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CATO LAW JOURNAL | VOL 7 ISS 2 | JUDICIAL IMMUNITY VS. DUE PROCESS: WHEN SHOULD A JUDGE BE SUBJECT TO SUIT?

Cato Journal

0 | INTRODUCTION

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)

Footnotes

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).


I | THE AMERICAN CONCEPT OF DUE PROCESS

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)

Footnotes

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.


II | DUE PROCESS AND JUDICIAL IMMUNITY

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)

Footnotes

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.


III | IMMUNITY AND CIVIL RIGHTS LEGISLATION

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)

Footnotes

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).


IV | THE POLICY UNDERLYING JUDICIAL IMMUNITY

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)

Footnotes

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”).


V | THE DUE PROCESS CLAUSE AS A LIMIT ON IMMUNITY

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)

Footnotes

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).


VI | CONCLUSION

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)

Footnotes

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).


VII | REFERENCES

“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)

FORDHAM UNIVERSITY LAW REVIEW | VOL 53 ISS 6 ART 10 | WHAT CONSTITUTES A JUDICIAL ACT FOR PURPOSES OF JUDICIAL IMMUNITY

Fordham

0 | INTRODUCTION

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 independence 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)

Footnotes

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.


I | THE STUMP DEFINITION OF JUDICIAL ACT

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)

Footnotes

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).


II | SUBSTANTIVE PROBLEMS WITH THE STUMP DEFINITION OF JUDICIAL ACT

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)

Footnotes

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.


III | PROCEDURAL PROBLEMS WITH THE STUMP DEFINITION OF A JUDICIAL ACT

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)

Footnotes

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.


IV | CONCLUSION

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)

SAN DIEGO UNIVERSITY LAW REVIEW | VOL 27 ISS 1 | JUDICIAL IMMUNITY FROM CIVIL AND CRIMINAL LIABILITY

San Diego

0 | INTRODUCTION

It is generally thought that some of those who serve in government should possess some degree of immunity from civil liability for acts performed as part of their official duties.1 This is considered necessary so that government officials who are called upon to exercise discretion in their duties will not be deterred from vigorously performing their jobs in the public interest.2 Thus, in the United States, members of the executive branch, such as governors,3 teachers,4 police officers,5 and prison officials,6 have been granted, under the common law, a qualified immunity from civil liability for their official actions. Under this qualified immunity, executive officers are exempt from civil liability for their wrongful behavior unless it can be shown that they knew or should have known that their behavior was improper.7

On the other hand, under the common law, legislators enjoy absolute immunity in their official functions,8 and judges likewise enjoy absolute immunity from civil liability for their official functions so long as they are not utterly lacking in jurisdiction.9 Absolute immunity for judges means that they may not be sued for their wrongful judicial behavior, even when they act for purely corrupt or malicious reasons.10

The doctrine of judicial immunity is deeply entrenched in our legal system. It has been used to guard judges from common law causes of action, including false imprisonment,11 malicious prosecution,12 and libel,13 as well as from statutory causes of action for the deprivation of civil liberties and constitutional rights.14 This immunity, however, does not apply to disciplinary actions against judges for violations of the professional and ethical standards that pertain to their conduct. This Article examines the doctrine of judicial immunity in the civil and criminal spheres. It analyzes the application of judicial immunity, as well as its limits, and appraises the notion that judicial immunity must be absolute to be effective.

(San Diego Law Review. Jeffrey M. Shaman)

Footnotes

Copyright 1990 Jeffrey M. Shaman.

* Professor of Law, DePaul University College of Law; Senior Fellow, American Judicature Society. The author appreciates the support of the DePaul University College of Law for this article and wishes to thank Professors Steven Lubet and James Alfini for their valuable comments about the article.
1 See Jaffe, Suits Against Government and Officers: Damage Actions, 77 HARV. L. REv. 209 (1963); McCormack & Kirkpatrick, Immunities of State Officials Under Section 1983, 8 RUT.-CAM. L.J. 65 (1976).
2 See Jaffe, supra note 1; McCormack & Kirkpatrick, supra note 1.
3 Butz v. Economou, 438 U.S. 478 (1978).
4 Scheuer v. Rhodes, 416 U.S. 232 (1974).
5 Wood v. Strickland, 420 U.S. 308 (1975).
6 O'Connor v. Donaldson, 422 U.S. 563 (1975).
7 Butz v. Economou, 438 U.S. 478 (1978).
8 Tenney v. Brandhove, 341 U.S. 367 (1951).
9 See Stump v. Sparkman, 435 U.S. 349 (1978); Pierson v. Ray, 386 U.S. 547 (1967).
10 See Pierson, 386 U.S. at 554; Stump, 435 U.S. at 356.
11 Ravenscroft v. Casey, 139 F.2d 776 (2d Cir.), cert. denied, 323 U.S. 745 (1944); Stahl v. Currey, 135 Ohio St. 253, 20 N.E.2d 529 (1939).
12 O'Bryan v. Chandler, 352 F.2d 987 (10th Cir. 1965), cert. denied, 384 U.S. 926 (1966).
13 Garfield v. Palmieri, 297 F.2d 526 (2d Cir.), cert. denied, 369 U.S. 871 (1962).
14 Pierson, 386 U.S. at 555; Stump, 435 U.S. at 359.


I | HISTORY OF JUDICIAL IMMUNITY

It is often said that the doctrine of judicial immunity has ancient common law origins. While this may be true, some of the historical claims made for judicial immunity have been exaggerated. Some historians believe that under early English law, judges were generally liable for their wrongful acts, and judicial immunity was the exception and not the rule.15 Exaggeration has also occurred in respect to the history of judicial immunity in the United States. Indeed, even the Supreme Court has made some questionable assertions about the historical status of judicial immunity in this country. In a 1967 opinion, the High Court contended that the doctrine of judicial immunity had been settled and accepted throughout the states by the year 1871.16 More thorough research, however, has shown that in 1871 there was substantial variation about judicial immunity from state to state.17 In that year, thirteen states followed the rule of absolute immunity; nine states had considered the issue of immunity but had not ruled definitively on it; nine other states had not considered the issue; and six states had ruled that judges are not immune if they act maliciously.18

As a historical matter, the doctrine of judicial immunity arose in response to the creation of the right of appeal. In the tenth and eleventh centuries in England, when no right of appeal existed, losing litigants could challenge unfavorable judgments on the ground that they were false.19 The litigant was entitled to both the nullification of a false judgment and a fine (known as an amercement) against the judge who had rendered it.20 As the right to appeal became available, it replaced amercements against judges, and gradually the doctrine of judicial immunity developed.21 In modern times, however, it has become questionable whether the availability of appeal is in all instances an adequate substitute for imposing liability on judges for their wrongful acts. Although a judge's act may eventually be reversed on appeal, the victim of the judge's behavior may have suffered damage in the interim for which appeal may not compensate. Indeed, irreversible and serious damage may have occurred, which is not correctable by appeal.

Nevertheless, once appeal became available, judicial immunity was gradually accepted under the common law. In the seminal case of Floyd v. Barker,22 decided by Lord Coke in 1607, judicial immunity was established for judges who served on English courts of record. In that decision, Lord Coke discussed for the first time what are now considered some of the modern policies that underlie the doctrine of judicial immunity. Judicial immunity serves the following purposes according to Lord Coke:

(1) It insures the finality of judgments;
(2) it protects judicial independence;
(3) it avoids continual attacks upon judges who may be sincere in their conduct; and
(4) it protects the system of justice from falling into disrepute.23

Some of the purposes that have been advanced in support of judicial immunity are less convincing than others. It is debatable whether any of them justify absolute, rather than limited, immunity for judges. In a nation such as ours, which is founded on freedom of speech and which encourages criticism of government officials, using judicial immunity to protect the reputation of the judiciary is barely, if at all, legitimate. Ensuring the finality of judgments may be a valid goal, but it is not strong enough to justify absolute immunity for malicious judicial behavior that causes serious harm to others. While innocent judges should be sheltered from continual harassment, what about judges who are not innocent? Protecting judicial independence is an extremely important goal, but still, one wonders if absolute immunity is necessary to safeguard the independence of the judiciary.

Today it is generally recognized that the most important purpose of judicial immunity is to protect judicial independence.24 As the Supreme Court has said, judicial immunity is needed because judges, who often are called upon to decide controversial, difficult, and emotion-laden cases, should not have to fear that disgruntled litigants will hound them with litigation charging improper judicial behavior.25 To impose this burden on judges would constitute a real threat to judicial independence. The question that remains, however, is whether absolute, as distinguished from qualified, immunity is necessary to protect judicial independence. Absolute immunity is strong medicine, justified only by a grave threat to the effective administration of justice.26 As Justice Douglas suggested in his dissenting opinion in Pierson v. Ray,27 perhaps immunity should not extend to all judges, under all circumstances, no matter how outrageous their conduct.28

The grant of absolute immunity to judges has often been criticized, especially because it is judges who have granted absolute immunity to themselves.29 Referring to the rule of absolute immunity for judges, an esteemed commentator once remarked that a "cynic might be forgiven for pointing out just who made this rule."30 Moreover, the rule has been applied in some infamous cases in which judges have engaged in egregious behavior. Stump v. Sparkman,31 a 1978 Supreme Court decision, was such a case. This case involved a state court order authorizing the sterilization of a fifteen-year-old girl on the petition of her mother. The mother's petition stated that the girl was somewhat retarded and had begun dating men, making sterilization necessary to prevent pregnancy. However, the girl's high school record indicated that in all probability she was not retarded.32 The state court judge who granted the petition ordering sterilization of the girl did not hold a hearing, appoint counsel or a guardian ad litem for the girl, or notify her of the petition or subsequent order.33 Despite these flagrant violations of due process of law, the Supreme Court ruled that the state court judge possessed absolute immunity for his acts and could not be held liable for any harm they caused. Tremendous criticism has since been directed at the Supreme Court's decision in Stump,34 but absolute immunity for judges remains the rule.

