of judicial exemption from liability to civil actions in terms broader than was necessary for the case under consideration, and that if the language remained unqualified it would require an explanation of some apparently conflicting adjudications found in the reports. They were not intended as an expression of opinion that in the case supposed such liability would exist, but to avoid the expression of a contrary doctrine.
In the present case we have looked into the authorities and are clear, from them, as well as from the principle on which any exemption is maintained, that the qualifying words used were not necessary to a correct statement of the law, and that judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly.119
In Randall Justice Field had restated the doctrine of judicial immunity as it had been expounded by English and American judges from Coke to Kent. In Bradley Field went beyond a bare statement of the doctrine itself to state two policy bases for judicial immunity: protection of judicial independence and the need for finality. The latter was a catch-all term for the ends accomplished by a hierarchical appellate system for the correction of error, as discussed above.120 In all respects, Field’s statement of the rules and doctrine of judicial immunity followed the mainstream of precedent.121
2. Judicial Immunity and the Civil Rights Acts.
Bradley v. Fisher was decided in 1872. In that year one could say, as Field did, that judicial immunity was “the settled doctrine of the English courts for many centuries, and has never been denied, that we are aware of, in the courts of this country, era of Reconstruction; the work of the Reconstruction Congresses radically transformed the relationship of the federal government to the governments of the several states. This work played a major part in the creation of the present controversy over judicial immunity.”122 But the era of Bradley v. Fisher was also the era of Reconstruction; the work of the Reconstruction Congresses radically transformed the relationship of the federal government to the governments of the several states. This work played a major part in the creation of the present controversy over judicial immunity.
During Reconstruction, Congress enacted several statutes, later called the Civil Rights Acts, under the enforcement powers granted to it by the Civil Rights Amendments. One of these acts was the Act of March 1, 1875,123 which provided that
no citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State, on account of race, color, or previous condition of servitude; and any officer or other person charged with any duty in the selection or summoning of jurors who shall exclude or fail to summon any citizen for the cause aforesaid shall, on conviction thereof, be deemed guilty of a misdemeanor, and be fined not more than five thousand dollars.124
A Virginia county court judge was arrested and held in custody under an indictment which alleged that he did “exclude and fail to select as grand and petit jurors certain citizens ...of African race and black color ....”125 In Ex parte Virginia126 the Supreme Court denied the judge’s petition for habeas corpus, rejecting the argument that the doctrine of judicial immunity prohibited the indictment.127
Under Virginia law all male citizens between the ages of twenty-one and sixty who were eligible to vote and hold office were subject to jury duty. If the preparation of a jury list involved no more than the listing of those eligible to serve, Ex parte Virginia would have been an easy case. Virginia’s law, however, required the judge of each county court to prepare a list of from one hundred to three hundred eligible inhabitants of the county “as he shall think well qualified to serve as jurors, being persons of sound judgment and free from legal exception.”128 The statute required the county court judge to exercise considerable discretion; under the judicial-ministerial classification, therefore, this function would be regarded as judicial.
The Court found, however, that the duty of making up jury lists was a ministerial duty rather than a judicial one, and that therefore the doctrine of judicial immunity did not apply. The Court recognized, at least tacitly, the inadequacy of the judicial-ministerial dichotomy:
Whether the act done by him was judicial or not is to be determined by its character, and not by the character of the agent. Whether he was a county judge or not is of no importance. The duty of selecting jurors might as well have been committed to a private person as to one holding the office of a judge.... That the jurors are selected by a court makes no difference. So are court-criers, tipstaves, sheriffs, &c. Is their election or their appointment a judicial act?129
The Court did not really address the soundness of the judicial/ministerial distinction (as Justice Field intimated in dissent).130 Nonetheless, the Court’s reasoning was effective, for it enabled the majority to avoid a conflict between two principles of constitutional stature — equal protection and judicial independence. Because the act for which the judge was prosecuted was not judicial, prosecution could not threaten judicial independence. Indeed, the Court concluded by disavowing the idea that the 1875 Act infringed on judicial immunity: “It is idle...to say that the act of Congress is unconstitutional because it inflicts penalties upon State judges for their judicial action. It does no such thing.”131
The possibility that other civil rights statutes might reach a state judge’s judicial acts was not raised for many years. In 1944, when a California judge was indicted under the criminal provisions of the Enforcement Act of 1870,132 the district court remarked: “It is worthy of note that in nearly three-quarters of a century no similar action has been passed upon by a court of record.”133 That 1944 case, United States v. Chaplin,134 presented the issue absent in Ex parte Virginia: whether a state judge could be prosecuted in a federal proceeding for his judicial acts. The indictments left no doubt that the defendant, Judge Griffin of the city court of Beverly Hills, had acted in his judicial capacity and within his jurisdiction. For guidance in his deliberations, Judge O’Connor of the district court turned to the “long line of [judicial immunity] decisions over a period of years which marks the span of our national existence ....”135 After reviewing British and American case, Judge O’Connor explained what he thought would result from permitting federal prosecutions of judicial acts under the civil rights statutes:
A decision in favor of the Government in the instant criminal actions would place the official action of every justice of the peace, municipal or city court judges, Superior Court judges, Appellate Court judges and Supreme Court judges in our country at the mercy of a United States Attorney. Every sentence imposed on a defendant would be subject to review by the representative of the Department of Justice, and if, in the judgment of the Attorney General of the United States or the United States Attorney for the District, the decision deprived the defendant of his civil rights, the judge could be indicted, tried, and if convicted, punished. Every defendant sentenced to the county jail or the penitentiary is deprived of his civil rights, and in many instances the civil rights are not revived upon release. The same reasoning would apply to our Federal Courts. To sustain the Government’s contention would be to destroy the independence of the judiciary and mark the beginning of the end of an independent and fearless judiciary.136
Ex parte Virginia and Chaplin were concerned with immunity from criminal prosecution under the Civil Rights Acts for judicial acts. Those statutes also gave civil causes of action for civil rights deprivations; these, like their criminal provisions, fell into desuetude after Reconstruction. Although the Ku Klux Klan Act of 1871137 imposed civil liability on any person who under color of state law caused anyone to be deprived of his civil rights, no federal district court addressed the question of tort liability of judges under the Act’s provisions until 1945. In that year the Court of Appeals for the Third Circuit held in Picking v. Pennsylvania Railroad138 that judicial immunity was not available in actions against judges under what is now section 1983.139
The plaintiffs in Picking claimed that they were arrested illegally in Pennsylvania under a bench warrant “unlawfully issued on a falsified and substituted pleading”140 by a New York judge. The arrest had been for “placing an advertisement upon a flag of the United States on their car ....”141 The plaintiffs’ suit was dismissed at the district court level for failure to state a cause of action against the twenty-four named defendants, who included the Pennsylvania Railroad, which had transported the plaintiffs back to New York as part of their extradition, and the New York judge.142
The Third Circuit reversed; its decision was prompted by the Supreme Court’s then recent holding in Screws v. United States143 that a state official acts “under color” of state law when he acts with official power, even though the action itself violates state law. According to the court in Picking, the Supreme Court’s interpretation of “under color of law” in Screws meant that
if the plaintiffs... were deprived of a federal right by state officials or officers acting under color of any law’ — or as may be stated more aptly in the instant case ‘under color of any statute... of any State’ — these officials must respond in damages to the plaintiffs as prescribed by [section 1983].144
The Picking court noted with regret the precarious position judges would occupy under such a rule, but concluded that in light of Screws, nothing could be done to mitigate their situation:
[W]e are compelled to the conclusion that Congress gave a right of action sounding in tort to every individual whose federal rights were trespassed upon by any officer acting under pretense of state law. A field was created upon which a state officer could not tread without being guilty of trespass and liable in damages. The concept is clear enough but the boundaries of the forbidden territory are ill-defined. Mr. Justice Douglas stated the danger vividly when he said in the Screws decision: “The treacherous ground on which state officials — police, prosecutors, legislators, and judges — would walk is indicated by the character and closeness of decisions of this court interpreting the due process clause of the Fourteenth Amendment.... Those who enforced local law today might not know for many months (and meanwhile could not find out) whether what they did deprived some one of due process of law. The enforcement of a criminal statute so construed would indeed cast law enforcement agencies loose at their own risk on a vast uncharted sea.”145
The Picking court thus relied upon Justice Douglas’s opinion in Screws to reach a result that was unacceptable to Douglas himself. Douglas had been dealing with the argument that the criminal provisions of the Enforcement Act of 1870 were void for vagueness as to the necessary standard of intent. Douglas had concluded that the Act required specific intent, noting that if “the customary standard of guilt for statutory crimes” of general intent were to apply, a local law enforcement officer “commits a Federal offense ...if he does an act which some court later holds deprives a person of due process of law. And he is a criminal though his motive was pure and though his purpose was unrelated to the disregard of any constitutional guarantee.”146 If the Court of Appeals for the Third Circuit had interpreted section 1983 in strict accordance with the Screws decision, it would therefore have concluded that section 1983 required specific intent for liability in damages. It did not do so.
Despite Picking’s faults, the Court of Appeals for the Second Circuit followed its example in Burt v. City of New York.147 In Bottone v. Lindsley148 the Court of Appeals for the Tenth Circuit refused to follow Picking, holding that “to make out a cause of action under the Civil Rights Statutes, the state court proceedings must have been a complete nullity, with a purpose to deprive a person of his property without due process of law.”149 The Court of Appeals for the Sixth Circuit, in McShane v. Moldovan,150 distinguished Bottone on its facts and followed Picking.
Several years after Picking the Supreme Court, in Tenney v. Brandhove,151 addressed the problem of whether the Civil Rights Act of 1871 (section 1983) subjected state legislators to civil liability for actions within the sphere of legislative activity. After taking note of the history of legislative immunity and the “general language of the 1871 statute,” the Court remarked, “We cannot believe that Congress — itself a staunch advocate of legislative freedom — would impinge on a tradition so well grounded in history and reason by covert inclusion in the general language before us.”152 Following Tenney, federal courts found by analogy a similar immunity for judges. Almost without exception, these courts rejected Picking, reasoning, as did one court of appeals, that “the doctrine of judicial immunity is at least as well grounded in history and reason as is the rule of legislative immunity....153 For more than a decade, the Court of Appeals for the Third Circuit stood alone in following Picking;154 in fact, one district court within the Third Circuit announced that in light of Tenney, it no longer regarded Picking as binding precedent even within that circuit.155 In 1966 the Court of Appeals for the Third Circuit finally abandoned Picking.”156
For several years the Supreme Court declined opportunities to address the question of judicial immunity from civil suit under section 1983, denying review of decisions by courts of appeals upholding judicial immunity in such actions.157 Then in 1967 the Court heard Pierson v. Ray.158
The plaintiffs in Pierson were “freedom rider” ministers arrested and charged with breach of the peace for attempting to use segregated facilities in a Mississippi bus station. The ministers were brought before a municipal police justice, who convicted them and imposed the maximum sentence, despite a Supreme Court decision supporting the ministers’ acts that was brought to his attention. On appeal, the ministers were granted a trial de novo in the county court, where they were victorious. The ministers then brought an unsuccessful action for damages under section 1983 against the arresting officers and the police justice who had convicted them. The Court of Appeals for the Fifth Circuit affirmed the immunity of the defendant justice, but held that the police officers would be liable in a section 1983 suit for an unconstitutional arrest.159 Both the ministers and the police officers sought, and were granted, certiorari.160
Chief Justice Warren, in his opinion for eight members of the Court, disposed of the challenge to judicial immunity with facility and brevity. His opinion devoted one paragraph to the history of the doctrine at common law,161 and then turned to the effect of the enactment of section 1 of the Civil Rights Act of 1871 (section 1983):
We do not believe that this settled principle of law was abolished by § 1983, which makes liable “every person” who under color of law deprives another person of his civil rights. The legislative record gives no clear indication that Congress meant to abolish wholesale all common-law immunities. Accordingly, this Court held in Tenney v. Brandhove ...that the immunity of legislators for acts within the legislative role was not abolished. The immunity of judges for acts within the judicial role is equally well established, and we presume that Congress would have specifically so provided had it wished to abolish the doctrine.162
The Court was assisted in its determination by the fact, which Warren noted, that “[s]ince [the] decision in Tenney... the courts of appeals have consistently held that judicial immunity is a defense to an action under § 1983.”163
Justice Douglas, in dissent, severely criticized Chief Justice Warren’s reading of the legislative history of section 1983. Douglas noted that the members of the Forty-second Congress “were not unaware that certain members of the judiciary were implicated in the state of affairs which the statute was intended to rectify.”164 He quoted two members of the Republican majority, Rainey of South Carolina and Beatty of Ohio, who, during debates on the 1871 Civil Rights Act, criticized the actions of judges in the Reconstruction South. These congressmen, according to Douglas, had described what Congress believed to be the conditions in the South and the relevant actions of government officials. “It was against this background,” he wrote, “that the section was passed, and it was against this background that it should be interpreted.”165
Douglas did not challenge the majority’s statement that the legislative history of the 1871 Act did not indicate that Congress intended to abolish all defenses of immunity to the Act. Instead, he noted that three members of Congress spoke directly to the issue of judicial immunity during the debates on the statute, and that all three “assumed that ...judges would be liable”166 under section 1983, and hence opposed its passage. Douglas concluded that “[i]n light of the sharply contested nature of the issue of judicial immunity it would be reasonable to assume that the judiciary would have been expressly exempted from the wide sweep of the section, if Congress had intended such a result.”167 Nonetheless, he recognized the need for a restrictive interpretation of section 1983:
It is necessary to exempt judges from liability for the consequences of their honest mistakes.... But that is far different from saying that a judge shall be immune from the consequences of any of his judicial actions, and that he shall not be liable for the knowing and intentional deprivation of a person’s civil rights.168
Douglas is not alone in criticizing the majority’s reading of the legislative history of section 1983. Several authors169 have attacked the Court’s interpretation as unsound or unjustified. The legislative history of section 1983, however, leads one to view the Court’s efforts more favorably. There was more to the Ku Klux Klan Act of 1871 than its first section (which is now section 1983). Other sections of the Act imposed civil and criminal penalties for conspiracies to deprive persons of their civil rights,170 disqualified former Confederate soldiers from serving as jurors in federal courts,171 and gave the President the power to suspend the writ of habeas corpus and to use armed forces to suppress insurrection.172 Most of the debate on the Act concerned these provisions; section 1 drew little comment.173 As for Douglas’s citation of the objections of those opponents of the 1871 Act who feared that its first section would abolish judicial immunity, another critic of the Pierson decision has written that
[n]o proponent of § 1983, which was, after all, but a very minor and uncontroversial section of the entire Ku Klux Klan Act, appears to have either confirmed or contradicted [these apprehensions]. Following traditional canons of statutory interpretation, the majority felt free to disregard as hyperbolic, the comments of opposing legislators.174
The issue of abrogation of judicial immunity was therefore not at all “sharply contested,” as Justice Douglas claimed.
As with many enactments, the proponents of the Act apparently had no concern whatsoever about judicial immunity and certainly did not propose its abolition. In such situations, the Court can look to maxims of construction and considerations of public policy, as it did in Pierson,175 The Court quite properly concluded that it should not attribute to Congress an intention to abolish a long-standing doctrine with a strong basis in public policy, unless Congress clearly states such a purpose.
3. Judicial Immunity Today — Stump v. Sparkman.
The leading recent case on judges’ immunity from civil liability is Stump v. Sparkman.176 Feinman and Cohen express dissatisfaction with the outcome of the case and with its analysis of policy, but they are unable to resolve its problems to their own satisfaction.177 Nevertheless, a satisfactory resolution of those problems on fairly simple policy grounds is indeed possible. An initial review of the facts of the case will help both to show the difficulties with judicial immunity that the court of appeals and the Supreme Court encountered, and to highlight the usefulness of the doctrine’s history in arriving at a suitable contemporary policy.
(a) The facts.
In 1971, when Linda Kay Sparkman was fifteen years old, her mother, Ora Spitler McFarlin, sought a court order authorizing Linda’s sterilization. Mrs. McFarlin’s attorney drafted a document captioned “Petition To Have Tubal Ligation Performed on Minor and Indemnity Agreement,” and presented it to Judge Harold D. Stump of the Circuit Court of DeKalb County, Indiana.
The petition was an unusual document .178 It included Mrs. McFarlin’s affidavit that her daughter Linda was a minor and “somewhat retarded” although she attended public school and had “been passed along with other children in her age level.”179 The petition also stated that Linda had spent nights with men; and that since Mrs. McFarlin could not maintain a watch over her daughter, it would be in Linda’s best interests if she underwent a tubal ligation “to prevent unfortunate circumstances.”180 The petition contained Mrs. McFarlin’s unilateral “agreement” to indemnify and hold harmless the physician who was to perform the tubal ligation and the hospital where the operation was to take place.
At the bottom of the second page of the petition a typewritten paragraph stated that Judge Stump approved the petition.181 The legal effect of this paragraph is unclear; one author has suggested that the petition and order of approval may have had no legal effect whatsoever, since the petition did not ask for any affirmative relief.182 The existence of the threshold question of judicial immunity made it unnecessary for any of the reviewing courts to address the shortcomings of the document . Whatever the legal impact of his approval, Judge Stump signed the petition the day it was presented, as respondent Sparkman described in her brief to the Supreme Court,
in an ex parte manner in an undisclosed location.... There was no appointment of a guardian ad litem to represent Linda’s interests. The petition was not filed with the DeKalb Circuit Court. No notice was given to Linda or anyone on her behalf of the petition, which was approved without any hearing.183
Eight days later the sterilization was performed. Linda had been told that she was being hospitalized for an appendectomy; several days later she was released, still unaware that she had been sterilized. Two years later she married, and two years after her marriage she learned for the first time that she had been sterilized. Linda and her husband then brought suit, under the federal civil rights statutes,184 against her mother, the attorney who prepared the petition, Judge Stump, the doctors who performed the operation, and the hospital where the operation took place, attaching pendent state claims for assault and battery, medical malpractice, and loss of potential parenthood. The United States District Court for the Northern District of Indiana granted the defendants’ motion to dismiss the federal claims, holding that only the actions of Judge Stump constituted the state action necessary to state a claim under sections 1983 and 1985(3), and that Judge Stump was absolutely immune from suit under the doctrine of judicial immunity.185
(b) The Seventh Circuit decision.
On appeal the Court of Appeals for the Seventh Circuit unanimously reversed the judgment of the district court.186 Neither the parties nor the court of appeals questioned the validity of the doctrine of judicial immunity. Nor was it contended that Pierson v. Ray187 had been erroneously decided. The court began by citing Bradley v. Fisher188 for the traditional formula restricting judicial immunity to judicial acts performed within a judge’s jurisdiction, or at least not performed in the clear absence of all jurisdiction. To the court “the crucial issue ...upon which immunity turns, is whether Judge Stump acted within his jurisdiction when he approved the petition to have Linda Sparkman sterilized.”189 Logically, the first question under Bradley would have been whether Judge Stump’s act was judicial, but the court overlooked that part of the test.
The court then stated that for questions of judicial immunity, “jurisdiction” refers to jurisdiction over the subject matter of the case, citing Bradley for support.190 This line of attack committed the court to demonstrating that the subject matter of Mrs. McFarlin’s petition was clearly outside the broad statutory grant of jurisdiction to Indiana circuit courts:
Jurisdiction. — Said court shall have original exclusive jurisdiction in all case at law and in equity whatsoever ...and it shall have jurisdiction of all other causes, matters and proceedings where exclusive jurisdiction thereof is not conferred by law upon some other court, board or officer.191
To evade the broad sweep of this statute, the court ignored the second part of the statutory grant (“all other causes”) in formulating its test for subject matter jurisdiction: “A claim must be characterized as a case in law or equity in order to come within the statute.”192 The court then shifted to an examination of Judge Stump’s power to order sterilization, a different matter entirely.193
The court first considered the possible statutory bases for the power to order sterilization, and found none. Indeed, the court said that “[t]he statutory scheme in existence at the time in fact negated his right to assert any jurisdiction over the petition.”194 The court reasoned that the very existence of statutes authorizing the sterilization of institutionalized persons under certain circumstances and after specified procedures “clearly negates jurisdiction to consider sterilization in case not involving institutionalized persons and in which these procedures are not followed.”195 These words show that the court of appeals confused the existence of jurisdiction over the subject of a petition for an order of sterilization with the correctness of a court’s decision to grant the relief sought.
The court of appeals then found that Judge Stump had failed to comply with due process requirements, and that this failure took his actions outside the statutory grant of jurisdiction over “case at law or in equity. jurisdiction — and hence strip the judge of that court of his immunity — is uniquely at variance with both theory and precedent. That interpretation of the concept of jurisdiction would render the doctrine of immunity a nullity; the jurisdictional limit would swallow the rule.
Because the Court of Appeals for the Seventh Circuit did not face a challenge to the continued validity of the doctrine of judicial immunity or even to the validity of the Bradley v. Fisher formula, that court never discussed how the public policy considerations underlying the doctrine of judicial immunity related to the facts and issues of Sparkman, or how well the Bradley formula served these policies. The Supreme Court unfortunately repeated that mistake on review.”196 The notion that due process errors strip a court of its
(c) The Supreme Court opinion.
Writing for the majority of the Supreme Court, Justice White framed the issue by stating: ‘This case requires us to consider the scope of a judge’s immunity from damages liability when sued under 42 U.S.C. § 1983.”197 The Court evidently thought that Sparkman required consideration neither of the purposes of judicial immunity nor of how those purposes might relate to the immunity’s scope, undoubtedly because the parties did not challenge the validity of the doctrine.
Like the court of appeals, the Supreme Court began by citing the judicial immunity formula stated in Bradley v. Fisher. The Court also agreed that, under the Bradley formula, “the necessary inquiry in determining whether a defendant judge is immune from suit is whether at the time he took the challenged action he had jurisdiction over the subject matter before him.”198 Forgotten for the moment was the restriction of immunity to “judicial acts” that was part of the Bradley formula. The Court rejected the lower court’s reasoning that the Indiana statutory framework for the sterilization of institutionalized persons deprived Judge Stump of jurisdiction over the subject matter of petitions requesting authorization of sterilization. Justice White noted the breadth of the Indiana statutory grant of jurisdiction and pointed out the fault in the court of appeals’ logic: “The statutory authority for the sterilization of institutionalized persons in the custody of the State does not warrant the inference that a court of general jurisdiction has no power to act on a petition for sterilization of a minor in the custody of her parents.... that the grave procedural defects committed by Judge Stump in handling Mrs. McFarlin’s petition resulted in “an illegitimate exercise of his common law power” that “does not fall within the categories of case at law and equity. fused the existence of authority with its proper exercise.”199 Nor would the Court accept the conclusion ”200 This argument, the Court recognized, confused the existence of authority with its proper exercise.201
Justice White next turned his attention to the argument that the same procedural defects took Judge Stump’s actions outside the scope of “judicial acts.” White claimed the Court had not previously “had occasion to consider, for purposes of the judicial immunity doctrine, the necessary attributes of a judicial act,”202 ignoring the discussion in Ex parte Virginia203 about whether the selection of jurors was a judicial or ministerial function. Nor did he mention the long line of case in which a multitude of English and American courts had, during the last four centuries, distinguished judicial acts from administrative and legislative functions.204 After discussing two case,205 neither of which involved the problem of distinguishing a judge’s judicial functions from his other official duties, Justice White created a new rule for defining judicial acts:
The relevant case demonstrate that the factors determining whether an act by a judge is a “judicial” one relate to the nature of the act itself, ie., whether it is a function normally performed by a judge, and to the expectations of the parties, ie., whether they dealt with the judge in his judicial capacity.206
Certainly a new rule was not necessary merely to avoid the respondents’ argument that Judge Stump’s actions were not judicial because of their procedural irregularity. That argument confuses “judicial” with o “judicious”; almost any definition of “judicial act” would have sufficed to refute it. If the Court was uncomfortable with any particular definition, it could have merely pointed out the essence of respondents’ mistake.
The dissenters attacked the majority’s “judicial act” rule most vigorously. They contended that Judge Stump’s actions were not judicial and hence that judicial immunity did not protect those actions. Justice Stewart argued that the term “judicial act” must be defined by the policies supporting judicial immunity:
It seems to me, rather, that the concept of what is a judicial act must take its content from a consideration of the factors that support immunity from liability for the performance of such an act. Those factors were accurately summarized by the Court in Pierson v. Ray...:
[I]t “is...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 a judge’s duty to decide all case within his jurisdiction that are brought before him, including controversial case 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 principled and fearless decision-making but to intimidation.
Not one of the considerations thus summarized in the Pierson opinion was present here. There was no “case,” controversial or otherwise. There were no litigants. There was and could be no appeal. And there was not even the pretext of principled decision making. The total absence of any of these normal attributes of a judicial proceeding convinces me that the conduct complained of in this case was not a judicial act.207
Stewart’s dissent in Sparkman is noteworthy for suggesting, for the first time, that the limits of judicial immunity should be defined by the policies giving rise to the doctrine. Yet he, like the majority, confined himself to the elements of the familiar rule of Bradley v. Fisher. Instead of directly defining the scope of judicial immunity by looking to its policy basis, Stewart would use that policy basis to define “judicial acts.” Because the term “judicial act” has importance outside the context of judicial immunity, however, it should not be defined by policies limited to that context. Surely whether an act is judicial depends on the character of the act. Stewart’s suggestion demonstrates how limiting the Court’s focus to a particular formula of the rules of judicial immunity restricts its analysis and directs it away from the important issue of the proper scope of the doctrine itself.
Justice Powell’s dissenting opinion also concentrated on the “judicial act” element of the Bradley formula. The “central feature” in Sparkman, he wrote, was Judge Stump’s “preclusion of any possibility for the vindication of respondents’ rights elsewhere in the judicial system.”208 Powell noted that the Bradley Court accepted the injustices the doctrine of judicial immunity sometimes imposes because those injustices are usually mitigated by the availability of appeal.
But where a judicial officer acts in a manner that precludes all resort to appellate or other judicial remedies that otherwise would be available, the underlying assumption of the Bradley doctrine is inoperative....
In sum, I agree with Mr. Justice Stewart that petitioner judge’s actions were not “judicial,” and that he is entitled to no judicial immunity from suit under 42 U.S.C. § 1983.209
Again, the result Powell argues for would be correct, but would be achieved by the indirect route of defining the concept of “judicial act” by a policy that should limit the operation of judicial immunity directly.
The many criticisms of the Sparkman opinion as being hypocritical self-dealing by the judiciary show that observers expected the Court to explain why this particular judge’s actions deserved protection. The majority did not provide an acceptable explanation largely because the parties in Sparkman did not challenge the doctrine of judicial immunity, and the Court thus did not examine it. Nevertheless, the validity of the doctrine was implicitly challenged by the facts of Sparkman, and the Court’s failure to recognize and respond to the challenge detracted greatly from its decision.
(d) Sparkman’s progeny.
Courts facing judicial immunity questions after Sparkman have focused on the “judicial act” rule stated in that case. Some courts have had little difficulty determining if the acts complained of in a given case were judicial.210 For example, in a well-publicized recent case, Harris v. Harvey,211 the acts complained of were clearly extra-judicial libels: almost any rule, even that stated in Sparkman, would have sufficed to distinguish such unofficial from judicial acts. This case concerned a section 1983 action by a black police officer against a state court judge who publicly called the plaintiff “a fixer, a briber, and a sycophant,”212 and called for his dismissal from the police force. The judge also made repeated racial remarks about the plaintiff.
The Court of Appeals for the Seventh Circuit denied the judge’s defense of judicial immunity on the grounds that “Judge Harvey’s attacks on plaintiff were not part of his duties....”213
Rheuark v. Shaw,214 however, presented an instance of a suit against a judge for an official, but not judicial, act. Several convicts sought damages and injunctive relief under section 1983 for long delays in the transcription of their trial court proceedings for use on appeal. The trial judge who presided over the trials of all the plaintiffs, and his court reporter — among others — were defendants in all the actions. The defendant judge asserted judicial immunity as a defense. The plaintiffs claimed to be damaged by the judge’s appointment of the defendant court reporter, by the judge’s failure to insure that the reporter prepared the plaintiffs’ statements of facts in a timely manner, and by the judge’s failure to appoint additional court reporters. In short, they complained that the judge had neglected his administrative duties. Responding to these complaints, the district court applied the Sparkman test: “When judicial immunity for an act is asserted, the court must determine whether that act is a function normally performed by a judge [and] whether the parties dealt with the judge in his judicial capacity....215 Naturally, the court found the acts complained of to be judicial in nature; judges normally appoint and supervise court reporters, and the parties certainly had dealt with the defendant judge in his judicial capacity.
