Texas Judicial Immunity
YouKnowItAll.com
© A. Hawkins 2002
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Table of Contents
Part 1
Analysis
Judicial
Immunity is Immunity From Suit for Money
Terminology
Problems and Suggestions
The Effect
of Judicial Immunity
The Status
of Being a Judge is Not the Key
The Key to
Judicial Immunity is a Judicial Act in a proper Judicial Context
The Job
Description Analogy
Unauthorized
Delegation of Judicial Function
Unauthorized
Group Action and delegation of judicial function
Delegation
of the judicial function to those who bribe the judge
Execution
The Union
Rules Analogy
Judicial
Immunity is Limited to the person doing the Judging
Focus
on the Basic Concept
Public
Policy
B. Specific Judicial
Immunity Issues
Being a
Judge Is Not the Test
The Required
Elements of a Judicial Act & Jurisdiction
An Immune
Act Must be Within Jurisdiction
The importance of a petition and case
No Immunity
for Conspirators and Conspiracies
Part 2
Case Study
Texas Supreme Court
Cases
Turner v.
Pruitt,
342 S.W.2d 422 (Tex. 1961)
Issues:
The elements of judicial immunity. Is a judge immune when the judge fails to
perform a mandatory duty that arises in a judicial proceeding over which the
judge has jurisdiction? Is the failure to comply with a mandatory duty to
impanel a jury within the scope of judicial immunity? Does judicial immunity
apply to justices of the peace?
Clements
v. Barnes,
834 S.W.2d 45 (Tex. 1992) (per curium)
Issues: The
immunity claim and pleadings.
McGough v.
First Court of Appeals, 842 S.W.2d 637 (Tex. 1992) (per curium)
Issues: Does
judicial immunity require limitation on a judge’s role?
Texas Courts of Appeals
Cases
Speed on the highway,
but slow going in court.
Kimmel v Leoffler, 791
S.W.2d 648 (Tex.App.-San Antonio 1990)
Issues:
Affirmative defense, jurisdiction over the particular case.
A precise examination of
pleading and proof issues.
Spencer v. City of Seagoville 700
S.W.2d 953 (Tex.App.-Dallas 1985)
Issues:
pleading requirements, statement of a claim, summary judgment, judicial
immunity as an affirmative defense, evidence required to prove judicial
immunity, burden of proof, special exceptions, clerk’s judicial immunity,
jurisdiction of the person, activation of a court’s jurisdiction over a case,
§1983, judicial function, judge swearing out complaint.
Speeding creates heartache.
Tedford v. McWhorter
373 S.W.2d 832 (Tex.Civ.App.-Eastland 1964)
Issues:
Is potential jurisdiction activated? Is there a case?
Goats create a mess.
Undivided interests in land are a mess.
Rea v. Cofer 879 S.W.2d 224
(Tex.App.-Dallas 1994)
Issues:
Affirmative defense, burden of proof, evidence, subject matter jurisdiction.
A court fails to
identify the “acts” which are in issue.
McDuffie v. Blassingame 883 S.W.2d 329
(Tex.App.-Amarillo 1994)
Issues:
What is the act for which immunity is sought?
The Bradt Court Misunderstands.
Bradt v. West 892 S.W.2d 56 (Tex.App.-Houston[1stDist.]
1994)
Issues: Is the jurisdictional requirement for
immunity satisfied if a court has subject matter jurisdiction but the judge
does not have authority or “jurisdiction” to preside over the court at the time
of the act, and the act is therefore void? Is a judge who conspires with others
to engage in actionable conduct immune?
Bradt - A Judge Who Conspires To
Commit a Tort
Bradt - The purpose of
Judicial Immunity
Bradt - Affirmative Defense
Pleading and Proof
Bradt - Appellate review of a
summary judgment
Texas
District Court Employment and Political Decisions.
Guerrero v. Refugio County 946 S.W.2d 558
(Tex.Civ.App.-Corpus Christi 1997)
Issues: Judicial function. Function of county
judge and district judges in employment, supervision, removal, control and
payment of county auditor. Pleading and proof requirements to support summary
judgment for immunity defense.
Judicial immunity does
not attach to a city charging illegal fees for warrants.
Kubosh v. City of Houston, 2 S.W.3d 463 (Tex.App.-Houston
[1st Dist.] 1999)
Issues:
Is the act a judicial function?
The Court Reporter and Court Err
Halsey v. Dallas County No. 05-00-01518-CV May 31, 2001 (Tex.App. -
Dallas 2001)
Issues:
Are errors by a court reporter protected by judicial immunity? The court is confused.
Affirmative Defense
Pleading and Proof
Villarreal v. Martinez 834 S.W.2d 450 (Tex.App.-Corpus Christi
1992)
Issues:
[This is not a judicial immunity case.] Immunity pleading and proof requirements.
Judicial immunity is a
reason that a judge should not act.
[Estate,
guardianship, and trial lawyers who bring claims for minors or incapacitated
persons should take note.]
McGough v. First Court of Appeals, 842 S.W.2d 637 (Tex.
1992) (per curium)
Issue:
May a judge direct investments? Is judicial immunity a factor in determining
the proper limit on judicial power. Should a judge refrain from an act because the judge would have immunity
and the person who performs the act should be subject to suit?
Interlocutory
Appeals of Judicial Immunity Determination
Garza v. Morales, 923 S.W.2d 800 (Tex.App. - Corpus Christi
1996)
Issues:
Interlocutory appeal from denial of summary judgment for judicial immunity.
Part 3
Discussion (at www.youknowitall.com)
Part 4
Appendix (A separate document)
The
Course Text
Texas Judicial Immunity
This
course is on Texas law.
To
some extent, Texas follows the lead of the United States Supreme Court in
defining the scope of Judicial Immunity. Therefore, Federal authority is useful
as a guide in Texas courts. This course
includes some Federal cases on that basis.
Sometimes
judicial immunity is clear and simple. Sometimes it is complicated. Sometimes
judicial immunity obviously applies. Sometimes it obviously doesn’t apply. Some
situations are close calls. Some situations confuse lawyers and judges alike.
This course explores those complications. Extreme examples will be used as
teaching tools, with an irreverent tone to lighten our heart.
Some
find the whole subject of judges being sued distasteful. It is. But perhaps all
suits are distasteful, as are the facts that create the causes of actions.
Doctors find suits against doctors distasteful, lawyers find suits against
lawyers distasteful, and judges find suits against judges distasteful.
Distasteful as it may be to some, we proceed with our task. You may prefer to
view this course as one about the acts for which a judge may not be sued. You
may prefer to view this course as one about the acts for which a judge may be
sued. It is both.
Course Structure
The
first part of this course is a
topical review of the law of judicial immunity in which various issues and
concepts are explained, with a mix of commentary by the author and quotations
from Federal court opinions.
The
second part of this course reviews
opinions of the Texas Supreme Court and other Texas courts. Here, you can read the words of the Texas
courts along with the teacher’s analysis of, and comments upon, those opinions.
The
third part of this course is the Discussion
located at www.YouKnowItAll.com.
The
fourth part is an appendix of
related statutes and reference material.
Part 1
A. Basic Concepts
Judicial Immunity is
Immunity From Suit for Money
When
it applies, to the extent that it applies,
judicial immunity is absolute.
Whether it applies is also absolute.
When judicial immunity does
not apply, it has absolutely no effect.
Immunity
that is not absolute is not judicial immunity.
Judicial immunity is not qualified. Qualified immunity is not judicial
immunity.
In
this course, “judicial immunity” and “absolute
judicial immunity“ are used interchangeably. Judicial immunity is absolute.
Absolute judicial immunity is just judicial immunity. A rose by any name is
still a rose, and judicial immunity by any
name is still judicial immunity.
Terminology Problems and
Suggestions
Beware.
There are other immunities that are not judicial immunity. Unfortunately, Texas
courts use terms that include the words “judicial
immunity” for concepts which are
not judicial immunity. Immunity that is not judicial immunity is not within the
scope of this course. Beware of terms like “derived judicial immunity” and “quasi judicial immunity.” Those terms are confusing. Even worse, some
courts may refer to actual judicial immunity by such terms. Both the language
and thinking is often muddled in situations involving people who are not
“judges” but have (1) judicial
functions and therefore judicial immunity, or (2) roles related to courts.
Sometimes courts use confusing language.
Sometimes courts are confused about the substantive judicial immunity
concepts.
Judicial
immunity is just one kind of immunity.
A mathematician would call judicial immunity a subset of immunity. Immunity is often discussed by Texas courts
as if all immunity derives from judicial immunity. That is erroneous. Immunity
isn’t always related to judicial immunity. Some immunity has nothing to do with
a judicial function. Use of the term “judicial” in relation to any “immunity”
which is not judicial immunity creates confusion and should be avoided.
If
immunity is not absolute immunity, it is not judicial immunity and should not
have “judicial” in its name. Absolute
immunity that is unrelated to judicial acts should not be called judicial.
Better terminology would improve the ability of courts, lawyers and laymen to
understand and correctly apply the law. Until clear and correct language is
used, there will be confusion instead of clarity. In this course we enjoy the
luxury of analyzing only true judicial immunity. However, when you research judicial immunity, you will find the
confusing language in cases about immunity which is not judicial immunity and
does not have the all of the attributes of judicial immunity.
The Effect of Judicial
Immunity
Is
judicial immunity simple? Let’s put some
of the easy concepts in one sentence and see.
When actions are taken in a judicial capacity by a judge[1] who is lawfully
presiding in a specific court[2] with jurisdiction over a specific pending case[3] in which the court[4] has subject
matter jurisdiction and the legal
authority to take the action in question, the jurisdiction and plenary
power of the court[5] has been activated, and the court[6] has personal jurisdiction or in rem jurisdiction,[7] the judge[8] is protected from civil
suit for monetary damage and monetary judgment for those actions by the
affirmative defense of judicial immunity. Yes, there are many factors to
consider.
Note
that judicial immunity is immunity from monetary
damages. It is not immunity from injunction, or from special proceedings such
as mandamus and prohibition. It is not
necessarily immunity from a requirement to pay the prevailing party’s legal
fees, although immunity might be given by statute or other law.
Judicial
immunity is immunity from a personal
suit for monetary damages. It is not
immunity from a suit against a governmental entity in which the judge is named,
but the entity is the real party in interest.
Texas
Judicial immunity does not support dismissal, but can support summary
judgment. In Texas, judicial immunity
is an affirmative defense that must be plead and proven by the defendant. Facts
related to whether the immunity defense is valid are discoverable and must be
proven. In contrast, in Federal court,
it can be said that judicial immunity is immunity from the suit itself as well
as the judgment.
In
cases in which it is a suitable approach, a court might resolve the immunity
claim, at least tentatively, before the Plaintiff’s case proceeds. However, the
facts related to immunity and the facts related to other issues may overlap in
a way that makes that approach impractical. Regardless of the procedure,
discovery and presentation of facts related to the immunity issue is required
before the immunity defense can be upheld. Therefore, it can be said that,
there is no Texas immunity from the part of the suit that determines whether
there is immunity.