(San Diego Law Review. Jeffrey M. Shaman)

Footnotes

15 Compare Feinman & Cohen, Suing Judges: History and Theory, 31 S.C.L. REV. 201 (1980) with Block, Stump v. Sparkman and the History of Judicial Immunity, 1980 DUKE L.J. 879.
16 See Pierson, 386 U.S. at 560.
17 See Note, Liability of Judicial Officers Under Section 1983, 79 YALE L.J. 322 (1969).
18 Id. at 326-27.
19 See M. COMISKY & P. PATTERSON, THE JUDICIARY-SELECTION, COMPENSATION, ETHICS, AND DISCIPLINE 233 (1987).
20 Id.
21 Id.
22 77 Eng. Rep. 1305 (Star Chamber 1607).
23 Id. at 1307.
24 See C. WOLRAM, MODERN LEGAL ETHICs 970 (1986).
25 See Pierson v. Ray, 386 U.S. 547, 554 (1967); see also Forrester v. White, 484 U.S. 219, 226-28 (1988).
26 See Forrester v. White, 792 F.2d 647, 660 (7th Cir. 1986) (Posner, J., dissenting), rev'd, 484 U.S. 219 (1988).
27 386 U.S. 547 (1967).
28 See id. at 558-59 (Douglas, J., dissenting).
29 Compare Note, supra note 17 with Kates, Immunity of State Judges Under the Federal Civil Rights Acts: Pierson v. Ray Reconsidered, 65 Nw. U.L. REv. 615 (1970). See also Laycock, Civil Rights and Civil Liberties, 54 CHI.-KENT L. REv. 390 (1977); Nagel, Judicial Immunity and Sovereignty, 6 HASTINGS CoNsr. L.Q. (1978); Feinman & Cohen, supra note 15; Block, supra note 15.
30 W. PROSSER, TORTS 987 (4th Ed. 1971).
31 435 U.S. 349 (1978).
32 See id. at 351.
33 Id. at 360.
34 See Nagel, supra note 29; 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 Immunity, 64 VA. L. REV. 833 (1978); Feinman & Cohen, supra note 15; Block, supra note 15.


II | TO WHOM IMMUNITY APPLIES

As a general matter, judicial immunity protects all judges, from the lowest to the highest court, so long as they are performing a judicial act that is not clearly beyond their jurisdiction.35 Judicial immunity is enjoyed by both state and federal judges,36 and by judges of general jurisdiction as well as limited jurisdiction.37 Although, at one time, judges of inferior courts or courts of limited jurisdiction were afforded a restricted degree of immunity or no immunity at all,38 that is no longer the case. Today these judges possess the same degree of immunity as any other judges.39 Justices of the peace, magistrates, and other lay judges are included within the grant of immunity enjoyed by the judicial branch.40 However, many of the cases in which immunity has been denied because the judge acted in clear excess of jurisdiction involve justices of the peace or other lay judges.41 This suggests that in practice there may be less tolerance of judicial immunity for judges who are not formally trained in the law.42

Judicial immunity has been given to administrative law judges and hearing examiners in administrative agencies.43 It has been held that court commissioners are judicial officers and, therefore, entitled to immunity for their official acts.44 Judicial immunity also has been granted to persons who perform quasi-judicial functions, and to individuals whose authority is the functional equivalent of that exercised by a judge.45 But judicial immunity will not be extended to persons who are not at least quasi-judicial officers,46 nor will it be extended beyond their judicial functions.47

When judges delegate their authority or appoint persons to perform services for the court, their judicial immunity may follow the delegation or appointment. Court-appointed mediators have been given judicial immunity for performing judicial tasks.48 It also has been ruled that a doctor, appointed by a court to act as an examiner in an insanity hearing, is a quasi-judicial officer who possesses immunity from liability for any action taken in conjunction with the hearing.49 And court clerks and bailiffs have been granted immunity for their activities that are judicial in nature.50

The law clerks of judges also are entitled to share in judicial immunity.51 It has been said that while some of the tasks performed by court clerks are judicial in character, the work of judges' law clerks is entirely so.52 Law clerks are sounding boards for the judges who employ them and are privy to judges' thoughts and ideas about the law and the cases over which they preside.53 One court has said - perhaps with some exaggeration - that law clerks are simply extensions of the judges whom they serve, and for purposes of absolute judicial immunity, judges and law clerks are as one.54

(San Diego Law Review. Jeffrey M. Shaman)

Footnotes

35 See Pierson v. Ray, 386 U.S. 547, 547 (1967); see also Pomeranz v. Class, 82 Colo. 173, 257 P. 1086 (1927); State ex rel. Clark v. Libbert, 96 Ind. App. 84, 177 N.E. 873 (1931); Allard v. Estes, 292 Mass. 187, 197 N.E. 884 (1935); Health v. Cornelius, 511 S.W.2d 683 (Tenn. 1974).
36 See Turner v. American Bar Ass'n, 407 F. Supp. 451 (N.D. Tex. 1975), aff'd sub nom. Taylor v. Montgomery, 539 F.2d 715 (7th Cir. 1976); Brown v. Dunne, 409 F.2d 341 (7th Cir. 1969).
37 Alzua v. Johnson, 231 U.S. 106 (1913); Sarchet v. Phillips, 102 Colo. 318, 78 P.2d 1096 (1938); Calhoun v. Little, 106 Ga. 336, 32 S.E. 86 (1898); Berry v. Smith, 148 Va. 424, 139 S.E. 252 (1927).
38 See Voll v. Steele, 141 Ohio St. 293, 47 N.E.2d 991 (1943); Williamson v. Lacy, 86 Me. 98, 29 A. 943 (1893); Robertson v. Parker, 99 Wis. 652, 75 N.W. 423 (1898).
39 See Alzua, 231 U.S. at 111.
40 See Perez v. Borchers, 567 F.2d 285 (5th Cir.), cert. denied, 439 U.S. 831 (1978).
41 C. WOLFRAM, supra note 24, at 971.
42 See id.
43 Butz v. Economou, 438 U.S. 478, 478 (1978).
44 Linder v. Foster, 209 Minn. 43, 295 N.W. 299 (1940).
45 Morales v. Vegas, 483 F. Supp. 1057 (D.P.R. 1979); Miller v. Reddin, 293 F. Supp. 216 (C.D. Cal. 1968).
46 See Brown v. Rosenbloom, 34 Colo. App. 109, 524 P.2d 626 (1974), afJd, 188 Colo. 83, 532 P.2d 948 (1975).
47 McGhee v. Moyer, 60 F.R.D. 578 (W.D. Va. 1973).
48 Mills v. Killebrew, 765 F.2d 69 (6th Cir. 1985).
49 See Linder v. Foster, 209 Minn. 43, 43, 295 N.W. 299, 299 (1940).
50 Scott v. Dixon, 720 F.2d 1542 (11th Cir. 1983), cert. denied, 469 U.S. 832 (1984); Tarter v. Hury, 646 F.2d 1010 (5th Cir. 1981); Slotnick v. Stavinskey, 560 F.2d 31 (1st Cir. 1977), cert. denied, 434 U.S. 1077 (1978); Adkins v. Clark County, 105 Wash. 2d 675, 717 P.2d 275 (1986).
51 Oliva v. Heller, 670 F. Supp. 523 (S.D.N.Y. 1987), a~fd, 839 F.2d 37 (2d Cir. 1988); see also Eades v. Sterlinski, 810 F.2d 723 (7th Cir.), cert. denied, 484 U.S. 847 (1987); Gray v. Bell, 712 F.2d 490 (9th Cir. 1983), cert. denied, 465 U.S. 1100 (1984).
52 Oliva, 670 F. Supp. at 526.
53 Id.
54 Id.