One cannot imagine a clearer demonstration of the flaws in the Sparkman rule.216 The actions complained of bore none of the hallmarks of the judicial function discussed previously: no controversy ” was determined, no hearing was held, no binding determination was made, no objective standards were applied, no rights were declared. Clearly, the acts of the defendant trial judge were administrative, dealing only with the public service of the defendant court reporter.217 As such, the judge should not have been entitled to the absolute immunity that protects judicial acts, but only to the limited, good-faith protection appropriate for administrative actions.218
Rheuark v. Shaw highlighted the uselessness of the Sparkman “judicial act” test for distinguishing a judge’s judicial functions from his administrative duties — a problem not present in Sparkman. Consumers Union of the United States, Inc. v. ABA219 shows that the Sparkman test fares no better at drawing a line between judicial and legislative functions. In that case, two consumer groups sought declaratory and injunctive relief against the enforcement of Virginia state bar disciplinary prohibitions on lawyer advertising, and sought reimbursement for costs and attorneys’ fees incurred in the prosecution of their action against the Virginia State Bar, the Supreme Court of Virginia, the Chief Justice of that court, and two officers of the state bar.220 A three-judge district court held that the individual defendants were protected by judicial immunity from personal liability for attorneys’ fees:
The record reflects that defendant Supreme Court of Virginia has the jurisdiction to adopt, modify, or refuse to modify the Virginia Code of Professional Responsibility.... Chief Justice l’Anson’s actions, as a member of the Supreme Court of Virginia, relating to the Court’s failure to amend or repeal DR2-102(A)(6), were clearly judicial acts within the Court’s jurisdiction; Chief Justice 1’Anson therefore in the instant case enjoys absolute immunity from individual liability for attorneys fees.221
Nonetheless, the court went on to hold that judicial immunity did not protect the defendants in their official capacities from liability for attorneys’ fees under the Civil Rights Attorneys’ Fee Awards Act of 1976:
“Both the extensive legislative history of 42 U.S.C. § 1988, as well as the numerous court opinions interpreting the statute clearly indicate that all branches and agencies of state governments may be liable for attorneys fees in 42 U.S.C. § 1983 actions.”222
District Judge Warriner, in dissent, found it unnecessary to address the majority’s conclusion that section 1988 was intended to abrogate judicial immunity from awards of attorneys’ fees. He thought the actions complained of were legislative, not judicial:
This Court has previously indicated that the Supreme Court of Virginia acts in a legislative capacity in adopting disciplinary rules.... This view is readily supported by analysis. Disciplinary rules are rules of general application and are statutory in character. They act not on parties litigant but on all those who practice law in Virginia. They do not arise out of a controversy which must be adjudicated, but instead out of a need to regulate conduct for the protection of all citizens. It is evident that, in enacting disciplinary rules, the Supreme Court of Virginia is constituted a legislature.223
Judge Warriner went on to argue that section 1988 was not intended to abrogate legislative immunity. Because the only acts of the Virginia Supreme Court complained of were, in his view, legislative, the Virginia Supreme Court retained its immunity. Only the Virginia State Bar had acted to enforce the ban on attorney advertising; hence, by Warriner’s reasoning, only the Virginia State Bar might properly be sued for attorneys’ fees.224
Judge Warriner’s analysis of the nature of a judicial act would not be remarkable were it not for the confusion created by Sparkman. In his own words the analysis was
nothing more than a common sense approach to the question of official immunity. These immunities are the creatures of public policy, and depend necessarily upon the function being performed by the official when he does the acts for which he is called upon to answer. The title of the office in no way determines the scope and character of the privilege enjoyed by the incumbent. Thus, the fact that the Supreme Court of Virginia is comprised entirely of judges does not determine the scope and character of the privilege enjoyed by the Supreme Court when it enacts disciplinary rules. If the function is legislative, then the applicable privilege is the legislative privilege 225
The Supreme Court subscribed to Judge Warriner’s reasoning in overturning the three-judge panel’s disposition of the case.226 The Court, in a unanimous decision written by Justice White, held that the Virginia Supreme Court’s actions were legislative, not judicial.227 Accordingly, the actions were protected by legislative immunity 228 Similarly, the Court held that this legislative immunity barred the assessment of section 1988 attorneys’ fees against the Virginia Supreme Court.229
The Court affirmed the validity of the doctrine of judicial immunity, but conspicuously omitted any discussion of the Sparkman judicial-act test: “Adhering to the doctrine of Bradley v. Fisher..., we have held that judges defending against § 1983 actions enjoy absolute immunity from damages liability for acts performed in their judicial capacities. ”230 The opinion also acknowledged the split among the various circuits as to whether judicial immunity bars injunctive or declaratory relief.231 Justice White sidestepped that problem: “We need not decide whether judicial immunity would bar prospective relief, for we believe that the Virginia Supreme Court and its Chief Justice properly were held liable on their enforcement capacities.”232 The district court, however, had held the Virginia court liable in its judicial capacity, not for any enforcement actions.233
(Copyright © Duke Law Journal. All rights reserved. J. Randolph Block. 1980)
11 1 W. HOLDSWORTH, A HISTORY OF ENGLISH LAW 214, 337-42 (3d ed. 1922); 2 F. POLLOCK & F. MAITLAND, THE HISTORY OF ENGLISH LAW 665 (2d ed. 1898).
12 An “amercement” was a pecuniary penalty, the amount of which was imposed at the discretion of the king’s court These penalties were payable to the assessing court, not to the complaining litigant Amercements were small and frequent. “Most men in England must have expected to be amerced at least once a year.” 2 F. POLLOCK & F. MAITLAND, supra note 11, at 513. For these reasons, liability for amercement is not comparable to liability for damages. The author is unaware of any example of assessment of damages against a court of any kind for a judicial act performed within jurisdiction. Coke does not mention damages in his discussion of the Statute of Marlborough, 1267, 52 Hen. 3, c. 19, which made false judgment a royal plea.
13 See Statutes of Westminster I, 1275, 3 Edw. 1, c. 28; R. POUND, APPELLATE PROCEDURE IN CIVIL CASES 31 (1941); Riddell, Erring Judges of the Thirteenth Century, 24 MICH. L. REV. 329 (1926).
14 2 F. POLLOCK & F. MAITLAND, supra note 11, at 667.
15 See 2 E. COKE, INSTITUTES OF THE LAWES OF ENGLAND 138 (1642).
16 2 F. POLLOCK & F. MAITLAND, supra note 11, at 664 (footnotes omitted).
17 R. POUND, supra note 13, at 3.Vol. 1980:879]
18 “None from henceforth, except our Lord the King, shall hold in his Court any Plea of false Judgement, given in the Court of his Tenants; for such Plea specially belongeth to the Crown and Dignity of our Lord the King.” Statute of Marlborough, 1267, 52 Hen. 3, c. 19.
19 See 1 F. POLLOCK & F. MAITLAND, supra note 11, at 169.
20 2 F. POLLOCK & F. MAITLAND, supra note 11, at 666. Courts that kept such formal Latin records became known as “courts of record.” “Coke deduced from certain vague dicta in the Year Books as to the powers of courts of record the new rule that it was only a court of record which could fine and imprison.” 5 W. HOLDSWORTH, A HISTORY OF ENGLISH LAW 159 (1927). Although Coke’s view had little or no effect at the time, it has since been accepted. See 10 HALSBURY S LAWS OF ENGLAND Courts 709 (4th ed. 1975).
21 See Feinman & Cohen 205-06.
22 1 W. HOLDSWORTH, supra note 11, at 214. Prior to the development of the writ of error, redress, when given, was at the instance of the central court and the king. Justices of assize and justices in eyre were summoned before the central court for the correction of errors.
23 6 W. HOLDSWORTH, A HISTORY OF ENGLISH LAW 235-36 (2d ed. 1937) (the second and third bracketed interpolations are Holdsworth’s). Note that the holding of the case is limited to criminal actions in which the accusation would traverse the record of the defendant judge. The holding would not apply to extrajudicial criminal actions. It is noteworthy that a statute gave an action against a judge who refused to record a bill of exceptions. Statutes of Westminster II, 1285, 13 Edw. 1, c. 31.
24 These case are reported in law French. For discussions in English of the case, see Floyd v. Barker, 77 Eng. Rep. 1305 (Star Chamber 1607). See also Yates v. Lansing, 9 Johns. 395, 408-09 (N.Y. 1811).
25 See text accompanying notes 32-39 infra.
26
The usual procedure for the correction of justices’ errors was to bring a writ of error in the King’s Bench. In the case quoted in the text accompanying note 23 supra, the criminal action against the justice was brought before justices of assizes. The case from the Year Books (see note 24 supra) were actions brought in the Court of Common Pleas.
It could be argued that the doctrine of judicial immunity did not make the monopolization of proceedings in error by the king’s courts complete, since it applied only to courts of record. The point is insignificant. There is no example of an action for damages against a judge of a court not of record from Bracton’s time to the nineteenth century, when it was held that such an action would not lie. See, e.g., Haggard v. Peficier Frdres, [1892] A.C. 61 (P.C.); Calder v. Halket, 13 Eng. Rep. 12 (P.C. 1839-40). Moreover, false judgment was much less significant after the time of Edward I. Local courts, especially courts baron, were on the decline by the fourteenth century. Justices of the peace, who were judges of courts of record, took their places. 1 W. HOLDSWORTH, supra note 11, at 201.
27 See Feinman & Cohen 205-06.
28 The policy underlying judicial immunity was therefore not simply “a technical proposition concerning the nature of the record of a court of record,” as Feinman and Cohen suggest. Id. 206. Nor is it true that “[b]oth judicial and executive immunity are common law doctrines with a similar origin in the monarchical concept of sovereign immunity.” Nagel, supra note 4, at 249.
29 77 Eng. Rep. 1305 (Star Chamber 1607).
30 5 W. HOLDSWORTH, supra note 20, at 158-61.
31 Barker was a judge of assize who had presided over the trial of William Price for the murder of one Hugh ap William. The jury returned a verdict of guilty, and Barker gave the judgment of death, which the sheriff later carried out. One Rice ap Evan ap Floyd laid charges against Barker, the grand jury that indicted Price, the jury that convicted Price, the sheriff who executed Price, the justices of the peace who examined Price, and the witnesses against Price. The charges in the Star Chamber were for conspiracy, or false accusation. See id. 203-05. It was held that those involved in Price’s prosecution could not be charged with conspiracy. 77 Eng. Rep. at 1306.
32 77 Eng. Rep. at 1306-07.
33 Id. at 1306.
34 Id. at 1307.
35 Id.
36 Id.
37 See text accompanying notes 24-28 supra.
38 Feinman and Cohen suggest that this first policy stated by Coke is a “floodgates” argument.
One of his reasons is still today the principal policy argument advanced for judicial immunity—the potential for a multiplicity of suits, frivolous and otherwise, against judges.... The difficulty with this formulation is identical to the difficulty with similar arguments in later times; any rule other than an absolute rule of immunity for all judges that gives no consideration to jurisdiction or the nature of the act committed has the potential for generating suits of great, if not “infinite,” numbers.
Feinman & Cohen 208. According to their interpretation, “infinite,” as used by Coke in the quoted section (see the text accompanying note 33 supra), is synonymous with “countless.” Coke’s concern for “an end of causes,” however, (and the common law’s concern for finality) suggests that, in this instance, “infinite” actually means “endless.” Coke was not making a floodgates argument but a finality argument. See 11 Eng. Rep. at 1306.
39 Feinman and Colien believe that this policy argument “concerned the necessity of maintaining respect for the judiciary and the government.” Feinman & Cohen 209. One should differentiate this second policy argument from the third. The distinction between judicial responsibility for judicial acts to the king under the king’s power of appointment, and possible subjection to criminal prosecution for judicial acts was clearly drawn by Coke, who relied on the case of J de R from the books of Assizes (see the text accompanying note 23 supra) for the assertion that “as a Judge shall not be drawn in question in the case aforesaid, at the suit of the parties, no more shall he be charged in the said case before any other Judge at the suit of the King.” 77 Eng. Rep. at 1307.
40 77 Eng. Rep. at 1307 (emphasis added).
41 See, e.g., Stump v. Sparkman, 435 U.S. 349, 355-56 (1978).
42 De Smith calls administrative acts “particular,” in contradistinction to legislative acts, which are “general.” S. DE SMITH 31. In his view, “an administrative act is the making and issue of a specific direction, or the application of a general rule to a particular case in accordance with the requirements of policy.” Id. Ministerial acts, on the other hand, are those actions, “the discharge of which involves no element of discretion.” Id.30.
43 J. CLERK & W. LINDSELL, TORTS 1108 (14th ed. 1975).
44 M. DALTON, THE COUNTREY JUSTICE 23-24 (1643).
45 See generally Jenks, The Prerogative Writs in English Law, 32 YALE L. J. 523 (1923).
46 S. DE SMITH 46.
47 3 W. HAWKINS, PLEAS OF THE CROWN ch. 8,§74 (7th ed. 1795) (emphasis in original). In turn, this statement was followed in Bum’s manual for justices of the peace:
In the next place; he is not punishable at the suit of the party, but only at the suit of the king, for what he doth as judge, in matters which he hath power by law to hear and determine without the concurrence of any other; for regularly no man is liable to an action for what he doth as judge: but in case wherein he proceeds ministerially, rather than judicially, if he acts corruptly, he is liable to an action at the suit of the party, as well as to an information at the suit of the king.
2 R. BURN, THE JUSTICE OF THE PEACE AND PARISH OFFICER 434 (3d ed. 1756).
48 F. MAITLAND, JUSTICE AND POLICE 80 (1885).
49 See id. 85-88; S. & B. WEBB, THE PARISH AND THE COUNTY 281 (1963 reprint).
50 See text accompanying notes 43-44 supra.
51 See Rooke’s Case, 77 Eng. Rep. 209, 210 (C.P. 1598).
52 83 Eng. Rep. 475 (K.B. 1675).
53 The sheriff had been concerned that return of the election results as tallied would be challenged in an action for false returns. He therefore returned two separate and contradictory election results — a double return. Id.at 475.
54 Id. at 476.
55 An Act to prevent False and Double Returns of Members to serve in Parliament, 1695-1696, 7 & 8 Will. 3, c. 7.
56 See Morgan v. Hughes, 100 Eng. Rep. 123 (K.B. 1788); Windham v. Clere, 78 Eng. Rep. 387 (Q.B. 1589). See also Thompson, Judicial Immunity and the Protection of Justices, 21 MOD. L. REV. 517 (1958).
57 Eg., Rex v. Young & Pitts, 97 Eng. Rep. 447, 450 (K.B. 1758); Gerlington v. Pitfield, 84 Eng. Rep. 360 (K.B. 1669); Cave v. Mountain, 133 Eng. Rep. 330 (C.P. 1840).
58 Feinman & Cohen 218. See also Note, Immunity of Federal and State Judges from Civil Suit, supra note 2; Yale Note.
59 Eg., Mostyn v. Fabrigas, 98 Eng. Rep. 1021 (K.B. 1774); Green and the Hundred of Buccle-churches Case, 74 Eng. Rep. 294 (C.P. 1589); Brittain v. Kinnaird, 129 Eng. Rep. 789, 792
60 This is also the conclusion of Professor Thompson, who examined the question at some length: (1) A justice of the peace acts as a court of record when exercising summary criminal jurisdiction. As a judge of such a court he is protected in respect of all acts done within his jurisdiction, whether maliciously or otherwise. (2) In civil matters, if a justice is entrusted with the jurisdiction of a court [of] record, he will be similarly protected. (3) A justice is protected only if he acts in good faith when he discharges judicial functions other than as a court of record. Thompson, supra note 56, at 533.
61 See Butz v. Economou, 438 U.S. 478, 511-13 (1978). For a discussion of official and derivative immunity and their varied applications, see Note, Derivative Immunity: An Unjustified Bar to Section 1983 Actions, 1980 DUKE LJ. 568.
62 See S. DE SMITH 29. See also Boulter v. Justices of Kent, [1897] A.C. 556; Regina v. Cornwall Quarter Sessions,[1956] 1 W.L.R.906 (Q.B.); Newman v. Foster, 86 L.J.K.B.360 (1916); Huish v. Justices of Liverpool, [1914] 1 K.B. 109.
63 S. DE SMITH 29.
64 See id, 50-51.
65 Even down to the nineteenth century the administrative and judicial functions of the Justices were so intermingled that most writers give up the attempt to distinguish between them. We are told that “it is not easy to fix any rule for distinguishing, in the abstract, between what things are the subject of orders of Justices, and what of convictions by them. Before the Statute of 4 Geo. II., convictions were always recorded in Latin, whereas orders were returned in English; and we find this circumstance referred to as a criterion.... Perhaps the only criterion that can be furnished for distinguishing when penal proceedings are to be considered as orders, and when as convictions, is that alluded to by Lord Hardwicke in R. v. Bissex, viz. whether they be so denominated by the statute which gives the Justices jurisdiction to make them” (Bum’s Justice of the Peace, vol. v. p. 287 of edition of 1845). S. & B. WEBB, supra note 49, at 281 n.l.
66 S. DE SMITH 37-47.
67 Id:. 31-34.
68 See generally id 27-51; Gordon, “Administrative” Tribunals and the Courts, (pts. 1-2), 49 L.Q. REV. 94, 419 (1933).
69 Feinman and Cohen mention the limitation of judicial immunity to judicial acts but find little distinction between that limitation and the limitation imposed by the requirement that a judge act within his jurisdiction to retain immunity. See Feinman & Cohen 210. The two limitations are quite distinct. American courts have adopted the judicial act requirement with little understanding, consequently overlooking the administrative-ministerial distinction. A discussion of the jurisdictional limit follows in the text. See notes 70-96 infra and accompanying text.
70 77 Eng. Rep. 1027 (Star Chamber 1612). See also Feinman & Cohen 209-10.
71 Y.B. Mich. 22 Edw. 4, f. 30, pi. 11 (1483). See 11 Eng. Rep. at 1040. The opinions of Judges Pigot and Suliard are partially translated from law French in 6 W. HOLDSWORTH, supra note 23, at 236.
72 See Y.B. Mich. 22 Edw. 4, f. 30, pi. 11, at 30 (Pigot, J.); 6 W. HOLDSWORTH, supra note 23, at 236-37.
73 See Dobbs 67-68; Note, Filling the Void: Judicial Power and Jurisdictional Attacks on Judgments, 87 YALE LJ. 164, 164 (1977); and case cited in notes 75, 77, & 90 infra.
74 85 Eng. Rep. 84 (K.B. 1667).
75 86 Eng. Rep. 1035 (C.P. 1677).
76 Id. at 1037.
77 125 Eng. Rep. 858 (C.P. 1692). In Judge Powell’s view, his decision was not a modification of the rule of The Marshalsea, 11 Eng. Rep. 1027 (Star Chamber 1612). He pointed out that the court of the Marshalsea had jurisdiction only in case in which the king’s servants were parties; as all parties were enrolled, the judge of that court should have known the character of all parties, and could be culpable only from ignorance. 125 Eng. Rep.at 86. The argument is not completely convincing, because Coke appeared to be more concerned in The Marshalsea with jurisdiction of “the cause” than with personal jurisdiction.
The rule of Gwinne v. Poole combined with the rule of Peacock v. Bell to form a rule whose operation was described by Judge Parke in the well-known case of Calder v. Halket :
It is well settled that a Judge of a Court of Record in England, with limited jurisdiction, or a Justice of the Peace, acting judicially, with a special and limited authority, is not liable to an action of trespass for acting without jurisdiction, unless he had the knowledge or means of knowledge of which he ought to have availed himself, of that which constitutes the defect of jurisdiction.
13 Eng. Rep. 12, 36 (P.C. 1839-40).
78 That statement came in Miller v. Seare: But it is said, that no actions will lie against persons acting in a judicial capacity. Let us see how far this general position is warranted by law. 1st. It is agreed, that the Judges in the King’s Superior Courts of justice are not liable to answer personally for their errors in judgment. And this, not so much for the sake of the Judges, as of the suitors themselves. [Citations omitted.] 2d. The like in Courts of general jurisdiction, as gaol-delivery, &c. [Citations omitted.] 3d. In Courts of special and limited jurisdiction, having power to hear and determine, a distinction must be made. While acting within the line of their authority, they are protected as to errors in judgment; otherwise they are not protected.... In all the case where protection is given to the Judge giving an erroneous judgment he must be acting as Judge. 96 Eng. Rep. 673, 674-75 (C.P. 1777) (emphasis added).
79 See Dobbs 68; Note, supra note 73, at 164-65.
80 See 6 W. HOLDSWORTH, supra note 23, at 238-40; Feinman & Cohen 214-18; Thompson, supra note 56, at 520-23. Feinman and Cohen, for example, find that “[t]he law from the seventeenth ceutuiy forward [is] somewhat confused....” Feinman & Cohen 217.
81 See, e.g.t Z. CHAFEE, SOME PROBLEMS OF EQUITY chs. 8-9 (1950);A. RUBINSTEIN, JURISDICTION AND ILLEGALITY 212-14 (1965).
82 Brougham v. Oceanic Steam Navigation Co., 205 F. 857, 860 (2d Cir. 1913).
83 S. DE SMITH 68
84 See Dobbs 60-61.
85 E. HENDERSON, FOUNDATIONS OF ENGLISH ADMINISTRATIVE LAW 120-31 (1963); Gordon, The Observance of Law as a Condition of Jurisdiction, 47 L.Q. REV. 386, 393 (1931); Jenks, supra note 45, at 528.
86 W.STYLE, REGESTUM PRACTICALE, OR, THE PRACTICAL REGISTER 455-56 (3d ed. 1694).
87 A. RUBINSTEIN, supra note 81, at 63.
88 See J. GRIFFITH & H. STREET, PRINCIPLES OF ADMINISTRATIVE LAW 220 (3d ed. 1963).
89 A. RUBINSTEIN, supra note 81, at 63. See also E. HENDERSON, supra note 85, at Si-no.
90 J. GRIFFITH & H. STREET, supra note 88, at 220. In a suit against certain judges of excise, for example, a previous factual determination by the judges as to whether certain wines were “low wines” or “strong wines” was held to be erroneous and outside the judges’ jurisdiction. Terry v. Huntington, 145 Eng.Rep.557 (Ex. 1668). Compare Holmes’s well-known “glanders” opinion in Miller v. Horton, 152 Mass. 540, 26 N.E. 100 (1891). See also the companion case to Terry: Papillon v. Buckner, 145 Eng. Rep. 556 (Ex. 1668).
91 S. & B. WEBB, supra note 49, at 387-424, 585-602.
92 See 6 W. HOLDSWORTH, supra note 23, at 238.
93 See id. (quoting Peacock v. Bell, 85 Eng. Rep. 84, 87-88 (K.B. 1667)).
94 See L. JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 152-92 (1965).
95 See generally J. GRIFFITH & H. STREET, supra note 88, at 219-20, 237.
96 See, e.g., 5 U.S.C.§§ 702-703 (1976). The implications of The Marshalsea, however, still affect the concept of jurisdiction. See RESTATEMENT OF JUDGMENTS§ 10 (1942); D. LOUISELL & G. HAZARD, CASES ON PLEADING AND PROCEDURE 487-91 (3d ed. 1973)
97 1 Day 315 (Conn. 1804).
98
Feinman & Cohen 226. Interestingly, the rule stated by the Connecticut court in Phelps is absolute, but the rule of immunity that Judge Phelps’s attorney suggested was one of qualified immunity:
3. Phelps acted as a judge. As a judge he acted, in appointing Stanley; as a judge he delivered to him the property; and throughout, he is treated as a judge. If so, no action can be sustained against him, unless he acted maliciously and corruptly. But, there is no intention to injure stated in this declaration.... Nothing, from which malice can be inferred, is stated.
An action will not lie against a judge, for an erroneous judgment. Though he mistook, it is sufficient for him, that he acted Judicially. In all case of this kind, where suits have been brought against officers, it seems to have been agreed, that it was necessary to state malice.
1 Day at 318-19 (citations omitted) (emphasis in original).
In Note, Immunity of Federal and State Judges from Civil Suit, supra note 2, at 731 n.20, the author argues that the Connecticut court’s statement that “no impurity of motive is imputed to him, and none is to be inferred,” 1 Day at 320, indicates that “proof of bad faith or malicious intent might have led to a different result.” A careful reading of Phelps v. Sill shows that the court was concerned with the sufficiency of the plaintiff’s pleadings and the classification of the judge’s duties. Counsel for the plaintiff had argued that some of the judge’s duties were ministerial, 1 Day at 322; counsel for the defendant had argued the contrary, id.at 318-19, but maintained that, in any case, malice was not alleged, id. at 319. The statement the author quoted may therefore be seen as disposing of the case on the grounds of insufficient pleadings, avoiding the question whether the judge’s actious were indeed ministerial.
99 2 Dali. 160 (Pa. 1792).
100 Id. at 166 (opinion of Shippen, J.).
101 Id. at 164 (opinion of McKean, CJ.).
102 2 S.C.L. (2 Bay) 1 (1796). Justice Bay’s reports were published in 1811.
103 Id. at 7.
104 2 S.C.L. (2 Bay) 69 (1796).
105 Id. at 70.
106 See Thompson, supra note 56, at 518-20.
107 Randall v. Brigham, 74 U.S. (7 Wall.) 523 (1868), discussed in text accompanying notes 114-17 infra.
108 Ch. 22, § 1, 17 Stat. 13 (1871) (current version at 42 U.S.C. § 1983> (1976)).
109 Feinman & Cohen 237.
110 Yale Note 326-27. See also Note, Immunity of Federal and State Judges from Civil Suit, supra note 2, at 731.
111 T. COOLEY, A TREATISE ON THE LAW OF TORTS 478-79 n.2 (2d ed. 1888).
112 See text accompanying notes 42-61 supra.
113 See State ex rel. Robinson v. Littlefield, 4 Blackf. 129 (Ind. 1835) (a justice of the peace was not liable on his statuory bond); State ex rel Conley v. Flinn, 3 Blackf. 72 (Ind. 1832) (a justice of the peace was liable on statutory bond for issuing an execution on the same day he issued a summons); Wasson v. Mitchell, 18 Iowa 153 (1864) (the county board of supervisors was not liable for an honest mistake); Howe v. Mason, 14 Iowa 510 (1863) (a justice of the peace was not liable for erroneously approving a replevin bond); Revill v. Pettit, 60 Ky. (3 Met.) 314 (1860) (a justice of the peace was not liable for acts within his jurisdiction); Friend v. Hamill, 34 Md. 298 (1870) (Republican judges of an election were liable for refusing to allow the plaintiff, a Democrat, to vote); State ex rel Tavel v. Jervey, 36 S.C.L. (4 Strob.) 304 (1850) (a tax collector was not liable for costs for issuing tax execution when the writ of prohibition was later granted); Macon v. Cook, 11 S.C.L. (2 Nott & McC.) 600 (1819) (officers of a court martial were not liable for an action of trespass); Young v. Herbert, 11 S.C.L. (2 Nott.& McC.) 473 (1819) (a magistrate was not liable for an erroneous denial of libel); Reid v. Hood, 11 S.C.L. (2 Nott. & McC.) 471 (1819) (a justice of the peace was not liable for error; an interesting discussion of the judicial-ministerial dichotomy); Cope v. Ramsey, 49 Tenn. (2 Heisk.) 197 (1870) (justices of a county court were not liable for an error); Hoggatt v. Bigley, 25 Teun. (6 Hum.) 236 (1845) (a justice of the peace, a constable, and a juror were not liable for errors in judgment).
114 74 U.S. (7 Wall.) 523 (1868).
115 M at 536.
116 Yale Note 325-26.
117 See text accompanying notes 42-61 supra.
118 80 U.S. (13 Wall.) 335 (1871).