The Status of Being a
Judge is Not the Key
Judicial
immunity does not depend on the judicial status of the actor. Whether a person is a judge, or is not a
judge is not the issue.
Sometimes
the acts of a person who is not a judge are protected by judicial immunity.[9]
Sometimes
the acts of a person who is a judge are not protected by judicial immunity.[10]
The
status of “being” a judge is not the
test. In other words, judicial immunity
does not necessarily exist just because a defendant is a judge, nor is it
necessarily absent if a defendant is not a judge.
The Key to Judicial
Immunity is a Judicial Act in a proper Judicial Context
There
are two requirements for judicial immunity.
The first requirement is that the nature of the
act[11] is judicial.
The second requirement is the circumstance in
which the act[12] occurred.[13]
The Job Description
Analogy
Judicial
immunity covers actions within the judicial portion of the job description of a
judge. This analogy is too simple for
courts or commentators. If there was a
job description for a judge, what would it be? What part of the job is judicial?
Judges
decide issues in courts. Generally those decisions are judicial. Judges may buy
legal pads. That is not judicial. Judges may hire secretaries, administrators,
court reporters, probation officers, auditors, etc. That act is not judicial. Making general[14] rules for lawyers or others to follow is not
judicial.[15]
Clearly,
part of a judge’s job is judicial,
and part is not. Part is
administrative. Part may be hiring and firing. Part may be buying. Part may be
legislative. The only part for which there is judicial immunity is the judicial part of the job. There is no judicial immunity for liability arising
from hiring, firing, buying, or legislating.[16]
In
general, quality is not mentioned in the hypothetical judge’s job description.
While we hope that every judge is wise, insightful, knowing, and thoughtful,
rumor has it that some are not. Immunity covers the ignorant, unwise, and
foolish. Does that language sound strong? In a way,
this is what immunity is all about. If there is nothing to criticize in the
judge’s action, immunity would have limited importance. The real protection for
the judge is for actions which are both damaging and “wrong” in some sense of right and wrong. Judicial immunity provides absolute
protection from otherwise valid and serious claims for damages caused by the
judge that would otherwise justify suit and a personal money judgment against
the judge. It is not protection against
groundless little harassing suits. It
is protection against all suits. It
protects well intended judges. It protects judges with evil intent. In that sense it has nothing to do with
whether the judicial action was right or wrong, or good or bad. It isn’t about
what is fair or equitable. It is an
absolute protection against claims it covers.
The key issue is whether it applies to a particular claim. Whether it
applies is also an issue that isn’t about equity, good or bad, or doing the
right thing. Whether it applies is a technical issue. If a judge is well
intended, but acts outside of her jurisdiction, she has no judicial immunity.
If she is well intended and acts within her job description, but outside of her
judicial function, she has no judicial immunity. If she acts with evil
purpose within her judicial function
and jurisdiction, she is immune.
Yet,
the purpose is to protect the public, not the judge, by giving people the
willingness to serve as judge and by giving judges the confidence to act. By
protecting the ignorant, unwise, and foolish judicial act, immunity protects
the knowing, wise, and thoughtful act and frees judges to act within their
authority without being second guessed in a civil damages suit. Also note that
the immunity defense does not turn on whether the judicial act was wise, but on
whether the judge was authorized to take the action. In other words, if the
judge may decide, the judge may decide wrongly, and is immune. The job
description includes making judicial decisions. It doesn’t specify wise
decisions or prohibit unwise decisions. The job description does require that
the judge actually make the judicial decisions.
Unauthorized Delegation
of Judicial Function
A
judge who delegates decisions or acts like a clerk by taking direction from
others, instead of making decisions, is acting outside of the job description.
Texas judges have sometimes forgotten their proper role. Two Texas Attorney
General Opinions respond to situations in which judges in El Paso and Dallas
sought to delegate their authority to outside entities. In Dallas, the attorney
general reminded judges that they may consider the opinions of others, but must
make the decisions for the court. This topic is further developed in the Discussion.
Unauthorized Group
Action and delegation of judicial function.
A
Texas trial Judge who, without authorization, makes group decisions with other
judges, instead of making individual decisions, is also acting outside the
scope of the judicial function. You
might wonder if such a thing could happen, or you might think that it never
does, but, judges do the most remarkable things. In El Paso, without lawful basis for doing so, judges joined
together to sign a void joint “order” purporting to regulate lawyers and to
purporting to regulate their own courts.[17] On its face, among its weaknesses, the order
violates the basic concepts of regulation of lawyers on a statewide basis by
the Texas Supreme Court, the constitutional requirements of equal protection
and and constitutional prohibition against taking of property without due
process. It also purported to delegate
the judicial power and function to a private entity. Our analysis is limited to the judicial immunity issues. Judges
are immune when they act within their judicial job description. The El Paso judges, en mass, acted outside
their authority. Fortunately for all
involved, the County Attorney asked the Attorney General for an opinion. The Attorney
General did not reach the fundamental constitutional issues because the action
of the judges was void since it was outside their job descriptions. This is the
same kind of analysis that should be used to determine whether such actions are
protected by immunity. This topic is further developed in the Discussion.
Delegation
of the judicial function to those who bribe the judge.
A
judge who releases a defendant on bond may be acting within a job description.
Is a judge who releases a defendant on bond because of a bribe acting outside
the job description? In the case of granting bond on the merits, even if it is
granted foolishly, immunity attaches. In the case of granting bond because of a
bribe, rather than a decision on the merits, is there immunity?[18] The judge has no immunity from conviction
for a crime, as Judge Maloney and the other Illinois judges who were collared
in Operation Greylord can attest.[19] Whether the judge has
judicial immunity from civil suit is less clear. No public policy is apparent to support judicial immunity for
basing orders on bribes. It is clear that conspirators who bribe a judge have
no immunity from civil suit for money damages.[20] Judges may be removed
for basing orders on bribes.[21] Are judges constitutionally disqualified
because of a personal “interest” if they base rulings on bribes? There is some authority for the idea that a
judge who acts because of a bribe is
personally immune from civil suit for money damages even though those who pay
the bribe are not.[22] This topic is further developed in the Discussion.
Execution
Another
example is an execution of a defendant by
a judge. No, not an execution merely ordered
by a judge, but an execution carried out
by a judge. Let’s look at two situations.
1. If a judge walking to the courthouse is
accosted by a thief, and the judge kills the thief with her trusty Uzi, the
judge’s immunity defense will fail. There is no pending pleading, case, or
jurisdiction. The shooting is not a judicial act. If the thief’s estate sues, the judge will have to rely on other
defenses. The fact that she is a judge
is irrelevant.
2. In a death penalty criminal case, a judge may
order a defendant’s execution. Does a judge have judicial immunity for
personally carrying out the execution by shooting the defendant with an Uzi in
open court from the bench? Maybe. Maybe
not.
In
Gregory v. Thompson, during court
proceedings, Judge Thompson, in order to preserve order and civility in his
courtroom, assaulted a person in the courtroom. The judge was denied immunity
and successfully sued for damages.
If
a judge orders the bailiff to immediately execute a defendant in open court,
the judge is giving an erroneous order. An argument can be made for immunity.
After all, it is just an order, not a physical act. There is jurisdiction over
the court and the case. The judge may
order the defendant executed. Perhaps the method of execution is merely an
irreversible[23] error. The only issue is whether this is a
“judicial act” or “judicial function.”
In
the odd case of Mireless v. Waco,[24] a divided United States
Supreme Court, in an unsigned majority per
curium opinion, upheld judicial immunity for a judge who directed officers
“to forcibly and with excessive force
seize and bring [the public defender] into his courtroom.” The officers did precisely as instructed.
The U. S. Supreme Court majority found this order within the judge’s job
description, with the disturbing “excessive force” language insufficient to change that result. Therefore, the judge
had judicial immunity.
If
a judge, upon conviction, orders the instant execution of a defendant by the
bailiff, the judge might be immune from civil money damages for the killing. If
the judge orders the foreman of the jury to carry out the execution, the
argument for immunity is less convincing since jurors never do such things. If
the execution is ordered for a misdemeanor and carried out by the bailiff, the
case for immunity raises issues of the court’s authority. No judge should take
undue comfort in this speculation. The Mireless
per curium opinion is a weak one. It
is an unsigned opinion in a case that was not argued. Two justices considered
the record inadequate for a decision, and the majority conclusion was
considered wrong by a third justice. The
court may ultimately reverse Mireless
or “distinguish” it into
insignificance. Bailiffs should also
take care. Judicial immunity protects the order and the one issuing it, not the
act of carrying out the order.[25] Judges should remember that judicial
immunity from civil damages suit may not provide solace if a judge is convicted
of a crime. This topic is further developed in the Discussion.
The Union Rules Analogy
Some may find an analogy to trade union rules
helpful. Another exaggerated example can be useful. Imagine union rules in the
movie industry that prohibit the camera operator from plugging the camera’s
power cord into the electrical outlet. Another union controls that task. Jobs
are carefully defined and the lines between them may not be crossed. If the
camera operator plugs in her camera, she is acting outside her job
description. She might be punished by
the union for her act because it is outside her job description.
Now,
think about a judge’s role. The judge presides over court. If the judge mops
the marble floor in the courtroom, leaving a slick wet floor and causing a
juror to slip and fall, is the judge immune? While we haven’t seen that case,
the answer should be that moping the courtroom floor is not a “judicial” function and the judge is not immune when
acting in a janitorial role. In keeping
with the analogy, we might say that, if a judge who violates the union rules by
performing the job of another trade union, the judge within the judicial job
description is not engaging in a “judicial act.” The judge does not have jurisdiction, has no judicial immunity,
and must rely on the slippery defense of janitorial
immunity.
Judicial Immunity is
Limited to the person doing the Judging
If a judge is entitled to judicial immunity,
that judicial immunity is limited to the judge.[26] If there are multiple defendants sued along
with the judge, other defendants do not share the judge’s judicial immunity.
The other defendants may have their own immunity, but a judge’s judicial
immunity does not cover co-defendants.
Judicial acts are typically the acts of one person. That person might
have judicial immunity. If so, that
person’s judicial immunity does not shield anyone else.
For example, even if a judge has immunity for an
act related to a case, conspirators do not have immunity. In Dennis v. Sparks,[27] the United States Supreme Court held that
those who were sued for bribing a Texas judge had no immunity even if the judge
had immunity. People paying the bribe to purchase a judicial act are subject to
suit. People who bribe a Texas judge commit a crime. They may also be sued for
money in civil courts. This topic is
further developed in the Discussion.
RICO raises some interesting issues. There may
be criminal liability under criminal RICO for the judge and all participants in
a RICO conspiracy to control the courts.
What about civil RICO? Civil
RICO can impose liability on all participants, even those who were involved in
the conspiracy but did not personally engage in RICO’s “predicate racketeering
acts.” If a judge is bribed and enters
an order in exchange for the bribe and civil RICO applies, is the judge liable
in the role as a conspirator whether or not the judge is immune for the judges
own “judicial act?” The law has not
developed on these issues. This topic is
further developed in the Discussion.
Focus on the Basic
Concept
It is best to focus on the basic concepts.