III | THE LIMITS OF IMMUNITY

A. Jurisdictional Limitations

Judicial immunity does not extend to the actions taken by a judge in the clear absence of jurisdiction. In determining if a judge acted in clear absence of jurisdiction, the focus is on subject matter jurisdiction rather than personal jurisdiction.55 At least one opinion, however, takes the position that if a court does not have personal jurisdiction, it lacks all jurisdiction and thereby forfeits judicial immunity.56 It is frequently said that the scope of a court's jurisdiction should be broadly construed in order to enhance the policies that underlie judicial immunity.57 The United States Supreme Court has stated that judges will not be deprived of immunity merely for acting in excess of jurisdiction; rather, they will be subject to liability only when acting in the clear absence of all jurisdiction.58

In a number of cases, judges have been sued for summarily holding individuals in contempt of court and ordering them incarcerated.59 Several decisions have held that, while this may be an act in excess of jurisdiction, so long as the judge had subject matter jurisdiction over the case, it is not an act taken clearly in the absence of jurisdiction and therefore is not beyond the ambit of judicial immunity.60 In one case, it was ruled that a judge who issued a summary contempt order did not act in the clear absence of jurisdiction despite that the order was contrary to a longstanding precedent and was unconstitutional as well.61

On the other hand, judicial immunity has been denied where a judge issued an arrest warrant without a sworn complaint as required by law. Such an act has been held to be in clear excess of jurisdiction, and courts have refused to grant immunity from civil actions for malicious prosecution or abuse of process.62 In a similar vein, a justice of the peace was held liable for malicious prosecution for framing an affidavit to indicate that an offense had been committed within the territorial jurisdiction of his court when he knew full well that was not the case.63 Another justice of the peace was found to be acting completely beyond his jurisdiction when he tried a motorist under a statute that did not exist for an offense that occurred outside the jurisdiction of his court.64

B. Nonjudicial Acts

The immunity that judges possess from civil liability extends only to acts that are judicial in nature. Unfortunately, it is very difficult to define exactly what constitutes a judicial act. It is clear, though, that judicial immunity is defined as well as justified by the functions it serves, not by the office of the person to whom it attaches.65 In Stump v. Sparkman,66 the Supreme Court explained that the relevant factors to determine whether an act is judicial are the character of the act itself - that is, whether it is a function normally performed by a judge - and the expectations of the parties - that is, whether the parties believe they are dealing with a judge in his or her judicial capacity.67 Applying these factors in Stump, the Court ruled that it was a judicial act when a judge approved a petition from a mother ordering the sterilization of her minor child even though the petition was not given a docket number, was not filed 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."68

Because it is not uncommon for state judges to be requested to approve petitions relating to the affairs of minors, and because the petition was presented to the judge in his official capacity, the Supreme Court concluded that the act in question was judicial in nature.69 This conclusion was reached despite a stinging dissent asserting that what the judge did was in no way an act normally performed by a member of the judiciary.70 Judges, the dissent pointed out, "are not normally asked to approve a mother's decision to have her child given surgical treatment generally" or, more specifically, to have her daughter sterilized.71 Indeed, the dissent maintained that there was no reason to believe that the acts taken by the judge in Stump had ever been performed by any other judge in that state, either before or since.72

Expanding on the factors articulated in Stump to decide if an act is judicial in nature, lower courts have focused on:
(1) Whether the precise act is a normal judicial function;
(2) whether the events occurred in court or an adjunct area such as the judge's chambers;
(3) whether the controversy centered around a case then pending before the judge; and
(4) whether the events at issue arose directly and immediately out of a confrontation with the judge in his or her official capacity.73


These considerations are to be construed generously in support of judicial immunity, keeping in mind the policies that underlie it,74 and immunity may be granted even though one of the factors is not met.75 Moreover, a judge's motivation to act against someone because of personal malice does not turn a judicial act into a nonjudicial one.76

Findings of nonjudicial action are usually limited to either administrative acts, which are discussed below, or behavior that is highly aberrational.77 In one case, a justice of the peace made an "arrest" and conducted a "trial" at a city dump.78 Other cases involve judges who make "arrests" and conduct summary "trials."79 Yet another case involved a judge who, in retaliation against an individual who had filed a complaint against him, misled a police officer into believing that the individual should be arrested and disallowed bond.80 For the most part, though, action taken by a judge in connection with a judicial proceeding will be considered judicial in nature and thus within the scope of judicial immunity. This includes acts taken in connection with child custody proceedings,81 commitment proceedings,82 probation matters,83 extradition,84 and disciplinary proceedings against attorneys.85

Administrative acts performed by a judge are not regarded as judicial in nature and, therefore, are not within the scope of judicial immunity.86 Even when essential to the functioning of a court, administrative acts performed by judges are not entitled to the cloak of immunity, because holding judges liable for such acts does not threaten judicial independence in the adjudicative process.87 That an administrative act is performed by a judge is irrelevant for purposes of immunity; it is the nature of the act in question, not the office of the person performing it, that makes it judicial or nonjudicial.88 It should be noted, though, that the administrative chores of a judge might be within the ambit of another form of immunity, either qualified or absolute.89

In 1880, the Supreme Court held that judicial immunity did not apply to a judge charged with racial discrimination in the selection of jurors for county courts.90 In concluding that immunity was not available, the Court explained that whether an act done by a judge is judicial or not is determined by its character and not by the character of the agent performing it.91 The duty of selecting jurors, the Court pointed out, might just as well have been performed by a private person as by a judge.92 Actually, jury selection is often performed by nonjudicial personnel such as county commissioners, supervisors, or assessors, and at one time was performed by sheriffs. When done by these officials, jury selection can hardly be considered a judicial function, and the happenstance that it is performed by a judge does not change its essential nonjudicial character.93

At one time there was a split among the federal circuit courts of appeals whether, for purposes of determining immunity, actions taken by judges toward court employees were judicial or administrative in nature. Some circuits had ruled that judges are not immune from civil liability for demoting or firing employees for improper reasons such as racial or gender discrimination.94 Focusing upon the nature of the judge's action and the capacity in which a judge deals with an employee, these courts concluded that demoting or discharging an employee is an administrative act to which judicial immunity does not attach.95

On the other hand, in Forrester v. White,96 the Seventh Circuit held that a judge does possess judicial immunity from liability for a claim that the judge improperly demoted and discharged a probation officer. The court took the approach that immunity attaches if a judge's relationship with a court employee affects the judge's capacity to perform judicial functions. In the court's view, a judge's relationship with a probation officer affects the judge's ability to make decisions regarding sentencing, probation, and parole, and therefore should be protected by judicial immunity.97 Just a few days later, though, the same court ruled that a judge did not possess immunity from liability for firing a court reporter because the relationship between a judge and court reporter does not implicate the judicial function.98

The split among the federal circuits was resolved when the United States Supreme Court reversed the Seventh Circuit's decision in Forrester.99 The High Court explained that there is no meaningful distinction between a judge who fires a probation officer and any official of the executive branch who is responsible for employment decisions.100 These employment actions are not part of the judicial function, regardless of who performs them. And while it is true that some personnel decisions made by judges may be crucial to the proper operation of the courts, the same is true when it comes to the operation of the other branches of government.101 Judges, like other government officials, may enjoy a qualified immunity in their treatment of employees, but because employee relations involve administrative matters rather than judicial ones, judges are not entitled to absolute judicial immunity for their actions toward court employees.102

According to the general rule, a prior, private agreement by a judge to rule in favor of one of the parties to a lawsuit is a judicial act within the scope of judicial immunity.103 It has even been held that where a judge conspires to rule against an individual and thereby denies the individual's constitutional rights, such action, while clearly, improper, is nonetheless judicial in nature and therefore immune from civil liability.104 Thus, if a judge agrees or conspires with a prosecutor, other attorney, or a litigant, to decide a case a certain way, judicial immunity will not be forfeited. Moreover, bad faith, personal interest, or malevolence on the part of the judge in entering a prior agreement or conspiracy will not dissipate judicial immunity.105 Advance agreements or conspiracies by a judge to rule in favor of a party are within the scope of judicial immunity so long as the judge is not acting in the clear absence of jurisdiction.106 The courts have said that were it otherwise, judges could be hauled into court and made to defend their judicial acts on mere allegations of conspiracy or prior agreement. This is the precise harm that judicial immunity was designed to avoid.107

Nevertheless, this may be an area where judicial immunity is carried too far. After all, a prior, private agreement by a judge to rule in a particular way is totally incompatible with the judicial role of deciding cases impartially on the basis of evidence and arguments presented in court with all parties present. At one time, the Ninth Circuit recognized that prior agreements to rule a certain way were not functions normally performed by a judge, and therefore should not be considered judicial acts within the ambit of judicial immunity.108 However, the Ninth Circuit later reversed itself by focusing on the judge's act of ruling in a case, which is judicial in nature, rather than focusing on the prior agreement to rule, which is not.109 This reversal aligned the Ninth Circuit with the other federal circuits that consistently take the position that prior agreements are judicial in nature and therefore immunized from liability.110 This position extends judicial immunity to its breaking point. It is no less logical to focus on the prior agreement to rule than it is to focus on the act of ruling, and it is difficult to accept the assertion made by the courts that the purposes of judicial immunity require a scope so broad as to include prior agreements and conspiracies.111 Certainly, a cynic would wonder whether anyone but a judge would extend judicial immunity so far.