119 Id. at 351.
120 See text accompanying notes 15-22 supra.
121
Significantly, Justice Field maintained the common law distinction between acts in excess of jurisdiction, for which judges could not be held liable, and acts done in “the clear absence of all jurisdiction over the subject-matter.” 80 U.S. (13 Wall.) at 351. His example of absence of jurisdiction — a probate judge trying a criminal case — also indicates that in the context of judicial immunity he thought of “jurisdiction” as subject-matter jurisdiction. Id. at 352. An additional meaning of jurisdiction — the power to order a particular remedy — was not at issue in the case. The closing words of the opinion make it clear that the Court had considered and rejected the plaintiff’s claim that Judge Fisher had lacked personal jurisdiction over the plaintiff. Id.at 357.
Feinman and Cohen state that Field’s opinion changed the law of judicial immunity in that “the distinction between excess of jurisdiction and absence of jurisdiction solidified the notion of judicial act that always had been the boundary of the immunity of superior judges.” Feinman & Cohen 246. This is the first mention in their article of the “judicial act” concept, a major part of the judicial immunity doctrine. They fail, however, to distinguish between the judicial-act requirement and the jurisdictional limit of immunity. See notes 118-20 supra and accompanying text. Feinman and Cohen also claim that “Field suggested ...a judicial act would require adherence to certain fundamental notions of judicial process.” Feinman & Cohen 246. In point of fact, Field made no such suggestion. Indeed, Field wrote that Judge Fisher’s failure to afford the plaintiff an opportunity to show cause why the order of disbarment should not be made, though a violation of due process, “did not make the act any less a judicial act.” 80 U.S. (13 Wall.) at 357.
122 80 U.S. (13 Wall.) at 347.
123 Ch. 114, § 4, 18 Stat. 335 (1875).
124 Id., 18 Stat. 336-37 (current version at 18 U.S.C.§ 243 (1976)).
125 Ex Parte Virginia, 100 U.S. 339, 340 (1880).
126 100 U.S. 339 (1880).
127 Id. at 348.
128 Id. at 349 (Field, J., dissenting).
129 Id. at 348.
130 Id. at 359-60 (Field, J., dissenting).
131 Id. at 348-49.
132 Ch. 116, 16 Stat 144 (codified at 18 U.S.C. § 52 (1970)).
133 United States v. Chaplin, 54 F. Supp. 926, 928 (S.D. Cal. 1944).
134 54 F. Supp. 926 (S.D. CaL 1944).
135 Id. at 928.
136 Id. at 934.
137 Ch. 22, § 1, 17 Stat. 13 (1871) (codified at 42 U.S.C. § 1983 (1976)).
138 151 F.2d 240 (3d Cir. 1945).
139 42 U.S.C. § 1983 (1976).
140 151 F.2d at 245.
141 Id.
142 Id. at 245-46.
143 325 U.S. 91 (1945).
144 151 F.2d at 249.
145 Id. (quoting Screws v. United States, 325 U.S. 91, 97-98 (1945) (plurality opinion)).
146 325 U.S. at 97.
147 156 F.2d 791 (2d Cir. 1946). In a very brief opinion, Judge Learned Hand wrote:
[I]n Picking v. Pennsylvania R. Co.... it was held that the “Civil Rights Act” actually tolled the privilege of a judge. The only protection at present is in the difficulty of proving such case which is great; but, so far as we can see, any public officer of a state, or of the United States, will have to defend any action brought in a district court under [the Civil Rights Act] in which the plaintiff, however irresponsible, is willing to make the necessary allegations.
Id. at 793.
148 170 F.2d 705 (10th Cir. 1948).
149 Id. at 707.
150 172 F.2d 1016 (6th Cir. 1949).
151 341 U.S. 367 (1951).
152 Id. at 376.
153 Tate v. Arnold, 223 F.2d 782, 785 (8th Cir. 1955). See also Cawley v. Warren, 216 F.2d 74 (7th Cir. 1954); Morgan v. Sylvester, 125 F. Supp. 380 (S.D.N.Y. 1954), aff’d per curiam, 220 F.2d 758 (2d Cir. 1955); Souther v. Reid, 101 F. Supp. 806 (E.D. Va. 1951).
154 See Cooper v. Hutchinson, 184 F.2d 119 (3d Cir. 1950).
155 United States ex rel. Peters v. Carson, 126 F. Supp.137, 142 (W.D. Pa. 1954); Ginsburg v. Stern, 125 F. Supp. 596, 602 (W.D. Pa. 1954), aff’d per curiam, 225 F.2d 245 (3d Cir. 1955).
156 Bauers v. Heisel, 361 F.2d 581, 584 (3d Cir. 1966), cert, denied, 386 U.S. 1021 (1967)
157 Kenney v. Fox, 232 F.2d 288 (6th Cir.), cert, denied 352 U.S. 855 (1956); Francis v. Crofts, 203 F.2d 809 (1st Cir.), cert, denied, 346 U.S. 835 (1953).
158 386 U.S. 547 (1967).
159 Pierson v. Ray, 352 F.2d 213, 221 (5th Cir, 1965), aff’d in part and rev’d in party 386 U.S. 547 (1967).
160 384 U.S. 938 (1966).
161 386 U.S. at 553-54.
162 Id. at 554-55.
163 Id.at 555 n.9.
164 Id. at 559 (Douglas, J., dissenting).
165 Id. at 559-60 (Douglas, J., dissenting).
166 Id.at 561 (Douglas, J., dissenting).
167 Id. at 563 (Douglas, J., dissenting).
168 Id.at 566 (Douglas, J., dissenting). In Screws v. United States, 325 U.S. 91 (1945), Justice Douglas had interpreted the analogous criminal statute to require intentional deprivation of civil rights in order to save that statute from unconstitutional vagueness under the fifth amendment. That test, however, does not apply necessarily to statutes creating civil liability, and Douglas did not refer to his Screws opinion for support in his dissents in Pierson v. Ray or Tenney v. Brandhove.
169 See the sources cited in notes 2 & 4 supra.
170 Ch. 22, § 2, 17 Stat. 13 (1871) (current version at 42 U.S.C.§ 1985 (1976)).
171 Ch. 22, § 5, 17 Stat. 13 (1871).
172 Id. § 4 (effective until 1874).
173 See, e.g.y CONG. GLOBE, 42d Cong., 1st Sess.374(1871) (remarks of Rep. Lowe) (discussing section 1). Indeed, the Republicans whom Douglas quoted, who asserted the evils of judicial administration in the southern states, were debating the merits of the second section of the Act, the section dealing with conspiracy, not the civil provisions of section 1.
174 Kates, supra note 2, at 620 n.19.
175 Yet one cannot but note the superficial incongruence of Pierson with the Court’s decision in Screws a few years earlier. The statute construed in Pierson was modeled on the 1866 and 1871 acts that were the subject of Screws, compare 42 U.S.C.§1983 (1976) with 18 U.S.C.§ 242 (1976); yet Pierson held judges exempt from the operation of section 1983, though the rule of Screws would impose criminal liability for intentional deprivations of federal rights. By comparison, the qualified “good faith” immunity granted to police officers in Pierson accords with the Screws rule. That point, coupled with the fact that the actual defendants in Screws were police officers, reduces the contrast between the two holdings to some extent. The best explanation of the difference in construction is that of legislative history: the record of section 1983 was devoid of any basis for an intent standard, while that of section 242 was replete with such evidence, see Kates, supra note 2, at 621-24—and the language of section 242 was changed in 1909 to confine liability to those who had acted “willfully.” Screws v. United States, 325 U.S. 91, 104 (1945). Given the differences in the history of the two statutes, the Court’s somewhat different treatment of the statutes is appropriate. Certainly its interpretation of section 1983 is at least as defensible as the specific intent interpretation Justice Douglas offered.
176 435 U.S. 349 (1978).
177 Feinman & Cohen 280.
178 The petition is reproduced in full in the Supreme Court opinion, 435 U.S. at 351-53 n.l.
179 Id. at 352.
180 Id. at 353.
181 Id.
182 Laycock, supra note 4, at 393.
183 Brief for Respondents at 3, Stump v. Sparkman, 435 U.S. 349 (1978).
184 42 U.S.C. §§ 1983, 1985(c) (1976).
185 Sparkman v. McFarlin, No. F 75-129 (N.D. Ind. May 13, 1976), rev’d, 552 F.2d 172 (7th Cir. 1977), rev’d sub nom. Stump v. Sparkman, 435 U.S. 349 (1978).
186 Sparkman v. McFarlin, 552 F.2d 172 (7th Cir. 1977), rev’d sub nom. Stump v. Sparkman, 435 U.S. 349 (1978).
187 386 U.S. 547 (1967). See text accompanying notes 158-75 supra.
188 80 U.S. (13 Wall.) 335 (1871).
189 552 F.2d at 174.
190 Id. See Bradley v. Fisher, 80 U.S. (13 WalL) 335 (1871). Professor Laycock has argued that the rule of immunity stated in Bradley is ambiguous in its references to jurisdiction, and may refer to personal jurisdiction as well as to subject matter jurisdiction. Laycock, supra note 4, at 404-05, The better view is that the jurisdictional limit on immunity as used in that case refers to subject matter jurisdiction, for the reasons discussed earlier. See notes 114-21 supra and accompanying text. See also Dobbs. For a vigorous attack on the notion of jurisdiction over the person as notice of hearing, see Gordon, The Observance of Law as a Condition of Jurisdiction II, 47 L.Q. REV. 557 (1931).
191 IND. CODE § 33-4-4-3 (1975).
192 552 F.2d at 174.
193 Id. For a discussion of the notion of jurisdiction as power to order a particular remedy, see E. HENDERSON, supra note 85, at 117-21; Gordon, Excess of Jurisdiction in Sentencing or Awarding Relief 55 L.Q. REV. 521 (1939). Lord Justice Ormrod takes issue with the notion in his opinion in Sirros v. Moore, [1975] 1 Q.B. 118, 150 (C.A.). See also 7L. CHAFEE, supra note 81,
194 552 F.2d at 175.
195 Id.
196 Id. at 176.
197 435 U.S. 349, 351 (1978).
198 Id. at 356.
199 Id. at 358.
200 552 F.2d at 176.
201 435 U.S. at 359.
202 Id. at 360.
203 100 U.S. 339 (1879). See text accompanying notes 125-31 supra.
204 See notes 52-55, 62-69, 125-31 supra and accompanying text.
205 In re Summers, 325 U.S. 561 (1945) (the Illinois Supreme Court’s rejection of a petition for admission to the state bar constitutes a “case or controversy”); McAlester v. Brown, 469 F.2d 1280 (5th Cir. 1972) (acts in a judge’s chambers can be judicial).
206 435 U.S. at 362.
207 Id.at 368-69 (Stewart, J., dissenting) (quoting Pierson v. Ray, 386 U.S. 547, 554 (1967)).
208 Id. at 369 (Powell, J., dissenting).
209 Id. at 370 (Powell, J., dissenting).
210 See, e.g.9 Butz v. Economou, 438 U.S. 478 (1978).
211 605 F.2d 330 (7th Cir. 1979), cert, denied\, 445 U.S. 938 (1980).
212 605 F.2d at 335.
213 Id. at 337.
214 477 F. Supp. 897 (N.D. Tex. 1979).
215 Id.at 919 (citing Stump v. Sparkman, 435 U.S. at 362-63).
216
The circumstances of Rheuark v. Shaw make it somewhat surprising that the district court did not note the administrative nature of the defendant judge’s actions. County Judge Whittington was also a defendant in the case. As presiding officer of the Dallas County Commissioners Court, he was sued for limiting the amount of money spent by district judges for court reporters, and for his efforts to discourage the appointment of additional court reporters. The district court recognized that the functions of the Commissioners Court included “the legislative and administrative duties of managing...the county budget and approving expenditures of county funds ... ,” and that “Judge Whittington’s violations of plaintiffs’ constitutional rights were actions which were taken as part of his legislative and administrative duties in governing Dallas County, and were not judicial acts.” 477 F. Supp. at 921.
See also Slavin v. Curry, 574 F.2d 1256 (5th Cir.), modified on other grounds^ 583 F.2d 779 (5th Cir. 1978), overruled on other grounds, 604 F.2d 976 (5th Cir. 1979) (overruled insofar as it extended a derivative immunity to private persons who conspire with judges), in which the court applied the Sparkman rule with similar results, although with less discussion.
217 Cf. Ex parte Virginia, 100 U.S. 339 (1879) (judicial immunity does not extend to the preparation of jury lists). See text accompanying notes 125-29 supra.
218 See text accompanying notes 56-61 supra.
219 470 F. Supp. 1055 (E.D. Va. 1979), rev’d sub nom. Supreme Ct. of Va. v. Consumers Union, 100 S. Ct. 1967 (1980).
220 The ABA had been dismissed as a party defendant with the consent of the parties. 470 F. Supp. at 1057 n.l.
221 Id. at 1059.
222 Id. at 1060.
223 Id. at 1064 (citations omitted).
224 Under 42 U.S.C. §1988 (1976), award of attorneys’ fees is discretionary. In light of efforts by the Virginia State Bar and its officers to amend DR2-1Q2(A)(6), the majority ruled that “special circumstances would make unjust any award of attorneys fees against defendant State Bar or against [its officers] in their official capacities as State Bar officers.” 470 F. Supp. at 1062.
225 470 F. Supp. at 1064-65.
226 100 S. Ct. 1967, 1974-75 (1980).
227 Id.
228 Id. at 1975.
229 Id. at 1977.
230 Id. at 1976.
231 Id. & n.13.
232 See id. at 1976 (emphasis added).
233 See 470 F. Supp. at 1060-61.
A. The Judicial-Act Requirement.
The preceding discussion demonstrates that the brief legacy of Sparkman has been disarray and dissatisfaction. Courts applying Sparkman have been misled by that decision’s inadvertent redefinition of the concept of a judicial act. Justice White’s statement that the Supreme Court had not previously had occasion to consider the necessary attributes of a judicial act in the context of judicial immunity is simply wrong. Judging from the opinion, White was not aware of the discussion in Ex parte Virginia when he set down his test for a judicial act;234 judging from the test itself, White was unaware of the need to distinguish judicial acts from administrative or legislative acts in the context of judicial immunity. Rather, the opinion asks “whether [an act] is a function normally performed by a judge,” i.e., whether it is an official act, and “whether [the parties] dealt with the judge in his judicial capacity” — which means in his official capacity, according to the authority the Court cited.235 The opinion does not clarify why an act that is by nature judicial might be made non-judicial by the expectations of the parties.236 A better analysis of the facts of Sparkman and the doctrine of judicial immunity calls for a return to the traditional approach to the judicial-act requirement.237
B. The Jurisdictional Limit.
The historical discussion above238 suggests that the jurisdictional limit on immunity — whatever is left of it — is ripe for elimination. For centuries the jurisdictional limit has not been applied to judges of superior courts. The distinction between superior courts and inferior courts regarding judicial immunity has fallen into desuetude in those American jurisdictions that have not expressly abolished it,239 and for good reason. As applied to inferior courts, the jurisdictional limit on immunity was a consequence of the ossified system of review by prerogative writ, and provided a needed remedy for damages from official action when many of the functions of government were performed by justices of the peace using judicial forms and procedures. The jurisdictional limit once served a purpose when it was applied to administrative functions, but that purpose is not served by applying the jurisdictional limit to judicial functions in a modern legal system. It is an anachronism that fosters nothing but confusion, and it should be eliminated.240
C. The Malice Standard.
Almost without exception, critics of the doctrine of judicial immunity have agreed on one point: It is one thing, they say, to protect a judge from his honest mistakes, but it is something quite different for the judicial system to protect judges who purposely use their authority to inflict harm or deprive others of their rights. For this reason, some have called for judicial liability under an “actual malice” standard:
“Applied to a judicial officer, this would mean that an action would [result in liability] if it was done with actual knowledge that it was incorrect or with reckless disregard of whether it was incorrect or not.”241 Proponents argue that adopting this standard would deter judicial acts “motivated by prejudice, bias, anger, or ill-will, or the result of inattention, neglect of duty, or incompetence.”242
In addition, of course, any diminution of judicial immunity would increase the compensation for those wronged by judicial malefaction.
The chief drawback to this proposal is that most aggrieved litigants would readily allege that a judge’s conduct had been malicious, or had met any other requisite standard, and the truth of such allegations could not be determined without a trial; the damage to the policies supporting immunity would be inflicted by the fact of a trial, no matter what the verdict.243 The most effective argument against the malice standard, however, is that the premises underlying it are mistaken. Judicial immunity exists not to protect judges but to protect litigants.
This freedom from action and question at the suit of an individual is given by law to the Judges, not so much for their own sake as for the sake of the public, and for the advancement of justice, that being free from actions they may be free in thought and independent in judgment, as all who are to administer judgment ought to be.244
On the basis of “modern social theory, including modern legal theory,”245 Feinman and Cohen conclude that this policy argument cannot be resolved in any objectively satisfying manner:
Values are subjective because they are solely a matter of individual choice and they are arbitrary because once the choice is made little is left to be said. Values are not subject to rational debate or discussion and one person can rarely persuade another of the rightness of certain values because of the irreconcilable antinomy of reason and value.... [T]he resolution of the policy formula requires a weighing of the costs of a liability rule against the benefits. Weighing implies a scale, an objective measure, but the choice among competing values is itself reflective of more basic values and is therefore subjective and arbitrary.... Each decisionmaker values compensating injured parties, sanctioning wrongdoers, and maintaining the efficiency of the legal system, but when those common values conflict, as in the judicial liability context, no independent means of resolving the conflict is available.246
This sort of conclusion is more an indictment of relativism than of legal reasoning. When one evaluates value choices in a legal context, one is not trying to prove the validity or truth of a scale of values, but only the consistency of that value choice with other value choices made, accepted, and legitimated by society. The inconsistency of according absolute immunity for the protection of judicial independence, but only qualified immunity for the protection of the independence of most other government officials, is what one finds disturbing about the doctrine of judicial immunity — not the subjectivity of value judgments, as Feinman and Cohen suggest.
D. An Alternate Proposal.
The salient feature of Sparkman is that the defendant judge’s actions deprived Linda Kay Sparkman of the opportunity to seek appellate relief from his judgment. According to the view of judicial immunity stated by both the majority and the dissenters in Sparkman, the only significance of appeal in the context of judicial immunity is that its availability mitigates some of the harsher consequences of the doctrine. If that were indeed the only significance of appeal, then its unavailability in any particular case would be nothing more than an unfortunate circumstance, affecting the general cost-benefit calculus by which the utility of the doctrine of judicial immunity is evaluated, but not bearing on the validity of the application of the doctrine in that particular case.
The earlier discussion of the origins of judicial immunity shows, however, that appeal has a much greater significance in the context of judicial immunity.247 Judicial immunity developed to protect the appellate system from collateral attacks on judgments, thus channeling actions upward through the appellate hierarchy for the correction of error. The availability of appellate correction of error is, therefore, absolutely central to the logic of judicial immunity. For this reason, judicial immunity should not be available when, as in Sparkman, the actions complained of prevented the complainant from seeking normal appellate correction of error.
The limiting principle proposed here is hardly radical. At its most fundamental level, it is nothing more than an application of the maxim cessante ratione legis cessat ipsa lex (where the reason for the rule stops, there stops the rule).248 Its application would leave the vast majority of precedents undisturbed249 and would deny immunity only in case like Sparkman, in which the judge’s actions denied the plaintiff access to the appellate system. The standard would be a return to sound precedent and would result very neatly in the establishment of limits on judicial immunity that are determined by the policy basis of the doctrine.250
(Copyright © Duke Law Journal. All rights reserved. J. Randolph Block. 1980)
234 See text accompanying notes 202-06 supra.
235 435 U.S. at 362.
236 The hypothetical case of a non-judicial act being characterized as judicial as a result of the expectations of the parties should convince the reader that the Sparkman judicial-act rule, see text accompanying note 206 supra, is conjunctive rather than disjunctive. See also Feinman & Cohen 257-58.
237 See text accompanying notes 62-69 supra.
238 See notes 70-96 supra and accompanying text.
239
The following case abolished any such distinction between inferior and superior courts: Turner v. Raynes, 611 F.2d 92 (5th Cir. 1980); McDaniel v. Harrell, 81 Fla. 66, 86 So. 631 (1921); Calhoun v. Little, 106 Ga. 336, 32 S.E. 86 (1898); Thompson v. Jackson, 93 Iowa 376, 61 N.W. 1004 (1895); Shaw v. Moon, 117 Or. 558, 245 P, 318 (1926); Kalb v. Luce, 234 Wis. 509, 291 N.W. 841 (1940).
In 1975 Her Majesty’s Court of Appeal abolished the distinction between superior and inferior courts regarding the jurisdictional limit on judicial immunity. Sirros v. Moore, [1975] 1 Q.B. 118 (C.A.). See also Feinman & Cohen 261-62 (discussing Sirros).
240 The jurisdictional limit on immunity has had a less than glorious history in its application to what are regarded as judicial acts. See the discussion of The Marshalsea, notes 70-80 supra and accompanying text.
241 Yale Note 322 n.3.
242 Feinman & Cohen 271.
243 See Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949). One critic of the Sparkman decision noted that
[w]hile it may initially appear unjust to protect the corrupt actions of judges, the difficulty in distinguishing between frivolous and legitimate claims would be significant. Although it has been argued that frivolous suits could be disposed of through summary judgment procedures under Rule 56 of the Federal Rules of Civil Procedure, there are two problems with this proposed solution. Subjecting a judge’s record of evidence, authorities and arguments to discovery prior to summary judgment would create problems. In addition, summary judgment is particularly inappropriate when intent is relevant, credibility is an issue or when relevant information is peculiarly within the knowledge of the moving party. Thus, suits charging a judge with malice or corruption could not be easily disposed of under summary judgment procedures. The Court’s reluctance to adopt a standard of actual malice in imposing judicial liability is, therefore, understandable.
47 U. Mo. KAN. CITY L. REV. 81, 93 (1978). See also Brazier, Judicial Immunity and the Independence of the Judiciary, 1976 PUB. L. 397.
244 Garnett v. Ferrand, 108 Eng. Rep. 576, 581 (K.B. 1827).
245 Feinman & Cohen 278.
246 Id. 278-79.
247 See text accompanying notes 11-28 supra.
248 See Funk v. United States, 290 U.S. 371 (1933); K. LLEWELLYN, BRAMBLE BUSH 157-58 (6th ed. 1977); Kocourek & Koven, Renovation of the Common Law Though Stare Decisis, 29 III. L. REV. 971 (1935).
249 The question arises whether judicial immunity should be denied when the actions complained of constitute breaches of a judge’s obligation to follow decisions of courts superior to his own. Pierson v. Ray, 386 U.S. 547 (1967); Ross v. Rittenhouse, 2 Dali. 160 (Pa. 1792); and, arguably, Consumers Union of the United States v. ABA, 470 F.Supp. 1055 (E.D. Va. 1979), rev’d sub nom. Supreme Ct. of Va. v. Consumers Union, 100 S. Ct. 1967 (1980), fall into this category. Judicial immunity did not develop to enforce the authority of the decisions of reviewing courts, but rather developed to channel procedures in error upwards through the appellate hierarchy by barring certain collateral attacks.
250 The legitimacy of such a limit on judicial immunity is established not by a welfare analysis or a balancing of interests, such as that which disturbs Feinman and Cohen, see text accompanying note 246 supra, but by its derivation from the same policies which led to the development of judicial immunity.
The rising popularity of section 1983 suits is likely to cause increasing numbers of judges to seek the protection of judicial immunity. If recent lower court decisions are any indication of what the future holds, most of the problems of judicial immunity will result from mistakes the Supreme Court made in Stump v. Sparkman. At the very least, the Court should clarify the term “judicial act.” Moreover, the Court should recognize that a reasonable definition of that concept, and the development of means of judicial review of administrative action other than by prerogative writ, have obviated any need for the jurisdictional limit on immunity. Finally, the Court should recognize that the most important policy that judicial immunity serves is the protection of the appellate system from improper collateral attacks on judgments and, therefore, that invoking judicial immunity to protect acts that prevent access to appellate review must not be permitted.
(Copyright © Duke Law Journal. All rights reserved. J. Randolph Block. 1980)
Stump v. Sparkman, 98 S. Ct. 1099 (1978)
In a suit brought against an Indiana circuit court judge, Linda Kay Sparkman sought damages alleging that the judge deprived her of her fundamental rights. Judge Stump had approved1 a petition2 submitted by appellant's mother to have her then fifteen-year-old daughter sterilized. After Judge Stump signed the sterilization petition,3 Linda went to a hospital ostensibly to have her appendix removed; in fact, a tubal ligation was performed.4 Four years later, Linda learned of the consequences of the operation.5 She then sought damages under 42 U.S.C. §19836 alleging that the actions of defendants7 in sterilizing her or causing her to be sterilized violated her constitutional rights.8 The district court dismissed the action on the ground that Judge Stump was "clothed with absolute judicial immunity."9 The Seventh Circuit Court of Appeals reversed, finding that because the judge had acted extrajudicially, the doctrine of judicial immunity was inapplicable.10 On certiorari, the United States Supreme Court reversed and HELD, because Indiana law gave a circuit judge jurisdiction to consider and act upon a petition for sterilization, the judge was immune from damages liability even though approval of the petition may have been erroneous.11
In 1868, the Supreme Court in Randall v. Brigham12 first recognized the doctrine of judicial immunity.13 The Court held that judicial officers were not liable in a civil action for any judicial act done within their jurisdiction. However, the Court limited the scope of the doctrine of immunity by indicating that judges might be held liable for malicious or corrupt acts done in excess of their jurisdiction.14
In the leading immunity decision of Bradley v. Fisher,15 the Supreme Court reexamined the Randall opinion and held that judges were not liable in civil actions for their judicial acts, regardless of motive.16 Recognizing that judges need to exercise judicial discretion within their vested authority, the Court used the doctrine of immunity to encourage independent judicial thinking.17 The Bradley Court, reasoning that amenability of judges to suit would inhibit the exercise of discretion in controversial cases,18 established an absolute immunity19 applicable even when a judge acted in excess of his jurisdiction. The Court further justified the immunity doctrine by recognizing that a judge's errors could be corrected on appeal.20
In 1967, the Supreme Court extended the judicial immunity doctrine to actions brought under section 1 of the Civil Rights Act of 1871, now 42 U.S.C. §1983.21 In light of an earlier holding22 that Congress did not intend to abolish other common law immunities by enacting section 1983, the Court held in Pierson v. Ray23 that the judicial immunity doctrine had not been abrogated. Thus ended the period between enactment of the Civil Rights Act and the Pierson decision during which the Act could have been enforced against a judge.24
While the scope of judicial immunity was expanding, it was not limitless. The Court in Bradley, emphasizing the distinction25 between acts done in excess of jurisdiction and those done in "clear absence of all jurisdiction,"26 limited immunity to acts done in excess of jurisdiction. Additionally, immunity from liability applied only to judicial acts.27
In cases dealing with sterilization, the weight of authority was that judges had no jurisdiction to order or approve sterilization absent a specific statutory grant of authority.28 Accordingly, a district court held in Wade v. Bethesda Hospital29 that a judge acted in clear absence of jurisdiction by ordering plaintiff's sterilization. In the context of sterilization, which deprived the plaintiff of the fundamental right to procreate,30 authority for the judge's action could not be inferred from a grant of general jurisdiction.31 Therefore, his act done in the absence rather than in mere excess of jurisdiction deprived him of immunity.
Assuming that a judge had jurisdiction, he could still be liable for his challenged act if it were non-judicial. Although the Supreme Court has not defined a judicial act for immunity purposes, the lower courts have maintained that not every act by a judge is a judicial act.32 In Gregory v. Thompson,33 the Ninth Circuit Court of Appeals found that a court must look beyond the status of a party seeking immunity to consider the nature of the conduct for which immunity was sought.34 Further justifying its grant of immunity, the court stated that a judicial act, within the meaning of the doctrine, may normally be corrected on appeal.35 Therefore, according to the court, judges were subject to liability for acts which could not properly be characterized as judicial.