Judicial immunity is for acts within the job description. The purpose of
judicial immunity is to promote the public policy of judges carrying out their
judicial duties without fear of suit or liability. Judicial immunity is not to
protect judges acting outside of their job description.
The public policy is designed to make the
judicial system work. It is not designed to protect judges. Protection of
judges is an incidental side effect. Any lack of protection of judges is
because such protection is not needed for the public interest. Judicial immunity is not about the judge. It
isn’t personal. It exists to promote the public’s interest, not the judge’s
interest.
Public Policy
Judicial Immunity developed when the King could
not be sued and the judges were representatives of the King. The concept does not translate to the United
States. Judicial immunity is explained
as a protection that allows judges to perform their duties without fear of
suit. The premise is that this is
good. Apparently there is concern that
those who fear suits may not perform well, or that those who fear suits will
not take a job that is subject to suits.
Some may wonder what makes judges special. Let’s compare judges to surgeons. Assume that you are in two
settings. You are injured, giving rise
to surgery and a law suit. You are
dependent on a brain surgeon and a judge.
Accept for a moment that a person who might be sued for a mistake will
not perform their job well. If you could choose only one to be immune, would
you immunize the surgeon and receive good surgical results at the expense of no
judicial immunity and unfortunate litigation rulings, or would you chose to immunize
judicial decisions and while leaving a surgeon who errs liable to suit? Judges think judicial immunity is more
important. They immunize themselves
instead of surgeons. Is this mere self
interest, of is it justifiable?
Consider the second argument. Some good people
would not become judges if they might be sued, so suits should not be
allowed. Do suits against brain
surgeons discourage good people from becoming brain surgeons? Judges think that discouraging people from
becoming judges is a problem warranting immunity, but discouraging people from
becoming brain surgeons is not a problem.
Apparently judges think that judges are special, but brain surgeons are
like airport cabs - if you miss one, another will be along any minute. Brain
surgeons may not agree. But then,
plumbers, accountants, lawyers, car manufacturers, drivers, trustees, and
corporations may also disagree. Indeed,
anyone who lacks immunity may disagree.
But, judges make the rules and enforce the rules, and judges have
decided to immunize themselves. They
insist that they do it because it is in the public interest, not because it is
in their own interest. They are not
interested in a serious discussion of the issue, much less criticism of their
view. So, in deference to judicial sensitivities,
we will not criticize. Indeed, we will
endorse the view that judges are special.
After all, they say so, and they are the judges, so what they say is
accepted as fact just because they say it.
B. Specific Judicial
Immunity Issues
Being a Judge Is Not the
Test
“When applied to the paradigmatic judicial acts
involved in resolving disputes between parties who have invoked the
jurisdiction of a court, the doctrine of absolute judicial immunity has not
been particularly controversial. Difficulties have arisen primarily in
attempting to draw the line between truly judicial acts, for which immunity is
appropriate, and acts that simply happen to have been done by judges. Here, as in other contexts, immunity is
justified and defined by the functions
it protects and serves, not by the person to whom it attaches.” Forrester v. White, 484 US 219, 98 L
Ed 2d 555,565, 108 S Ct 538 (US 1988)
The Required Elements of
a Judicial Act & Jurisdiction
Absolute
judicial immunity exists if the act is a “judicial” act that occurs in a
“judicial” setting. There are two
requirements. One is the nature of the act. The other is the jurisdiction to
perform the act.
“. . . [Judicial] immunity is overcome in only
two sets of circumstances. First, a judge is not immune from liability for
nonjudicial actions, i.e., actions not taken in the judge’s judicial capacity.[28]
“Second, a judge is not immune for actions,
though judicial in nature, taken in the complete absence of all jurisdiction.[29] Mireles v. Waco, 502 US 9, 116 L Ed 2d 9, 14, 112 S Ct 286 (US
1991)
“The Supreme Court has made it clear that the doctrine of immunity
should not be applied broadly and indiscriminately, but should be invoked only
to the extent necessary to effect its purpose.[30] We also must look beyond the status of the party seeking immunity and consider
the nature of the conduct for which immunity is sought.[31]” Gregory v. Thompson, 500 F.2d 59, 63-64
(9th Cir. 1974)
“...Once
again, it was the nature of the function
performed, not the identity of the actor who performed it, that informed
our immunity analysis.” Forrester
v. White, 484 US 219, 98 L Ed 2d 555,566, 108 S Ct 538 (US 1988)
An Immune Act Must be a
Normal “Judicial Act"
“[A]s
the language in Stump indicates, the relevant inquiry is the ‘nature’ and
‘function’ of the act, not the ‘act itself.’[32] In other words, we look to the particular act’s relation to a general function normally
performed by a judge....” Mireles
v. Waco, 502 US 9, 116 L Ed 2d 9,15,
112 S Ct 286 (US 1991)’
Absolute judicial immunity is limited to acts of
a judge acting in the normal role of a judge.[33] Judge Thompson learned that acting outside
his judicial role may not be protected by judicial immunity, even when the
action occurs while presiding over a court in which a case is being heard.
“Gregory sued for damages for violation of his
civil rights under 42 U.S.C. § 1983.
His complaint, supported by testimony in a trial to a jury in the
District Court for the District of Arizona, was that he was subjected to an assault and battery by [justice of the
peace Thompson] in the latter’s courtroom.
The court entered judgment on a
jury verdict in the amount of $1,500 actual damages and $500 punitive damages.
“On this appeal, Judge Thompson contends that
two essential elements of a civil rights claim are lacking and that he should
have the protection of the doctrine of judicial immunity. We reject both contentions and affirm the
decision below.” Gregory v. Thompson, 500
F.2d 59, 61 (1974)
“Judge Thompson ... emphatically told Gregory to leave the
courtroom. Gregory’s answer was, ‘O.K.,
you throw me out.’ The judge left his
desk in the courtroom and did just that.
It appears that he forced Gregory out the door, threw him to the floor
in the process, jumped on him, and began to beat him. The judge’s secretary ran to the sheriff’s office down the hall,
and two deputy sheriffs came to Gregory’s rescue.” Gregory
v. Thompson,
500 F.2d 59, 61 (1974)
“[O]ur
inquiry must be to whether Judge Thompson acted in the clear absence of all
jurisdiction. Appellant contends that a
judge has the inherent power to maintain order in the courtroom and that he was
exercising this power when he used force to evict Gregory from his courtroom. He claims, therefore, that his assault on Gregory
was at most in excess of his jurisdiction, but certainly not in the clear
absence of all jurisdiction.
“This argument misses
the mark. When courts have spoken of
immunity for acts within the jurisdiction of a judge, they have declared that
the doctrine insulates judges from civil liability ‘for acts committed within
their judicial jurisdiction,’ or ‘for acts within [their] judicial rule,’
Pierson v. Ray,[34] or for ‘their
judicial acts.’ Bradley v. Fisher.[35] Thus judicial immunity does not automatically
attach to all categories of conduct in which a judge may properly engage, but
only to those acts that are of a judicial nature.
“What constitutes
conduct falling within that range must, in large part, be determined by looking
at the purpose underlying the doctrine of judicial immunity. Official immunity, after all, ‘is not a
badge or emolument of exalted office, but an expression of a policy designed to
aid in the effective functioning of government.’ Barr v. Matteo.[36] ” Gregory v. Thompson, 500 F.2d 59, 61
(9th Cir. 1974)
“The
Court of Appeals for the Ninth Circuit . .
has held that a justice of the peace who was accused of forcibly
removing a man from his courtroom and physically assaulting him was not
absolutely immune.[37] While the court recognized that a judge has
the duty to maintain order in his courtroom, it concluded that the actual
eviction of someone from the courtroom by use of physical force, a task
normally performed by a sheriff or bailiff, was ‘simply not an act of a
judicial nature.’[38] And the Court of Appeals for the Sixth
Circuit held in Lynch v Johnson,[39] that the county judge sued in that case was
not entitled to judicial immunity because his service on a board with only
legislative and administrative powers did not constitute a judicial act.” Stump v. Sparkman, 435 US 349, 55 L
Ed 2d 331, 342 98 S Ct 1099, footnote 10 (1978)
Some judge’s actions are not protected by judicial immunity
even though they are within the judge’s authority. In Forrester, the U.S. Supreme Court
held that absolute judicial immunity did not apply to a claim against a judge
by a probation officer fired by the judge:
“This case requires us to decide whether a
state-court judge has absolute immunity from a suit for damages under 42 USC §
1983 for his decision to dismiss a
subordinate court employee. The
employee, who had been a probation officer, alleged that she was demoted and
discharged on account of her sex, in violation of the Equal Protection Clause
of the Fourteenth Amendment. We
conclude that the judge’s decisions were
not judicial acts for which he should be held absolutely immune.” Forrester v. White, 484 US 219, 98
LEd2d 555, 561, 108 SCt 538 (1988)
In
Forrester,
the Supreme Court held that immunity did not apply and seemed uncomfortable with
an expansive view of judicial immunity.
“In the case before us, we think it clear that Judge White was acting in an administrative
capacity when he demoted and discharged Forrester. Those acts--like many others involved in
supervising court employees and overseeing the efficient operation of a court
-- may have been quite important in providing the necessary conditions of a
sound adjudicative system. The decisions
at issue, however, were not
themselves judicial or adjudicative.
As Judge Posner pointed out below, a judge who hires or fires a
probation officer cannot meaningfully be distinguished from a district attorney
who hires and fires assistant district attorneys, or indeed from any other
executive branch official who is responsible for making such employment
decisions. Such decisions, like
personnel decisions made by judges, are often crucial to the efficient
operation of public institutions (some of which are at least as important as
the courts), yet no one suggests that they give rise to absolute immunity from
liability in damages under § 1983.” Forrester
v. White, 484 US 219, 98 L Ed 2d 555,566, 108 S Ct 538 (1988)
The
Supreme Court has indicated reluctance to broaden judicial immunity outside the
narrow scope in which it applies.
“Absolute
immunity, however, is ‘strong
medicine, justified only when the danger of [officials’ being] deflect[ed from
the effective performance of their duties] is very great.’[40] (Posner, J., dissenting). The danger here is not great enough. Nor do we think it significant that, under
Illinois law, only a judge can hire or fire probation officers. To
conclude that, because a judge acts within the scope of his authority, such
employment decisions are brought within the court’s ‘jurisdiction,’ or
converted into ‘judicial acts,’ would lift form above substance. Under Virginia law, only that State’s judges
could promulgate and enforce a Bar Code, but we nonetheless concluded that
neither function was judicial in nature.[41]
“We conclude that Judge
White was not entitled to absolute immunity for his decisions to demote and
discharge Forrester....” Forrester v. White, 484 US 219, 98 L Ed 2d 555, 567, 108 S Ct
538 (1988)
An Immune Act Must be
Within Jurisdiction
The
word “jurisdiction” has a multifaceted
and somewhat unusual meaning in the judicial immunity context. For judicial
immunity purposes, “jurisdiction” may
encompass concepts of “plenary power”
as well as the question of whether a particular person has authority to
act as judge, whether a case exists, whether a court’s jurisdiction has been
activated, and whether a court has subject matter jurisdiction, although only
the word “jurisdiction” is used. It can be said that this concept encompasses
all issues related to the authority of the individual to perform the kind of
act in the particular case in the particular court as well as the power of the
court to act in that manner in that kind of case.