C. Injunctive Relief and Attorney's Fees

Under the common law, injunctive relief against judges was unknown.112 Injunctive relief was an equitable remedy available only from the chancellor against parties to cases being heard in other courts.113 As the Supreme Court has observed, this restriction upon the use of injunctions indicates nothing about the proper scope of judicial immunity because the restriction derived from the substantive limits of the chancellor's authority and not from the dictates of judicial immunity.114 Moreover, even under the common law, collateral relief against judges was available in the form of various writs, such as mandamus, prohibition, quo warranto, and habeas corpus.115 Thus the common law provided for relief, analogous to injunctive relief, against judges even when alternative avenues of review existed.116 This has led the Supreme Court to conclude that in the common law, there was no inconsistency between the principle of judicial immunity and the availability of collateral injunctive relief against judges in exceptional circumstances.117

There has been general agreement that the doctrine of judicial immunity does not bar injunctive relief against judges.118 There are several reasons for this. The first is that injunctions, being a form of equitable relief, may only be granted upon a showing that the plaintiff is suffering irreparable injury for which there is no adequate legal remedy.119 This requirement substantially diminishes the charge that judicial independence will be threatened by disgruntled litigants seeking injunctive relief against judges.120 Second, an injunction directing a judge to do or to refrain from doing something within the judge's official capacity does not subject the judge to personal liability and, hence, does not threaten a judge in the same way as an action for damages which the judge may have to pay out of personal funds. Injunctive relief, then, does not pose the same kind of risk to the judiciary as other forms of liability, and therefore, it is not necessary to use judicial immunity to interdict it.

Judicial immunity is a creation of the common law and, like any other common law construct, can be superseded by statute. This principle was recognized by the Supreme Court in Pulliam v. Allen,121 in which the Court held that Congress may authorize the awarding of attorney's fees against judges, even when money damages would be precluded by the doctrine of judicial immunity. Pulliam arose from a civil rights action filed against a state magistrate who repeatedly incarcerated criminal defendants for nonjailable offenses when they were unable to post bond. The federal district court in which the case was filed found this practice to violate due process and equal protection of law, and issued an injunction to prohibit it. The district court also found that the plaintiffs were entitled to attorney's fees in the amount of $7038. The attorney's fees were awarded by the court under the Civil Rights Attorney's Fees Awards Act of 1976,122 a federal statute that authorizes courts to award attorney's fees to plaintiffs whose constitutional rights have been violated.

On appeal to the Supreme Court, the defendant-magistrate argued that the award of attorney's fees should be barred by judicial immunity because attorney's fees are the functional equivalent of monetary damages, the award of which are precluded by immunity.123 While agreeing that there was some logic to the defendant's argument, the Court nevertheless upheld the award of attorney's fees on the ground that it was for Congress, not the Supreme Court, to determine whether and to what degree to abrogate the common law doctrine of judicial immunity.124 The Court stated that the legislative history of the Civil Rights Attorney's Fees Award Act of 1976 made it perfectly clear that Congress intended that judicial immunity should not be a bar to an award of attorney's fees, even when damages would be precluded by judicial immunity.125

(San Diego Law Review. Jeffrey M. Shaman)

Footnotes

55 See Ashelman v. Pope, 793 F.2d 1072 (9th Cir. 1986) (en banc); Green v. Maraio, 722 F.2d 1013 (2nd Cir. 1983).
56 See Rankin v. Howard, 633 F.2d 844, 848-49 (9th Cir. 1980), cert. denied, 451 U.S. 939 (1981).
57 See Ashelman, 793 F.2d at 1076; Holloway v. Walker, 765 F.2d 517 (5th Cir.), cert. denied, 474 U.S. 1037 (1985).
58 See Stump v. Sparkman, 435 U.S. 349, 356-57 (1978).
59 See King v. Love, 766 F.2d 962 (6th Cir.), cert. denied, 474 U.S. 971 (1985); see also Adams v. McIlhany, 764 F.2d 294 (5th Cir. 1985), cert. denied, 474 U.S. 1101 (1986).
60 E.g., Adams, 764 F.2d at 298.
61 Id. at 294.
62 See, e.g., Hoppe v. Klapperich, 224 Minn. 224, 28 N.W.2d 780 (1947); Utley v. City of Independence, 240 Or. 384, 402 P.2d 91 (1965).
63 State ex rel. Little v. United States Fidelity & Guar. Co., 217 Miss. 576, 64 So. 2d 697 (1953).
64 Vickrey v. Dunivan, 59 N.M. 90, 279 P.2d 853 (1955).
65 See Forrester v. White, 484 U.S. 219, 227-29 (1988).
66 435 U.S. 349 (1978); see also supra notes 31-34 and accompanying text.
67 Stump, 435 U.S. at 362.
68 See id. at 360-62.
69 Id. at 362-63.
70 Id. at 365-67 (Stuart, J., dissenting).
71 Id. at 365-66.
72 Id. at 367.
73 See Ashelman v. Pope, 793 F.2d 1072, 1075-76 (9th Cir. 1986) (en banc); see also Dykes v. Hosemann, 776 F.2d 942 (11th Cir. 1985), cert. denied, 479 U.S. 983 (1986); Adams v. McIlhany, 764 F.2d 294, 297 (5th Cir. 1985) (citing McAlester v. Brown, 469 F.2d 1280, 1282 (5th Cir. 1972)), cert. denied, 474 U.S. 1101 (1986); Merckle v. Harper, 638 F.2d 848, 858 (5th Cir.), cert. denied, 454 U.S. 816 (1981).
74 See Ashelman, 793 F.2d at 1076.
75 See Adams, 764 F.2d at 297-99.
76 Id.
77 See Gregory v. Thompson, 500 F.2d 59 (9th Cir. 1982).
78 Brewer v. Blackwell, 692 F.2d 387 (5th Cir. 1982).
79 See Harris v. Harvey, 605 F.2d 330 (7th Cir. 1979), cert. denied, 445 U.S. 938 (1980); Zarcone v. Perry, 572 F.2d 52 (2d Cir. 1978); Wall v. Heath, 622 F. Supp. 105 (S.D. Miss. 1985).
80 King v. Love, 766 F.2d 962 (6th Cir.), cert. denied, 474 U.S. 971 (1985).
81 Dear v. Locke, 128 Ill. App. 2d 356, 262 N.E.2d 27 (1970).
82 Devault v. Truman, 354 Mo. 1193, 194 S.W.2d 29 (1946).
83 Grove v. Rizzolo, 441 F.2d 1153 (3d Cir.), cert. denied, 404 U.S. 945 (1971).
84 Collins v. Moore, 441 F.2d 550 (5th Cir. 1971).
85 Peterson v. Knutson, 305 Minn. 53, 233 N.W.2d 716 (1975).
86 Forrester v. White,, 484 U.S. 219 (1988); Supreme Court of Va. v. Consumers Union of United States, Inc., 446 U.S. 719 (1980); Ex Parte Virginia, 100 U.S. 339 (1880).
87 See Forrester, 484 U.S. at 228-30.
88 Id.
89 See Consumers Union, 446 U.S. at 731-34.
90 See Ex Parte Virginia, 100 U.S. 339 (1880); see also Forrester, 484 U.S. at 228 ("Although [Ex Parte Virginia] involved a criminal charge against a judge, the reach of the Court's analysis was not in any obvious way confined by that circumstance.").
91 Ex Parte Virginia, 100 U.S. at 348.
92 Id.
93 Id.
94 See Guerico v. Brody, 814 F.2d 1115 (6th Cir. 1987), cert. denied, 484 U.S. 1025 (1988); Goodwin v. Circuit Court, 729 F.2d 541 (8th Cir.), cert. denied, 469 U.S. 828 (1984), cert. denied, 469 U.S. 1216 (1985); see also McDonald v. Krajewski, 649 F. Supp. 370 (N.D. Ind. 1986).
95 See cases cited supra note 94.
96 792 F.2d 647 (7th Cir. 1986), rev'd, 484 U.S. 219 (1988).
97 Forrester, 792 F.2d at 657.
98 McMillan v. Svetanoff, 793 F.2d 149 (7th Cir.), cert. denied, 479 U.S. 985 (1986).
99 Forrester v. White, 484 U.S. 219 (1988).
100 See id. at 229.
101 See id.
102 See id. at 230.
103 Ashelman v. Pope, 793 F.2d 1072 (9th Cir. 1986) (en banc); Holloway v. Walker, 765 F.2d (5th Cir.), cert. denied, 474 U.S. 1037 (1985).
104 See Holloway v. Walker, 765 F.2d 517 (5th Cir.), cert. denied, 474 U.S. 1037 (1985); Dykes v. Hosemann, 776 F.2d 942 (11th Cir. 1985), cert. denied, 479 U.S. 983 (1986).
105 See Ashelman, 793 F.2d at 1077-78.
106 See supra notes 55-64 and accompanying text.
107 See Consumers Union, 776 F.2d at 946; Ashelman, 793 F.2d at 1077.
108 See Rankin v. Howard, 633 F.2d 844 (9th Cir. 1980), cert. denied, 451 U.S. 939 (1981).
109 See Ashelman, 793 F.2d at 1078.
110 See Holloway v. Walker, 765 F.2d 517 (5th Cir.), cert. denied, 474 U.S. 1037 (1985); Dykes v. Hosemann, 776 F.2d 942 (11th Cir. 1985), cert. denied, 479 U.S. 983 (1986); see also Krempp v. Dobbs, 775 F.2d 1319 (5th Cir. 1985).
111 See Consumers Union, 776 F.2d at 946-48; Ashelman, 793 F.2d at 1077-78.
112 2 J. STORY, COMMENTARIES ON EQUITY JURISPRUDENCE § 875 (11th ed. 1873).
113 Id.
114 Pulliam v. Allen, 466 U.S. 522, 529 (1984).
115 1 W. HOLDSWORTH, A HISTORY OF ENGLISH LAW 226-31 (7th ed. 1956).
116 Gould v. Gapper, 5 East. 345, 102 Eng. Rep. 1102 (R.B. 1804); In re Hill, 10 Ex. Ch. 726 (1855).
117 Pulliam, 466 U.S. at 535-36.
118 See Pulliam, 466 U.S. at 529; R.W.T. v. Dalton, 712 F.2d 1225, 1233-34 (8th Cir.), cert. denied, 464 U.S. 1009 (1983); In re Justices of Supreme Court of Puerto Rico, 695 F.2d 17, 25-26 (1st Cir. 1982); WXYZ v. Hand, 658 F.2d 420 (6th Cir. 1981); Heimbach v. Lyons, 597 F.2d 344, 347 (2d Cir. 1979); Harris v. Harvey, 605 F.2d 330, 337 (7th Cir. 1979), cert. denied, 445 U.S. 938 (1980).
119 See Trainor v. Hernandez, 431 U.S. 424, 440-41 (1979); Judice v. Vail, 430 U.S. 327, 336-38 (1977); Huffman v. Pursue, Ltd., 420 U.S. 592, 601 (1975); Younger v. Harris, 401 U.S. 37, 43-46 (1971).
120 See Pulliam, 466 U.S. at 537-38.
121 466 U.S. 522 (1984).
122 Pub. L. No. 94-559, 90 Stat. 2641 (codified as amended at 42 U.S.C. § 1988 (1982)).
123 Pulliam, 466 U.S. at 543.
124 Id.
125 Id. at 543-44.