In the instant case, the Supreme Court reaffirmed the principle that a judicial officer should be free to act upon his own convictions without apprehension of personal liability.36 The Court noted, however, that the doctrine of immunity protected a judge from civil liability only when he was performing a judicial act within his jurisdiction. To determine whether Judge Stump was immune to suit, the Court examined the judge's order in light of his authority to act.37
As an Indiana circuit court judge, Judge Stump was vested by statute with general jurisdiction over all cases and other causes where exclusive jurisdiction was not conferred by law upon some other court.38 The Court construed this provision as a broad jurisdictional grant which could include the authority to approve a petition for tubal ligation.39 Absent a specific statute or common law doctrine denying a court of general jurisdiction the authority to entertain a petition like that presented to Judge Stump, the Court found that the judge had jurisdiction over the subject matter.40 Thus, because neither statute41 nor common law42 prohibited a circuit judge from authorizing a minor's sterilization, the Court held that Judge Stump had acted within his jurisdiction.43
Although the Court found that Judge Stump had acted within his jurisdiction, it recognized that he would not be entitled to judicial immunity if approval of the petition were not a judicial act.44 In considering for the first time for immunity purposes the necessary attributes of a judicial act, the Court discussed several controlling factors. The Court noted that the informality45 with which Judge Stump proceeded could not render his act non-judicial46 Rather, the critical determinative factors were the nature of the act47 and the expectations of the parties.48 In the instant case the Court concluded that Judge Stump performed a judicial act when he signed the sterilization petition, because signing petitions was a normal judicial function49 and because appellant's mother believed that he was acting in his official capacity.50
The Court emphasized the purpose and necessity of judicial immunity in protecting judges from vexatious litigation.51 Thus, despite the tragic consequences of his act and the fact that approval of the petition may have been in error, Judge Stump was held immune from liability for damages because his act was judicial and within his jurisdiction.52
Justice Stewart, in a dissenting opinion in which Justice Marshall and Justice Powell joined, stated that "what Judge Stump did... was beyond the pale of anything that could sensibly be called a judicial act."53 Justice Stewart rejected the majority's enunciated determinants of judicial action, deeming that such a test would render meaningless the inherent limitations on immunity.54 He stated that the test of whether an act is judicial should instead be based on the factors supporting immunity from liability,55 including the judge's duty to decide all cases within his jurisdiction, the possibility of an appeal to correct his errors, and protection of the judge from suit by unsatisfied litigants.56 Finding in the instant situation no case, no possibility of appeal,57 and no litigants, Justice Stewart concluded that Judge Stump's approval of the petition was not a judicial act.58
In analyzing the authority vested in a court of general jurisdiction, the Court did not consider the weight of lower court decisional law. With only one exception,59 the earlier lower court decisions had held that a specific statute was needed to confer jurisdiction over sterilization matters.60 The Supreme Court looked only at Indiana common law and concluded that there was no specific limitation upon a court of general jurisdiction precluding Judge Stump's consideration of a sterilization petition.61 In light of the common law of other states,62 the Court could have inferred that a judge vested with general jurisdiction could not approve a person's sterilization without a specific statutory grant of authority.63 The majority of the Court, however, disregarded the weight of the common law proscription of authority,64 and refused to require such a specific grant of power.
In examining the statutory law of Indiana, the Court found that the statute providing that parents of a minor have the authority to consent to the medical or surgical care of their child65 supported jurisdiction over the sterilization petition. Yet that statute implied that a parent could consent only to necessary medical treatment of his child.66 Because the sterilization of appellant was not necessary,67 it should not have come within the ambit of the Indiana statute.68 Thus, no statutory law supported the Court's conclusion that a court of general jurisdiction had authority over the sterilization petition.
The Court then analyzed the factors determining whether a judge's act is a judicial one for immunity purposes. Focusing first on the nature of the act of signing the petition, the Court failed to consider the petition's substance and effect.69 Stating that judges with general jurisdiction have the authority to approve petitions relating to the affairs of minors, the Court implied that a petition which would deprive a minor of a fundamental right70 was no different from a petition to settle a minor's claim. That the two types of petitions should not be equated is apparent. Deprivation of fundamental human rights is not a "function normally performed by judges"71 even though accomplished through the mechanics of signing a petition. The Court's second determinant of the judicial nature of a judge's act was whether the parties believed that they dealt with the judge in his judicial capacity. But, as the dissenters pointed out: "False illusions as to a judge's power can hardly convert a judge's response to those illusions into a judicial act."72 Only rarely would parties seeking judicial action expect a judge not to be acting in his official capacity. Clearly, the factors established by the Court for determining the judicial nature of an act are not viable.
The Court's analysis of the purpose of judicial immunity focused solely on the need to protect judges from vexatious or malicious law suits, without considering the extent to which an individual's rights were circumscribed or whether an appeal was effectively foreclosed. If the Court had instead balanced individual constitutional rights against the inimical effects of judicial liability,73 the result need not have been in favor of judicial immunity. Extension of liability to outrageous judicial behavior would not open the floodgates to vexatious litigation and would not unduly interfere with judicial independence. Only judges who act with disregard for the constitutional rights of individuals would have to fear civil liability.74
The instant decision creates an unqualified judicial immunity. The Court's broad test for determining the judicial nature of an act rendered meaningless that qualification to the general rule of immunity. As a result, judges are isolated by an unqualified protection from accountability for their injudicious actions.75 Vindication of the deprivation of individual rights has been subordinated to the Court's interest in insulating judges from civil liability. Consequently, the independence of the judiciary has been strengthened at the expense of the rights of individuals.
(Copyright © Florida Law Review. All rights reserved. Merry E. Lindberg. 1978)
1 In approving the petition Judge Stump cited no statutory or common law basis for his decision. His order read:
"I, Harold D. Stump, Judge of DeKalb Circuit Court, do hereby approve the above petition by affidavit form on behalf of Ora Spitler McFarlin, to have Tubal Ligation performed 'upon her minor daughter, Linda Spitler, subject to said Ora Spitler McFarlin covenanting and agreeing to indemnify and keep indemnified Dr. John Hines and the DeKalb Memorial Hospital from any matters or causes of action arising therefrom."
Sparkman v. McFarlin, 552 F.2d 172, 174, n.1 (7th Cir. 1977).
2 In the petition captioned, "Petition to Have Tubal Ligation Performed on Minor and Indemnity Agreement," plaintiff's mother alleged that her daughter was "somewhat retarded" although the girl was in public school and was being passed along with others her age. 98 S.Ct. 1099, 1102, n.1 (1978). The petition also stated that Linda had been associating with young men, that she had stayed overnight with said young men, and that plaintiff's mother could not keep a constant watch over the girl. Id. The only reason cited in the petition for the tubal ligation was to "prevent unfortunate circumstances." Id.
3 Judge Stump issued the requested approval of the petition in an ex parte proceeding. No notice was given to Linda Sparkman, no hearing was held, and no guardian ad litem was appointed to represent Linda's interests. Further, neither the petition nor the order was ever filed in the DeKalb County Circuit Court. Sparkman v. McFarlin, 552 F.2d at 173. Because Linda was not notified nor informed of the nature of the operation that was to be performed on her, she had no opportunity to appeal from Judge Stump's decision or to contest her mother's allegations. Id. at 176.
4 Stump v. Sparkman, 98 S.Ct. at 1103.
5 In 1973, approximately two years after the operation, Linda Spitler married Leo Sparkman. When she was unable to have a child, Linda first learned from her doctor that she had been sterilized in 1971. Sparkman v. McFarlin, 552 F.2d at 173.
6 42 U.S.C. §1983 (1970) reads in part:
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."
7 Also named as defendants were Linda's mother, Ora Spitler McFarlin, the doctors who performed or assisted in the operation, the hospital where it was performed, and her mother's attorney, who had prepared the petition. The claims against these defendants were pendent state claims for assault and battery and malpractice and were attached to the claims brought in the federal district court against Judge Stump. 98 S.Ct. at 1103.
8 Plaintiff alleged that the defendants violated the following constitutional guarantees:
"1. that the actions were arbitrary and thus in violation of the due process clause of the Fourteenth Amendment;
2. that Linda was denied procedural safeguards required by the Fourteenth Amendment;
3. that the sterilization was permitted without promulgation of standards;
4. that the sterilization was an invasion of privacy;
5. that the sterilization violated Linda's right to procreate;
6. that the sterilization was cruel and unusual punishment;
7. that the use of sterilization as punishment for her alleged retardation or lack of self-discipline violated various constitutional guarantees;
8. that the defendants failed to follow certain Indiana statutes, thus depriving Linda of due process of law; and
9. that the defendants violated the equal protection clause, because of the differential treatment accorded Linda on account of her sex, marital status, and allegedly low mental capacity."
98 S. Ct. at 1103 n.2, citing Civil No. F75-129 (N.D. Ind. May 13, 1976).
9 Finding that Judge Stump had acted within his jurisdiction, the district court held that he was immune from suit and could not be "held liable under §1983. Id. The district court found that the only state action within the meaning of §1983 had been the approval of the petition by Judge Stump. Having dismissed the federal claim against the judge, the district court then dismissed the pendent state claims against the other defendants for want of subject matter jurisdiction. Id.
10 Sparkman v. McFarlin, 552 F.2d 172, 173 (7th Cir. 1977). The court stated that the general grant of jurisdiction to the circuit courts, while broad, did not cloak an Indiana circuit judge with blanket immunity. Id. at 174. "A claim must be characterized as a case in law or equity in order to come within the statute. In short, it must have a statutory or common law basis." Id. Examining Indiana statutory and common law, the court found no authority for Judge Stump's action. Id. Because-Judge Stump's action fell without the statutory grant of jurisdiction, he was not "clothed with absolute judicial immunity." Id. at 175. Moreover, even if Judge Stump had acted within his common law power, the Court stated that his action was an illegitimate exercise of that authority because of his failure to comply with principles of due process. Id. at 176.
11 98 S.Ct. 1099 (1978).
12 74 U.S. 523 (1868).
13 For the history of the doctrine of judicial immunity which developed out of the English feudal system, see generally Note, Remedies Against the United States and Its Officials, 70 HARV. L. Rev. 827 (1957). See also Kattan, Knocking on Wood: Some Thoughts on the Immunities of State Officials to Civil Rights Damages Actions, 30 VAND. L. Rv.941 (1977).
14 Randall v. Brigham, 74 U.S. at 535-36. The Court stated: "If faithless, if corrupt, if dishonest, if partial, if oppressive or arbitrary, ... "[judges] may be called to account by impeachment, and removed from office." Id. at 537. See generally Kattan, supra note 13, at 958-59.
15 80 U.S. 335 (1871). In Bradley, the defendant judge had ordered that plaintiff's name be stricken from the roll of attorneys practicing in the criminal court of the District of Columbia. Id. at 337. The plaintiff claimed that the defendant had acted maliciously and without jurisdiction. Id. The Court held that the defendant acted in excess of his jurisdiction by not affording plaintiff an opportunity for a hearing, but that he did have the general jurisdiction to admit or disbar attorneys to that court. Id. at 356-57. Therefore, he was not personally liable. Id.
16 In an opinion written by Mr. Justice Field, author of the Randall opinion, the Court held that the qualifying words "maliciously and corruptly" were not necessary to a correct statement of the law. The Court stated: "[judges of courts of superior or general jurisdiction... [were] not liable to civil actions for their judicial acts, even when such acts were alleged to have been done maliciously or corruptly." Id. at 351.
17 Id. at 347. "For it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself. Liability to answer to every one who might feel himself aggrieved by the action of the judge, would be inconsistent with the possession of this freedom, and would destroy that independence without which no judiciary can be either respectable or useful." Id. See also Note, supra note 13, at 855: "When a judge acts in good faith and with colorable jurisdiction, the availability of a defense to a subsequent action against him is easily rationalized as being essential to the proper administration of justice. A decision as to liability or jurisdiction may be influenced by considerations other than the merits of the case when made with the knowledge that, if found to be erroneous, it may expose the judge to an action for damages."
18 Pierson v. Ray, 386 U.S. 547, 554 (1967). See Bradley v. Fisher, 80 U.S. 335, 347 (1871). See also Kattan, supra note 13, at 958-61.
19 The term absolute immunity was used to mean that a judge's motives did not affect the application of immunity. Kattan, supra note 13, at 958-59. Similarly, with respect to legislators, improper motive and bad faith have no effect upon the invocation of immunity. Judge, Schirof & Bliss, Judicial Immunity Under the Civil Rights Act: Here Come the Judge's Defenses, 7 JOHN Mu. J. PRAC. & PROC. 213, 218 (1974). In contrast, the immunity granted to a prosecuting attorney was a narrower immunity in that his motives may affect the invocation of that immunity doctrine. Id. at 221. But cf. Rhodes v. Houston, 202 F. Supp. 624, 634 (D. Neb. 1962) (prosecuting officials were immune from suit even though it was alleged that their acts were done maliciously).
20 Pierson v. Ray, 386 U.S. 547, 554 (1967). The Court in Pierson stated: "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." Id. See also Kattan, supra note 13, at 959.
21 Pierson v. Ray, 386 U.S. 547 (1967). In Pierson, plaintiffs and others were involved in a "prayer pilgrimage" from New Orleans to Detroit. Id. at 552. Plaintiffs were members of a group of white and black Episcopal clergyman who attempted to use segregated facilities at an interstate bus terminal in Jackson, Mississippi. Id. at 549. They were arrested and brought to trial before defendant, Judge Spencer. The judge convicted plaintiffs under a Mississippi statute which made anyone who breached the peace guilty of a misdemeanor. Id. On appeal the case was dropped. Id. at 550. Subsequently, plaintiffs brought suit for damages in federal district court under section 1983 for false arrest and imprisonment. Id. at 548. The Supreme Court held that Judge Spencer was immune from liability for damages for his role in the convictions, finding no record that the Judge played any role in the arrest or convictions other than adjudging plaintiffs guilty. Id. at 553. The Court further held that the judicial immunity protecting Judge Spencer from liability was a defense even in an action under §1983. Id. at 554.
22 In Tenney v. Brandhove, 341 U.S. 567 (1951), the Court held that legislators were immune from liability for acts done or words spoken in a legislative proceeding. However, immunity applied only to acts done in the sphere of legitimate legislative activity. Id. at 376-77. The Court said they would not hesitate to sustain the rights of private individuals if they found that Congress had acted outside its legislative role. Id. at 377. Legislative immunity was founded upon the speech and debate clause, U.S. CONST. Art. I §6, d. 1, which made speech and debate in the legislative department privileged. Since legislative immunity was a well established doctrine, the Court held that Congress had not abolished that immunity by enacting §1983. Id.
23 386 U.S. 547, 554-55 (1967). See generally Judge, Schirof & Bliss, supra note 19, at 218. See also Note, Liability of Judicial Officers Under Section 1983, 79 YAx L. J. 322 (1969).
24 See, e.g., Ex parte Virginia, 100 U.S. 339 (1879), in which the Court held that a judge of a county circuit court in Virginia could be held liable under Section 1 of the Civil Rights Act of 1871 for the violation of the constitutional rights of blacks. The judge had been indicted in a federal district court for exclusion of and failure to select blacks as grand jurors. The Court held that the judge had acted outside of his authority and that therefore he could be punished for his disobedience under the Civil Rights Act. Id. at 548-49.
25 The distinction between excess and clear absence of jurisdiction depends upon the definition of jurisdiction. "Jurisdiction, for... [immunity] purpose[s], has been defined as the authority to act officially in the matter then in hand ... or as the power to hear and determine a cause." McGlasker v. Calton, 397 F. Supp. 525, 530 (M.D. Ala. 1975). In Bradley v. Fisher, 80 U.S. 335 (1871) and Randall v. Brigham, 74 U.S. 523 '(1868), the defendant judges were exercising their authority to admit, disbar, or discipline the members of the bar practicing in their courts. The Supreme Court held that the judges dearly had authority to act even though the course of action they chose was in excess of their jurisdiction. See generally McGlasker v. Calton, 397 F. Supp. 525 (M.D. Ala. 1975) (judge sentencing plaintiff to a term longer than provided by statute for contempt of court acted in excess of jurisdiction); MacKay v. Nesbett, 285 F. Supp. 498 (D. Alas. 1968) (in suit brought against the Supreme Court of Alaska, discipline of bar members found within that court's jurisdiction so that the Alaska court had authority to suspend plaintiff for one year). But cf. Ryan v. Scoggin, 245 F.2d 54 (10th Cir. 1957) (liberalizing the rule to the extent that it is "absence of any color" of jurisdiction which pierces immunity).
26 80 U.S. at 351. The Court stated: "A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject matter. Where there is no jurisdiction over the subject-matter any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible. But where jurisdiction over the subject-matter is invested by law in the judge, or in the court which he holds, the manner and extent in which the jurisdiction shall be exercised are generally as much questions for his determination as any other questions involved in the case, although upon the correctness of his determination in these particulars the validity of his judgments may depend." Id.
27 Bradley v. Fisher, 80 U.S. 335, 338 (1871). "Whether the act done by... [a judge] was judicial or not... '[was] to be determined by its character, and not by the character of [the] agent." Ex parte Virginia, 100 U.S. at 348.
28 In the most recent decision concerning the authority of courts to approve or order the sterilization of a child, the Supreme Court of Missouri held that jurisdiction to exercise the awesome power of denying to a human being the fundamental right to bear or beget a child may be conferred only by specific statutory authority. Ex rel. M.K.R., 515 S.W.2d 467, 471 (Mo. 1974). See Frazier v. Levi, 440 S.W.2d 393 (Eex. Ct. App. 1969); Holmes v. Powers, 439 S.W.2d 579 (Ky. 1968).
29 337 F. Supp. 671 (1971), aff'd on rehearing, 356 F. Supp. 380 (S.D. Ohio 1973). The facts in Wade are similar to those in the instant case. In Wade, the county child welfare board petitioned in Ohio probate court to order the sterilization of a "feeble minded" person. Id. at 673. Defendant Judge Gary ordered plaintiff's sterilization. Id. Defendant Gary relied on a general statutory grant of jurisdiction similar to that granted Judge Stump which stated: "The probate court shall have plenary power at law and in equity fully to dispose of any matter properly before the court, unless the power is expressly otherwise limited or denied by statute." Id. When plaintiff sought damages under §1983, the district court held that Judge Gary had no immunity and was liable for his action in ordering the sterilization. Id. at 674. The court stated that in the absence of a specific statutory grant of sterilization power, Judge Gary did not have jurisdiction; thus, the grant of general jurisdiction did not authorize Judge Gary's action. Id. The court held that because defendant Gary acted wholly without jurisdiction, he was not protected by the doctrine of judicial immunity. Id.
30 In Skinner v. Oklahoma, 316 U.S. 535 (1942), the Court held that a state statute which provided for the sterilization of habitual criminals was unconstitutional. In so doing the Court held that the right to procreate was a fundamental right: "Marriage and procreation are fundamental to the very existence and survival of the race." Id. at 541. The Court warned that the power to sterilize, if exercised, could have subtle, far-reaching and devasting effects. Id. Furthermore, the Court noted that an individual who was sterilized by operation of law would have been deprived forever of a basic liberty. Id. For a history of eugenics and sterilization statutes in the United States and the rise and fall of the eugenics movement, see generally Burgdorf, The Wicked Witch is Almost Dead: Buck v. Bell and the Sterilization of Handicapped Persons,50 TEMP. L. Q. 995, 1006-08 (1977).
31 337 F. Supp. at 673-74.
32 "However, not every action by a judge is in exercise of his judicial function. For example, it is not a judicial function for a judge to commit an intentional tort even though the tort occurs in the courthouse." Yates v. Hoffman, 209 F. Supp. 757, 759 (N.M. I11. 1962) (because it was not a judicial function for a magistrate to direct a police officer to arrest and take into custody a person not named in a warrant, the magistrate was not immune from suit). See Lynch v. Johnson, 420 F.2d 818 (6th Cir. 1970) (judge acting as presiding officer of a legislative and administrative body had not performed a judicial act when he ordered that a member of that body be forcibly removed from the meeting and jailed). Also, see note 27 supra.
33 500 F.2d 59 (9th Cir. 1974).
34 In Gregory, the defendant judge physically assaulted a non-lawyer who had refused to leave when the judge ordered him to leave the courtroom. The court stated: "The decision to personally evict someone from a courtroom by the use of physical force . . .[was] simply not an act of a judicial nature... Id. at 64. Therefore, the court concluded that the defendant was not entitled to automatic immunity. Id.
35 Id. See Pierson v. Ray, 386 US. 547, 554 (1967).
36 98 S. Ct. 1099, 1104 (1978).
37 Id. at 1105.
38 Id. IND. CODE §33-4-4-3 (1971) (amended 1975) provided in part: "Jurisdiction - Said court shall have original exclusive jurisdiction in all cases at law and in equity whatsoever.... It shall also have exclusive jurisdiction of the settlement of decedents' estates and of guardianships .... [I]t shall have such appellate jurisdiction as may be conferred by law, and it shall have jurisdiction of all other causes, matters and proceedings where exclusive jurisdiction thereof is not conferred by law upon some other court, board or officer."
39 98S. Ct. at 1105.
40 Mr. Justice White wrote for the majority: "But in our view, it is more significant that there was no Indiana statute and no case law in 1971 prohibiting a circuit court, a court of general jurisdiction, from considering a petition of the type presented to Judge Stump." Id.
41 The Court held that the Indiana statutes (IND. CODE §§16-13-13-1 through 16-13-13-4 (1971) (amended 1973) providing for the sterilization of certain institutionalized persons did not warrant the inference that all other judicial authority to approve sterilization was prohibited. The Court found no statute specifically prohibiting courts of general jurisdiction from approving petitions for tubal ligation. Id.
42 But cf. cases cited in note 28 supra and in note 62 infra.
43 98 S. Ct. at 1106.
44 "It is only for acts performed in his 'judicial' capacity that a judge is absolutely immune." Id.
45 See note 3 supra.
46 The Court cited two earlier decisions for the proposition that failure to comply with procedural requirements (such as entry of a petition on the docket or the ordering of a contempt citation outside of the courtroom) could not render a judge's action non-judicial. 98 S. Ct. at 1107, citing In re Summers, 325 U.S. 561 (1945); McAlester v. Brown, 469 F.2d 1280 (5th Cir. 1972).
47 Whether an act was judicial was determined by: "whether it... [was] a function normally performed by a judge." 98 S.Ct. at 1107.
48 The Court stated the test of the second factor as: "whether... [the parties] dealt with the judge in his official capacity." Id.
49 "State judges with general jurisdiction not infrequently are called upon in their official capacity to approve petitions relating to the affairs of minors, as for example, a petition to settle a minor's claim." Id. at 1108.
50 "We may infer from the record that it was only because Judge Stump served in that position that...[appellant's mother], on advice of counsel, submitted the petition to him for his approval." Id.
51 Id. "Despite the unfairness to litigants that sometimes results, the doctrine of judicial immunity is thought to be in the best interests of the proper administration of justice... [for it allows] a judicial officer, in exercising the authority vested in him to be free to act upon his own convictions, without apprehension of personal consequences to himself." Id.
52 Id. at 1108-09.
53 Id. (Stewart, J., dissenting, joined by Marshall and Powell, J.J.).
54 Id.
55 Id. at 1111.
56 Id., citing Pierson v. Ray, 383 U.S. 547, 554 (1967).
57 Mr. Justice Powell wrote a separate dissent emphasizing that the central feature of the case was that appellant was precluded from vindicating her rights elsewhere in the judicial system. 98 S.Ct. at 1111 (Powell, J., dissenting).
58 Id.
59 The court in In re Simpson, 180 N.E.2d 206 (Ohio Prob. 1962) held that an Ohio probate judge had the authority to order the sterilization of a young woman. However, the district court in Wade v. Bethesda Hosp., 357 F. Supp. 671 (S.D. Ohio 1971) held that the same judge had acted without jurisdiction and could be held civilly liable for the damages that resulted from his sterilization order. That he had previously ordered a person sterilized without liability was not controlling. Id. at 674.
60 See note 28 supra and accompanying text. See also Burgdorf, supra note 30, at 1023: "The overwhelming trend in judicial precedent has been to preclude parents, guardians, and courts from giving consent for the sterilization of mentally incompetent adults and from compelling the sterilization of minors in the absence of a state sterilization law."
61 98 S.Ct. at 1105-06.
62 In A.L. v. G.R.H., 325 N.E.2d 501 (Ind.App. 1975), cert. denied, 425 U.S. 936 (1976), the Indiana court of appeals held that a parent did not have the common law right to consent to the sterilization of his minor child. While the intervening decision in that case was not controlling in the instant case, it should be noted that the Indiana court cited as controlling precedent the very cases which the Supreme Court did not recognize as part of the common law of that state. For the cases cited by the Indiana court, see note 28 supra. See also Kemp v. Kemp, 43 Cal. App. 3d 758, 118 Cal. Rptr. 64 (1974).
63 See Wade v. Bethesda Hosp., 337 F. Supp. 671 (S.D. Ohio 1971). See generally Burgdorf, supra note 30, at 1022-23.
64 The Court stated: "that neither by statute [nor] case law [had] the broad jurisdiction granted to the circuit courts of Indiana been circumscribed to foreclose consideration of a petition for authorization of a minor's sterilization." 98 S. Ct. at 1105-06.
65 IND. CODE §16-8-4-2 (1971) (amended 1973).
66 In A.L. v. G.R.H., 325 N.E.2d, 501, 502 (Ind. Ct. App. 1975), the Indiana court of appeals held that sterilization did not involve any life saving necessities. Because it was not a necessary medical treatment, the court held that the parents of a minor did not have the authority to consent on behalf of the minor to her sterilization. Id.
67 The only reason for the sterilization given by appellant's mother was to avoid unfortunate circumstances. See note 2 supra. No medical reason for sterilization was given nor was any reason given for not employing a less drastic means of birth control.
68 See A.L. v. G.R.H., 325 N.E.2d, 501, 502 (Ind. Ct. App. 1975).
69 The significance of the substance of the petition was made clear when the question was posed: "Can a judge cut off arms and legs merely because the power to do so [was] not specifically denied him by the statute granting his jurisdiction?" Brief for Respondents at 6, Stump v. Sparkman, 98 S. Ct. 1099 (1978).
70 See note 30 supra.
71 98 S. Ct. at 1107.
72 Id. at 1110. See Ex parte Virginia, 100 U.S. 339, 348 (1879) (whether an act done by a judge was judicial is to be determined by the character of the act, not by the office held by the actor).
73 See Kattan, supra note 13, at 957: "The constitutional rights of individuals necessarily are balanced, as with all section 1983 immunities, against the deterrent effect of damage liability upon the effective performance of official functions." See generally Note, supra note 13, at 833-38.
74 One author described the Court of Appeals decision in Sparkman v. McFarlin, 552 F.2d 172 (7th Cir. 1977) as the paradigm of judicial liability. Kattan, supra note 13, at 960-63. Furthermore, the dissenters concluded that if intimidation would serve to deter the recurrence of such action by a judge, "that would be in the public interest." 98 S. Ct. at 1111. See generally Amicus Curiae Brief of the Nat'l Center for Law and the Handicapped at 42, Stump v. Sparkman, 98 S. Ct. 1099 (1978).
75 See generally Note, supra note 13, at 827-38. For an example of a legislator's liability for violating an individual's constitutional rights, see Davis v. Passman, 544 F.2d 865 (5th Cir. 1977) (a congressman was not entitled to immunity in a suit by a former member of his staff alleging sex discrimination).