For
example, if a court has the authority to mandate sterilization of a child, the
court has jurisdiction, but a judge may not enter such an order unless a
pleading is filed to activate that court’s jurisdiction.[42]
If
a pleading is filed in a Texas constitutional county court seeking to
adjudicate a bankruptcy or construe an inter vivos trust, there is no
jurisdiction because the court lacks subject matter jurisdiction even though
there is a pleading.
If
a Texas judge is constitutionally disqualified, validly objected to, subject to
an unresolved motion to recuse, or is a visiting judge whose appointment
terminated, the lack of authority to preside might be described as a lack of
jurisdiction. [For a detailed
explanation of some of these concepts which deprive a judge of authority or
“jurisdiction” see the Texas law continuing legal education courses on Texas
judge recusation, objection, appointment, and disqualification YouKnowItAll.com.]
A
Texas judge who causes damage by acting in a case despite disqualification or
valid objection terminating the judge’s authority is subject to the risk of a
damage suit which might clarify Texas judicial immunity law in that
circumstance.
In
a mandamus context, the Texas Supreme Court has specifically stated that Judge
Street lacked “jurisdiction” after a
valid objection to Judge Street was filed. Fortunately, Judge Street was prevented
from carrying out the possible illegal arrest, fine, or confinement which he
had threatened.
“Steven
R. Dunn, the plaintiff’s attorney in the underlying action, filed a timely
objection to Respondent, a visiting judge assigned to preside over the
case. Respondent sustained the
objection, but then proceeded to sign an order requiring Dunn to appear at a
later date to show cause why he should not be held in contempt for failing
to appear in court on the day the underlying action was set for trial. Dunn
seeks mandamus relief ordering Respondent to vacate the show cause order.
Because Respondent did not have jurisdiction[43] to make this order after Dunn’s timely
objection, and because mandamus is the appropriate remedy to rectify
Respondent’s abuse of discretion, we conditionally grant the writ.” Dunn
v. Street[44]
In
short, “jurisdiction” for immunity
purposes is fuzzy multifaced terminology encompassing whether the judge has
authority to take the action which gave rise to the suit. The requirements seem
to include all of the following elements:
(1) The court must have subject matter
jurisdiction which gives potential jurisdiction over the matter.
(2) There must be a citation, petition,
complaint or other pleading or paper filed by a party with the court, to
activate jurisdiction over the matter.
(3) The
judge must have authority to preside over that matter in that court.
The
importance of a petition and case
In Stump v. Sparkman,[45] the U.S. Supreme Court
focused on activation of jurisdiction caused by the filing of a petition on a
matter within the subject matter jurisdiction of the court. Judge Stump was
authorized to preside over the court and the case. The petition activated the
court’s jurisdiction and authorized the judge to act. The judge’s action was within the court’s jurisdiction and was a
judicial function. Thus, where the
court has subject matter jurisdiction, and the judge has authority to preside
over such a case in that court, the key which gave Judge Stump judicial
immunity was the petition which activated the court’s jurisdiction and the
nature of the judge’s act, which was a judicial act within the judicial
function.
Some believe that the action of Judge Stump was despicable.
That is irrelevant. Immunity is not based on whether the judge did a good
thing. Instead the issue is whether the judge had authority to do what was done
even if doing so was erroneous, or even despicable.
“The Court of Appeals correctly recognized that
the necessary inquiry in determining whether a defendant judge is immune from
suit is whether at the time he took the challenged action he had jurisdiction
over the subject matter before him.” Stump v. Sparkman, 435 US 349, 55 L
Ed 2d 331, 98 S Ct 1099, p.338-339 (1978)
“Although under that case a circuit judge would
err as a matter of law if he were to approve a parent’s petition seeking the
sterilization of a child, the opinion in A.L. v G.R.H. does not indicate that a
circuit judge is without jurisdiction to entertain the petition. Indeed, the clear implication of the opinion
is that, when presented with such a petition, the circuit judge should deny it
on its merits rather than dismiss it for lack of jurisdiction.”[46] Stump v. Sparkman, 435 US 349, 55 L
Ed 2d 331, 98 S Ct 1099, p.340 (1978)
“Of particular significance to the present case,
the Court in Summers[47] noted the following: ‘...the Court took cognizance of the
petition and passed an order which is validated by the signature of the
presiding officer.’[48] Because the Illinois court took cognizance
of the petition for admission and acted upon it, the Court held that a case or
controversy was presented....
“The relevant cases demonstrate that the factors determining whether an act by a
judge is a ‘judicial’ one relate to the nature of the act itself, i.e., whether
it is a function normally performed by a judge, and to the expectations of the
parties, i.e., whether they dealt with the judge in his judicial capacity. Here, both factors indicate that Judge
Stump’s approval of the sterilization petition was a judicial act.... 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 the informality
with which he proceeded rendered his action nonjudicial and deprived him of his
absolute immunity.” Stump
v. Sparkman, 435 US 349, 55 L Ed 2d 331, 98 S Ct 1099, p.341-43 (1978)
“The Indiana law vested in Judge Stump the power
to entertain and act upon the petition for sterilization. He is, therefore, under the controlling
cases, immune from damages liability even if his approval of the petition was
in error.” Stump v. Sparkman, 435 US
349, 55 LEd 2d 331,344, 98 SCt 1099 (1978)
No Immunity for
Conspirators and Conspiracies
If
judicial actions which are protected by judicial immunity are part of a
conspiracy, the other conspirators may be liable for actions for which the
judge is immune.
Dennis v. Sparks[49] is a United States
Supreme Court opinion about corruption in Texas courts. The court held that
those who are not judges but conspire to corrupt the court are not protected by
immunity.
Turner v. Upton County,[50] while not a judicial immunity case, is an
immunity case from west Texas in which conspirators do not obtain immunity by
conspiring with someone who had immunity.
Kermit Construction involved a receiver who enjoyed judicial
immunity.[51] The issue was whether others were protected
by judicial immunity just because the
receiver was protected. The court held that the conspirators other than
the receiver do not have immunity. Those who were involved, but were not the
receiver were not immune.
“The remaining
defendants are not so fortunate; they cannot seek the shelter of judicial
immunity from liability under §1983.
Although not themselves state officials, the complaint charges that they
conspired with the receiver, and this is action ‘under color’ of state law.[52] That the receiver is himself immune from damages makes no
difference. We cannot, therefore, say
that the complaint does not state a cause of action under § 1983 against the
bank and the corporation, and we cannot affirm a dismissal on the pleadings of
the conspiracy claim.” Kermit
Const. v. Banco Credito y Ahorro Ponceno, 547 F.2d 1, 3 (1976)
If
a judge participates in a conspiracy involving both immune actions and actions
which are not immune, the immune acts may not be the basis for suit against the
judge, while the acts which are not immune are subject to suit and judgment
against the judge and all actions, whether immune or not, may form the basis of
suit against the conspirators who are not protected by judicial immunity.
“[A]ll
parties to an alleged section 1983 conspiracy need not be state actors or
charged in the same capacities for liability to attach to all -- even if one of
the coconspirators is absolutely immune from liability for his own actions as a
participant.[53]” Turner v. Upton County, Texas, 915
F.2d 133, 137, footnote 6 (5th Cir. 1990)
“Just as
the alleged actions of the sheriff were, under the circumstances, the actions
of the county for section 1983 purposes, so too the alleged actions of the
elected District Attorney may have been, even though he covered more than this
county. The sheriff’s and the district
attorney’s alleged participation in the conspiracy, if proven, will suffice to
impose liability on the county.
‘The contention that a
conspiracy existed which deprived the petitioner of rights guaranteed by
federal law makes each member of the
conspiracy potentially liable for the effects of that deprivation. Liability
arises from membership in the conspiracy and from traditional notions that a
conspirator is vicariously liable for the acts of his co-conspirators. Liability does not arise solely because of
the individual’s own conduct. Some personal
conduct may serve as evidence of membership in the conspiracy, but the
individual’s actions do not always serve as the exclusive basis for liability.[54] In
stating that the county could be held liable not only for the sheriff’s
participation in the conspiracy, but could be held directly or vicariously
liable as well for the actions of his alleged coconspirator, we carefully
distinguish this premise for vicarious liability from that prohibited by
Monell, in which ‘the sole nexus between the employer and the tort is the fact
of the employer-employee relationship.[55]’
“When the official
representing the ultimate repository of law enforcement power in the county
makes a deliberate decision to abuse that power to the detriment of its
citizens, county liability under section 1983 must attach, provided that the
other prerequisites for finding liability under that section are satisfied. The
district court erred in absolving the county of section 1983 liability.” Turner v. Upton County, Texas,
915 F.2d 133,137-38 (5th Cir. 1990)
“The
county contends that it cannot be subject to liability because it did not
authorize the sheriff to violate the law.
This argument is without merit.
Where a final policymaker abuses the powers vested in his position to
the detriment of a citizen, that abuse can be the basis for suit being brought
under section 1983, assuming the other bases for satisfying the requirements of
that section are properly alleged.”
Turner v. Upton County, Texas, 915 F.2d 133, 137, footnote 3
(5th Cir. 1990)
Part 2
Texas Cases on Judicial
Immunity
Texas
judicial immunity cases are generally weak cases. The plaintiff’s case is
generally a weak little case. Courts of appeals have dealt with the aftermath
of speeding tickets, a messy goat, a party who found it emotionally distressing
to endure a trial, a void order to show cause, and a one dollar judgment.
The
affirmative defense of judicial immunity, even when apparently valid, is
sometimes poorly presented. Some plaintiff’s cases are hard for the court to
take seriously. A suit against a judge is not any other judge’s favorite claim.
A careful and complete analysis is a chore if the case is perceived as
unpleasant and frivolous. Some opinions reflect a conscientious effort by the
appellate court to perform its duty carefully and completely. Some opinions
combine partially correct and partially incorrect analyses. One court failed to comprehend the basic
issues and produced a clearly erroneous analysis. We will examine several
cases, give credit where credit is due, and point out deficiencies and errors.
Questions and comments designed to stimulate your thoughts are included in the
text and in the Discussion.
An
affirmed summary judgment in favor of immunity is the norm. Damages are rarely
discussed because the analysis does not reach that issue.
We
must work with what we have, analyzing the cases seriously, regardless of the
seriousness of the cases. Before we
review the opinions of the courts of appeals, we turn to a leading Texas
Supreme Court case in which the court reverses a one dollar judgment.
Texas Supreme Court
Cases
*
* * * *
Turner v. Pruitt, 342 S.W.2d 422 (Tex. 1961)
Issues: The
elements of judicial immunity. Is a judge immune when the judge fails to
perform a mandatory duty that arises in a judicial proceeding over which the
judge has jurisdiction? If a judge
violated the mandatory duty to impanel a jury, is the judge protected by
judicial immunity? Does judicial immunity apply to justices of the peace?