IV | JUDICIAL IMMUNITY FROM CRIMINAL LIABILITY

On occasion, judges are sued for making remarks or written statements that are allegedly defamatory. The rule of absolute judicial immunity shields judges from civil liability for any defamatory remarks or statements that they may make.126 Judicial immunity from making a defamatory utterance or statement is, of course, an incident of the civil immunity that judges possess in general. It therefore serves all of the (previously discussed) purposes of judicial immunity, the most important of which is to protect the independence of the judiciary.127

A few courts have taken the position that a judge is immune from liability for defamation only for statements that bear relevance to proceedings before the judge.128 This position, however, apparently confuses the doctrine of judicial immunity with another doctrine by which statements made by any participant in a judicial proceeding are privileged.129 Under the latter doctrine, which functions to foster openness in the judicial process, defamatory statements made by a witness, party, or attorney to a lawsuit are privileged (and hence, cannot form a basis for liability) so long as they are made in the course of a judicial proceeding and are relevant to it.130 On the other hand, judicial immunity, even for defamation, is not conditioned upon a requirement of relevancy, and the majority of courts have so held.131 Otherwise, the goals served by judicial immunity, especially the protection of judicial independence, would be hampered.

As with other instances of judicial immunity, a judge accused of defamation will not be granted immunity when the judge was acting in the clear absence of jurisdiction132 or when the judge was acting in a nonjudicial capacity.133 In accordance with the latter rule, judicial immunity only extends to defamatory statements made in the course of performance of a judicial function.134 Even if made in the courtroom, defamatory statements made beyond the scope of the judicial role are not covered by immunity.135 On the other hand, statements made by a judge outside the courtroom (as well as those made in it) are immune if made as part of the judicial function.136

It is not always a simple matter to determine the perimeters of a judge's duties and whether a defamatory statement has occurred within or beyond them. That a lawsuit has been finally concluded does not necessarily signal the end of the judicial role in it. Thus, in one case, it was held that immunity still existed in regard to a letter written by a judge to a prison warden, providing information for future parole hearings concerning a criminal defendant already sentenced by the judge.137

When judges are required by law to convey their opinions to a court reporter for publication, this is clearly part of the judicial function, and therefore, any defamatory remarks contained in their published opinions are absolutely immune.138 However, a New York court held that it was not part of a judge's function to send opinion to an unofficial reporter, and therefore, defamatory statements in the opinion were not cloaked with immunity.139 Distinguishing between official and unofficial reporters seems highly questionable, and in a subsequent New York case, a circuit court reached a contrary result.140 Even in New York, it is clear that when a judge is directed by law to submit an opinion to a reporter, statements in the opinion are covered by judicial immunity. If a judge did not play a part in sending the opinion to the reporter, the judge cannot be held liable for any defamatory remarks it may contain.141

(San Diego Law Review. Jeffrey M. Shaman)

Footnotes

126 See O'Bryan v. Chandler, 496 F.2d 403 (10th Cir.), cert. denied, 419 U.S. 986 (1974); Ginger v. Bowles, 369 Mich. 680, 120 N.W.2d 842, cert. denied, 375 U.S. 856 (1963); Reller v. Ankeny, 160 Neb. 47, 68 N.W.2d 686 (1955); Brech v. Seacat, 84 S.D. 264, 170 N.W.2d 348 (1969).
127 See supra notes 19-25 and accompanying text.
128 See Wahler v. Schroeder, 9 Ill. App. 3d 505, 292 N.E.2d 521 (1972); Reller, 160 Neb. at 54-55; see also RESTATEMENT (SECOND) OF ToRTS § 585 comment e (1977).
129 See M. COMISKY & P. PATTERSON, supra note 19, at 243.
130 Id.
131 See Rice v. Coolidge, 121 Mass. 393 (1876); Kraushaar v. Lavin, 39 N.Y.S.2d 880, 883 (Sup. Ct. 1943); Karelas v. Baldwin, 237 A.D. 265, 261 N.Y.S. 518 (1932); Houghton v. Humphries, 85 Wash. 50, 147 P. 641 (1915).
132 See supra text accompanying notes 55-64.
133 See supra text accompanying notes 65-111.
134 See Garfield v. Palmieri, 297 F.2d 526 (2d Cir.), cert. denied, 369 U.S. 871 (1962); Ginger v. Bowles, 369 Mich. 680, 120 N.W.2d 842 (1963) cert. denied, 375 U.S. 856 (1963); Murray v. Brancato, 290 N.Y. 52, 48 N.E.2d 257 (1943).
135 See supra text accompanying notes 65-111.
136 See Kraushaar v. Lavin, 39 N.Y.S.2d 880, 884 (Sup. Ct. 1943).
137 Brech v. Seacat, 84 S.D. 264, 170 N.W.2d 348 (1969).
138 See Garfield, 297 F.2d at 527-28; see also McGovern v. Marty, 182 F. Supp. 343 (D.D.C. 1960).
139 See Murray v. Brancato, 290 N.Y. 52, 48 N.E.2d 257 (1943).
140 Garfield v. Palmieri, 297 F.2d 526 (2d Cir.), cert. denied, 369 U.S. 871 (1962).
141 See Bradford v. Pette, 204 Misc. 308 (N.Y. 1953).


V | MISAPPROPRIATION OR MISUSE OF FUNDS AND ESTATES

There are cases in which judges have been found civilly liable for misappropriating funds entrusted to their care.142 However, in these cases the doctrine of judicial immunity apparently was overlooked, because there is no mention of it. Nevertheless, misappropriation of funds entrusted to the care of a judge may be beyond the scope of immunity on the ground that it is not a judicial act. Or, liability for misappropriating funds may be imposed on judges by statutory provisions that overrule, in some aspects, the common law doctrine of immunity.143 Whatever the rationale might be, it seems quite reasonable to hold judges liable for misappropriating funds for their own use. Such behavior, after all, amounts to theft, and judges should be made to return any funds they have stolen from others.

On the other hand, immunity should shield judges from liability for honest errors of judgment they may commit in administering funds or estates assigned to their care. According to the case law, judges do possess immunity for honest mistakes in the administration of funds or estates.144 There are a few decisions, though, which state that immunity does not cover ministerial acts by judges that result in negligent loss to an estate.145 Ministerial acts are usually regarded as nonjudicial in character and, hence, not within the ambit of immunity.146 In some instances, judges are made liable by statute for the negligent administration of an estate resulting in loss to the estate.147

(San Diego Law Review. Jeffrey M. Shaman)

Footnotes

142 See Brown v. Rutledge, 20 Ga. App. 118, 92 S.E. 774 (1916); King County v. United Pac. Ins. Co., 72 Wash. 2d 604, 434 P.2d 554 (1967).
143 See Commonwealth v. Lee, 120 Ky. 433, 86 S.W. 990 (1905).
144 See Truesdale v. Bellinger, 172 S.C. 80, 172 S.E. 784 (1934).
145 See e.g., id. at 87-88, 172 S.W. at 787.
146 American Surety Co. v. Skaggs' Guardian, 247 Ky. 687, 57 S.W.2d 495
147 See cases cited supra note 146.


VI | JUDICIAL IMMUNITY FROM CRIMINAL LIABILITY

A. General Rule of No Immunity

But for one narrow exception,148 judicial immunity does not exempt judges from criminal liability.149 Courts have stated unequivocally that the judicial title does not render its holder immune from responsibility even when the criminal act is committed behind the shield of judicial office.150 As is the case regarding immunity from civil liability,151 immunity from criminal liability does not extend to nonjudicial acts or acts taken in the clear absence of all jurisdiction.152 Even beyond such acts, however, judicial immunity generally is not available for criminal behavior. For instance, judicial immunity does not shield judges from criminal liability for fraud or corruption, or for soliciting or accepting bribes.153 This is as it should be; although important, the purposes of the doctrine of judicial immunity are not so important that they transcend the function of the criminal law to protect the public from crime, especially crime as egregious as fraud, corruption, or bribery. As a consequence, judicial immunity normally stops short of protecting criminal behavior.