Under the established doctrine of judicial immunity,1 a judge is absolutely immune from a suit for damages for his judicial acts taken within or even in excess of his jurisdiction.2 Judicial immunity is necessary for the proper administration of justice and for the advancement of various policies.3 The two policies most often proffered by courts and commentators are judicial independence4 and the need for finality in judicial proceedings.5 The public interest is substantially weakened if a judge allows fear of a suit to affect his decisions.6 In addition, if judicial matters are drawn into question by frivolous and vexatious actions "there never will be an end of causes: but controversies will be infinite.7
The leading modern case on the doctrine is Stump v. Sparkman,8 in which the Supreme Court held that a judge will remain absolutely immune from a damage suit if he acted within his jurisdiction, or even in "excess of his jurisdiction," but not in the "clear absence of all jurisdiction"9 and the act he performed was a "judicial act.""10
The importance and necessity of the judicial immunity doctrine is well established,11 but the extent to which the doctrine should shield judges from suits for damages is unclear.12 The definition of a judicial act for purposes of the second prong of the Stump test has caused confusion among the lower courts13 because of its broad and ambiguous nature.14 Indeed, there are both substantive problems in the test's interpretation and procedural problems in its application. The substantive issue is that Stump does not make clear whether certain executive, legislative, administrative, or ministerial acts taken by judges can be considered judicial acts.15 The procedural problem involves courts' incongruous application of the judicial act definition in a specific fact pattern: when a judge privately meets with a party prior to any judicial proceedings and agrees to rule in favor of that party.16 Although this conduct is a clear violation of section 1983 of the Civil Rights Act,17 these "private prior agreements" have been protected under the judicial immunity doctrine. Courts have reached this result by applying the judicial act definition to the subsequent judicial act, rather than to the specific private prior agreement.18
This Note focuses on the judicial act requirement for judicial immunity. Part I examines the controversial Stump decision and the broad nature of the judicial act definition. Part II discusses the substantive problems with the Stump definition and demonstrates how the definition should be read when addressing questionable judicial acts. Part III discusses the procedural problem connected with the judicial act definition and demonstrates how the definition should be applied when addressing a "private prior agreement." This Note concludes that only a more precise reading of the Stump definition will aid courts in analyzing challenged judicial acts and that because private prior agreements to rule in favor of one party are not judicial acts within the meaning of the Stump definition, the doctrine of judicial immunity should not apply to such cases.
(Fordham Law Review. Joseph Romagnoli)
1 See Pulliam v. Allen, 104 S. Ct. 1970, 1975 (1984); Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982); Stump v. Sparkman, 435 U.S. 349, 355 (1978); Pierson v. Ray, 386 U.S. 547, 553-54 (1967); Alzua v. Johnson, 231 U.S. 106, 111 (1913); Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347 (1872); Randall v. Brigham, 74 U.S. (7 Wall.) 523, 536 (1868). The doctrine has its origin in early English common law. See Bradley, 80 U.S. (13 Wall.) at 347; Randall, 74 U.S. (7 Wall.) at 534 & n., 536; Sirros v. Moore [1975] 1 Q.B. (C.A.) 118, 132, 137 (1974).
2 Stump v. Sparkman, 435 U.S. 349, 355-56 (1978) ("[J]udges of courts... are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction....") (quoting Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351 (1872)); see, e.g., Dykes v. Hosemann, 743 F.2d 1488, 1495 (11th Cir. 1984); Rheuark v. Shaw, 628 F.2d 297, 304 (5th Cir. 1980), cert denied, 450 U.S. 931 (1981); Gregory v. Thompson, 500 F.2d 59, 62 (9th Cir. 1974). Judicial immunity does not bar "prospective injunctive relief against a judicial officer acting in her judicial capacity," nor does it bar an award of attorney's fees under 42 U.S.C. § 1988. Pulliam v. Allen, 104 S. Ct. 1970, 1981, 1982 (1984).
3 See Stump v. Sparkman, 435 U.S. 349, 363 (1978) (quoting Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347 (1872)); Pierson v. Ray, 386 U.S. 547, 554 (1967); Randall v. Brigham, 74 U.S. (7 Wall.) 523, 536 (1868); Sirros v. Moore, [1975] 1 Q.B. (C.A.) 118, 132 (1974); see also Jennings, Tort Liability of Administrative Officers, 21 Minn. L. Rev. 263, 271-72 (1937) (nine policy reasons suggested for "so sweeping a rule" of absolute immunity); Sadler, Judicial and Quasi-Judicial Immunities. A Remedy Denied, 13 Melb. U.L. Rev. 508, 524 (1982) ("Firstly, and most fundamentally, it is said that the public interest requires an independent judiciary free from the fear of vexatious personal actions."); Note, Judicial Immunity and Judicial Misconduct: A Proposal for Limited Liability, 20 Ariz. L. Rev. 549, 579-88 (1978) (nine policy reasons advanced in favor of judicial immunity) [hereinafter cited as Judicial Misconduct]; Note, Developments in the Law--Remedies Against the United States and Its Officials, 70 Harv. L Rev. 827, 833 (1957) ("[A]vailability of a defense to a subsequent action against him is easily rationalized as being essential to the proper administration of justice.") [hereinafter cited as Remedies Against the United States].
4 See, e.g., Pulliam v. Allen, 104 S. Ct. 1970, 1976 (1984); Stump v. Sparkman, 435 U.S. 349, 369 (1978) (Powell, J., dissenting); Pierson v. Ray, 386 U.S. 547, 554 (1967); Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347 (1872); Jennings, supra note 3, at 271; Wilson, Judicial Immunity-To Be or Not To Be, 25 How. L.J. 809, 810 (1982); 11 Ind. L. Rev. 489, 499 (1978).
5 See, e.g., Pierson v. Ray, 386 U.S. 547, 564 n.4 (1967) (Douglas, J., dissenting); Harper v. Merckle, 638 F.2d 848, 856 n.10 (5th Cir. 1981), certdenied, 454 U.S. 816 (1981); Jennings, supra note 3, at 271-72 & n.34; Nagel, Judicial Immunity and Sovereignty, 6 Hastings Const. L.Q. 237, 265 (1978); Sadler, supra note 3, at 525; Judicial Misconduct, supra note 3, at 584; Remedies Against the United States, supra note 3, at 833.
6 See Pulliam v. Allen, 104 S. Ct. 1970, 1976 (1984) (quoting Scott v. Stansfield, 3 L.R.-Ex. 220, 223 (1868)); Pierson v. Ray, 386 U.S. 547, 554 (1967); Gregory v. Thompson, 500 F.2d 59, 63 (9th Cir. 1974); McAlester v. Brown, 469 F.2d 1280, 1283 (5th Cir. 1972); Brazier, Judicial Immunity and the Independence of the Judiciary, [1976] Pub. L. 397, 399; Jennings, supra note 3, at 271 & n.31; see also Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347 (1872) ("For it is a general principle of the highest importance to the proper administration of justice that a [judge], in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself."); Beard v. Udall, 648 F.2d 1264, 1269 n.5 (9th Cir. 1981) (per curiam) (underlying purpose of judicial immunity is principled and fearless decisionmaking); Rankin v. Howard, 633 F.2d 844, 847 (9th Cir. 1980) (same), cert. denied, 451 U.S. 939 (1981).
7 Floyd v. Barker, 12 Co. Rep. 23, 24, 77 Eng. Rep. 1305, 1306 (Star Chamber 1607); see Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 349 (1872) (mentioning the possibility of an endless cycle and the burden placed on judges compelled to answer in civil actions for their judicial acts); Brazier, supra note 6, at 399 ("The unacceptable spectre of a flood of groundless actions by persistent litigants is [a] powerful deterrent to subjecting judges to civil actions."); Kates, Immunity of State Judges Under the Federal Civil Rights Acts: Pierson v. Ray Reconsidered, 65 Nw. U.L. Rev. 615, 617-19 & n.10 (1970) (judicial immunity provides protection against "harassment of state judges" by institution of frivolous suits). But see Note, Liability of Judicial Officers Under Section 1983, 79 Yale L.J. 322, 334 n.63 (1969) (summary judgment appropriate in case of compulsive litigant) [hereinafter cited as Liability].
8 435 U.S. 349 (1978).
9 Id. at 356-57 (quoting Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351 (1872)).
10 435 U.S. at 360.
11 See supra note 4 and accompanying text.
12 Commentators have criticized absolute judicial immunity and have urged a qualified immunity in certain instances. See, e.g., Nagel, supra note 5, at 237-38, 268; Rosenberg, Stump v. Sparkman: The Doctrine of Judicial Impunity, 64 Va. L. Rev. 833, 833 (1978); Note, Immunity of Federal and State Judges from Civil Suit-Time for a Qualified Immunity?, 27 Case W. Res. L. Rev. 727, 727-29 (1977) [hereinafter cited as Immunity of Federal and State Judges]; Note, Judges-Immunities-Judicial Act and Jurisdiction Broadly Defined, 62 Marq. L. Rev. 112, 122-23 (1978) [hereinafter cited as Judicial Act and Jurisdiction]; 22 How. L.J. 129, 140-41 (1979).
13 Compare Dykes v. Hosemann, 743 F.2d 1488, 1495 (1 1th Cir. 1984) ("[E]ven advance agreements between a judge and other parties as to the outcome of a judicial proceeding do not pierce a judge's immunity from suits for damages.") and Scott v. Dixon, 720 F.2d 1542, 1546 (11th Cir. 1983) (if clerk were a judge absolute immunity would be assured despite assertion by appellant that defendant conspired or reached an understanding with the clerk about the issuance of a warrant), cert. denied, 105 S. Ct, 122 (1984) with Beard v. Udall, 648 F.2d 1264, 1270 (9th Cir. 1981) (per curiam) (proof of prior agreement between judge and prosecutor would preclude claim of immunity because the agreement is not a judicial act) and Rankin v. Howard, 633 F.2d 844, 847 (9th Cir. 1980) ("We conclude that a judge's private, prior agreement to decide in favor of one party is not a judicial act."), cert. denied, 451 U.S. 939 (1981).
14 See Nagel, supra note 5, at 241 ("[T]he scope of immunity is, in fact, broader for judges because the method of defining the judicial function has been less restrictive."); Judicial Misconduct, supra note 3, at 573-74 ("The approach taken by Justice White [in Stump] is too broad."); Judicial Act and Jurisdiction, supra note 12, at 112 ("[The Supreme Court put] forward a broad definition of judicial act.... ); Comment, Judicial Immunity: An Unqualified Sanction of Tyranny from the Bench?, 30 U. Fla. L. Rev. 810, 819 (1978) ("Clearly, the factors established by the Court for determining the judicial nature of an act are not viable.") [hereinafter cited as Judicial Immunity]
15 See infra notes 41-47 and accompanying text.
16 See infra notes 80-82 and accompanying text.
17 42 U.S.C. § 1983 (1982) protects every citizen from any violation of all rights, privileges, and immunities secured by the Constitution. See id. A judge's secret agreement to rule against a party, prior to any judicial proceeding, violates the right to a fair and impartial tribunal guaranteed by the due process clause of the Fourteenth Amendment. See U.S. Const. amend. XIV. See infra note 83 and accompanying text.
18 See infra notes 84-86 and accompanying text.
In Stump v. Sparkman,19 the Supreme Court for the first time established what constitutes a judicial act for purposes of judicial immunity.20 The Court developed a two-factor test for determining whether a judge's act is a "judicial" one.21 The first factor - whether the act was a function normally performed by a judge - relates to the "nature of the act itself."22 The second factor - whether the parties dealt with the judge in his judicial capacity - looks to the "expectations of the parties."23 In order to understand the broad nature of the Stump definition, it is necessary to examine the facts surrounding this controversial decision.
In Stump, a document containing a petition to have a tubal ligation performed on a minor was presented to Judge Stump by the minor's mother.24 She stated in the petition that her daughter was 15 years old and somewhat retarded, although the girl had attended public school and had been promoted with her class each year.25 The petition also stated that the minor had stayed out overnight on several occasions with youths and older men, and that as a result of this behavior and her low mentality a tubal ligation would be in the child's best interests and would prevent unfortunate circumstances from occurring.26 The judge approved and signed the petition in an ex parte proceeding without a hearing, and without notice to either the girl or to anyone on her behalf.27 The operation subsequently took place.
Two years later, and after her marriage, the girl discovered that she had been sterilized.28 She brought a section 1983 action for damages against the judge, claiming a deprivation of her constitutional rights.29
The Supreme Court in a five-to-three decision held that the judge was absolutely immune from damages under the doctrine of judicial immunity.30 The Court had no difficulty classifying the action as a judicial function: It stated that state judges are often called upon in their official capacity to approve petitions relating to the "affairs of minors," and that Judge Stump was "acting as a county circuit court judge."31
The normal judicial function factor of the definition was broadly applied by the majority: Approving a petition for a tubal ligation was equated with the routine approval of a petition relating to the affairs of a minor.32 Thus, the act in question need not be performed often or even at all in order to be considered a normal judicial function.33 Although less clearly developed in Stump, the second factor - dealing with the judge in his judicial capacity - was applied just as broadly. According to the Court, because the mother presented the sterilization petition to the judge and he signed it, the parties dealt with the judge in his judicial capacity.34 Under this reading, a judge's approval of a mother's petition to lock her daughter in the attic would be considered a judicial act merely because the mother had submitted her petition to the judge in his official capacity.35
Such a broad interpretation of "judicial act" demonstrates how far the Supreme Court is willing to go in upholding the doctrine of judicial immunity, even in the face of gross unfairness in the judicial process.36 Although Stump makes clear how paramount and unyielding the policies behind judicial immunity are, it explains neither the precise meaning of a judicial act, nor how to apply the majority's definition to a given act.
(Fordham Law Review. Joseph Romagnoli)
19 435 U.S. 349 (1978).
20 See id. at 360.
21 See id. at 362.
22 Id.
23 Id.
24 See id. at 351.
25 Id.
26 Id.
27 See id. at 360.
28 Id. at 353.
29 Id. at 353 & n.2.
30 See id. at 364.
31 Id. at 362.
32 See id. at 365-67 (Stewart, J., dissenting); see also Rosenberg, supra note 12, at 848 (Stump Court's broad application of judicial act test, and failure to formulate a "narrow [definition]... results in little, if any, protection against even the worst judicial excesses."); Judicial Misconduct, supra note 3, at 573 ("Nor do judges 'normally' approve a mother's request to have her daughter sterilized."); Judicial Act and Jurisdiction, supra note 12, at 118-19 ("[A]pproval of a parent's decision regarding medical treatment for a minor, is not a function normally performed by a judge."); Judicial Immunity, supra note 14, at 818 ("Court implied that a petition which would deprive a minor of a fundamental right was no different from a petition to settle a minor's claim.") (footnote omitted); 11 Ind. L. Rev. 489, 497 (1978) ("The Court did not contend that normal judicial functions include approval of petitions for sterilization but reasoned that consideration of a petition relating to the affairs of a minor is the type of action a judge is normally called upon to review in his official capacity.").
33 See Stump v. Sparkman, 435 U.S. 349, 362 n.11 (1978) ("Even if it is assumed that in a lifetime of judging, a judge has acted on only one petition of a particular kind, this would not indicate that his function in entertaining and acting on it is not the kind of function that a judge normally performs."); But see id. at 367 (Stewart, J., dissenting) (the act "was in no way an act 'normally performed by a judge.' Indeed, there is no reason to believe that such an act has ever been performed ..
34 See 435 U.S. at 362.
35 See id. at 367 (Stewart, J., dissenting).
36 See id. at 359 ("A judge is absolutely immune from liability for his judicial acts even if his exercise of authority is flawed by the commission of grave procedural errors."); Arsenaux v. Roberts, 726 F.2d 1022, 1023 (5th Cir. 1982) (same) (quoting Stump, 435 U.S. at 359); Beard v. Udall, 648 F.2d 1264, 1269 (9th Cir. 1981) (per curiam) ("The fact that a judge commits 'grave procedural errors' is not sufficient to deprive a judge of absolute immunity.") (quoting Stump, 435 U.S. at 359).
The first factor of the Stump test indicates that a judicial act is one normally performed by a judge, while the second factor requires that the parties deal with the judge in his judicial capacity.37 Only in the most obvious cases, however, will these factors present no problems. For instance, physical removal of, or assault on an individual during a judicial proceeding cannot be considered a normal act of a judge under any circumstances, even though the parties may be dealing with the judge in his judicial capacity.38 The doctrine of judicial immunity was not intended to protect this type of act.39 On the other hand, arraigning, convicting and sentencing are examples of acts that are integral parts of the judicial process and are clearly normal acts of a judge acting within his judicial capacity.40
The problems with this two-factor test41 develop when the act in question is not clearly a judicial function. A judge's act can be ministerial,42 administrative,43 executive,44 legislative,45 or purely judicial.46 As long as the particular act is considered a normal function, however, it will pass the first prong of the judicial act test.47 As a result, normal administrative and executive functions of a judicial officer have been protected under the doctrine of judicial immunity.48 Likewise, normal ministerial or legislative acts of a judicial officer might be considered to be judicial acts under Stump, and therefore protected by judicial immunity.49
The flaw in applying this prong of the Stump test in this manner is that a certain act performed by a judge in a given case may be a normal official function for that judge without being a judicial act.50 A judicial act requires the kind of discretion or judgment closely connected to the adjudication of controversies.51 The purpose behind the doctrine of judicial immunity is to assure independent judicial decisionmaking52 Ministerial acts, such as properly filing court papers,53 require no discretion or judgment.54 Thus, lack of immunity for such acts poses no threat to the decisionmaking process.55 Similarly, there is no threat to the independence of the judiciary if the doctrine is inapplicable to the performance of executive, administrative or legislative acts. Executive or administrative acts, such as evaluating and appointing judicial officers, or hiring and firing employees,56 require some discretion, but not discretion that bears on independent decisionmaking in the adjudication process.57 The same reasoning applies to legislative acts, such as the promulgation of disciplinary rules.58
The second factor - that the judge be dealt with in his judicial capacity - might be read as excluding these other acts that literally are not performed in any judicial capacity.59 Some courts, however, have granted judicial immunity for such nonjudicial acts as discharging a probation officer and appointing and supervising court reporters.60 This erroneous application results from the lack of a more precise definition of what constitutes a judicial act for purposes of judicial immunity.61
In order to protect the important policies behind judicial immunity, the Stump definition of judicial act must be read in light of Justice White's statement in the majority opinion: "Because Judge Stump performed the type of act normally performed only by judges and because he did so in his capacity as a Circuit Court Judge, we find no merit to respondents' argument that... his action [was] nonjudicial and deprived him of his absolute immunity."62
The first factor should therefore be read as meaning a function normally performed by judges only and not by administators or executives or legislators. A judge who hires city employees or sits on a county fiscal court with legislative powers only or evaluates candidates for judicial office may be performing a normal function, but it is not one normally performed only by a judge.63 Policy reasons favoring absolute immunity do not apply under these circumstances. Liability arising from these actions can hardly cause fear in the judicial decisionmaking process.64 Moreover, these actions do not stem from any case or controversy, and thus can have no effect on the finality of judicial proceedings.65
That the second factor - "judicial capacity" - is a narrower concept than "official capacity" is supported by Lynch v. Johnson,66 to which the Stump majority referred in addressing the second factor.67 The court noted in Lynch that although the defense of judicial immunity is very broad, "it does not afford any protection to a judge acting... in nonjudicial activities.68 Thus, the county judge could not invoke the doctrine of judicial immunity "because his service on a [county fiscal court] with only legislative and administrative powers did not constitute a judicial act."69 Although these actions may be official functions of the judge, they are not judicial acts warranting immunity.70 Under this factor it is important to look to the character of the act, not the character of the actor.71 Indeed, Stump states as the first factor the "nature of the act itself."72 Thus, if, for example, a court clerk exercises discretion in the course of a judicial proceeding, he may be able to invoke the doctrine of judicial immunity.73
In short, the doctrine of judicial immunity is meant to protect only judicial acts,74 which, by definition, are acts requiring judicial discretion.75 When a judge does not exercise judicial discretion,76 the policies supporting absolute immunity disappear.77 A ministerial act requires no discretion,78 and while administrative, legislative, or executive acts require varying degrees of discretion, it is not judicial discretion merely because the actor is a judge.79 Judicial immunity should therefore not be granted to such exercises of discretion.
(Fordham Law Review. Joseph Romagnoli)
37 See 435 U.S. at 362.
38 See Gregory v. Thompson, 500 F.2d 59, 65 (9th Cir. 1974) ("Judge Thompson's choice to perform an act similar to that normally performed by a sheriff or bailiff should not result in his receiving absolute immunity for this act simply because he was a judge at the time."); see also Ammons v. Baldwin, 705 F.2d 1445, 1448 (5th Cir. 1983) ("[Tihe threat of physical abuse is clearly not a normal judicial function."), cert. denied, 104 S. Ct. 999 (1984); Harris v. Harvey, 605 F.2d 330, 336 (7th Cir. 1979) (racial slander by judge not judicial under Stump), cert. denied, 445 U.S. 938 (1980).
39 The doctrine was intended to protect fearless decisionmaking in the judiciary, see infra note 52 and accompanying text, not physical assaults on individuals.
40 See Lopez v. Vanderwater, 620 F.2d 1229, 1234-35 (7th Cir.), cert. dismissed, 449 U.S. 1028 (1980); see also Thomas v. Sams, 734 F.2d 185, 189 (5th Cir. 1984) ("Sams's acts as magistrate, including issuing the warrant and setting bond, are judicial acts for which he is absolutely immune from liability."), cert. denied, 53 U.S.L.W. 3882 (U.S. June 4, 1985); Scott v. Hayes, 719 F.2d 1562, 1565 (11th Cir. 1983) ("The setting of conditions for property settlements in divorce cases is clearly a normal judicial function."); Birch v. Mazander, 678 F.2d 754, 756 (8th Cir. 1982) ("[A]cceptance of a plea and the appointment of counsel [are clearly] functions normally performed by a judge."); Watson v. Interstate Fire & Cas. Co., 611 F.2d 120, 122-23 (5th Cir. 1980) (issuing arrest warrant and conducting hearing are clear judicial functions); McAlester v. Brown, 469 F.2d 1280, 1282 (5th Cir. 1972) (contempt citations "[fall] squarely within the sheltered zone" of immunity); Nickels v. Meden, 517 F. Supp. 102, 104 (E.D. Mich. 1981) ("issuance of a bench warrant, finding the plaintiff in contempt of court, and having the plaintiff placed in custody" are all clear judicial acts).
41 Commentators have criticized the Stump definition of a judicial act because of its inherent vagueness. See, e.g., Block, Stump v. Sparkman and the History of Judicial Immunity, 1980 Duke L.J. 879, 920 ("Courts applying [Stump] have been misled by that decision's inadvertent redefinition of the concept of a judicial act."); Wilson, supra note 4, at 816 ("divergent opinions of... Supreme Court as to the definition of 'judicial act' illustrate the existing confusion as to the actual meaning of the term... ").
42 See Ex Parte Virginia, 100 U.S. 339, 348 (1879); Rheuark v. Shaw, 628 F.2d 297, 306 & n.16 (5th Cir. 1980), cert. denied, 450 U.S. 931 (1981); Clark v. Campbell, 514 F. Supp. 1300, 1302 (W.D. Ark. 1981).
43 See Supreme Court of Va. v. Consumers Union, 446 U.S. 719, 722 (1980); Rheuark v. Shaw, 628 F.2d 297, 301 & n.5 (5th Cir. 1980), cert. denied, 450 U.S. 931 (1981); Clark v. Campbell, 514 F. Supp. 1300, 1302 (W.D. Ark. 1981); see also Lynch v. Johnson, 420 F.2d 818, 820 (6th Cir. 1970) ("administrative" powers delegated to Kentucky County Fiscal Court); cf. Imbler v. Pachtman, 424 U.S. 409, 431 n.33 (1976) ("At some point, and with respect to some decisions, the prosecutor no doubt functions as an administrator rather than as an officer of the court.").
44 See Thomas v. Sams, 734 F.2d 185, 188, 189-90 (5th Cir. 1984), cert. denied, 53 U.S.L.W. 3882 (U.S. June 4, 1985); see also Crowe v. Lucas, 595 F.2d 985, 989-90 (5th Cir. 1979) ("Maintaining order at a Board of Aldermen's meeting is normally a function performed by an Alderman [in his executive capacity] rather than a Municipal Judge."); Clark v. Campbell, 514 F. Supp. 1300, 1302-03 (W.D. Ark. 1981) (hiring county employees is an executive duty under Arkansas law).
45 See Supreme Court of Va. v. Consumers Union, 446 U.S. 719, 731 (1980) ("[P]ropounding the [State Bar] Code was not an act of adjudication but one of rulemaking."); see also Rheuark v. Shaw, 628 F.2d 297, 304 n.12 (5th Cir. 1980) ("[W]e need not decide whether the members of the commissioners court enjoy absolute immunity... for their 'legislative acts.' "), cerL denied, 450 U.S. 931 (1981); Lynch v. Johnson, 420 F.2d 818, 820 (6th Cir. 1970) ("[T]he powers delegated to the Fiscal Court by the Kentucky Statutes appear to be... legislative... powers.").
46 See supra note 40 and accompanying text.
47 See, e.g., Sevier v. Turner, 742 F.2d 262, 272 (6th Cir. 1984); Scott v. Dixon, 720 F.2d 1542, 1547 (11th Cir. 1983), cert. denied, 105 S. Ct. 122 (1984); Scott v. Hayes, 719 F.2d 1562, 1564-65 (11th Cir. 1983); Arsenaux v. Roberts, 726 F.2d 1022, 1023 (5th Cir. 1982) (quoting Stump v. Sparkman, 435 U.S. 349, 362 (1978)); Birch v. Mazander, 678 F.2d 754, 756 (8th Cir. 1982); Beard v. Udall, 648 F.2d 1264, 1269 (9th Cir. 1981) (per curiam) (quoting Stump, 435 U.S. at 362); Lopez v. Vanderwater, 620 F.2d 1229, 1234-35 (7th Cir.), cert. dismissed, 449 U.S. 1028 (1980). See supra notes 37-40 and accompanying text.
48 See, e.g., Rheuark v. Shaw, 628 F.2d 297, 304-05 (5th Cir. 1980) (failure to appoint sufficient number of court reporters constituted judicial act under Stump), cert. denied, 450 U.S. 931 (1981); Slavin v. Curry, 574 F.2d 1256, 1263 (5th Cir.) ("supervision of court reporters" clear judicial act under Stump), modified on other grounds 583 F.2d 779 (5th Cir. 1978); Blackwell v. Cook, 570 F. Supp. 474, 477-79 (N.D. Ind. 1983) (termination of probation officer a judicial act under Stump).
49
That this result is less likely is evidenced by two Supreme Court cases, Ex Parte Virginia, 100 U.S. 339 (1879), and Supreme Court of Va. v. Consumers Union, 446 U.S. 719 (1980). In Ex Parte Virginia, the Court made a disinction between ministerial and judicial acts, and stated judges should not be protected for mere ministerial acts. See Ex Parte Virginia, 100 U.S. at 348. This Note, however, addresses ministerial acts in the context of judicial immunity for two reasons. First, Ex Parte Virginia dealt with the criminal liability of a judge, and not a suit for damages. See id. at 340. Second, Stump makes no reference to the Ex Parte Virginia distinction. See Stump, 435 U.S. at 362.
In Consumers Union, the Court stated that the promulgation of the Virginia Bar Code is a legislative act, and that the judicial officers were therefore not shielded under the doctrine of judicial immunity. See Consumers Union, 446 U.S. at 731. This Note, however, will address legislative acts of judicial officers in the context of judicial immunity for two reasons. First, the Court did not apply the Stump test to the act in question when addressing the judicial immunity doctrine, see Consumers Union, 446 U.S. at 731, and it is clear that Stump is still the "seminal" case on judicial immunity in damage suits. See Pulliam v. Allen, 104 S. Ct. 1970, 1978 & n.15 (1984). Second, the type of civil relief sought in Consumers Union was for declaratory and injunctive relief but not damages. Consumers Union, 446 U.S. at 726.
50 See Block, supra note 41, at 920-21; Wilson, supra note 4, at 809-10, 11 Ind. L Rev. 489, 498 (1978); cf. Harlow v. Fitzgerald, 457 U.S. 800, 810-11 (1982) (judges absolutely immune only when performing acts judicial in nature, but not for other official acts). See supra notes 42-46 and accompanying text.
51 See Supreme Court of Va. v. Consumers Union, 446 U.S. 719, 731 (1980) (judicial functions arise out of the adjudication of controversies); Richardson v. Koshiba, 693 F.2d 911, 914 (9th Cir. 1982) ("These [executive] functions bear little resemblance to the characteristic of the judicial process that gave rise to the recognition of absolute immunity for judicial officers: the adjudication of controversies between adversaries."); Perkins v. United States Fidelity & Guar. Co., 433 F.2d 1303, 1304-05 (5th Cir. 1970) (per curiam) (discretionary acts taken in the adjudication of a commitment hearing are judicial acts); Cronovich v. Dunn, 573 F. Supp. 1330, 1335-36 (E.D. Mich. 1983) (judicial act requires both the exercise of discretion and the normal elements of a judicial proceeding); Wilson, supra note 4, at 814-15; cf Butz v. Economou, 438 U.S. 478, 510-11 (1978) (prosecutor's discretionary functions intimately connected with judicial process deserve absolute immunity because of same policy reasons supporting judicial immunity); Imbler v. Pachtman, 424 U.S. 409, 430 (1976) (same).