“A criminal case against
respondent, Pruitt, was pending[56] before petitioner Turner, a Justice of the Peace.[57] Pruitt pleaded ‘not
guilty’ and demanded a jury. On advice of the County Attorney,[58] Turner refused to
empanel a jury unless Pruitt deposited a jury fee. Pruitt, declining to deposit
the fee, was tried and convicted by Turner, and appealed to the County Court.
Thereafter, Pruitt filed this suit in the County Court seeking a recovery of
damages from Turner and the surety on his[59] official bond. The
County Judge dismissed the suit and Pruitt appealed. The Court of Civil Appeals
reversed the judgment of the County Court and rendered judgment in favor of
Pruitt for one dollar and costs.
“...We reverse the judgment of the Court of
Civil Appeals and affirm the judgment of the trial court.
“There is no question but that the Justice of the Peace Court over which Turner presides had jurisdiction
of the criminal case pending against Pruitt.[60] Neither is there any
question but that Pruitt was entitled to
a jury trial without depositing a jury fee. [61] In the absence of a waiver by
Pruitt, Turner was under a mandatory duty to empanel a jury; he had no
discretion in the matter.
“The majority of the Court of Civil Appeals were
moved to hold Turner subject to tort liability because his duty to empanel a
jury was a ministerial rather than a judicial duty, i. e., he had no discretion
in the matter. That conclusion of the majority is understandable inasmuch as it
is supported by expressions in opinions of this court and in legal
encyclopedias, some of which are quoted in the majority opinion. However that
may be, we are convinced it is an unsound conclusion inasmuch as the duty Turner refused to perform was one
arising in the course of a judicial proceeding over which he had jurisdiction.
We need go no further.[62]
“As a basis for rejecting the majority’s
conclusion there is little of value which can be added to the dissenting
opinion filed by Associate Justice Wilson of the Court of Civil Appeals. We
approve that opinion.
“Tort liability of a
judge for acts or conduct in the course of a judicial proceeding in which he[63] has jurisdiction cannot turn on whether he could be
compelled by writ of mandamus to perform a particular duty or refrain from
doing an unauthorized act. Writs of mandamus issue to control the conduct of an officer
of government, judicial or administrative, only when the duty to do the act
commanded is clear and definite and involves the exercise of no discretion-that
is, when the act is ministerial.[64] It is unthinkable that a judge would be subject
to tort liability in the many cases in which writs of mandamus have issued from
this court requiring or compelling the doing of a particular act because the
duty of the judge was clear and ministerial and did not involve the exercise of
discretion. See State Board of Insurance v. Betts, 158 Tex. 612, 315 S.W.2d
279, 286 (District Judge required to expunge orders from docket); Crane v.
Tunks, Tex., 328 S.W.2d 434 (District Judge required to amend order of
discovery); Southland Greyhound Lines v. Richardson, 126 Tex. 118, 86 S.W.2d
731 (Requiring entry of judgment); Polk v. Davidson, 145 Tex. 200, 196 S.W.2d
632 (Requiring dismissal of case); Coastal States Gas Producing Co. v. Miller,
Tex., 329 S.W.2d 853 (Requiring judge to fix bond and permit entry on land).[65] These cases could be multiplied many times
over.
“The same reasons
underlying immunity of district judges from tort liability for acts performed
or not performed in judicial proceedings require a conclusion that justices of
the peace should enjoy a like immunity when acting in the course of judicial
proceedings of which they have jurisdiction.[66] The mere fact that
in the course of such a proceeding a justice of the peace may refuse, but by
writ of mandamus be compelled, to perform a clear legal duty, involving the
exercise of no discretion, will not subject him to tort liability.” Turner v. Pruitt, 342 S.W.2d 422
(Tex. 1961)
It
is interesting to note that the Texas Supreme Court did not discuss Ex parte Virginia a United States Supreme Court which held that
a judge was liable for excluding a racial group from a jury. What is it about
denial of the clear and absolute right to a jury which warrants immunity if the
exclusion of one group of potential jurors does not warrant immunity? Is the
distinction apparent from Turner? Why
didn’t the Texas Supreme Court discuss Ex
parte Virginia? Was it unworthy of
discussion? Why?
In Ex parte Virginia, 100 U.S. 339, the Court
held that a judge who excluded Negroes from juries could be held liable under
the Act of March 1, 1875 (18 Stat. 335), one of the Civil Rights Acts. The
Court assumed that the judge was merely performing a ministerial function. But
it went on to state that the judge would be liable under the statute even if
his actions were judicial.[67] It
is one thing to say that the common-law doctrine of judicial immunity is a defense to a common-law cause of action.
But it is quite another to say that the common-law immunity rule is a defense
to liability which Congress has imposed upon “any officer or other
person,” as in Ex parte Virginia, or
upon “every person” as in these cases.
Justice Douglas, dissenting, Pierson v.
Ray, 386 U.S. 547 (1967)
Does
Turner conform to the public policy
argument that the purpose of judicial immunity is to protect judges who are
making difficult decisions? If Turner
had been decided the other way, would a judge be fearful of deciding whether to
allow a jury trial? Would that be bad? Is it good or bad public policy to
immunize judges from liability for denying a clear and fundamental right? Is Turner premised on the assumption that
judges can’t be expected to know that defendants in criminal cases are entitled
to a jury without payment of a jury fee?
Today in Texas, do judges deny juries in punitive proceedings unless a
jury fee is paid in clear violation of the law?[68]
The reversed court of
appeals opinion and dissent in Pruitt v.
Turner is below. The Supreme Court reversed and endorsed the dissent. The
dissent carries weight because the Texas Supreme Court endorsed it. The
majority is interesting as an educational artifact.
Pruitt v. Turner, 336 S.W.2d 440 (Tex.Civ.App.-Waco 1960) (reversed)
“Plaintiff Pruitt filed this suit for damages in
the amount of $975 against defendant Turner (and his bondsman, Southwestern Indemnity
Company), in the County Court of Coryell.
“The issue presented is whether a Justice of the
Peace is immune to damages in tort for denying a defendant who pleads not
guilty, a jury trial without the defendant posting a jury fee. Art. 1, Sec. 10
of the Constitution of Texas, provides:
‘Rights of accused in criminal prosecution Sec.
10. In all criminal prosecutions the accused shall have a speedy public trial
by an impartial jury.’
“Article 892, Code of Criminal Procedure (Trial
in Justice Court) provides:
‘If the accused does not waive a trial by jury,
the justice shall issue a writ commanding the proper officer to summon
forthwith a jury of six men qualified to serve as jurors.’
“Article 1059, Code of Criminal Procedure,
provides:
‘The amount due jurors and bailiffs shall be
paid by the county treasurer, upon the certificate of the proper clerk or the
justice of the peace, stating the service, when and by whom rendered, and the
amount due therefore.’
“From the foregoing, there can be no question
but that Pruitt was entitled to a jury without depositing a jury fee; and that
the Justice of the Peace was not justified in refusing to summon a jury to
determine his case.
“The record reflects that the foregoing
provisions of our Constitution and Code of Criminal Procedure were
affirmatively brought to the attention of the Justice of the Peace. We think
their provisions are so clear that any person should understand their meaning
from a reading thereof.
“We revert to the issue for determination: Under
the facts, is the Justice of the Peace and his bondsman subject to civil
liability for denying a jury to a defendant who pleads not guilty and demands a
jury trial.
“25 Tex.Jur., pp. 254, 255 states the rule
thusly:
‘Under the broad principles applicable to public
officers generally, a judge is not civilly liable for acts performed in the
exercise of his judicial functions, even though they were willful or malicious.
* * *
‘The doctrine of judicial immunity does not,
however, apply with respect to acts done in a purely ministerial capacity; as
to such acts a judge stands in the same position as any other person.’
“26
Tex.Jur. pp. 800, 801, in discussing the civil liability of a justice of the
peace, says:
‘the rule that a judge is not civilly liable for
anything done by him in the exercise of his judicial functions * * * gives
absolute immunity to a justice of the peace acting in his judicial capacity and
within his jurisdiction. * * *
‘Acts by a judicial officer in a ministerial
capacity are on a different footing; as to such, it is no defense that the
justice acted in good faith and in intended fulfillment of his official duty.
The distinction between judicial and ministerial acts depends on whether a
discretion has been conferred.’
“In the early case of Bumpus v. Fisher, 21 Tex.
561, 567, our Supreme Court in discussing the liability of a judge says:
‘While acting within the line of their
authority, they are protected as to errors of judgment, otherwise they are not
protected. In all the cases, where protection is given to the judge, giving an
erroneous judgment, he must be acting as judge.’
“Our Supreme Court in Rains v. Simpson, 50 Tex.
495, after laying down the rule that judicial officers are not liable to
personal action for official acts within their jurisdiction; limits the
immunity to judicial actions and makes an exception of ministerial actions.
Such case holds:
‘The application of the principle of immunity
from private suit has been a source of difficulty, the practical solution of
which depends upon whether the given act was ministerial or judicial. As a
general rule, in the former case the action will, and in the latter it will
not, be sustained.
‘The distinction between the two is thus
defined: ‘Where the law prescribes and defines the duties to be performed with
such precision and certainty as to leave nothing to the exercise of discretion
or judgment, the act is ministerial; but where the act to be done involves the
exercise of discretion or judgment, it is not to be deemed merely ministerial.’
“The foregoing definition of and distinction
between judicial acts and ministerial acts is quoted and adopted in Jarnagin v.
Garrett, Tex.Civ.App., 69 S.W.2d 511, W/E Ref.
“31 Am.Jur. p. 222, expresses the rule thusly:
‘Sec. 20 (Justices of the Peace--Liabilities)
Ministerial Acts--The general immunity of a justice of the peace from liability
for judicial acts within his jurisdiction does not extend to ministerial acts,
in the performance of which a justice of the peace is responsible for error and
misconduct in like manner and to the same extent as all other ministerial
officers. Thus, many cases make a distinction between the judicial and
ministerial acts of a justice, and hold that justices of the peace are
responsible in a civil suit to individuals for all damages arising from every
illegal act they may have done in the exercise of their ministerial duties.”
“‘Sec. 21--Particular acts as Ministerial or
Judicial--Generally speaking, where the law defines and prescribes the duties
to be performed by an officer with such precision and certainty as to leave
nothing to the exercise of discretion or judgment, the act is deemed to be
ministerial in character, but where the act to be done involves the exercise of
discretion or judgment, it is regarded as judicial in character * * *.’
“To the same effect is 30 Am.Jur. pp. 53 and 54.
“13 A.L.R. 1345 lays down the general rule of
immunity of judges for acts performed as such, so long as the judge acts within
his jurisdiction and in a judicial capacity; and (on page 1347) continues:
‘A distinction is to be noted between acts which
are judicial in their nature, and those of an administrative or ministerial
character. The protection extends only to judicial decisions or acts of a
judicial character, and not to mere administrative acts.’
“It is pointed out that in a ministerial
function, a line of conduct is marked out and the judge has nothing to do but
follow it; and may be held liable for any failure to do so which results in the
injury of another.[69]
“This poses the question: Was the act of
providing a jury for the defendant a judicial function or a ministerial
function?