The one area where judges can be said to enjoy immunity from criminal liability is for malfeasance or misfeasance in the performance of judicial tasks undertaken in good faith.154 In some states malfeasance or misfeasance in office is made criminal either by statute or common law rule.155 However, this criminal liability will be precluded by judicial immunity unless the malfeasance or misfeasance is accompanied by bad faith.156

Furthermore, even in this area, judicial immunity will not be granted for malfeasance or misfeasance by a judicial officer in the performance of an act that is administrative in character rather than (1983); Heyn v. Massachusetts Bonding & Ins. Co., 110 S.W.2d 261 (Tex. 1937). judicial. In Ex Parte Virginia,157 the Supreme Court ruled that judicial immunity would not be given to a judge indicted for excluding qualified black persons from jury lists because the selection of jurors was an administrative task, not a judicial one.158 As previously noted, the nonjudicial nature of jury selection is indicated in that it is a task often performed by nonjudicial personnel and, indeed, is one that could be performed by private persons.159 Given the ministerial character of jury selection, the court ruled, the judge was not protected by judicial immunity from criminal liability.160

The Supreme Court's decision in Ex Parte Virginia apparently was overlooked in Commonwealth v. Tartar,161 in which the Kentucky Court of Appeals ruled that a judge was entitled to immunity from criminal misfeasance for improperly certifying a list of grand jurors whose names had not been drawn from a jury wheel or drum as required by law. Although the judge's action in this case would seem to be no less a ministerial task than the judge's action in Ex Parte Virginia, the Tartar court made no mention of the thought that certification of jurors might be a nonjudicial task not covered by immunity. While the situation in Tartar, unlike that in Ex Parte Virginia, did not involve the pernicious behavior of racial discrimination, the supposedly controlling factor in granting immunity is whether the act in question is judicial or administrative; in that respect, the cases appear to be indistinguishable.

Except for cases involving malfeasance or misfeasance in office, claims of judicial immunity for criminal behavior are unavailing. Hence, in Braatelien v. United States,162 it was held that a judge could not claim immunity from a criminal charge of conspiring to defraud the government. The court pointed out that the judge in question had not been indicted for an erroneous or even wrongful judicial act, but for criminal behavior that was distinct from his official functions.163 The court noted that the crime could have been completed without the performance of a single judicial act by the judge and, therefore, amounted to nonjudicial behavior beyond the bounds of immunity.164 Moreover, the court stated that judges may be held criminally responsible for fraud or corruption because judicial immunity provides no cloak for criminal behavior.165

Immunity from criminal liability was also found not to exist in McFarland v. State,166 in which a judge not only collaborated with a criminal defendant to wrongfully secure the defendant's release by issuing a void writ of habeas corpus, but also improperly cited another judge for disregarding the void writ. For engaging in these actions, the judge was charged with the crime of constructive contempt, and on appeal to the Supreme Court of Nebraska it was ruled that the judge could not claim immunity for this sort of behavior because it was nonjudicial in nature. Indeed, the Nebraska high court made the statement that "[t]o say that such conduct was outside the realm of judicial action is to put it mildly."167 This statement, though, is questionable. Although the court undoubtedly was correct in saying that the judge acted fraudulently and corruptly, and that he unlawfully attempted to interfere with a criminal proceeding, the fact remains that the judge did so, at least in part, by issuing a writ and a contempt citation - both of which are actions that judges normally perform, and that would usually be considered judicial functions. However, the court was on more solid ground in noting that the judge acted in the absence of jurisdiction, and that judicial immunity does not extend to this sort of criminal behavior."168

Judges need not be impeached before being indicted and tried on criminal charges.169 Even federal judges, who "hold their Offices during good Behavior"170 under article III of the Constitution, may be criminally prosecuted while still in office. The Constitution does not bar the trial of a judge for alleged crimes committed before or after taking office. The tenure granted to federal judges by article III is not meant to give shelter to criminal behavior, and therefore, impeachment of a judge is not a prerequisite to criminal prosecution.171

B. Criminal Activity as Grounds for Removal from Judicial Office or Other Disciplinary Sanctions

In some states it is provided by constitutional enactment, statute, or supreme court rule that conviction of a judge of certain crimes operates to automatically remove the judge from office. The content of these provisions differ slightly: most mandate removal from office upon conviction of a felony,172 others upon conviction of a crime involving moral turpitude,173 and yet others upon conviction of an "infamous" crime.174 Essentially, they all provide for removal from office of judges who have been convicted of committing a serious crime. Under these provisions, judges have been removed from office for engaging in mail fraud,175 racketeering,176 bribery,177 extortion,178 obstructing justice,179 assault,180 and other felonies or serious crimes.181 These provisions ordinarily do not allow judges to challenge their convictions as being erroneous; once a conviction becomes final, that in itself will operate to require a forfeiture of the judicial office182 and may also disqualify the convicted judge from holding office in the future.183

Some provisions further direct that if a judge is indicted on a serious criminal charge, the judge will be suspended from office, pending final adjudication of the charge.184 It has been held that such suspensions, even though they occur prior to a determination of guilt, do not violate the due process clause because of the overriding public interest in ensuring an upstanding judiciary.185 During the period of suspension, a judge may continue to be entitled to receive his or her salary.186 But once a criminal conviction becomes final, permanent forfeiture of office will occur and the payment of salary will be terminated.187

Criminal behavior on the part of a judge also may run afoul of the Code of Judicial Conduct. Criminal conduct is an affront to canon 1 of the Code, which requires judges to uphold the integrity of the judiciary and to observe high standards of behavior.188 Criminal conduct further offends canon 2, which requires judges to avoid impropriety and the appearance of impropriety in all of their activities.189 Indeed, criminal activity obviously contravenes both of these canons by undermining public confidence in the judiciary and impairing the administration of justice.190

A wide variety of crimes have been held to violate the Code of Judicial Conduct when committed by a judge. They include tax evasion, 191 receiving stolen goods,192 contributing to the delinquency of a minor,193 driving under the influence of alcohol,194 use of illegal drugs,195 jury tampering,196 racketeering,197 battery,198 resisting police officers,199 and welfare fraud.200 These are but some of the criminal actions that have been found to violate the Code of Judicial Conduct.

Some courts have held that even in the absence of a criminal conviction, a judge may violate the Code of Judicial Conduct if it merely appears that the judge has committed a crime. This occurred in In re Killam,201 in which a judge was charged with driving under the influence of alcohol. At his criminal trial, the judge admitted facts sufficient to establish a finding of guilt on the charge, but the trial court continued the case for one year on the condition that the judge enter and successfully complete a driver alcohol education program. The judge did so, and the criminal charges against him eventually were dismissed. Nonetheless, in a separate disciplinary proceeding, the Massachusetts Supreme Judicial Court ruled that the judge had violated the Code of Judicial Conduct by driving under the influence of alcohol. The dismissal of the criminal charges, in the court's opinion, had no effect upon the disciplinary proceedings because the criminal law serves different purposes than the disciplinary process.202 Regardless of what the criminal court ruled, the state supreme court, when later considering the disciplinary action, thought the evidence disclosed in the criminal proceeding showed that the judge did actually drive while under the influence of alcohol and thus violated the Code by bringing undeserved discredit to the judiciary.203

A plea of nolo contendere to a criminal charge, in itself, may constitute a violation of the Code. In In re Inquiry Concerning A Judge No. 491,204 the Supreme Court of Georgia upheld the Judicial Qualification Commission's finding that a judge's plea of nolo contendere to a crime involving moral turpitude had brought the judicial office into disrepute, in violation of the Code of Judicial Conduct, even though the question of guilt was not formally adjudicated by such a plea.205 Notwithstanding that there existed a statute prohibiting the use of the plea as an admission of guilt, the Georgia Supreme Court held that because the Commission was not inquiring into the guilt of the judge as charged, but merely whether the judge's plea of no contest had brought the judicial office into disrepute, the Commission could not be restricted by legislative act from considering "any conduct of a judicial officer which reflects on the question they are called upon to decide.206

C. The Relationship Between the Criminal Process and the Disciplinary Process: The Doctrine of Double Jeopardy

As a general rule, the doctrine of double jeopardy does not operate as a bar to judicial disciplinary proceedings regarding conduct that has previously been the subject of adjudication in a criminal trial.207

Double jeopardy ordinarily applies only when one criminal action is followed by another, and because judicial disciplinary proceedings are considered noncriminal in nature, double jeopardy does not attach between them and a prior criminal adjudication.208 While sharing some similarities with the criminal process, judicial disciplinary proceedings are usually considered a distinct entity, sui generis, and therefore double jeopardy does not arise between the criminal and disciplinary processes.209

For purposes of the doctrine of double jeopardy, many courts consider judicial disciplinary proceedings to be noncriminal in nature because they function differently than the criminal law.210 While some courts have arrived at this conclusion because judicial proceedings do not result in the imposition of imprisonment or fines,211 other courts have determined that such proceedings are noncriminal because their purpose is not to punish, but to maintain the honor and integrity of the judiciary and to restore and reaffirm the public confidence in the administration of justice.212 In short, it has been said that the essence of the sanction imposed in disciplinary cases is not "punishment." Instead, sanctions are based on grounds bearing a rational relationship to the interests of the state in the fitness of its judicial personnel.213 The judicial disciplinary process further differs from the criminal process in that it does not entail severe penalties, such as imprisonment, which require special procedural protection before they may be imposed. As a result, in those instances for which the particular conduct transgresses both the criminal law and the canons of ethics, prosecution may be pursued under either or both systems without invoking constitutional double jeopardy concerns.214

Judicial disciplinary proceedings have also been described by some courts as regulatory in nature.215 In states that have adopted the two-tier model of judicial conduct organizations,216 proceedings in the first tier, where no adjudication occurs, have been said to be merely investigatory or quasi-administrative. As such, they serve a function similar to that of a grand jury to which double jeopardy does not attach.217 (This, however, does not explain why double jeopardy concerns would not come into play at the second tier of the proceedings.)