52 See Pulliam v. Allen, 104 S. Ct. 1970, 1975-76 (1984); Pierson v. Ray, 386 U.S. 547, 554 (1967); Sparks v. Duval County Ranch Co., 604 F.2d. 976, 980 (5th Cir. 1979) (en banc), cert. denied, 445 U.S. 943, 449 U.S. 1021, afl'd on other grounds sub nom. Dennis v. Sparks, 449 U.S. 24 (1980); Gregory v. Thompson, 500 F.2d 59, 63 (9th Cir. 1974); Cronovich v. Dunn, 573 F. Supp. 1330, 1335 (E.D. Mich. 1983); see also McCray v. Maryland, 456 F.2d 1, 3-4 (4th Cir. 1972) (officials not exercising judicial discretion do not require protection of absolute judicial immunity for fear of "burdensome and vexatious litigation"); 11 Ind. L. Rev. 489, 499 ("The primary reason given for the existence of the judicial immunity doctrine is to preserve the integrity and independence of the judicial decision-making function.").
53 See McCray v. Maryland, 456 F.2d 1, 4 (4th Cir. 1972).
54 See, e.g., Scott v. Dixon, 720 F.2d 1542, 1546 (11th Cir. 1983), cert. denied, 105 S. Ct. 122 (1984); Perkins v. United States Fidelity & Guar. Co., 433 F.2d 1303, 1305 (5th Cir. 1970) (per curiam); 11 Ind. L. Rev. 489, 498-99 (1978). The pronouncement or rendition of a judgment, for example, is a judicial act, while the entry thereof is merely ministerial. See Peoples Elec. Co-op. v. Broughton, 191 Okla. 229, 232, 127 P.2d 850, 853 (1942); Abernathy v. Huston, Co., 166 Okla. 184, 188, 26 P.2d 939, 944 (1933); Coleman v. Zapp, 105 Tex. 491, 494, 151 S.W. 1040, 1041 (1912).
55 See Scott v. Dixon, 720 F.2d 1542, 1546 (11th Cir. 1983) (Because judicial immunity ensures fearless exercise of judicial discretion, "[t]he question which must be answered with regard to the extension of absolute judicial immunity... is whether the act • . . is discretionary or ministerial in nature."), cert. denied, 105 S. Ct. 122 (1984); Cronovich v. Dunn, 573 F. Supp. 1330, 1336 (E.D. Mich. 1983) ("There is no immunity when a judge acts in a ministerial phase."); Lewis v. Blackburn, 555 F. Supp. 713, 723 (W.D.N.C. 1983) ("There is no judicial immunity in the performance of ministerial duties."), aff'd, 734 F.2d 1000 (4th Cir. 1984); 11 Ind. L. Rev. 489, 499 (1978) ("Since the ministerial/judicial distinction attempts to separate acts that involve the exercise of judgment from those that allow the judge no discretion, it serves to bring the scope of protection into closer harmony with its purpose.").
56 See, e.g., Richardson v. Koshiba, 693 F.2d 911, 914 (9th Cir. 1982) (evaluation and appointment of judicial officers is an executive function); Lewis v. Blackburn, 555 F. Supp. 713, 723 (W.D.N.C. 1983) (appointing magistrates constitutes ministerial as opposed to judicial act), affid, 734 F.2d 1000 (4th Cir. 1984); Clark v. Campbell, 514 F. Supp. 1300, 1302 (W.D. Ark. 1981) (hiring and firing county employees are purely administrative and ministerial acts). It is not relevant that these lower courts may disagree on whether various appointment duties are either executive, administrative or even ministerial, because both the courts and commentators agree that these actions are not judicial. See Richardson v. Koshiba, 693 F.2d 911, 914 (9th Cir. 1982); Lewis v. Blackburn, 555 F. Supp. 713, 723 (.D.N.C. 1983), aff'd, 734 F.2d 1000 (4th Cir. 1984); Clark v. Campbell, 514 F. Supp. 1300, 1302-03 (,.D. Ark. 1981); Block, supra note 41, at 917-18; Wilson, supra note 4, at 815.
57 See Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976); Richardson v. Koshiba, 693 F.2d 911, 914 (9th Cir. 1982); McCray v. Maryland, 456 F.2d 1, 3-4 (4th Cir. 1972); Cronovich v. Dunn, 573 F. Supp. 1330, 1335 (E.D. Mich. 1983); Doe v. County of Lake, 399 F. Supp. 553, 556 (N.D. Ind. 1975); Wilson, supra note 4, at 814-15.
58 The Supreme Court has stated that the Virginia Court in propounding the State Bar Code acted in a rulemaking, not an adjudicatory, capacity; judicial immunity was therefore irrelevant. See Supreme Court of Va. v. Consumers Union, 446 U.S. 719, 731 (1980). Thus, legislative acts cannot be protected under the doctrine of judicial immunity. See id.; Lynch v. Johnson, 420 F.2d 818, 820 (6th Cir. 1970).
59 See supra notes 52-58 and accompanying text. Although these acts may be official acts, they must be distinguished from judicial acts. See Cronovich v. Dunn, 573 F. Supp. 1330, 1336 (E.D. Mich. 1983) (an "official" function of a judge may be executive, legislative or judicial in nature); Block, supra note 200, at 920-21 (Stump Court disregards need to distinguish judicial acts from administrative or legislative acts; the broad judicial act definition equates judicial capacity with official capacity).
60 See supra note 48 and accompanying text.
61 See supra note 41. To examine diverging results under the Stump judicial act definition, compare supra note 48 and accompanying text with supra note 56 and accompanying text. One explanation for these inconsistencies is that the "appointment" of court reporters, clearly an administrative act, is equated with the "supervision" of court reporters. See Rheuark v. Shaw, 628 F.2d 297, 304-05 (5th Cir. 1980) (judge immune for failure to appoint sufficient number of court reporters) (citing Slavin v. Curry, 574 F.2d 1256, 1263-64 (5th Cir.) (supervision of court reporters clear judicial function), modified on other grounds, 583 F.2d 779 (5th Cir. 1978)), cerL denied, 450 U.S. 931 (1981). Although both actions are administrative in nature, the supervision of court reporters has a stronger connection with the judicial function. A judge can order the reporter to prepare a statement of facts for a case, see Rheuark, 628 F.2d at 305, or order him to alter or change a transcript, see Slavin, 574 F.2d at 1263-64, thus playing a role in the adjudicative process.
62 Stump v. Sparkman, 435 U.S. 349, 362-63 (1978) (emphasis added).
63 See, e.g., Richardson v. Koshiba, 693 F.2d 911, 914 (9th Cir. 1982) (candidate evaluation not judicial in nature); Lynch v. Johnson, 420 F.2d 818, 820 (6th Cir. 1970) (fiscal court with only legislative and administrative duties not judicial in nature); Clark v. Campbell, 514 F. Supp. 1300, 1302-03 (W.D. Ark. 1981) ("hiring and firing" of employees by county judge administrative rather than judicial act); see also Lewis v. Blackburn, 555 F. Supp. 713, 723 (W.D.N.C. 1983) ("Appointment... is a power to select that... is vested variously in governors, district bar organizations, judges, local governing boards, local officials, and the electorate.") (emphasis in original), affd, 734 F.2d 1000 (4th Cir. 1984).
64 See supra notes 51-58 and accompanying text.
65 See supra notes 5, 7 and accompanying text.
66 420 F.2d 818 (6th Cir. 1970).
67 See Stump v. Sparkman, 435 U.S. 349, 361 n.10 (1978).
68 Lynch v. Johnson, 420 F.2d 818, 820 (6th Cir. 1970).
69 Stump v. Sparkman, 435 U.S. 349, 361 n.10 (1978).
70 See Block, supra note 41, at 920-21 (Stump Court disregards need to distinguish judicial acts from administrative or legislative acts; broad judicial act definition equates judicial capacity with official capacity). In McAlester v. Brown, 469 F.2d 1280 (5th Cir. 1972), the Fifth Circuit applied four factors to analyze the judicial act in question. See id. at 1282. The fourth factor states that "the confrontation arose directly and immediately out of a visit to the judge in his official capacity." Id. The Stump Court created the judicial/official confusion by using the words "official capacity" when applying the first factor of the judicial act definition. See Stump, 435 U.S. at 362 ("State judges with general jurisdiction not infrequently are called upon in their official capacity to approve petitions relating to the affairs of minors... .") (emphasis added). Adding to the confusion over the nature of a judicial act, some courts have reverted back to the McAlester fourpart test instead of applying the Stump two-prong test. See, e.g., Thomas v. Sams, 734 F.2d 185, 189 (5th Cir. 1984), cert. denied, 53 U.S.L.W. 3882 (U.S. June 4, 1985); Ammons v. Baldwin, 705 F.2d 1445, 1447 (5th Cir. 1983), cert denied, 104 S. Ct. 999 (1984); Brewer v. Blackwell, 692 F.2d 387, 396-97 (5th Cir. 1982).
71 See Ex Parte Virginia, 100 U.S. 339, 348 (1879); Lewis v. Blackburn, 555 F. Supp. 713, 723 (W.D.N.C. 1983), afid, 734 F.2d 1000 (4th Cir. 1984); Clark v. Campbell, 514 F. Supp. 1300, 1302 (W.D. Ark. 1981); Doe v. County of Lake, 399 F. Supp. 553, 556 (N.D. Ind. 1975).
72 Stump, 435 U.S. at 362.
73 See Scott v. Dixon, 720 F.2d 1542, 1546 (11th Cir. 1983) ('The question which must be answered with regard to the extension of absolute judicial immunity... is whether the act performed by the [clerk] is discretionary or ministerial in nature."), cert. denied, 105 S. CL 122 (1984); McCray v. State, 456 F.2d 1, 4 (4th Cir. 1972) (court clerk act of filing papers mere ministerial act and thus no absolute judicial immunity); Gutierrez v. Vergari, 499 F. Supp. 1040, 1047 n.5 (S.D.N.Y. 1980) (no absolute judicial immunity for court clerk's ministerial duties). Court clerks are also immune from damages, however, for actions they are specifically required to do under court order or at judges' discretion. See Tarter v. Hury, 646 F.2d 1010, 1013 (5th Cir. 1981) (absolute judicial immunity for court clerks following direct court order or specific command of judge); Williams v. Wood, 612 F.2d 982, 985 (5th Cir. 1980) (per curiam) ("A clerk 'may receive immunity in his own right for the performance of a discretionary act or he may be covered by the immunity afforded the judge because he is performing a ministerial function at the direction of the judge.' ") (quoting Waits v. McGowan, 516 F.2d 203, 206 (3rd Cir. 1975)). Thus, if a judge orders a clerk to perform a ministerial task that causes injury to an individual, immunity may result for both the judge and the clerk in jurisdictions that interpret the supervision of court reporters as a judicial act. See Tarter v. Hury, 646 F.2d 1010, 1013 (5th Cir. 1981) (absolute judicial immunity for clerks following direct court order or specific command of judge); Blackwell v. Cook, 570 F. Supp. 474, 478-79 (N.D. Ind. 1983) (supervision of court clerks or reporters judicial function) (citing Rheuark v. Shaw, 628 F.2d 297, 305 (5th Cir. 1980), cert denied, 450 U.S. 931 (1981)).
74 See Stump v. Sparkman, 435 U.S. 349, 365 (1978) (Stewart, J., dissenting) (citing Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347, 348, 349, 351, 354, 357 (1872)); Brewer v. Blackwell, 692 F.2d 387, 396 (5th Cir. 1982); Harper v. Merckle, 638 F.2d 848, 859 (5th Cir.), cert. denied, 454 U.S. 816 (1981); Rheuark v. Shaw, 628 F.2d 297, 304-05 (5th Cir. 1980), cert denied, 450 U.S. 931 (1981); Lopez v. Vanderwater, 620 F.2d 1229, 1234-35 (7th Cir.), cert. dismissed, 449 U.S. 1028 (1980).
75 See supra note 50 and accompanying text.
76 See supra note 50 and accompanying text.
77 See supra notes 3-7 and accompanying text.
78 See supra note 53 and accompanying text.
79 See supra notes 54-57 and accompanying text.
Even when the Stump definition of judicial act is not being interpreted too broadly because of its inherent structural problems, it is being applied incorrectly.80 This misapplication takes place in cases involving a "private prior agreement," which involves a judge privately agreeing, prior to the judicial proceeding, to rule in favor of a party on a particular matter.81 Courts disagree over whether the specific private prior agreement by the judge can be considered to be a judicial act within the meaning of the Stump definition.82
A private prior agreement to rule in favor of a party is a violation of section 1983 of the Civil Rights Act, which prohibits "the deprivation of any rights, privileges, or immunities secured by the Constitution," and holds liable any person in violation thereof.83 Nevertheless, the Eleventh Circuit has applied the doctrine of judicial immunity to hold a judge to be absolutely immune from suit under section 1983.84 The court did not apply the Stump two-factor test to the illegal agreement,85 but instead implicitly applied the test to the subsequent ruling by the judge in the judicial proceeding.86
If the Stump definition is properly applied to the private prior agreement, it will fail the test convincingly.87 Such an act cannot be considered a normal function of a judge even under the most expansive reading of the first factor.88 An illegal agreement by a corrupt judge prior to any judicial proceedings does not resemble anything close to a normal judicial function.89 Moreover, some courts hold that a judge who acts with any personal prejudice or economic interest in a case is not acting judicially, and should be held liable for any resulting damages.90
Thus, the true issue underlying the faulty procedural application of Stump is whether a private prior agreement - a clear nonjudicial act - can be separated from the ruling itself - a clear judicial function. Some courts contend that if a judicial officer commits both judicial and nonjudicial acts, he can be held liable for those damages caused by his nonjudicial conduct.91 Therefore, application of the judicial act definition must focus on the act that is deemed to be the proximate cause of any deprivation of federally protected rights.92 In a private prior agreement, the act is a judge's secret conspiracy with a party prior to any judicial proceeding.93 The Stump test requires the court to determine immunity by looking at the act, not its end result, the proceeding.94
The strongest reasons for not separating the two acts, and thus for the faulty procedural application of Stump, lie in the policies behind judicial immunity.95 An argument has been made that to hold judges liable for damages in such cases will encourage suits against judges,96 which may deter qualified candidates from seeking judicial office.97 Furthermore, judges could be haled into court and questioned about their actions, based only on conclusory allegations of prior agreements and conspiracies.98 Such frivolous claims conflict with the important policies underlying judicial immunity: judicial independence and finality.99
These policies, however, must be balanced against the fundamental policy of providing an adequate remedy to a wrongfully injured party.100 Furthermore, firm application of the summary judgment rule of Federal Rule of Civil Procedure 56101 would require the prior agreements to be supported by allegations of fact, thus substantially reducing the number of frivolous suits.102 In addition, holding corrupt judges liable for damages is likely to deter similar lawless conduct and thus uphold judicial integrity,103 which might encourage qualified judicial candidates.104 Thus, the arguments against separating the private prior agreement from the decision are not persuasive.
Finally, there is analagous authority to support the separation of the private prior agreement from the actual decision. A legislator who receives a bribe in exchange for his vote can be criminally prosecuted for the bribe alone without any inquiry into the legislative act itself, which is protected by legislative immunity.105 The notion is that although the illegal bribe and the actual vote are closely connected, the bribe undermines the integrity of the legislative process.106
Similarly, a prior private agreement undermines the integrity of the judiciary.107 The act of ruling in favor of one party is obviously closely connected with the prior agreement or conspiracy to do so. The private prior agreement does not pass muster under the Stump judicial act definition, however, and therefore the doctrine of judicial immunity should not apply.108 This illegal conduct necessarily erodes the integrity and proper administration of the justice system. Thus, there are compelling reasons to hold a corrupt judge liable in damages for harm he causes an individual. If the doctrine of judicial immunity is misapplied in such cases, improper and unethical acts will be treated like proper judicial acts and will therefore become part of our judicial system.
(Fordham Law Review. Joseph Romagnoli)
80 The Stump judicial act definition has received substantial criticism from commentators. See, e.g., Judicial Immunity, supra note 14, at 819 (Stump factors criticized); Judicial Misconduct, supra note 3, at 575 (Court's broad definition of judicial act empowers judges to impose "extreme and irreversible remedies"); Judicial Act and Jurisdiction, supra note 12, at 119-20 (broad and generous judicial act definition offers no clear guides to its application); 22 How. L.J. 129, 141 (1979) ("Stump will undoubtedly result in very serious and unfortunate consequences").
81 See Dykes v. Hosemann, 743 F.2d 1488, 1494-95 (11 th Cir. 1984); Beard v. Udall, 648 F.2d 1264, 1269 & n.6 (9th Cir. 1981) (per curiam); Rankin v. Howard, 633 F.2d 844, 847 (9th Cir. 1980), cert. denied, 451 U.S. 939 (1981); see also Scott v. Dixon, 720 F.2d 1542, 1546-47 (11th Cir. 1983) (court clerk performing judicial function reached agreement with a party to issue a criminal arrest warrant), cert. denied, 105 S. Ct. 122 (1984).
82 Compare Dykes v. Hosemann, 743 F.2d 1488, 1495 (11th Cir. 1984) ("[W]e... hold that even advance agreements between a judge and other parties as to the outcome of a judicial proceeding do not pierce a judge's immunity from suits for damages.") with Beard v. Udall, 648 F.2d 1264, 1269 (9th Cir. 1981) (per curiam) (a private prior agreement to rule in favor of one party not a judicial act) and Rankin v. Howard, 633 F.2d 844, 847 (9th Cir. 1980) (same), cert. denied, 451 U.S. 939 (1981).
83 42 U.S.C. § 1983 (1982). Section 1983 provides in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.... Id.
Although § 1983 uses the sweeping language of "every person," the settled common law doctrine of judicial immunity was not abolished. Pierson v. Ray, 386 U.S. 547, 554-55 (1967); see Pulliam v. Allen, 104 S. Ct. 1970, 1974 (1984) ("[C]ommon-law principles of...judicial immunity [are] incorporated into our judicial system and... should not be abrogated absent clear legislative intent to do so.") (citing Pierson, 386 U.S. at 554-55); Stump v. Sparkman, 435 U.S. 349, 356 (1978) ("[The] doctrine of judicial immunity [is] applicable in suits under § I of the Civil Rights Act of 1871, 42 U.S.C. § 1983, for the legislative record [gives] no indication that Congress intended to abolish this long-established principle."); Gregory v. Thompson, 500 F.2d 59, 62 (9th Cir. 1974) ("A seemingly impregnable fortress in American Jurisprudence is the absolute immunity of judges from civil liability for acts done by them within their judicial jurisdiction.").
84 See Dykes v. Hosemann, 743 F.2d 1488, 1495 (11 th Cir. 1984).
85 See id. at 1494-95.
86
The Dykes court followed the reasoning of Scott v. Dixon, 720 F.2d 1542 (11th Cir. 1983), cert denied, 105 S. Ct. 122 (1984) and Harper v. Merckle, 638 F.2d 848 (5th Cir.), cert denied, 454 U.S. 816 (1981). See Dykes, 743 F.2d at 1495. In Scott, it was asserted that a court clerk reached an agreement with the defendant to issue a warrant for plaintiff's arrest. See Scott, 720 F.2d at 1544. The court clerk issued the arrest warrant to enable the defendant to collect a debt, and was found to be immune under the doctrine of judicial immunity. See id. at 1547. The court stated that "[i]f [the clerk] were a judge, his absolute immunity would be assured despite the assertion... that [the defendant] and [the clerk] reached an understanding about the issuance of a warrant to be used [to collect a debt]." Id. at 1546. The Scott court, however, applied the Stump test not to the prior understanding, but to the issuance of a warrant, a clear judicial act. See id. at 1547.
In Harper, the court noted in dictum "that even a judge who is approached as a judge by a party for the purpose of conspiring to violate § 1983 is properly immune from a damage suit." Harper, 638 F.2d at 856 n.9. The Harper court relied on Dennis v. Sparks, 449 U.S. 24 (1980), see Harper, 638 F.2d at 856 n.9, in which a judge issued an illegal injunction resulting from a conspiracy with a private party. See Dennis, 449 U.S. at 26. The Supreme Court in Dennis granted certiorari on the issue of derivative immunity, see 445 U.S. 942 (1980), but denied certiorari on the issue of judicial immunity, see id. at 943. The Court stated in dictum, "[t]he courts below concluded that the judicial immunity doctrine required dismissal of the § 1983 action against the judge who issued the challenged injunction, and as the case comes to us, the judge has been properly dismissed from the suit on immunity grounds." Dennis, 449 U.S. at 27.
The Court's dictum in Dennis, however, resembles the faulty reasoning of the Scott court, because the Court only addressed the judicial act of issuing the illegal injunction, but not any prior understanding to commit the act. Id. Moreover, the facts of the case are distinguishable from a private prior agreement pattern because the alleged conspiracy in Dennis to rule in favor of one party took place after the judicial proceeding had already begun. See Sparks v. Duval County Ranch Co., 588 F.2d 124, 125 (5th Cir.) ("Under the alleged conspiracy, [defendant] bestowed financial favors upon [the judge], who in return would rule as [defendant] directed in cases before his court.") (emphasis added), modified on other grounds, 604 F.2d 976 (5th Cir. 1979) (en banc), cert denied, 445 U.S. 943, 449 U.S. 1021, aff'd on other grounds sub nom. Dennis v. Sparks, 449 U.S. 24 (1980).
87 See Beard v. Udall, 648 F.2d 1264, 1269 (9th Cir. 1981) (per curiam); Rankin v. Howard, 633 F.2d 844, 847-49 (9th Cir. 1980), cert. denied, 451 U.S. 939 (1981); see also Arsenaux v. Roberts, 726 F.2d 1022, 1023-24 (5th Cir. 1982) (because no material issues of fact raised as to an improper prior agreement, judge immune under Stump test).
88 Although the Stump Court applied the first factor very broadly, see supra note 32 and accompanying text, it did at least apply the test to the "type of act normally performed only by judges," see Stump, 435 U.S. at 362. A private prior agreement, no matter how broadly interpreted, is still an illegal act that takes place before the judicial process ever begins. See supra note 81 and accompanying text.
89 The court in Rankin v. Howard, 633 F.2d 844 (9th Cir. 1980), cert. denied, 451 U.S. 939 (1981), called the act "the antithesis of the 'principled and fearless decisionmaking' that judicial immunity exists to protect." Id. at 847 (quoting Pierson v. Ray, 386 U.S. 547, 554 (1967)). See supra note 40 and accompanying text for normal judicial functions.
90 See, e.g., Brewer v. Blackwell, 692 F.2d 387, 397 (5th Cir. 1982) (judge vindicating personal objectives not acting judicially); Birch v. Mazander, 678 F.2d 754, 756 (8th Cir. 1982) (no indication that judge had any "personal involvement" with appellant to deprive him of his immunity); Harper v. Merckle, 638 F.2d 848, 859 (5th Cir.) ("[W]hen... a judge has acted out of personal motivation and has used his judicial office as an offensive weapon to vindicate personal objectives,... then the judge's actions do not amount to 'judicial acts.' "), cert. denied, 454 U.S. 816 (1981); Harris v. Harvey, 605 F.2d 330, 336 (7th Cir. 1979) (judge could be held liable for nonjudicial "racially motivated" critical communications to the press), cert. denied, 445 U.S. 938 (1980); Zarcone v. Perry, 572 F.2d 52, 53-54 (2d Cir. 1978) (judge's outrageous conduct causing coffee vendor to be handcuffed, humiliated and treated for medical care because of judge's distaste of coffee resulted in punitive as well as compensatory damages).
91 See, e.g., Sevier v. Turner, 742 F.2d 262, 272 n.9 (6th Cir. 1984); Brewer v. Blackwell, 692 F.2d 387, 396 (5th Cir. 1982); Lopez v. Vanderwater, 620 F.2d 1229, 1235 (7th Cir.), cert. dismissed, 449 U.S. 1028 (1980). But see Dykes v. Hosemann, 743 F.2d 1488, 1501-02 n.1 (11th Cir. 1984) (Hill, J., dissenting) ("It is improper and overly formalistic to separate a judge's prior agreement to decide in favor of one party from the specific act of ruling on the case itself... because that separates the rationale behind the decision from the decision itself.").
92 See Beard v. Udall, 648 F.2d 1264, 1269 (9th Cir. 1981) (per curiam); Rankin v. Howard, 633 F.2d 844, 847-48 & n.9 (9th Cir. 1980), cert. denied, 450 U.S. 931 (1981).
93 See supra note 81 and accompanying text.
94 See Stump, 435 U.S. at 362. Indeed, the Stump Court looked at the petition to determine if a judicial act was performed; it did not look to the end result of the petition, the tubal ligation. See id.
95 See supra notes 3-7 and accompanying text.
96 See Dykes v. Hosemann, 743 F.2d 1488, 1501-02 (11th Cir. 1984) (Hill, J., dissenting); see also Brazier, supra note 6, at 399 ("The unacceptable spectre of a flood of groundless actions by persistent litigants is [a] powerful deterrent to subjecting judges to civil actions."); Kates, supra note 7, at 617-19 & n.10 (judicial immunity protects against the "harassment of state judges" by frivolous suits).
97 Although preventing the deterrence of qualified candidates has been advanced as a policy for granting judicial immunity, see Feldthusen, Judicial Immunity: In Search of an Appropriate Limiting Formula, 29 U.N.B. L.J. 73, 77 (1980); Jennings, supra note 3, at 271; Judicial Act and Jurisdiction, supra note 12, at 116 n.21, it has also been criticized as unfounded, because other professions subject practitioners to broader liability than judges, and this has not prevented people of integrity and honesty from pursuing such careers, see Sadler, supra note 3, at 528; Judicial Misconduct, supra note 3, at 581-82.
98 See Dykes v. Hosemann, 743 F.2d 1488, 1502 (11th Cir. 1984) (Hill, J., dissenting). But see Sparks v. Duval County Ranch Co., 604 F.2d 976, 978 (5th Cir. 1979) (en banc) ("[Mere conclusory allegations of conspiracy cannot, absent reference to material facts, survive a motion to dismiss. ), cert denied, 445 U.S. 943, 449 U.S. 1021, affd on other grounds sub nom. Dennis v. Sparks, 449 U.S. 24 (1980).
99 See Elliott v. Perez, 751 F.2d 1472, 1478-79 (5th Cir. 1985) (broad, indefinite, conclusory complaints lay groundwork for disruption of judge's duties and frustration of policies underlying judicial immunity). See supra notes 4-7 and accompanying text.
100 See Gregory v. Thompson, 500 F.2d 59, 63-64 & n.4 (9th Cir. 1974); Feldthusen, supra note 97, at 106-07; Sadler, supra note 3, at 525-26; Judicial Immunity, supra note 14, at 819; Immunity of Federal and State Judges, supra note 12, at 741 & n.88.
101 Fed. R. Civ. P. 56.
102 See Butz v. Economou, 438 U.S. 478, 508 (1978); Arsenaux v. Roberts, 726 F.2d 1022, 1023-24 (5th Cir. 1982); Beard v. Udall, 648 F.2d 1264, 1269-70 (9th Cir. 1981) (per curiam); Rosenberg, supra note 12, at 846 n.61; Liability, supra note 7, at 330, see also Harlow v. Fitzgerald, 457 U.S. 800, 819 & n.35 (1982) (reiterating admonition in Butz v. Economou, 438 U.S. 478, 508 (1978), against insubstantial suits against public officials enjoying qualified immunity; such cases should be disposed of by summary judgment motion).
103 See Rosenberg, supra note 12, at 836; Judicial Immunity, supra note 14, at 819 & n.74; Judicial Misconduct, supra note 3, at 581-82 & n.273.