“We are not here dealing with the question of
the jurisdiction of the Justice of the Peace, nor with complaint with the
manner in which he has performed a judicial function. We are dealing solely
with his failure to perform a statutory duty prescribed explicitly by the
statutes; that is to impanel a jury for a defendant in a criminal case, unless
such defendant has affirmatively waived such jury. We are dealing with the
Justice’s failure to perform one of his clerk’s functions; and which function
is prescribed with such exactitude by our statutes, that it is ministerial
under our Supreme Court’s definition.
“We think our Constitution and Code of Criminal
Procedure prescribed the duties of the Justice of the Peace to provide a jury
in the instant case, with that certainty, precision and exactitude that is free
from all doubt. The act to be performed was therefore ministerial, and not
judicial, and the refusal of the Justice of the Peace to provide a jury
subjects him to civil liability for damages.
“Defendant relies on the case of Davis v.
Burris, 51 Ariz. 220, 75 P.2d 689. In that case the Justice of the Peace
refused to approve an appeal bond and transmit the record to the appellate
court, upon request, after a defendant’s conviction for drunk driving, upon a
plea of guilty. A general statute provided for appeals from the Justice Court.
The Arizona Supreme Court held in that case, that determination of the right to
appeal after entering a plea of guilty, was a judicial question; and a question
upon which some of the highest courts of the land were not in accord; and that
it was not known until the Arizona court spoke (in the case involving these parties)
whether one who had pleaded guilty could appeal or not. We think this case
inapplicable to a determination of the case at bar.” Pruitt v. Turner, 336 S.W.2d 440 (Tex.Civ.App.-Waco 1960) (reversed)
Damages
Since
the Supreme Court reversed the judgment, it did not reach the amount of
damages. Most cases find immunity and
do not reach the damages issue. The
court of appeals did reach the damages issue.
The damages analysis by this court is valued for its rarity.
“This brings us to the question of what damages
plaintiff Pruitt has shown himself entitled to. Pruitt alleges that he was
damaged $975 in actual and exemplary damages. Exemplary damages cannot be
recovered since plaintiff’s petition on its face reflects that the Justice of
the Peace action was not malicious. Plaintiff
says he was convicted by the Justice of the Peace without a jury, and in
consequence was forced to appeal his case to County Court at a cost of $200 for
attorney’s fees; and that this constitutes an actual damage. Such is too speculative.
There is no way for anyone to know whether the jury, if impaneled, would have
convicted or acquitted plaintiff. This, as a matter of law, negates plaintiff’s
right to actual damages, not only for attorney’s fees, but also for loss of
time, humiliation and mental anguish. Plaintiff is therefore entitled to
recover nominal damages only.[70]
“Since the opinion of our Supreme Court in Rains
v. Simpson, supra (as well as the other authorities cited), are comprehensive
and clear, and since the Supreme Court has not seen fit to change such rule
(Jarnagin v. Garrett), and since we are of the view that such authorities are
applicable to the factual situation here involved, it is our duty to reverse
the judgment of the Trial Court, and render judgment for plaintiff Pruitt
against defendants Turner and Southwestern Indemnity Company for $1 and costs. Pruitt
v. Turner, 336 S.W.2d 440 (Tex.Civ.App.-Waco 1960) (reversed)
Justice Wilson’s
dissenting opinion, which was endorsed by the Supreme Court, included the
following.
“The opinion applies the wrong criterion in this
case, and in my opinion directly opposes the settled law throughout this
country, at common law and in Texas. The
majority subjects the action of a judge to the test of whether his act is
judicial or ministerial. This is possibly a proper test when the judge or
justice of the peace is acting in an administrative or quasi-judicial capacity
as in Rains v. Simpson or Jarnagin v. Garrett, but in each of those cases
liability was denied.
“The true
test however, in a judicial proceeding, is whether the judge or justice is
acting within the jurisdiction. This, in truth, is the actual holding in
Rains v. Simpson. There the justice of
the peace was not acting in a judicial proceeding. He was performing an administrative
function as the head of the present equivalent of the commissioner’s court in
refusing to approve a tax collector’s bond. He was not, in the present sense,
acting in a judicial proceeding. Nevertheless, the Supreme Court first
announced the guiding rule: ‘It was a settled principle at the very foundation
of well-ordered jurisprudence that every judge, whether of a higher or lower
court, in the exercise of the jurisdiction, conferred on him by law, had the
right to decide according to his own free and unembarrassed convictions,
uninfluenced by any apprehension of private prosecution.’ No sooner had the
court announced the guide than it quoted Judge Cooley, who also fixed the
touchstone as being whether the officer was ‘acting within the limits of his
jurisdiction.’ The only real answer which the court then gave to the only
question involved is contained in the last sentence of the opinion: ‘the action
then, of the County Court being a judicial act in the exercise of the
jurisdiction conferred by statute, the exceptions of the defendant’s were
properly sustained.’ It is important to note the court there spoke of a
judicial (discretionary ‘act’, and not a judicial proceeding.
“We do
not have to speculate as to what our early Supreme Court regarded as the
determining factor of judicial immunity. The court consisting of no less an
assemblage than Hemphill, Wheeler and Roberts, speaking through the latter in
Bumpus v. Fisher, 21 Tex. 561, twenty-one
times in the course of the opinion reiterates the essential element of whether
’the justice of the peace had jurisdiction.’ There the justice of the peace was sued for an act committed in the course of
a judicial proceeding. The entire case turns on decision as to whether the
plaintiff was committed ‘upon a charge of which the justice had jurisdiction.’
The test here applicable was clearly stated: ‘if the charge upon which
plaintiff was tried was simple assault and battery, the justice clearly had
jurisdiction and the facts showing no malice, he would clearly not be liable.’
The court then consumes three pages to demonstrate he did have jurisdiction,
and after reviewing the common-law development of immunity as dependent on
jurisdiction, held that justices of the peace were on the same footing as
judges of superior courts; that they were amenable for breach of responsibility
only as were judges of superior courts; and that unless it affirmatively
appeared of record they had no jurisdiction of the judicial proceedings in
which they acted, they were not civilly liable. As to the present holding,
that great court said, ‘Public policy, and the nature of their powers and
duties and the order of legal capacity that must be here employed to fill such
an office, all forbid the application of such a rule to justices’ acts.’ The
entire decision turned on existence vel non of jurisdiction.
“In 31 Am.Jur., Justices of the Peace, Sec. 28,
p. 228 much of the opinion in Rains v. Simpson is quoted as a predicate for the
rule I believe is controlling: ‘Where a
justice of the peace acts fully within his jurisdiction of the subject matter
and has acquired jurisdiction of the person in the particular case, he is not
liable for acts done in the case.’ The convers of this rule, for the
universality of which an inspection of the footnote is sufficient, is stated:[71] ‘The
generally accepted rule is that a justice of the peace is civilly liable when
he acts without jurisdiction of the person and without general jurisdiction of
the subject matter.’ The identical test is paraphrased in 26 Tex.Jur., p.
800, Sec. 15, i. e., when he is ‘acting within his jurisdiction.’ Rains v.
Simpson is among the authorities cited.
“In Mabry v. Little, 19 Tex. 337, Justice
Wheeler held that even if the unlearned
justice of the peace had no jurisdiction, if the plaintiff submitted to his
jurisdiction he waived the trespass and an action for damages would not lie.
In Anderson v. Roberts, Tex.Civ.App., 35 S.W. 416, 417, the rule is stated that
even if the justice improperly determines he has jurisdiction, he cannot be
held liable for his acts for ‘When the state confers judicial powers upon an
individual it confers him with full immunity from private suits.’ The general
rule is similarly stated in 51 C.J.S. Justices of the Peace Sec. 19, p. 36, and
173 A.L.R. 802. The jurisdictional test has been reiterated by such venerable
authorities as Coke, Bacon, Blackstone, Kent and the ancient Dalton’s ‘Countrey
Justice.’
“In 1613
Coke, in the case of the Marshalsea, 10 Coke Rep. 76a, summarized the holdings
in the earlier Year Books relating to immunity: ‘a difference was taken when a court has jurisdiction of the cause, and
proceeds inverso ordine or erroneously. There no action lies. But when the
court has not jurisdiction then the whole proceeding is coram non judice and actions
will lie.’
“The
early Supreme Court of Texas simply epitomized the common-law rule and adopted
it in Texas. ‘From the Year Books to the present day, this distinction
between an abuse of jurisdiction and an absence of jurisdiction has been
maintained. Indeed, the fact that from the 16th to the 19th centuries a large
part of the local government of the country was carried on by justices of the
peace acting under judicial forms, made the preservation of this distinction
and its consequences a necessary safeguard to the liberty of the subject.’ VI.
Holdsworth, History of English Law 240.
“Appellant
does not suggest the justice court had no jurisdiction. He in fact invoked it,
moved to quash the complaint and called for a jury. He complains only of
erroneous action of the justice of the peace within his jurisdiction. I
would affirm. Pruitt v. Turner, J.
Wilson dissenting 336 S.W.2d 440 (Tex.Civ.App.-Waco 1960)
*
* * * *
Clements
v. Barnes,
834 S.W.2d 45 (Tex. 1992) (per curium)
Issues: The immunity claim and pleadings.
Clements involved immunity, but not pure judicial
immunity. The issue involves the matters which must be plead to support a claim
against someone who has an immunity defense. A complaint alleged damages from
actions which are clearly within the scope of the defendant’s authority,
without alleging that the actions exceeded the scope of authority. The immune
defendant did not respond. A default judgment was granted. The Texas Supreme
Court reversed and set the judgment aside, holding, “it was error for the trial court to render default judgment when Barnes
failed to allege that Clements acted outside the scope of her authority.” Therefore, a plaintiff who pleads acts that,
on the face of the complaint, constitute immune acts without alleging facts
which defeat immunity, has not stated a complaint which can support a default
judgment. Since judicial immunity is an affirmative defense which must be plead
and proven by the defendant, this holding may be a surprise to some.[72]
*
* * * *
McGough v.
First Court of Appeals, 842 S.W.2d 637 (Tex. 1992) (per curium)
Issues: Does judicial immunity
require limitation on a judge’s role?
McGough is an interesting case in which the Supreme
Court determines that a judge should not dictate investment decisions. The
decision was partially based on the lack of ability to sue the judge because
of judicial immunity. It may have particular interest to personal
injury lawyers and lawyers who represent minors, incapacitated individuals,
wards, estates, and trusts, so it is included in the Discussion. It is also
interesting to note that the court thinks that someone should not have immunity
for making judgment calls. Judges think
judges should have immunity. What is
the basis for the distinction?
Texas Courts of Appeals
Cases
We
turn to the court of appeals for cases in which not even a dollar was awarded,
because the judicial immunity defense was upheld. First we review Kimmel, Spencer, Tedford, and Rea, which address judicial immunity
competently.
*
* * * *
Speed on the highway,
but slow going in court.
Kimmel v Leoffler, 791 S.W.2d 648 (Tex.App.-San
Antonio 1990)
Issues: Affirmative defense, jurisdiction over the particular case.