In accordance with these general principles, the Alabama Court of the Judiciary in In re Burns,218 ruled that it was not precluded from censuring a judge for proposing an act of prostitution to a woman, in violation of canon 2, even though this conduct had already been the basis of the judge's criminal conviction of disorderly conduct. Prior adjudication of the conduct in a criminal proceeding did not bar further inquiry of the same conduct in a disciplinary proceeding by the Court of the Judiciary.

The unavailability of the defense of double jeopardy to a judicial disciplinary commission proceeding is further illustrated by In re Bates.219 In Bates, the Judicial Qualification Commission of Texas was allowed to proceed with its hearing prior to the completion of criminal prosecution on the same subject matter because the Commission's hearing was deemed a "separate and distinct matter and completely independent of any other proceedings which were pending."220 A similar result was reached by the California Supreme Court in McComb v. Commission on Judicial Qualifications.221 There, the court likened a judicial proceeding to that of a state bar disciplinary proceeding for which criminal procedural safeguards do not apply due to the noncriminal nature of the proceeding.222

Employing similar reasoning, courts have also held that legislative action to remove or impeach a judge on grounds of- misconduct in office does not invoke double jeopardy protection against subsequent disciplinary proceedings based on the same misconduct. In Ransford v. Graham,223 the Supreme Court of Michigan held that the refusal of the state House of Representatives to vote for the removal of a judge did not bar, on double jeopardy grounds, subsequent proceedings by the state supreme court regarding the judge's fitness to serve. The court held that neither the impeachment nor the disciplinary actions were criminal in nature, and therefore, the doctrine of double jeopardy did not apply.224 Likewise, the New Jersey Supreme Court has taken the position, in In re Mattera,225 that impeachment only determines a judge's right to hold office and is not intended to bar or delay other actions for a public wrong. The court held that a single act of misconduct may offend the public interest in a number of areas, and justice requires an appropriate remedy for each harm created.226

The New Jersey Supreme Court could find no reason why a prescription in the Constitution of a remedy for one purpose should be found to imply an intention to deny government the power to protect the public in its other interests or to immunize the offender from further consequences of his or her acts.227 This view was reiterated by the Texas Supreme Court in In re Carrillo,228 where it was held that a judge's removal from office by a state senate impeachment proceeding did not preclude judicial action based on the same conduct leading to the removal. The court ruled that both proceedings could be pursued concurrently.229

As a result of courts' refusal to apply the doctrine of double jeopardy to judicial disciplinary proceedings, a judge's prior criminal conviction may be admitted as evidence of judicial misconduct in a subsequent disciplinary inquiry.230 In Louisiana State Bar Ass'n. v. Funderburk231 a judge's guilty plea to criminal charges was entered as competent evidence of misconduct at a subsequent commission investigation, and it created a rebuttable presumption of guilt which the respondent judge had the burden to overcome. Similarly, in In re Biggins,232 the Arizona Supreme Court held that a judge's conviction of driving under the influence of alcohol afforded an "entirely independent and self-sufficient basis for sustaining the commission's censure recommendation.233 In the opinion of the Arizona court, the judge's conviction was of sufficient consequence to be, in and of itself, conduct prejudicial to the administration of justice, bringing the judicial office into disrepute.234 This view was also expressed in In re Callanan,235 in which the Michigan Supreme Court held that a judge's felony conviction for violations of the RICO act was sufficient evidence of conduct which brought the judicial office into disrepute.236

The general refusal by the courts to apply double jeopardy protection to judicial disciplinary proceedings has not gone entirely without criticism. In In re Friess,237 a New York trial court said that the contention of the State Commission on Judicial Conduct that its proceedings were merely disciplinary and, therefore, not subject to criminal trial standards, was "either niave [sic] or hyprocritical [sic]."238 Whatever label might be assigned to the proceedings, the court said, was merely an exercise in semantics. The court, instead, held that common law safeguards attach "to any significant hearing where the State attempts to deprive an individual of property without due process."239 Viewing the current livelihood and good reputation of its judges as valuable property rights, the New York court held that a judge is entitled to all the constitutional rights of a fair trial, including, but not limited to, protection from double jeopardy or star chamber proceedings.240

Despite the concerns of the trial court in Friess, its grant of the petitioner's request for a severance of charges in accordance with constitutional safeguards was modified by the New York appellate division in In re Application of Friess,241 to the extent of denying the request for severance and removing constitutional double jeopardy protection from disciplinary proceedings. In doing so, the appellate court distinguished disciplinary proceedings from criminal ones by their differing purposes and nature, as well as the disparity of penalties involved, noting particularly that in disciplinary proceedings the fundamental right of liberty is not at stake.242 The appellate court in Friess also pointed out that the hearer of fact in a disciplinary proceeding is routinely a seasoned former jurist as opposed to a panel of lay jurors. In the opinion of the court, these former jurists are fully capable of distinguishing between proof submitted on one charge and proof submitted on another or previous charge.243

(San Diego Law Review. Jeffrey M. Shaman)