104 See Judicial Misconduct, supra note 3, at 581-82 & n.273.
105 See United States v. Brewster, 408 U.S. 501, 524-25 (1972).
106 See id. at 524-25; Nagel, supra note 5, at 242-43 & n.36.
107 See Rankin v. Howard, 633 F.2d 844, 847 (9th Cir. 1980) ("It is the antithesis of the 'principled and fearless decision-making' that judicial immunity exists to protect.") (quoting Pierson v. Ray, 386 U.S. 547, 554 (1967)), cert. denied, 451 U.S. 939 (1981); see also Dykes v. Hosemann, 743 F.2d 1488, 1495 (11th Cir. 1984) (although not following Rankin, majority cites Rankin argument against prior private agreements as both "persuasive" and "well-reasoned"); Judicial Misconduct, supra note 3, at 557, 589 & n.336 (four justices of Oklahoma Supreme Court sold approximately 1878 cases between 1937 and 1958; "[t]he many corrupt decisions rendered by the Oklahoma Supreme Court... demonstrate the threat to the integrity of the judicial system posed by unbridled judges"). At least one commentator has analogized the possible restriction of judicial immunity with present limitations on legislative immunity. See Nagel, supra note 5, at 242-43 & n.37 (analogy suggests that a judicial order or judgment would be as immune as a legislative vote, but liability might flow from judge's procedures, such as flipping a coin or taking a bribe to decide case).
108 See supra notes 87-89 and accompanying text.
The doctrine of judicial immunity is broad. It is a necessity for a strong and independent judiciary. Although the parameters of judicial immunity are extensive, they do have limits. The judicial act requirement of judicial immunity is a basic tenet of the doctrine. If there is no judicial act performed, absolute immunity does not apply. A private prior agreement to rule in favor of a party is not a judicial act under any definition of the term, and therefore should never be afforded judicial immunity protection. Although executive, administrative, legislative, or ministerial acts may be official functions of a judge, they are not judicial acts under a correct reading of the Stump definition. Thus, the doctrine of judicial immunity should not apply in these instances either.
(Fordham Law Review. Joseph Romagnoli)
In a series of recent decisions, the Supreme Court has attempted to settle several important questions regarding the availability of "official immunity" as a defense to monetary liability in civil rights actions. Legislative immunity has been restricted to those acts integral to the "deliberative and communicative processes... with respect to the consideration... of proposed legislation or... other matters... within the jurisdiction of either House."1 Executive immunity for most federal2 and state3 officers has been qualified by the requirements that the officers have a good faith belief in the constitutionality of their acts and that reasonable grounds for such a belief exist.4 In contrast, absolute judicial immunity - immunity for knowing and malicious unconstitutional acts - has been retained for all judicial acts except those done in the clear absence of jurisdiction.5
These cases present the spectacle of the judiciary exposing virtually all other government officials to the threat of personal liability, while carefully maintaining immunity for judges.6 The appearance of institutional bias and self-protection is only heightened by the exception carved by the Court to the rule of qualified immunity for executive officers: absolute immunity has been preserved for those officers whose "special functions" require full protection from liability, and the touchstone for this determination appears to be the similarity or proximity of certain executive functions to traditional judicial functions.7 The inference that the Justices have been influenced by unseemly self-interest has elicited cynical asides from both commentators and jurists.8 The special treatment afforded judges who act intentionally to deprive individuals of their constitutional rights deserves fuller and more serious consideration.
Despite the decisive nature of the recent rulings, the law of official immunity might be subject to significant changes in the future. Some of the issues apparently settled authoritatively today have been decided differently in the past. For a number of years, it appeared that no state official could be absolutely immune from liability under section 1983 of the Civil Rights Act.9 In another period, many executive officials enjoyed virtually the same absolute immunity as is now enjoyed by judges.10 At each turn, the justifications have been as serious and as emphatically propounded as the reasons now given for the Court's present position.
The theme of the following discussion is that the weighty policies asserted by the Court in support of absolute judicial immunity do not justify the result, but that the alternative explanation of institutional self-interest does not fully explain the special status accorded the judicial function either. The significance of the Court's position on official immunity can be found if the case law is viewed, as Thurman Arnold suggested, as an important set of social symbols whose function is "not so much to guide society, as to comfort it."11 The case law illuminates less about the social policies asserted for judicial immunity or the self-protective instincts of judges than about the persistence and importance of the idea of sovereignty.
If the symbolic objectives underlying the special status of the judicial function are forthrightly examined, that status will be understood to be unnecessary and destructive. The next shift in the case law should be to qualify judicial immunity in civil rights cases.
(Copyright © Hastings Constitutional Law Quarterly. All rights reserved. Robert F. Nagel)
* Associate Professor of Law, University of Colorado School of Law. A.B., Swarthmore College, 1968; J.D., Yale University, 1972. The author expresses his appreciation to Garrett M. White, third-year law student, for research assistance during the preparation of this article.
1 This language was first used in a criminal case, Gravel v. United States, 408 U.S. 606, 625 (1972), but was later applied to the question of civil liability in Doe v. McMillan, 412 U.S. 306, 314 (1973). See also Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (1975); United States v. Brewster, 408 U.S. 501 (1972).
2 Claims against federal officers are based on the Constitution itself. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). The scope of official immunity in such cases was restricted in Butz v. Economou, 98 S. Ct. 2894 (1978).
3 Claims against state officers are based on 42 U.S.C. § 1983 (1976). The Supreme Court has defined the scope of official immunity in such cases. E.g., Imbler v. Pachtman, 424 U.S. 409 (1976); O’Connor v. Donaldson, 422 U.S. 563 (1975); Wood v. Strickland, 420 U.S. 308 (1975); Scheuer v. Rhodes, 416 U.S. 232 (1974).
4 See notes 2 & 3 supra.
5 Stump v. Sparkman, 435 U.S. 349 (1978).
6 Immunity for executives and judges is largely a judicially created doctrine, and the constitutional immunity of legislators has been restricted by judicial interpretation. See Butz v. Economou, 98 S. Ct. 2894, 2909 (1978) and cases cited therein. See also Scheuer v. Rhodes, 416 U.S. 232, 238-41 (1974).
7 See Butz v. Economou, 98 S. Ct. at 2912-16; Imbler v. Pachtman, 424 U.S. 409 (1976).
8 Professor Gray described the judge as "the pampered child of the law" and then suggested that "[a] cynic might be forgiven for pointing out just who made this law." Gray, Private Wrongs of Public Servants, 47 CAL. L. REV. 303, 309 (1959). See also Jennings, Tort Liability of Administrative Officers, 21 MINN. L. REV. 263, 272 (1937). Justice Rehnquist is one of the few judges to note the apparent partiality in the decisions. Butz v. Economou, 98 S. Ct. at 2917 n.* (Rehnquist, J., concurring in part and dissenting in part).
9 The cases can be found in Davis, Administrative Officers' Tort Liability, 55 MICH. L. REV. 201, 228-29 (1956) [hereinafter cited as Davis]. For the modern law on state officials' immunity, see cases cited in note 3 supra.
10 The highpoint of executive immunity is represented by Judge Learned Hand's opinion in Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949). See also Barr v. Matteo, 360 U.S. 564 (1959) and cases cited therein at 572 n.9; Spalding v. Vilas, 161 U.S. 483 (1896). The modern approach to executive officials' immunity is illustrated by the cases cited in note 2 supra.
11 T. ARNOLD, THE SYMBOLS OF GOVERNMENT 34 (1935) [hereinafter cited as ARNOLD].
A. The Special Status
In Stump v. Sparkman,12 the Supreme Court chose an extreme factual situation to reaffirm that judges are absolutely immune from liability for unconstitutional judicial acts committed under color of their jurisdiction. Judge Stump was alleged to have deprived a fifteen-year-old girl of her right to due process of law when he approved her mother's petition for permission to sterilize the girl. The petition stated in conclusory terms that the daughter was "somewhat retarded," that she had been associating with young men, and that sterilization would be in her best interests "to prevent unfortunate circumstances."13 The petition was neither given a docket number nor filed with the clerk's office. It was approved in an ex parte proceeding of which the daughter was not notified, no guardian ad litem was appointed for the daughter, and no hearing was held.14 The daughter did not discover the nature of the operation performed on her until two years later, after she had married and had attempted to have children.15
The Supreme Court treated these facts as essentially irrelevant to the issue of immunity. The opinion first summarized the existing law and found that a judge would not be liable unless his acts were clearly beyond his jurisdiction or were not judicial in nature.16 It concluded that Judge Stump's acts were not clearly beyond his jurisdiction because by statute he had "original exclusive jurisdiction in all cases at law and equity whatsoever," and because no statute or decision prohibited such a court of general jurisdiction "from considering a petition of the type presented to Judge Stump."17 The fact that the order may have been illegal under state law did not deprive the judge of jurisdiction,18 nor did the fact that the method by which he reached his decision may have been unconstitutional.19 Finally, the Court rejected the claim that the judge's actions were non-judicial. The acts were judicial because the judge's function was one "normally performed by a judge" and because the mother had dealt with Judge Stump with the expectation that he was acting in his judicial capacity.20 Accordingly, Judge Stump was held to be immune no matter how malicious his motive for the sterilization order might have been and regardless of how obvious the illegality of his acts should have been to him. The Court justified this broad rule of immunity with a reference to the need for a judge to act "upon his own convictions, without apprehension of personal consequences," and with a remark about the difficulty of the judge's duties and his "painful sense of responsibility."21
In contrast to its approach to judicial immunity, and without regard for the difficulty of their decisions or the painfulness of their senses of responsibility, the Court has recently and emphatically declined to provide similarly broad immunity to most executive officers.22 Such officers can be liable even if their acts were colorably within their statutory authorization and clearly "executive" in nature.23 For executive functions, immunity is triggered not by jurisdictional or generic concepts but by the existence of a reasonably-based, good faith belief that the action was constitutional.24
Less obvious, perhaps, is the fact that absolute judicial immunity also appears to be broader than the "absolute" immunity granted to legislators. Both judges and legislators are absolutely immune only for acts done within the judicial or legislative spheres, respectively. But the scope of this immunity is, in fact, broader for judges because the method of defining the judicial function has been less restrictive. In Stump, the Court explicitly defined the judicial function largely according to what is "normally" done by a judge.25 Judge Stump's actions were described as "normal" because he had at least colorable jurisdiction and because "judges normally entertain petitions with respect to the affairs of minors."26 The Court expressly denied that any illegality in the judge's procedures vitiated the judicial nature of his acts.27 The Court thus defined "judicial" by a formalistic inquiry into whether a normal "case" was presented, not according to the normalcy or legality of the methods used to resolve the case.
A different approach to defining the legislative function was taken in Gravel v. United States,28 in which the Court held that legislative immunity does not extend to the private publication of classified materials used by a Senate subcommittee. Although senators "normally" communicate with their constituents about governmental affairs, and although this informing function is important to their duties as representatives,29 the Court explained: "That Senators generally perform certain acts in their official capacity...does not necessarily make all such acts legislative in nature.30 In addition to the informing function, the Court has identified traditional legislative efforts to lobby the executive branch and the deliberative process leading up to a vote as functions normally performed by a legislator that are not necessarily "legislative.”31 Such acts are defined as outside the legislative sphere when they are unnecessary to the "due functioning" of the legislative branch or are inconsistent with the integrity of that process.32 Of course, the illegality of the act is a prime determinant of whether it is necessary to the due functioning of the legislature. Bribes, for example, "gravely undermine legislative integrity and defeat the right of the public to honest representation," thus endangering the integrity of the legislative process that legislative immunity is designed to protect.33
The Court's method of defining the legislative function is plainly inconsistent with the method used in Stump to define the judicial function.34 If Stump had been analyzed consistently with the legislative immunity cases, the Court would not have stopped at describing the matter before Judge Stump as a case "normally" handled by a judge. It would have further inquired whether the procedures used in handling the "case" were necessary to the "due functioning" of the judicial branch. Two factors relevant to this determination would have been whether the procedures were illegal and whether they undermined the integrity of the judge's deliberative process.35 A bribe undermines the integrity of the legislative process by exposing the legislator to improper, irrelevant influences; such exposure is not a part of the legislative process despite its close connection to the core of the legislative process, the act of voting.36 If so, it is at least worth inquiry whether an ex pare proceeding involving the decision to sterilize an unnotified and unrepresented minor undermines the integrity of the judicial process to the extent that such procedures cannot fairly be called judicial acts despite their close connection to judging a case.37
The Court has narrowed legislative immunity by injecting a normative factor into the definition of the legislative function. Notions of both jurisdiction and generic function have been made largely irrelevant to the issue of immunity for malicious acts of those exercising the executive function. In defining the immunity of judges, however, the Court has been entirely formalistic. The next section explores the reasons the Court has given for the special status it has thus created for the immunity of those exercising the judicial function.
B. The Justifications
The Court has insisted that the extent of absolute immunity afforded those exercising the judicial function does not result from judges' status or their location within the government, but from "the special nature of their responsibilities.38 The Court's analysis has been determinedly functional; inquiry has focused on "the immunity historically accorded the relevant official at common law and the interests behind it."39 However, the justifications asserted for the judiciary's special protection do not persuasively distinguish the judicial function from the executive and legislative functions; indeed, many of these justifications point persuasively to the special appropriateness of qualifying the immunity of judges. The Court's analysis of the special needs of the judicial function is so unsatisfactory that it is necessary to look to entirely different reasons for an understanding of the basis for judicial immunity.
1. As contrasted to the legislative function
Because legislative immunity is narrower than judicial immunity only in the unobvious sense that the Court has injected normative factors into the definition of "legislative function,"40 the Court has neither openly acknowledged nor explained the differences between the scope of legislative and judicial immunity. The bases for judicial immunity are quite different from those of legislative immunity; these differences justify broader, more careful protection for legislators than for judges.
At the federal level, legislative immunity is founded on constitutional text.41 At the state level, legislative immunity is also constitutionally based to the extent that at least the rudiments of separation of powers principles must be protected from federal interference.42 Even if not technically based on constitutional text, legislative immunity at the state level serves the same policies that are of constitutional magnitude at the federal level. In contrast, judicial immunity, whether at the federal or state level, is court-made law of somewhat mysterious origins.43 Accordingly, the legal issues involved in determining the proper scope of immunity in civil rights actions are entirely different as between the two types of immunity. With legislative immunity, two policies of constitutional importance - legislative independence and the individual's substantive rights - must be accommodated. With judicial immunity, the protection of the individuals constitutional rights is limited only by common law principles designed to protect the smooth functioning of a governmental institution.
The constitutional policies that underlie legislative immunity relate to the most fundamental principles of republican government.44
As the Court has acknowledged:
[Legislative immunity] was the culmination of a long struggle for parliamentary supremacy. Behind these simple phrases lies a history of conflict between the Commons and the Tudor and Stuart monarchs during which successive monarchs utilized the criminal and civil law to suppress and intimidate critical legislators. Since the Glorious Revolution in Britain, and throughout United States history, the privilege has been recognized as an important protection of the independence and integrity of the legislature.45
The Court has consistently stated that judicial immunity also protects independence and integrity,46 but the purposes of legislative and judicial immunity are not coordinate. Legislative immunity is embodied in constitutional text in order to protect the independence of the legislature from the excesses of the other branches of government. Whether the intimidation arises from criminal actions initiated by the executive branch or from civil actions harnessing the "potentially hostile" power of the judicial branch, the protections are against incursions by the other branches of government.47 Legislative immunity protects the basic constitutional structure of separation of powers. It reflects the framers' pessimistic assumption that "power is of an encroaching nature and... ought to be effectively restrained from passing the limits assigned to it."48 In contrast, judicial immunity protects against the threat posed by individual citizens who can injure the judicial function only if the courts are unable or unwilling to protect themselves.49
The Court has minimized the external dangers to the legislature that the framers took seriously enough to guard against in the Constitution. Thus, the classic threat of unjustified criminal prosecutions by the executive against legislators has been described by the Court as "remote," although not "discounted entirely."50 In fact, the Court has turned the framers' assumptions upside down by pointing to the protections afforded by the judiciary as one reason for minimizing the possibility of interference with the legislative process.51 The Court has pointed to such judicial protections despite the fact that the legislative process can be and has been interrupted and frustrated for years by citizens' use of the judicial process.52 At the same time, the Court has taken seriously the "danger" that the judiciary, somehow adequately able and motivated to protect Congress from the executive, is unable to protect itself from suits by individual citizens. The possibility that the judiciary might be sufficiently "alert to the possibilities of artful pleading" to protect itself by terminating "insubstantial lawsuits" has never been found a sufficient reason to open judges to the threat of suits for their malicious acts.53
The constitutional status of legislative immunity not only undermines the Court's apparent assessment of the relative importance of the interests involved in cases of legislative and judicial immunity, but also casts substantial doubt on its construction of the Civil Rights Act of 1871.54 In Tenney v. Brandhove,55 the Court held that the framers of section 1983 could not have intended by their general language to impinge on legislative immunity because that doctrine was "so well grounded in history and reason" at the time the statute was drafted.56 Later, in Pierson v. Ray,57 the Court purported to rely on the same reasoning in carving out judicial immunity from the reach of the Civil Rights Act:
The legislative record gives no clear indication that Congress intended to abolish wholesale all common law immunities. Accordingly, this Court held in Tenney v. Brandhove, that the immunity of legislators for acts within the legislative role was not abolished. The immunity of judges for acts within the judicial role is equally well established....58
Despite this language, it was not a mere common law immunity which the Tenney Court had presumed to be unaffected by congressional action. It was, as the opinion explained at length, a tradition "carefully preserved in the formation of the State and National Governments."59 Clearly, it is appropriate to require affirmative and persuasive proof that Congress intended to limit a principle, such as legislative immunity, thought to have constitutional significance. The avoidance of difficult constitutional questions and the presumption that legislation is constitutional are accepted canons.60 The same requirement is not at all appropriate when "Congress enacts a statute to remedy the inadequacies of the pre-existing law, including the common law,"61 and common law is the basis for judicial immunity.
The broader protection afforded by the Court to judicial immunity, compared to legislative immunity, is thus inconsistent with the constitutional status of the policies underlying legislative immunity and with normal principles of statutory construction. Nor can the relative narrowing of legislative immunity be justified on the basis that inquiries into judicial conduct are more difficult than those relating to legislative action. It would seem more feasible to examine and evaluate the knowledge and behavior of a single judge than to attempt a similar inquiry into the behavior of perhaps hundreds of legislators.62 Judges normally act on the basis of information provided in a record and with respect to a single, identified case. Legislators act on the basis of knowledge gained on public streets and in private cloakrooms; they act not to decide a single case but to accommodate competing, ongoing interests. Such practical considerations favor a broader rule of immunity for legislators than for judges.
The narrower area of legislative immunity might be thought to be harmless, since - under the Court's formulation - legislators can be liable only for acts that do not promote the proper functioning of the legislature.63 Even assuming that there are only minimal dangers in entrusting to courts the determination as to what is necessary for proper legislating,64 the broader, formalistic conception of the "judicial function" is not justified. Courts are better qualified to decide at what point procedures become so unfair and so illegal as not to promote the due functioning of the judiciary than they are qualified to determine, for example, what influences are proper for a legislative vote or how a legislator should communicate with his constituents. To the extent that the normative definition of "legislative function" is harmless or even beneficial, the Court should utilize normative factors even more liberally in defining "judicial function".
2. As contrasted to the executive function.
Both judicial and executive immunity are common law doctrines with a similar origin in the monarchical concept of sovereign immunity.65 Despite the Court's unwillingness to presume that the framers of section 1983 intended to alter the common law so as to expose judges to liability, there is persuasive evidence that the legislative intent was to expose both executives and judges to liability.66 More importantly, the same reasons given for judicial immunity have long been used to justify executive immunity.67 It might have been expected, therefore, that as the modern Court determined that the policies behind official immunity did not require that executives be immune for their knowingly unconstitutional acts, the same conclusion would soon have followed with respect to judicial immunity. If exposure to limited liability would not lead to unacceptably timid executive decisions, why should it be thought to threaten independent judicial decisions? If limited executive liability is not grossly unfair in penalizing an officer for making the difficult decisions he was hired to make, why would limited judicial liability be unfair? If able executive officers would not be deterred from entering public service by the threat of liability, why would potential judges be deterred? The Court, however, has continued to describe absolute immunity as essential to the judicial function, while rejecting this conclusion as to the executive function. The difference has been justified on the grounds that absolute executive immunity was not as firmly established in the common law, and that the judicial function has special attributes making even limited liability incompatible with its proper functioning.
a. The Common Law.
In Butz v. Economou,68 the Court examined the major executive immunity cases and found that none of the American cases presented the issue of immunity for acts "manifestly beyond [the] line of duty," or for acts that "exceeded constitutional limits."69 In contrast, the Court has repeatedly described absolute judicial immunity as firmly established at common law.70 This reliance on the common law is inadequate to justify the special status of the judicial function for a number of reasons. First, the place of absolute judicial immunity in the common law is not as unambiguous as the Court has indicated. When section 1983 was enacted, the major Supreme Court decision on judicial immunity had suggested that judges might be liable for acts done maliciously and in excess of jurisdiction.71 State law in a significant number of jurisdictions either was uncertain or favored qualified judicial immunity.72 Even the English common law qualified the immunity of magistrates and other courts of limited jurisdiction.73 Secondly, even assuming that absolute judicial immunity was unambiguously established at common law, the appropriate objective is not merely to perpetuate historical distinctions, but to assess and implement the interests behind those distinctions.74 The executive immunity cases examined in Butz plainly were efforts to apply to executive functions the same policy considerations that were thought to justify judicial immunity.75 Therefore, to the extent that these cases did not establish absolute executive immunity, they should direct inquiry to the question of whether the common law identified special attributes of the judicial function that would persuasively support perpetuating absolute judicial immunity. Without such an explanation, the executive immunity cases - to the extent that they do not establish that absolute executive immunity was thought to be necessary at common law - undercut the significance of the existence in the common law of absolute judicial immunity.
The final problem with the Court's reliance on the common law is that the rationales underlying the older cases establishing absolute judicial immunity are not entirely inconsistent with modern standards that qualify executive immunity. In the main case relied on to establish absolute judicial immunity, Bradley v. Fisher,76 the Court held that a judge would not be immune for an illegal act if the act were in the "clear absence of all jurisdiction."77 The Bradley Court distinguished such acts from acts done merely "in excess of jurisdiction" and from challenges to the "manner in which...jurisdiction was exercised.78 For example, if a probate court were to sentence a felon, its act would be in the clear absence of jurisdiction; if a criminal court were to sentence a felon to an excessive term, its act would be in excess of jurisdiction; and if a criminal court were to violate principles of due process in trying a felon, its act would involve the manner in which jurisdiction was exercised.79 The Court limited potential liability to the first of these three categories because, "where jurisdiction over the subject-matter is invested by law in the judge...the manner and extent in which the jurisdiction shall be exercised are generally as much questions for his determination as any other questions involved in the case ... ,"80 The difficulty is, of course, that subject-matter jurisdiction normally is as much a question of law for the court as are the manner and extent of the exercise of that jurisdiction.81 A court must decide whether it has the authority to try a felon just as it must decide what procedures it must follow and what sentence it may impose. Obviously, the three categories all identify illegal use of authority, the differences pointing largely to the degree of error.82
The Bradley Court's terminology was an effort to identify the kind or degree of illegality for which judges should not be immune. To categorize an act as being in the "clear absence of jurisdiction" does not explain why this type of misuse of authority should expose a judge to liability while the other unauthorized acts do not, except to suggest that liability should depend in part on the obviousness of the mistake of law. Indeed, the Bradley Court made quite explicit its reasons for exposing judges to liability for acts done in the clear absence of jurisdiction: "Where there is clearly no jurisdiction ...any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible."83 The Court added that if a probate court were to try a criminal case, the judge would not be immune, the usurpation of authority "being necessarily known to [the] judge."84 The Court made no effort to explain why a clear violation of due process might not be as necessarily known to a judge as a mistake relating to subject matter jurisdiction. The utilization of the common law rules in Bradley was therefore an effort to identify those judicial mistakes that must have been knowingly made. The fact that the categories employed for this purpose were inadequate should not obscure the premise: there should be no immunity for errors that must have been knowing.
Thus, the rationale underlying the common law exception to judicial immunity can readily be accommodated to the modern standard of qualified immunity. Executives are not immune for acts that they knew or should have known violated clear constitutional standards.85 The common law held judges liable for a subclass of similarly unreasonable mistakes of law by labeling them in the "clear absence of jurisdiction." The appropriate task for the Court today is not a mechanical application of the categories used in Bradley to identify such mistakes, but a reasoned examination of the apparent inadequacy of those categories for achieving their purpose. The place of judicial immunity in the common law merely emphasizes the importance of a careful analysis of the judicial function to determine whether it has any special attributes incompatible with broader liability rules.
b. Special Attributes of the Judicial Function.
Two judicial attributes have been asserted as justifications for a broad rule of immunity. The first, relating generally to the "dignity" of a court, was used frequently in the past but is not relied on in modern opinions and is discussed in the second section of this article.86 The second, to be discussed in this section, relates to the special purposes and procedures of the judiciary and is heavily relied on today. Upon examination, however, these attributes more persuasively support qualified than absolute judicial immunity.
The major reasons given today for judicial immunity are: that judicial decisions are particularly difficult decisions, so that it would be especially unfair to expose a judge to liability for making precisely the kinds of hard judgments that it is his legal obligation to make;87 that judicial decisions must be made entirely independently of personal considerations, including the fear of personal liability;88 and that deterrence of illegal conduct, the major purpose of civil rights liability, is implicated less by judicial functions because judges are relatively unlikely, due to their training, traditions and the self-correcting characteristics of the adversary process, to act unconstitutionally.89 Buttressing each of these arguments is the claim that because judicial decisions necessarily involve matters that excite antagonism, and because lawsuits end with one party losing, the threat of numerous suits is great.90 Thus, even the possibility of liability only for unreasonable or knowing deprivations of constitutional rights would undermine the functions performed by judges.
Despite the real consternation that legal disputes cause judges, and despite the highly focused intellectual attention that their decisions receive in law schools, there is no obvious reason to believe that the decisions of judges are more difficult than those of many executive officers. The policeman on the street must "[decide questions] that may later divide an appellate court."91 The same can be said of governors who must decide whether to call out the militia, and of superintendents of mental hospitals who must decide whether to release a patient.92 Even a cursory view of the difficulty of executive decision-making supports Justice Rehnquist's suggestion that the special status of judicial immunity is based on the judiciary's special sensitivity to its own problems.93
In fact, it is probably far more realistic to expect a judge to avoid an unreasonable or knowing violation of constitutional rights than an executive officer. Civil rights liability standards for executives turn essentially on knowledge of the law.94 Executives are not necessarily trained to understand the law or to apply it to specific factual situations; as lawyers, judges have had precisely this training. Executives, despite their potential for liability, often do not have access to legal counsel before making their decisions; there simply are not enough lawyers in government to advise every executive on every decision that might involve liability.95 In contrast, judges can rely not only on their own legal knowledge, but almost always also have access to the knowledge offered by lawyers for the parties through briefs and oral arguments. Executives often must act on the basis of hurried and informal consultation with an agency lawyer, when a lawyer is available at all, and events often pressure immediate decisions. The great bulk of judicial work is notorious for postponement.96
Moreover, even if all executives had the training and the access to legal advice available to judges, the typical judicial decision would in many ways still be more compatible with the rationales for qualifying executive immunity. According to the traditional paradigm,97 a judicial decision directly involves just two interests, only one of which will prevail; the factual issues to be decided concern past events; the decision depends upon a reasoned application of largely pre-existing legal standards supplied by earlier courts or by statute; each case is self-contained in the sense that the facts, law and remedy for a case are isolated from the on-going activities of the parties and others; and the judge's responsibility is limited to passive receipt and consideration of the facts and arguments supplied by the parties. This description is, no doubt, inaccurate for much of modern public law litigation and is simplified even as to traditional litigation, but it is still a fair description for generally distinguishing the stereotypical judicial process from the executive process.
In the paradigm of the executive decision,98 one of two parties does not simply "win" or "lose". Especially with elected executives, decisions require the accommodation of many interests. The normal executive decision involves an array of possible outcomes because the problem is often to identify which of several methods should be used to satisfy the competing interests. Such decisions require predictive judgments as to how organizations can be controlled and how policies can be achieved: about the probable effects of different systems of deterrents and inducements, and of different methods of supervision, inspection and training.99 Thus, although restricted by notions of legal authority, the executive's attention must be directed at a number of nonlegal considerations as well. Moreover, an executive decision is not a discrete event but is a part of an on-going process. Responsibility for decision-making is delegated throughout an organization.100 Different aspects of a decision can be made sequentially - in a "stream of syntheses101 - and decisions in any single matter are complicated by their potential impact on matters unrelated to the immediate dispute at hand. Finally, the executive, while dependent on others for much of his information, actively shapes that information by structuring the administrative mechanisms that gather and evaluate information.102 Thus, the stereotypical descriptions of executive and judicial decisions indicate that executive decisions must accommodate a broader range of interests, require more complicated judgments, and are less guided.