The
aftermath of Kimmel’s speeding ticket included a suit against the presiding justice
of the peace. Except for Kimmel’s elaborate jurisdictional argument which the
court of appeals ignored, Kimmel is
an easy case.[73] The pro
se plaintiff alleged that the judge acted outside the jurisdiction of the
court because the proceeding was in the wrong justice of the peace precinct.
The court held that this raised a venue issue, but not a jurisdictional issue.
In the body of the opinion, this appears to be the only alleged basis for
plaintiff’s claim that the justice of the peace acted without jurisdiction.
However, in a footnote[74] the court mentions some other jurisdictional
issues which were of interest to the plaintiff but not the court.[75] The court ignored these
issues. The courts failure to address those arguments or require summary
judgment proof on those issues can be criticized, but we will also ignore those
issues since they add nothing to this course.
The
Kimmel court viewed the case and
appeal as frivolous, and awarded sanctions for the appeal. Even so, aside from
the jurisdictional omission, the court correctly analyzed the issue of the
judicial immunity of the justice of the peace. It properly notes that immunity
is an affirmative defense requiring that the defendant prove each element. It
looked at the basic law which gives a justice of the peace judicial immunity in
certain circumstances, and it determined that the court had jurisdiction over
Kimmel’s speeding case. The court determined that the justice of the peace
provided uncontroverted summary judgment evidence that a case was pending, he
had authority to preside, and the actions were judicial actions. Since lack of
jurisdiction of the court over the speeding case was the only issue raised by
the plaintiff, the court upheld the summary judgment.
“Even though Kimmell did not raise a fact issue
with competent summary judgment proof, we must still determine whether defendant proved each element
of [his] affirmative defenses[76] as a matter of law, as was [his] burden.[77][78] ”
“Defendant sought summary judgment on the
strength of . . . judicial immunity. . . . Justices of the peace, like other
judges, are immune from tort liability for acts performed or not performed in
the course of judicial proceedings over which they have jurisdiction.[79],. . . .
“Kimmell’s suit seeks to impose civil liability
arising out of defendant[‘s] performance of duties for which [he] enjoy[s]
absolute immunity. Defendant’s affidavit
establishes that all of the actions of which Kimmell complains were taken in
[his] official capacit[y] as justice of the peace. . . . Kimmell challenged defendant’s assertion of
immunity by contending that [he] acted beyond [his] jurisdiction in prosecuting
[Kimmell] in precinct number one because [Kimmell’s] case arose in precinct
number two. This argument fails, however, because it raises only a question of
venue, not jurisdiction. “[A] justice of the peace court has jurisdiction
to try a case which arose in another precinct.”[80] Defendant conclusively established that [he
was] entitled to judicial immunity from tort liability, and summary judgment
was properly granted on that ground.” [81]
*
* * * *
A precise examination of
pleading and proof issues.
Spencer v.
City of Seagoville 700 S.W.2d 953
(Tex.App.-Dallas 1985)
Issues: Pleading
requirements, statement of a claim, summary judgment, judicial immunity as an
affirmative defense, evidence required to prove judicial immunity, burden of
proof, special exceptions, clerk’s judicial immunity, jurisdiction of the
person, activation of a court’s jurisdiction over a case, §1983, judicial
function, judge swearing out complaint.
“We grant appellant’s motion for rehearing in
part, withdraw our former opinion, and substitute the following opinion. O.B. Spencer brought suit in the trial court
asserting that appellees violated his civil rights under 42 U.S.C. § 1983. The
appellees, from whom Spencer sought recovery of money damages, are the City of
Seagoville, Texas, a municipal corporation; Don Smith, mayor and municipal
judge of Seagoville; Sherry Koleszar, Secretary of Seagoville and clerk of its
municipal court; and Marian Hoy, deputy clerk of Seagoville’s municipal court.
“Spencer
appeals from a summary judgment granted in favor of the appellees. In two
points of error, Spencer maintains that the trial court erred in rendering
summary judgment for appellees because (1) there are disputed issues of fact
and (2) the defenses presented by appellees do not bar his section 1983 suit.
In a third point of error presented by supplemental brief, Spencer contends
that summary judgment was improperly based on his failure to state a cause of
action. We reverse the judgment in favor
of the City and remand that cause, but we affirm the judgments in favor of the
individual defendants.
“Spencer’s second amended petition states that Koleszar and Hoy signed and filed complaints
against him for his failure to appear in court in connection with traffic
citations. Acting on these complaints, Smith issued several warrants for
Spencer’s arrest. Spencer claims that the warrants were legally insufficient
because they were based on complaints which appeared false on their face.
Pursuant to the arrest warrants, Dallas County Sheriff’s deputies arrested and
jailed Spencer. He alleges that these deputies, hired to act as police officers
for Seagoville, treated him cruelly during both his arrest and his
incarceration. He says he was later acquitted of the traffic offenses.
“Moreover, Spencer
claims that his arrest and incarceration resulted from his criticism of
Seagoville’s administration and that Smith, Koleszar, and Hoy, employees of
Seagoville, instigated his arrest and incarceration to embarrass and harass him
in the presence of his friends and other Seagoville citizens. Further, Spencer
alleges that he has been falsely imprisoned and maliciously prosecuted and that
such actions were taken against him in violation of his constitutional right to
free speech.
“Claim Against The City
“The City’s motion for summary judgment was
based on three grounds: 1) the doctrine of sovereign immunity, (2) the
plaintiff’s failure to give notice to the City under the Texas Tort Claims Act,[82] and (3) the defendant’s lack of control over
the actions of the Sheriff’s deputies. Since these are the only grounds
asserted in the motion for summary judgment, we may uphold the judgment only on
these grounds.[83]
“The
doctrine of sovereign immunity is not an absolute bar to a section 1983 suit
against the City. In Monell v. Department of Social Services of the City of
New York,[84] the
Supreme Court held that private individuals may directly sue municipalities
under section 1983 for constitutional deprivations inflicted upon them pursuant
to a governmental custom, policy, ordinance, regulation, or decision. Thus,
the City’s plea of sovereign immunity was not, in and of itself, enough to show
that the City was entitled to judgment as a matter of law.
“To hold
a city liable under section 1983 for unconstitutional acts of its employees, a
plaintiff is required to plead and prove three elements: (1) an official policy
or custom that (2) causes the plaintiff to be subjected to (3) a denial of a
constitutional right.[85] In other words, the plaintiff bears the
burden of showing that the city ‘maintained or practiced an unconstitutional or
unlawful ‘policy’ or ‘custom,’... and second that that policy or custom
‘caused’ or was the ‘moving force’ behind the violation.’[86]
“The City’s allegation in its motion for summary
judgment and proof in its supporting affidavits that it had no control over the
deputies might, if uncontroverted, establish that no city policy or custom
caused any deprivation of rights related to the manner of Spencer’s arrest or
incarceration. However, even if we assume that the City established this
allegation as a matter of law, we could not conclude that the City is entitled
to judgment. Assuming that no policy or custom of the City caused any
deprivation related to the manner of Spencer’s arrest or incarceration, it
still may be that a policy or custom of the City was the moving force
instigating an unlawful arrest of Spencer. The motion for summary judgment makes
no allegation denying this possibility; nor does the summary judgment proof
negate it.
. . .
In its appellate brief, however, the City argues that Spencer did not even
plead a section 1983 cause of action, since he failed to allege that some City
policy or custom was the cause of his deprivation of constitutional rights. Our
examination of Spencer’s second amended petition reveals that the City is right
about the deficiency in Spencer’s pleading. But even so, we cannot uphold the
summary judgment on that ground because of the City’s failure to assert it in
its motion for summary judgment.
“Moreover, even
if the City’s motion for summary judgment had pointed out Spencer’s failure to
state a cause of action, we could not on that basis uphold the summary judgment.
Summary judgment is an inappropriate vehicle for resolving the issue of whether
pleadings fail to state a cause of action.[87] When pleadings fail
to state a cause of action, the proper course for the opposing party is to file
special exceptions. If the trial court sustains these, and the pleadings, after
an opportunity for amendment, still fail to state a cause of action, the
appropriate remedy is dismissal, not summary judgment. Id. However, at least
one appellate court has affirmed a summary judgment on the ground that the
pleadings, after proper special exceptions and opportunity to amend, failed to
state a cause of action.[88] Another has implied that it would affirm in
such a case. [89] Apparently, at least a partial rationale for
these opinions is that summary judgment in this situation serves as the
functional equivalent of the appropriate remedy, dismissal, and that reversal
is consequently not warranted.
“The City
did file special exceptions in this case. However, these special exceptions do
not with particularity point out the failure of Spencer’s petition to plead, as
a necessary element of a section 1983 cause of action, a City policy or custom
that caused his allegedly unlawful arrest. Rather, the special exceptions’
two references to failure to state a cause of action only assert: (1) that the
portions of Spencer’s original petition referring to the “actions of his
Attorney and his efforts to obtain a Writ of Habeas Corpus” state no cause of
action, and (2) that paragraph II of the petition (dealing with the filing of
an allegedly false complaint) “is so vague and unintelligible and fraught with
references to ambiguous terms so as to prevent Defendants from being able to
reasonably determine any cause of action being pled ...” At best, these exceptions
are in the nature of a general demurrer. Thus, they are inadequate, since special exceptions must be specific enough to
inform the opposing party of the particular defect in the pleading.[90] Therefore,
if the City’s motion for summary judgment had asserted Spencer’s failure to
state a cause of action, we still could not affirm in reliance on these special
exceptions. To do so would be to circumvent the protective features of the
special exception procedure in contravention of the command of the Texas
Supreme Court.[91]
“The City
argues, in a response brief, that Spencer waived any argument concerning the
impropriety of granting a summary judgment against him for failure to state a
cause of action, since he did not raise the issue. The City, of course, itself
waived failure to state a cause of action as support for the summary judgment
by not asserting that ground in its motion for summary judgment. Furthermore,
it would be unfair to require Spencer to make reply arguments to a ground the
City did not assert in its motion. The import of such a holding would be to put
on non-movants the burden of anticipating every ground a movant might have
asserted in his motion and replying to all such grounds. The absurdity of this
result undoubtedly provides at least a partial rationale for the courts’
position that grounds not asserted in the motion cannot support a summary
judgment on appeal.
“Thus, we
must sustain the second point of error and reverse the summary judgment in
favor of the City. It may seem strange to reverse the judgment when the record
before us reveals no cause of action against the City, but we are required to
do so in light of the inadequacies of the City’s motion for summary judgment,
and, alternatively, its special exceptions.
“Claim
against Judge Smith
“The Supreme Court has ruled that absolute
immunity extends to all judicial acts unless such acts fall clearly outside the
judge’s subject-matter jurisdiction.[92][93] Further, the Court has stated that:
“Disagreement with the action taken by the judge,
however, does not justify depriving that judge of his immunity. Despite the
unfairness to litigants that sometimes results, the doctrine of judicial
immunity is thought to be in the best interests of ‘the proper administration
of justice ... [, for it allows] a judicial officer, in exercising the
authority vested in him [to] be free to act upon his own convictions, without
apprehension of personal consequences to himself.’[94]
see
also Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) (judicial
immunity applies even when a judge is accused of acting maliciously and
corruptly).[95]
“Spencer
claims that Smith was not acting within his judicial jurisdiction, but was
using his position as municipal judge to ‘persecute his enemies and critics.’