Footnotes

148 See infra text accompanying notes 154-56.
149 See Ex Parte Virginia, 100 U.S. 339, 348 (1880); Braatelien v. United States, 147 F.2d 888 (8th Cir. 1945); McFarland v. State, 172 Neb. 251, 109 N.W.2d 397 (1961).
150 Braatelien, 147 F.2d at 895; McFarland, 172 Neb. at 260, 109 N.W.2d at 404.
151 See supra text accompanying notes 55-111.
152 See Braatelien, 147 F.2d at 895; McFarland, 172 Neb. at 260, 109 N.W.2d at 404.
153 See Braatelien v. United States, 147 F.2d 888 (8th Cir. 1945); McFarland v. State, 172 Neb. 251, 109 N.W.2d 397 (1961).
154 See Hamilton v. Williams, 26 Ala. 527 (1855); Commonwealth v. Tartar, 239 S.W.2d 265 (Ky. 1951); In re McNair, 324 Pa. 48, 187 A. 498 (1936).
155 See M. COMISKY & P. PATTERSON, supra note 19, at 239.
156 See cases cited supra note 149.
157 100 U.S. 339 (1880).
158 See id. at 348.
159 See supra text accompanying notes 86-93.
160 See Ex Parte Virginia, 100 U.S. at 348.
161 239 S.W.2d 265 (Ky. 1951).
162 147 F.2d 888 (8th Cir. 1945).
163 Id. at 895.
164 Id.
165 Id.
166 172 Neb. 251, 109 N.W.2d 397 (1961).
167 Id. at 260, 109 N.W.2d at 403.
168 Id.
169 See United States v. Issacs, 493 F.2d 1124 (7th Cir.), cert. denied, 417 U.S. 976 (1974).
170 U.S. CONST. art. III, § 1.
171 Issacs, 493 F.2d at 1140-44.
172 E.g., Ky. Sup. CT. R. 4.020; MICH. CONST. art. VI, § 30(2); OR. CONST. art. VII, § 8(1); WASH. REV. CODE ANN. § 9.92.120 (1988).
173 E.g., WYO. CONST. art. V, § 6(c).
174 E.g., PA. CONST. art. VI, § 7.
175 In re Callanan, 419 Mich. 376, 355 N.W.2d 69 (1984).
176 Sullivan v. State ex reL Attorney Gen., 472 So. 2d 970 (Ala. 1985).
177 In re Coruzzi, 95 N.J. 557, 472 A.2d 546 (1984).
178 In re Kivett, 309 N.C. 635, 309 S.E.2d 442 (1983).
179 In re Tindall, 60 Cal. 2d 469, 386 P.2d 473, 34 Cal. Rptr. 849 (1963), cert. denied, 377 U.S. 966 (1964).
180 State ex rel. Carroll v. Simmons, 61 Wash. 2d 146, 377 P.2d 421 (1962), cert. denied, 374 U.S. 808 (1963).
181 For a summary of modern cases involving the criminal conduct of judges, see AMERICAN JUDICATURE Soc'Y, JUDICIAL DISCIPLINE AND DISABILITY DIGEST 355-58 (1981).
182 See State ex rel. Carroll v. Simmons, 61 Wash. 2d 146, 377 P.2d 421 (1962), cert. denied, 374 U.S. 808 (1963); In re Callanan, 419 Mich. 376, 355 N.W.2d 69 (1984).
183 WASH. REV. CODE ANN. § 9.92.120 (1988).
184 E.g., CAL. CONST. art. VI, § 18.
185 See Gruenburg v. Kavanagh, 413 F. Supp. 1132 (E.D. Mich. 1976).
186 E.g., MICH. CT. R. 9.220.
187 E.g., WASH. REV. CODE ANN. § 9.92.120 (1988).
188 MODEL CODE OF JUDICIAL CONDUCT Canon 1 (1972).
189 Id. Canon 2.
190 See In re Wireman, 270 Ind. 344, 367 N.E.2d 1368 (1977), cert. denied, 436 U.S. 904 (1978); In re Callanan, 419 Mich. 376, 355 N.W.2d 69 (1984); In re Duncan, 541 S.W.2d 564 (Mo. 1976); In re Hunt, 308 N.C. 328, 302 S.E.2d 235 (1983); W. Va. Judicial Inquiry Comm'n v. Dostert, 165 W. Va. 233, 271 S.E.2d 427 (1980).
191 In re Van Susteren, 118 Wis. 2d 806, 348 N.W.2d 579 (1984).
192 In re Maxwell, 287 S.C. 594, 340 S.E.2d 541 (1986).
193 Id.
194 In re Killam, 388 Mass. 619, 447 N.E.2d 1233 (1983).
195 Starnes v. Judicial Retirement & Removal Comm'n, 680 S.W.2d 922 (Ky. 1984); In re Whitaker, 463 So. 2d 1291 (La. 1985).
196 In re Robert Dean Hawkins, (Unreported Order, Judicial Retirement & Removal Comm'n, Ky. Nov. 28, 1984).
197 In re Callanan, 419 Mich. 376, 355 N.W.2d 69 (1984); In re Raineri, 102 Wis. 2d 418, 306 N.W.2d 699 (1981).
198 In re Roth, 293 Or. 179, 645 P.2d 1064 (1982).
199 Roberts v. Comm'n on Jud. Performance, 33 Cal. 3d 739, 661 P.2d 1064, 190 Cal. Rptr. 910 (1983).
200 In re Inquiry Concerning A Judge No. 491, 249 Ga. 30, 287 S.E.2d 2 (1982).
201 388 Mass. 619, 447 N.E.2d 1233 (1983).
202 Id. at 622, 447 N.E.2d at 1235-36.
203 Id. at 623, 447 N.E.2d at 1236.
204 249 Ga. 30, 287 S.E.2d 2 (1982).
205 Id. at 31, 287 S.E.2d at 4.
206 Id.
207 See In re Burns (Unreported Judgment COJ-7, Ala. Ct. Jud., July 18, 1977); In re Biggins, 153 Ariz. 439, 737 P.2d 1077 (1987); McComb v. Comm'n on Jud. Performance, 19 Cal. 3d 1, 564 P.2d 1, 138 Cal. Rptr. 459 (1977); In re Inquiry Concerning A Judge No. 491, 249 Ga. 30, 287 S.E.2d 2 (1982); Louisiana State Bar Ass'n v. Funderburk, 284 So. 2d 564 (La. 1973); In re Szymanski, 400 Mich. 469, 255 N.W.2d 601 (1977); In re Bates, 555 S.W.2d 420 (Tex. 1977).
208 See cases cited supra note 207.
209 See In re Haddad, 128 Ariz. 490, 492, 627 P.2d 221, 223 (1981).
210 See id.; In re Kelley, 238 So. 2d 565, 569 (Fla. 1970), cert. denied, 401 U.S. 962 (1971); In re Benoit, 487 A.2d 1158 (Me. 1985); In re Storie, 574 S.E.2d 369 (Mo. 1978); In re Wright, 313 N.C. 495, 329 S.E.2d 668 (1985).
211 See Kelley, 238 So. 2d at 569.
212 See Benoit, 487 A.2d at 1174;'In re Diener, 268 Md. 659, 304 A.2d 587 (1973), cert. denied, 415 U.S. 989 (1974); Sharpe v. State, 448 P.2d 301 (Okla. 1968), cert. denied, 394 U.S. 904 (1969); In re Coruzzi, 95 N.J. 557, 472 A.2d 546, appeal dismissed, 469 U.S. 802 (1984); Wright, 313 N.C. at 499, 329 S.E.2d at 671.
213 Kelley, 238 So. 2d at 569.
214 See People v. La Carrubba, 46 N.Y.2d 658, 661, 416 N.Y.S.2d 203, 206, 389 N.E.2d 799, 802 (1979); see also cases cited supra note 207.
215 E.g., In re Haddad, 128 Ariz. 490, 492, 627 P.2d 221, 223 (1981); Coruzzi, 95 N.J. at 570, 472 A.2d at 557.
216 See I. TESITOR & D. SINKS, JUDICIAL CONDUCT ORGANIZATIONS 3 (2d ed. 1980).
217 See In re Samford, 352 So. 2d 1126, 1128-29 (Ala. 1977); In re Ross, 428 A.2d 858, 860 (Me. 1981); In re Judge Anonymous, 590 P.2d 1181, 1188 (Okla. 1978).
218 In re Burns (Unreported Judgment COJ-7, Ala. Ct. Jud., July 18, 1977); In re Biggins, 153 Ariz. 439, 737 P.2d 1077 (1987); McComb v. Comm'n on Jud. Performance, 19 Cal. 3d 1, 564 P.2d 1, 138 Cal. Rptr. 459 (1977); In re Inquiry Concerning A Judge No. 491, 249 Ga. 30, 287 S.E.2d 2 (1982); Louisiana State Bar Ass'n v. Funderburk, 284 So. 2d 564 (La. 1973); In re Szymanski, 400 Mich. 469, 255 N.W.2d 601 (1977); In re Bates, 555 S.W.2d 420 (Tex. 1977).
219 555 S.W.2d 420 (Tex. 1977).
220 Id. at 428.
221 19 Cal. 3d Spec. Trib. Supp. 1, 564 P.2d 1, 138 Cal. Rptr. 459 (1977).
222 Id. at 9, 564 P.2d at 5, 138 Cal. Rptr. at 463.
223 374 Mich. 104, 131 N.W.2d 201 (1964).
224 Id. at 105, 131 N.W.2d at 203.
225 34 N.J. 259, 168 A.2d 38 (1961).
226 Id. at 266, 168 A.2d at 42.
227 Id.
228 542 S.W.2d 105 (Tex. 1976).
229 Id. at 108; see also In re Mussman,, 112 N.H. 99, 289 A.2d 403 (1972).
230 See In re Biggins, 153 Ariz. 439, 737 P.2d 1077 (1987); In re Inquiry Concerning A Judge No. 491, 249 Ga. 30, 287 S.E.2d 2 (1982); Louisiana State Bar Ass'n v. Funderburk, 284 So. 2d 564 (La. 1973); In re Callanan, 419 Mich. 376, 355 N.W.2d 69 (1984).
231 284 So. 2d 564 (La. 1973).
232 153 Ariz. 439, 737 P.2d 1077 (1987).
233 Id. at 443-44, 737 P.2d at 1081-82.
234 Id.
235 419 Mich. 376, 355 N.W.2d 69 (1984).
236 Id. at 387-89, 355 N.W. 2d at 74.
237 N.Y.L.J., June 2, 1982 at 1, col. 5 (N.Y. Sup. Ct. May 27), modified, 91 A.D.2d 554, 457 N.Y.S.2d 33 (1982).
238 Friess, N.Y.L.J., June 2, 1982 at 7, col. 2.
239 Id.
240 Id.
241 91 A.D.2d 554, 457 N.Y.S.2d 33 (1982).
242 Id. at 556, 457 N.Y.S.2d at 35.
243 Id.


VII | CONCLUSION

Under the law, judicial liability for criminal activity is treated quite differently than judicial liability for tortious or other noncriminal wrongful conduct. With one minor exception for malfeasance or misfeasance in office, judges possess no immunity for their criminal behavior. Whatever threat criminal liability might pose to judicial independence, it is not strong enough to override the importance of enforcing the criminal law, even against judges. No one ought to be exempt from the criminal law, and it has been consistently recognized that judges should not be able to hide behind their office as shelter for criminal behavior that harms society.

On the other hand, judges enjoy a substantial degree of immunity from civil liability. Indeed, judges possess not only a qualified immunity from civil liability, like their fellow public servants in the executive branch, but also an absolute immunity that protects them even when they commit wrongs intentionally or maliciously. It is true that judicial immunity stops short of shielding nonjudicial actions or actions taken in the clear absence 6f all jurisdiction, but these limits on the doctrine of judicial immunity are applied sparingly, if not reluctantly. Within these limits, the intentional and malicious civil wrongs of judges, no matter how egregious, are cloaked with absolute immunity.

It is said that this grant of absolute immunity for judges is necessary to maintain judicial independence and to protect judges from harassment by disgruntled litigants. Surely these are admirable goals, but whether absolute immunity, as distinct from qualified immunity, is truly necessary to effectuate them is an open question. A grant of immunity for intentional and malicious civil wrongs has not been found necessary in the executive branch of government. Judicial independence should be scrupulously guarded and some degree of immunity from civil liability must be maintained for judges. But absolute judicial immunity from civil liability remains a debatable practice.

(San Diego Law Review. Jeffrey M. Shaman)

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