It is extremely hazardous to evaluate an executive decision. Not only may the underlying explanation be difficult to assess because the decision is vague or complex, but also because the executive often must act in the absence of any preserved record. This is not to argue that executives should be immune for acts which they knew he should have known were unconstitutional. Rather, it is to suggest that if executives are subject to such liability, judges should a fortiori be subject to the same liability. To the extent that the stereotypes of the judicial and executive process no longer (or never did) conform to actual practices because the act of judging is more "executive" than mythology admits, the appropriate conclusion is merely that equivalent unfairness would attend qualified judicial immunity as now attends qualified executive immunity.
Independence, however, is thought to be centrally important to the judicial process. Concern with personal matters, including personal liability, is thought to be incompatible with impartial attention to the legal issues. This argument assumes that concern for personal liability does not encourage careful attention to the merits of the dispute. But precisely this assumption is rejected by the cases establishing qualified executive immunity.103 These cases reflect a belief that potential liability for unreasonable or knowingly unconstitutional acts will provide an effective incentive for officials to give greater attention to constitutional requirements.104 Exposure to liability has thus been designed precisely to encourage attention to legal issues. Since this concern is the central responsibility of a judge, the major assumption underlying qualified executive immunity indicates that imposition of limited liability on judges would be highly compatible with their function.
Effects other than attention to constitutional requirements, however, can be expected to follow from qualifying judicial immunity. The additional pressures created by exposure to liability have led to changes in executive decision-making that might be expected to affect judicial decisions as well. The increase in prisoners' rights lawsuits, for example, has greatly increased the prison administrator's reliance on the advice of his agency's attorney.105 Corrections officials now devote more attention to developing and revising explicit rules for their own operation.106 And, predictably, the "increased risk of being held individually liable... has made complete recordkeeping vital if the defenses of 'good-faith' or 'lack of knowledge' are to be successfully proven."107 Similarly, the potential liability of public school officials is said to be leading to increased reliance on documentation and elaborate, legalistic procedures.108 Exposure to liability can also be expected to encourage timid, noncontroversial decisions, since decisive actions, like expelling a student, seem fraught with uncertainties and risks.109
The noticeable characteristic of these side effects of qualifying executive immunity is their similarity to normal judicial methods. It is not surprising that those who are required to make judge-like decisions about the law resort to a judge's procedures.110 The judicial process has always been dominated by attorneys' argument and judgment; by careful attention to procedure intended to assure all parties that the decision will be fair and deliberative; by precise recordkeeping and written explanation that create at least apparent clarity as to the bases of any decision; and even by caution, for the tradition of adjudication - despite dramatic examples to the contrary - is of small changes elaborately justified and carefully chosen. This is not to suggest that all these characteristics are necessarily destructive of the executive function, nor to argue that they are all necessarily useful in the judicial function. Rather, the point is simply that even if such effects are beneficial, or at least worth their costs, they are more compatible with the normal judicial proceeding than with the normal executive action. If these effects did not justify shielding executive decisions with absolute immunity, they certainly are not sufficient to give this additional protection to judicial decisions.
The final major argument in support of absolute judicial immunity is that additional burdens on the judge are unnecessary or even dysfunctional because the judicial process contains safeguards providing adequate assurance that constitutional rights will not be knowingly violated. This argument undercuts the occasional suggestion that because adjudications involve hostile confrontations, a large number of lawsuits against judges could be expected. The judicial process, more than the executive, is surrounded by procedures, traditions and rituals designed to elicit acceptance of the court's decision.111 The opportunity to argue and cross-examine, the elaborate precision of the procedures, the courtesy and respect openly extended to judge and opposing counsel, the clothing, positioning and education of the judge, the use of juries, the reliance on precedent, the written record, the opinion written to justify the outcome, and the opportunity for appeal - all do at least as much to assure consent to the outcome as to assure constitutional conduct. These characteristics, as well as the improbability of unconstitutional conduct itself, reduce the likelihood of an excessive number of lawsuits against judges. The formality of the proceedings would also make it feasible to dismiss insubstantial claims before trial.
Even if there are already sufficient assurances that the judicial function will be exercised within constitutional limits, one of the purposes of civil rights liability is to compensate the victim.112 The fact that only a small number of abuses occur is no reason to deny compensation for those that do occur. Moreover, the use of procedural protections does not assure constitutional conduct when the claim is precisely that unconstitutional procedures have been used by a judge. Any right of appeal in Stump, for example, was an empty promise since the sterilized woman never knew she was the subject of litigation nor that she was to be sterilized.
The relative improbability of unconstitutional judicial conduct actually suggests that the deterrent function of qualified liability would be more effective when applied to judges than when applied to executives. As Professor Davis has argued, the potentially enormous number of legal abuses by some executives, especially the police, may be largely impervious to the threat of liability.113 The mere fact that only a fraction of the violations can possibly lead to lawsuits impedes the deterrent function. Since a larger proportion of the small number of judicial violations might lead to lawsuits, deterrence might be more effective. In addition, because deterrence of illegal executive conduct is diluted by indemnification, the operative deterrent is largely nonmonetary - the disgrace or embarrassment of a finding of illegal conduct, the interruption of regular activities due to the litigation and other career consequences.114 Many of these nonmonetary deterrents would be especially effective if applied to judges for the same reasons that violations are unlikely in the first place. Judges are likely to care about the high traditions of their office, to aspire to do an effective job, and to desire the respect of their colleagues. The education, training and acculturation of judges all point to the potential effectiveness of qualified liability as a deterrent. Finally, the effectiveness of potential liability as a deterrent to executive misconduct is reduced in many cases because the malfeasor does not alone have the capability of altering his conduct.115 The policeman on the street may lack the knowledge or time consistently to alter his search and seizure practices; the institutional administrator may be dependent on others for funding or the promulgation of necessary standards. Unconstitutional acts by judges, however, would much more likely be within their own power to prevent or correct. A judge is not dependent on others to see that a minor is represented, a hearing provided, or a clear constitutional standard understood and followed in his decision.
The generic attributes of the judicial function do not justify a broad rule of absolute immunity.116 In fact, if those attributes are compared to the characteristics of the executive function, liability for unreasonable or knowing violations of constitutional rights is considerably more appropriate for the improper exercise of the judicial function than for the executive. Nevertheless, the branch of government with the main capacity and responsibility for understanding and applying the law is held immune even for knowing failures to apply the fundamental law. Assessed by the kind of functional analysis insisted upon by the modern Court, this is not a paradox, but an absurdity or an evasion. The next section examines whether those reasons relied on by the older courts, but no longer openly acknowledged, reveal more about the underpinnings of judicial immunity.
(Copyright © Hastings Constitutional Law Quarterly. All rights reserved. Robert F. Nagel)
12 435 U.S. 349 (1978).
13 Id. at 351.
14 Id. at 360. The court of appeals summarized these actions by saying that the judge had not taken "the slightest steps to ensure that [the minor's] rights were protected." Sparkman v. McFarlin, 552 F.2d 172, 176 (7th Cir. 1977).
15 435 U.S. at 353.
16 Id. at 356-57.
17 Id. at 357-58. No statute specifically authorized a court to order a sterilization, but Indiana statutes did authorize parents to "consent to ... medical or hospital care or treatment of [the minor] including surgery." Id. at 358. The Court reasoned that the general jurisdictional grant and the absence of any specific withdrawal of jurisdiction over sterilization decisions amounted to sufficient subject matter jurisdiction to permit the court to consider whether to approve the parental decision. Id. The Court noted that Indiana courts had been specifically authorized to order sterilization of institutionalized individuals under certain circumstances, but did not find this narrow authorization to constitute an implied limitation on the court's general jurisdiction. Id. It is at least questionable whether the Court would have altered its conclusion even had there existed a specific statute withdrawing jurisdiction over sterilization orders of non-institutionalized minors. Cf. United States v. United Mine Workers, 330 U.S. 258 (1947) (federal courts have jurisdiction to consider whether they have jurisdiction over certain labor disputes despite a statute removing jurisdiction concerning issuance of restraining orders in cases arising out of labor disputes). See Dobbs, The Validation of Void Judgments: The Bootstrap Principle,53 VA.L. REV. 1003, 1020 (1967).
18 Stump v. Sparkman, 435 U.S. at 358-59. The Indiana Court of Appeals had previously held that a parent did not have a common law right to have a minor child sterilized in A.L. v. G.R.H., 325 N.E.2d 501 (1975), cert. denied,425 U.S. 936 (1970). But the Supreme Court distinguished between the absence of jurisdiction and an illegal decision on the merits concerning an issue over which a court does have jurisdiction. This distinction has a long but not uncontradicted history. Compare Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351-53 (1871) (distinguishing an act in excess of jurisdiction from an act in the clear absence of jurisdiction) with Cooper v. Reynolds, 77 U.S. (10 Wall.) 308, 316-17 (1870) (jurisdiction defined in part by "the authority of the court to render the judgment or decree which it assumes to make"). See also Duba v. McIntyre, 501 F.2d 590, 592 (8th Cir. 1974) (jurisdiction requires inquiry into "whether the defendant's action is authorized by any set of conditions or circumstances"). The question whether this distinction is at all relevant to the issue of civil rights liability is discussed infra. See notes 76-84 and accompanying text infra.
19 Stump v. Sparkman, 435 U.S. at 358-59.
20 Id. at 362-63. The use of the term "normal" was certainly strained inasmuch as it suggests that normal judicial functions include the use of unconstitutional procedures and the issuance of illegal orders. By "normal," the Court was actually referring to the business of entertaining petitions relating to the affairs of minors, where there is at least colorable jurisdiction. See text accompanying notes 25-27 infra.
21 Id. at 363-64 (quoting Bradley v. Fisher, 80 U.S. (13 Wail.) 335, 347, 348 (1871)).
22 See cases cited in notes 3 & 7 supra.
23 See cases cited in notes 3 & 7 supra. The fact that a decision is "executive" in the sense of being highly discretionary can be a factor in determining whether a reasonable, good-faith belief of legality existed, but it does not necessarily bar liability. See note 24 infra.
24 "These considerations suggest that, in varying scope, a qualified immunity is available to officers of the executive branch of government, the variation being dependent upon the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action.... It is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good-faith belief, that affords a basis for qualified immunity of executive officers.... " Scheuer v. Rhodes, 416 U.S. 232, 247-48 (1974). For discussions of what this standard means, see Wood v. Strickland, 420 U.S. 308, 330-31 (1975) (Powell, J., dissenting); Yudoff, Liability for Constitutional Torts and the Risk-Averse Public School Official, 49 S. CAL. L. REV. 1322 (1976), [hereinafter cited as Yudof]; Developments in the Law - Section 1983 and Federalism, 90 HARV. L. REV. 1133, 1204 passim (1977).
25 435 U.S. at 362-63.
26 Id.at 362 n.ll.
27 Id. at 359-61.
28 408 U.S. 606 (1972).
29 Id. at 636 (Douglas, J., dissenting).
30 Id. at 625.
31 See United States v. Brewster, 408 U.S. 501 (1972) (accepting money prior to a vote); United States v. Johnson, 383 U.S. 169 (1966) (lobbying the executive branch). These cases represent a departure from the highly formalistic method used to define "legislative act" in Tenney v. Brandhove, 341 U.S. 367 (1951). In Tenney, the Court held that investigative committees were within the sphere of protected legislative activity because such investigations were an "established part" of the legislative process. The Court also held that such committees exceeded the legislative sphere only when usurping the powers of one of the other branches of government. Id. at 377-78.
32 Gravel v. United States, 408 U.S. 606, 625 (1972); United States v. Brewster, 408 U.S. 501, 524-25 (1972).
33 United States v. Brewster, 408 U.S. at 524-25.
34 Some of the more recent cases narrowing the "legislative sphere" have involved criminal liability, rather than civil damages. It might be conjectured that considerations
35 See notes 32 & 33 and accompanying text supra.
36 In United States v. Brewster, 408 U.S. 501 (1972), the Court asserted that a bribe could be prosecuted without inquiry into any legislative act or the motivation for such act. Id. at 526. Nevertheless, the close connection between the bribe and the vote, as well as between the bribe and other more legitimate influences, is apparent. See id. at 556-60 (White, J., dissenting).
37
Thus a possible reform of the law of judicial immunity might retain "absolute" immunity, yet restrict it by defining "judicial act" in the same way that "legislative act" has been defined. The analogy to legislative immunity suggests that a judicial order or judgment on the merits would be as immune as a legislative vote. In Stump, liability might flow from the judge's motives or procedures (if, for example, he had taken a bribe or flipped a coin in order to decide the case), but not from the issuance of the sterilization order (regardless of its illegality). Cf. Doe v. McMillan, 412 U.S. 306 (1973) (immunity provided for the legislative vote to distribute private information, but not for the distribution itself); United States v. Brewster, 408 U.S. 501 (1972) (immunity provided for the actual vote, but not for the bribe preceding it). Measuring damages for acts other than the order itself would raise difficult problems of a nature already being dealt with in cases where executives are alleged to have committed procedural errors. See Carey v. Piphus, 435 U.S. 247 (1978); Codd v. Velger, 429 U.S. 624 (1977).
Although analogizing judicial immunity to legislative immunity would be preferable to retaining the present law of judicial immunity, the better reform would be to analogize judicial immunity to executive immunity, where the executive nature of the act does not immunize the executive for knowingly unconstitutional behavior. See notes 38-85 and accompanying text infra. Under this analogy, if Judge Stump's judgment and order were knowingly unconstitutional, he would not be immune despite the formally judicial nature of these acts. At any rate, the point here is merely that even if the appropriate analogy were between legislative and judicial immunity, the present law of judicial immunity would still not be justified because the Court has used a more formalistic method for defining judicial acts than for defining legislative acts.
38 Butz v. Economou, 98 S. Ct. at 2913. Cf. Stump v. Sparkman, 435 U.S 349 (1978). The emphasis on function is apparent in all of the recent immunity cases. As to the legislative function, see cases cited in note 1 supra. With respect to the executive function, see Imbler v. Pachtman, 424 U.S. 409 (1976); Scheuer v. Rhodes, 416 U.S. 232 (1974).
39 Imbler v. Pachtman, 424 U.S. at 421.
40 See notes 28-33 and accompanying text supra.
41 U.S. CONST. Art. I, § 6 provides, in part, that Senators and Representatives "shall in all cases, except treason, felony and breach of peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place."
42 See Nagel, Separation of Powers and the Scope of Federal Equitable Remedies, 30 STAN. L. REV. 661, 667-68 (1978). See also note 60 infra.
43 It is conceivable that a statute might expose judges to a risk of liability in such a way as to interfere with the article III judicial power as a constitutional matter. However, such a claim would seem to be especially inappropriate with regard to qualified civil rights liability. See note 49 and text accompanying notes 46-53 and 87-116 infra. Cf. United States v. Klein, 80 U.S. (13 Wall.) 128, 146-47 (1871) (article III power infringed by a jurisdictional statute that "prescribed a rule for the decision of a cause in a particular way"). At any rate, the Court has not suggested that judicial immunity is derived from article III. For judicial explanations of the origins of judicial immunity, see cases cited in note 6 supra. For academic discussions of the derivation of official immunity from sovereign immunity, see material cited in note 65 infra. The reference in the text to "mystery" is from Jaffe, Suits Against Governments and Officers: Damage Actions, 77 HARV. L. REV.209 (1963). Among the mysteries are: How did judges become clothed with the immunity of the crown when some other officers of the crown did not? Why did a doctrine rooted in monarchy survive the American Revolution? How has such a doctrine survived the general decline in the idea of sovereignty? How has judicial immunity survived the inclusive language of the Civil Rights Act of 1871? In addition to the material referred to above, see LASKI, FOUNDATIONS OF SOVEREIGNTY 137 passim (1921) and material cited in note 66 infra.
44 For a discussion of the significance that the framers attached to the idea of separation of powers, see J. MADISON, THE FEDERALIST No. 47, 48 (C. Beard ed. 1959); M. VILE, CONSTITUTIONALISM AND THE SEPARATION OF POWERS 119-75 (1967); G. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776-1787 (1969).
45 United States v. Johnson, 383 U.S. 169, 178 (1966), quoted in United States v. Brewster, 408 U.S. 501, 507-08 (1972).
46 The need for independent judicial judgment is emphasized in Stump v. Sparkman, 435 U.S. 349, 354-56 (1978), and in Bradley v. Fisher, 80 U.S. (13 Wall,) 335, 347 (1871).
47 Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 502-03 (1975).
48 J. MADISON, THE FEDERALIST No. 48, at 217 (C. Beard ed. 1959). See also material cited in note 37 supra.
49 In a more remote sense, a liability statute, like a jurisdictional statute, might be thought to present a legislative threat to judicial power. But section 1983 is a liability statute with general applicability that is capable of being interpreted as imposing only limited liability on judges, and that is ameliorated by the power of judges to rule on the pleadings and evidence in particular cases. Therefore, any "threat" inherent in such a statute is surely different from the kinds of specific intimidations and interferences against which legislative immunity and separation of powers were intended to protect. See note 43 supra.
50 United States v. Brewster, 408 U.S. 501, 524 (1972).
51 Id. at 522 n.16. Cf. text accompanying note 47 supra.
52 During the litigation culminating in Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (1975), courts enjoined the enforcement of a subpoena of the Senate Subcommittee on Internal Security for five years, despite the fact that the subpoena was ultimately found to be valid. Id. at 511 n. 17. The subpoena was directed at bank records of an organization that provided various services to members of the armed forces; thus, the delay affected an inquiry into a subject of at least potential national importance.
53 Butz v. Economou, 98 S. Ct. at 2911. The prohibitive factor cannot be the impossibility of identifying an insubstantial suit on the basis of the pleadings, since the Court has said that the judiciary is capable of such discriminations with regard to suits against executives. Id.
54 42 U.S.C. § 1983 (1976).
55 341 U.S. 367 (1951).
56 Id. at 376.
57 386 U.S. 547 (1967).
58 Id. at 554 (emphasis added).
59 341 U.S. at 376.
60 The Court assumed that the abolition of even state legislative immunity would present a difficult constitutional question. Id.
61 Pierson v. Ray, 386 U.S. at 561 (Douglas, J., dissenting).
62 See Developments in the Law - Section 1983 and Federalism, 90 HARV. L. REV. 1133, 1200 (1977).
63 See note 32 and accompanying text supra.
64 This is a dubious assumption. See, e.g., United States v. Brewster, 408 U.S. 501, 551 (1972) (White, J., dissenting). Decisions restricting communications between legislator and constituent especially interject the judiciary into the heart of the democratic process. See Bond v. Floyd, 385 U.S. 116, 136 (1966) (legislators' functions include controversial communications "so that their constituents can be fully informed."); W. WILSON, CONGRESSIONAL GOVERNMENT 303 (1885).
65 See Gray, Private Wrongs of Public Servants, 47 CAL. L. REV. 303 (1959); Jaffe, Suits Against Governments and Officers: Damage Actions, 77 HARV. L. REV. 209 (1963); Jennings, Tort Liability of Administrative Officers, 21 MINN. L. REV. 263 (1937); Note Quasi-Judicial Immunity: Its Scope and Limitations in Section 1983 Actions, 1976 DUKE L. J. 95 (1976).
66 Kates, Immunity of State Judges under the Federal Civil Rights Acts: Pierson v. Ray Reconsidered,65 Nw. L. REV. 615 (1970); Note, Liability of Judicial Officers Under Section 1983, 79 YALE L. J. 322 (1969).
67 See, e.g., Spalding v. Vilas, 161 U.S. 483 (1895).
68 98 S. Ct. 2894 (1978).
69 Id. at 2905.
70 See Butz v. Economou, 98 St. Ct. at 2910-12; Stump v. Sparkman, 435 U.S. 349, 355 (1978); Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347 (1871).
71 Randall v. Brigham, 74 U.S. 523 (1868). Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1871), the decision establishing absolute judicial immunity, was decided a year after the enactment of section 1983. See Note, Liability of Judicial Officers under Section 1983, 79 YALE L. J. 322, 325 (1969).
72 Note, Liability of Judicial Officers under Section 1983, 79 YALE L. J. 322, 326 & n.29, 327 & nn.30-32 (1969).
73 Id. at 325 & n.25. See also Brazier, Judicial Immunity and the Independence of the Judiciary,1976 PUB. L. 397.
74 In general, the Court has attempted to do so. See Butz v. Economou, 98 S. Ct. at 2910-12. See also cases cited in notes I& 38 supra.
75 E.g., Barr v. Matteo, 360 U.S. 564, 569-74 (1959); Spalding v. Vilas, 161 U.S. 483 (1896) (after summarizing cases dealing with judicial immunity, the Court stated, "We are of opinion [sic] that the same general considerations of public policy and convenience which demand for judges... immunity from civil suits.. , apply to a large extent to... heads of Executive Departments....")Id. at 498.
76 80 U.S. (13 Wall.) 335 (1871).
77 Id. at 351-52.
78 Id. at 351-53, 357 (Davis, J., dissenting).
79 Id. at 352. The Court did not specifically state that violations of due process involved only the manner in which jurisdiction was exercised. The Court did, however, clearly treat the procedural irregularities as illegal, ascribing this to "natural justice" rather than to the Constitution. Id. at 354.
80 Id. at 352.
81 Cf. Dobbs, The Validation of Void Judgements: The Bootstrap Principle,53 VA. L. REV. 1003 (1967) (analyzing the rule that, once a court has determined it has jurisdiction, that decision is res judicata and is not subject to collateral attack).
82 With regard to executive actions, the Court has treated as unauthorized acts that were unconstitutional but within statutory authority. See Butz v. Economou, 98 S. Ct. at 2902-04. Analogously, a judicial act that is within a court's subject matter jurisdiction should not be considered authorized if it is unconstitutional.
83 80 U.S. (13 Wall.) 335, 351-52 (1871) (emphasis added).
84 Id. at 352 (emphasis added).
85 See notes 2-4 and accompanying text supra.
86 See notes 119-30 and accompanying text infra.
87 Stump v. Sparkman, 435 U.S. at 364 (quoting Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347 (1871) to the effect that difficult cases impose on judges "the severest labor"). Justice Douglas's characterization of the judicial decision is typical: "The judicial function involves an informed exercise of judgment. It is often necessary to choose between differing versions of fact, to reconcile opposing interests, and to decide closely contested issues. Decisions must often be made in the heat of trial. A vigorous and independent mind is needed to perform such delicate tasks." Pierson v. Ray, 386 U.S. 547, 566 (1967) (Douglas, J., dissenting).
88 Stump v. Sparkman, 435 U.S. at 363 (quoting Bradley for the proposition that "[the] judicial officer, in exercising the authority vested in him, [must be] free to act upon his own convictions, without apprehension of personal consequences to himself').
89 Butz v. Economou, 98 S.Ct. at 2913-16.
90 Id. at 2912. See Stump v. Sparkman, 435 U.S. at 363-64; Bradley v. Fisher, 80 U.S. (13 Wall.) at 347-48.
91 Davis, supra note 9, at 214.
92 See O’Connor v. Donaldson, 422 U.S. 563 (1975); Scheuer v. Rhodes, 416 U.S. 232 (1974).
93 Butz v. Economou, 98 S.Ct. at 2922 n.*.
94 See notes 2-4 and accompanying text supra.
95 See, e.g., Bershad, The Law and Corrections: A Management Perspective, 4 N. ENG. J. ON PRISON L. 49, 65 passim (1977) [hereinafter cited as Bershad]; Davis, supra note 9, at 217.
96 Of course, judges-like executives-are often rushed in their work. See Alschuler,
97 See generally Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. L. REV. 1281, 1282-83 (1976).
98 See generally, HART & SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW (tent. ed. 1958). A classic analysis of the nature of executive responsibilities can be found in C. BARNARD, THE FUNCTIONS OF THE EXECUTIVE (1938) [hereinafter cited as BARNARD].
99 BARNARD, supra note 98, at 231 passim.
100 Id. at 233.
101 Id. at 231.
102 Id. at 217-27.
103 See note 2 & 3 supra and cases cited therein.
104 See Yudof, supra note 24, at 1335.
105 Bershad, supra note 95, at 65.
106 Id. at 60.
107 Id. at 58-59.
108 Yudof, supra note 24, at 1395-99.
109 Id.
110 Indeed, "judicializing" executive decision-making is a way of describing one of the objectives of qualified executive immunity. Directly requiring that executives use judicial methods has long been proposed as an alternative to imposing liability. See Jennings, Tort Liability of Administrative Officers, 21 MINN. L. Rev. 263 (1937).
111 See ARNOLD, supra note 1l, passim and especially ch. VIII. For a discussion of the sources of judicial legitimacy, see Casey, The Supreme Court and Myth, S L. & SOC'Y REV. 385 (1974) and materials cited therein; Engstrom & Giles, Expectations and Images: A Note on Defuse Support for Legal lnstituons,6 L. & SOC'Y REV. 631 (1972). Judges' misconduct can undermine public acceptance of the process. See Alschuler, Courtroom Misconduct by Prosecutors and Trial Judges, 50 TEX. L. REV. 629, 680-85 (1972).
112 See Carey v. Piphus, 435 U.S. 247, 253-57 (1978).
113 Davis, supra note 9 at 216-17. See also Newman, Suing the Lawbreakers: Proposals to Strengthen the Section 1983 Damage Remedy for Law Enforcer's Misconduct, 87 YALE L.J. 447 (1978); Developments in the Law - Section 1983 and Federalism, 90 HARV. L. REV. 1133, 1206 (1977).
114 Yudof, supra note 24, at 1390.
115 See cases in articles cited in note 113 supra.
116 There may be, of course, specific judicial responsibilities that-like some specific executive responsibilities-require absolute immunity. Such claims should be evaluated on an individual basis. Cf. Butz v. Economou, 98 S. Ct. at 2910-18. Specific evaluations of function have been done-for example, with the claim that liability for a prosecutor's decision to introduce evidence at trial would be inconsistent with the adversary system. See Imbler v. Pachtman, 424 U.S. 409, 440 (1976) (White, J., concurring).
Only briefly, at the end of a dissenting opinion, was there any allusion in Stump v. Sparkman to a justification which had figured prominently in the history of judicial immunity. Justice Stewart noted that the petitioner's brief referred to the "aura of deism which surrounds the bench...essential to the maintenance of respect for the judicial institution."117 The modern opinions insist that official immunity must be justified by realistic functional analysis, not by attributes of status. The arguments based on status sound curious to the modern ear, outmoded and even embarrassing. But they are worth examining partly because they were relied on historically, partly because the functional arguments are so unconvincing, and partly because a moment's introspection reveals their importance. Courts have been surrounded with special responsibilities and with special prerogatives, and they do have special psychological significance for lawyers and citizens. Myths, superstitions and emotive symbols are commonly studied as elements of governance;118 the stolid efforts of courts and commentators to justify immunity doctrines only in realistic terms may be submerging the more important issues at stake.
Dignity has always been an important attribute of judicial authority. The English courts traced their ancestry to the authority of the crown itself,119 and courts still utilize regal symbolism. Religious allusions are not uncommon when judges and commentators discuss judicial responsibilities.120 It is doubtful that any other officials in the United States are as accustomed as judges to the exercise of peremptory authority or to such constant shows of deference. The early American cases concerning judicial immunity overtly linked immunity to the judiciary's special need for dignity. In Randall v. Brigham,121 the Court described the possibility of personal liability as necessarily leading to the "degradation of the judicial authority."122 The Randall opinion quoted at length from British decisions that suggested liability would render judges "slaves... to every sheriff, juror, attorney, and plaintiff"; it asserted, "If you once break down the barrier of their dignity, and subject them to an action, you... establish its weakness in a degrading responsibility."123 References to "servility" and "degradation" recur in Randall and also appear in the other early major judicial immunity case, Bradley v. Fisher.