There is nothing in our record to
indicate that Smith was acting on personal vendetta when he issued the warrant
for Spencer’s arrest.[96] The affidavits of
Smith and Koleszar both state that the actions taken against Spencer were done
in their official capacities pursuant to the normal course of operation in the
municipal court. Nothing in our record indicates otherwise. Accordingly, we
hold that Smith was immune from liability under the doctrine of judicial
immunity and summary judgment in favor of Smith was proper.[97]
“The Claims Against the Court Clerks, Koleszar
and Hoy
“Spencer
claims that the clerks of Seagoville’s municipal court are not entitled to
absolute judicial immunity. We disagree. There is ample authority in support of
the rule that court clerks, acting in the course of their duties, have the same
immunity as judges.
“In Slotnick v. Staviskey, 560 F.2d 31 (1st
Cir.1977), cert. denied, 434 U.S. 1077, 98 S.Ct. 1268, 55 L.Ed.2d 783 (1978),
the plaintiff filed suit against a state court judge, the clerk of the court
and others, alleging that his civil rights had been violated, pursuant to 42
U.S.C. § 1983. The trial court dismissed the case. The plaintiff appealed. The
appellate court held that both the state court judge and the clerk of his court
were immune from suit under section 1983. In Sullivan v. Kelleher, 405 F.2d 486
(1st Cir.1968), the plaintiff sued the clerk of a state court claiming denial
of his civil rights. The trial court rendered summary judgment for defendant.
On appeal the court held that the judicial immunity extends to the clerk of a
court. In Davis v. McAteer, 431 F.2d 81, 82 (8th Cir.1970), the court said:
“This court and others have specifically held that clerks of court are entitled
to immunity the same as judges.”[98]
. . .
“We realize that in Thomas v. Sams, 734 F.2d 185
(5th Cir.1984), the United States Court of Appeals for the Fifth Circuit held
that a municipal court judge’s swearing
out a complaint was not in that case a judicial act. The court in Thomas,
however, did not hold that it is impossible for swearing out a complaint to be
a judicial act. The key consideration in
deciding whether initiating a criminal prosecution is a judicial act is whether
initiating such a prosecution is a normal function of the judicial officer.[99]
“The
complaints Koleszar and Hoy signed and filed were complaints for failure to
appear in court. It is conceivable that signing and filing complaints of that
kind may be a normal function of municipal court clerks. Koleszar’s affidavit
states that she and Hoy were acting under orders of the court, in the normal
course of the operation of the court, as officers of the court. Smith’s
affidavit confirms that they were acting as officers of the court in the normal
course of the operation of the court. There is thus summary judgment evidence,
which appellant did not controvert, that the clerks’ signing and filing the
complaints were part of their normal functions as court clerks. The City
consequently established that all of the clerks’ acts at issue were judicial
acts. We therefore conclude that the clerks enjoyed judicial immunity with
respect to them and that the summary judgment in favor of the clerks was
proper.
Conclusion
“We reverse the judgment in favor of the City
and remand that cause to the trial court. We
affirm the judgments in favor of the individual defendants Smith, Koleszar, and
Hoy.” Spencer v. City of Seagoville 700
S.W.2d 953 (Tex.App.-Dallas 1985)
*
* * * *
Speeding creates heartache.
Tedford v.
McWhorter 373 S.W.2d 832 (Tex.Civ.App.-Eastland 1964)
Issues: Is potential
jurisdiction activated? Is there a case?
Tedford shows a serious court’s
serious effort to resolve a serious issue. In Tedford, the judge was the regular judge. The court had subject
matter jurisdiction. The question is whether
the court’s subject matter jurisdiction, which provided potential jurisdiction,
was activated by a case. Did the court have jurisdiction over this matter and
over the defendants? The court’s
struggle with this issue contrasts with the Bradt
court’s false premise that subject matter jurisdiction is the one and only
jurisdictional issue. We will analyze Bradt
later. Bradt shows that a court may
not comprehend the issues, while Tedford
shows that a court which understands the issues may find them difficult to
resolve.
“Roy E. Tedford brought suit against J. E.
McWhorter for false arrest. Plaintiff
alleged that McWhorter was Justice of the Peace, Precinct 1, Place 1, Ellis
County and unlawfully issued two
warrants under which plaintiff was arrested and imprisoned in the county
jail of Dallas County, for a period of approximately five hours and, while so imprisoned, suffered a minor heart attack.
The defendant answered and set up the defense
of judicial exemption. Defendant also filed a motion for summary judgment
which plaintiff controverted. The court granted
the motion for summary judgment and Tedford has appealed.
“It is undisputed that appellant, Roy E. Tedford, was arrested by a Texas
highway patrolman in Ellis County on December 19, 1961, and given a ticket which specified a charge of
speeding; that appellant signed the ticket, stating he would appear before J.
E. McWhorter, Justice of the Peace of Precinct 1, Place 1, in Ellis County on
or before December 30, 1961. After his arrest by the highway patrolman, and
his signature on the ticket promising to appear, appellant was released. Thereafter a case was entered on the docket
of said Justice Court naming the appellant as the defendant on a charge of
speeding. On December 26, 1961, appellee J. E. McWhorter wrote a letter to
appellant reminding him of his obligation to appear within ten days after
receipt of the ticket.
“There is
a dispute as to whether appellant did so appear on December 28, and it is
further disputed as to whether a complaint had at that time been filed
against appellant. On January 3, 1962, appellee, Justice of the Peace, wrote
another letter to Tedford and when no word was received in response to this
second letter warrants for appellant’s
arrest were issued by appellee and pursuant
thereto appellant was on February 15, 1962, arrested and placed in the Dallas
County jail where he was confined for a period of five hours and suffered a
minor heart attack. On February 16, 1962, appellant Tedford went to the
courtroom of said Justice of the Peace in pursuance to instanter bonds made
after his arrest and asked permission to inspect any complaints against him. He
was shown no complaint and there is a conflict in the evidence as to whether a
complaint of any kind existed or had been filed against him at that time.
Subsequently, on March 15, 1962, appellant was tried and convicted in said Justice Court on the charge of speeding.
Appellant urges one point in which it is contended that the court erred in
finding that no genuine issue as to any material fact existed.
“In order
for a detention to constitute false imprisonment the restraint must be
unlawfully imposed. 22 American Jurisprudence 399. Appellant urges that the only lawful authority of a justice of
Peace to issue a warrant of arrest is set out in Article 884, et seq.
Tex.C.C.P., and that in the absence of a
complaint duly filed in the Justice Court there is no jurisdiction of the case,
and that the issuance of a warrant of arrest is unlawful. The parties agree that for a justice of
Peace to have authority to issue a warrant of arrest the court must have
jurisdiction (1) over the subject matter, and (2) over the person of the
defendant. The parties also agree that in the instant case the Justice Court
had jurisdiction over the subject matter.[100] The
issue in controversy is whether the Justice Court had such jurisdiction,
actually or colorably, over the person of Tedford at the time of the issuance
of the warrants for his arrest that appellee McWhorter, as a judicial officer,
was protected from liability. We are of the opinion that the record conclusively shows the existence
of facts at the time of the issuance of the warrants of arrest which
constituted colorable jurisdiction over the person of appellant sufficient to
protect Justice of the Peace McWhorter from liability, if he acted in good
faith.[101]
“The general rule is that a judicial officer is not liable for a false arrest arising out of his
official action amounting to an excessive or erroneous exercise of jurisdiction
where there is no clear abuse of all jurisdiction. In 35 C.J.S. False
Imprisonment Sec. 44a, p. 706, it is stated:
‘In cases over which the
judicial officer has general jurisdiction, complaints, affidavits, or other
preliminary proceedings have been held sufficient to protect him in acting
thereunder where on a reasonable construction thereof the charge of an offense
justifying arrest can be gathered, or where there is presented even in a slight
degree a question on which the judicial mind is called to act in determining
whether a crime has been committed by the person charged.
‘The protection extends
to an erroneous procedure, and errors of judgment resulting in improper
detention after arrest, and to a second arrest on proof of the insufficiency of
bail offered after the first arrest.’
“The case of Broom v. Douglass, 175 Ala. 268, 57
So. 860, 44 L.R.A.N.S., 164, was a suit against a Justice of the Peace for
false imprisonment. The Justice of Peace had issued a warrant for the arrest of
an accused on an affidavit which was wholly insufficient to charge any criminal
offense. The affidavit, however, was clearly an attempt to charge a threatened
criminal trespass on the affiant’s land, and stated facts as elements of such
purported offense. It was held by the Supreme Court of Alabama that a colorable case was presented which fairly
invoked the justice’s judgment as to the sufficiency of the complaint; that
under such circumstances the issuance of the warrant of arrest was based upon a
judicial act involving the inquiry of the Justice of Peace and his affirmative
conclusion, as to his power and authority to do so, for which it was held he
was not liable if he acted in good faith.
At page 865 of the opinion of 57 So. there is set out the following quotation
from Craig v. Burnett, 32 Ala. 728.
‘If it appeared that the fact, upon which the
jurisdiction of the council over the matter of the imprisonment depended was
judicially considered and adjudged by the council, then the defendants would
not be liable for their mere error of judgment. Every judicial tribunal,
invested with authority to be exercised in a certain contingency, has authority
to inquire and ascertain whether the contingency has occurred. Where
jurisdiction depends upon the existence of a preliminary fact, there is
authority to decide whether that fact exists. A court is entitled to as full
protection against an error of judgment in reference to the existence of the
jurisdictional fact as in reference to the merits of the suit.’
“It is noted that in each of the above cited cases
there was a lack of general jurisdiction over the subject matter. It was held
that preliminary facts existed in each of the cases which protected the Justice
of Peace in one instance and the City Council in the other in the erroneous
determination that jurisdiction did exist over the subject matter. The
reasoning in each of the cases was that a court is entitled to protection
against an error of judgment in reference to the existence of such jurisdiction
if there is colorable jurisdiction and the determination that there was actual
jurisdiction is made in good faith. In
Broom v. Douglass, supra, where as stated the erroneous determination involved
general jurisdiction over the subject matter, it was indicated that in such a
case ‘colorable cause’ or ‘colorable invocation of jurisdiction’, meant that a
complaint or affidavit against the accused had been made in writing under oath,
stating some fact or facts which purported to constitute a criminal offense,
thereby calling upon the Judge to pass upon the sufficiency of the affidavit or
complaint to illicit the process issued.
“In the instant case a slightly different
problem is presented. Here it is
undisputed that the Justice Court had general jurisdiction over the subject
matter. The controversy involves jurisdiction of the person. There can be no
question but that the court did not have actual jurisdiction over the person of
the accused at the time of the issuance of the warrants sufficient to support a
conviction unless complaint had been filed. That fact admittedly is in dispute,
and the summary judgment was, therefore, not justified unless ‘other
preliminary proceedings’ constituted ‘colorable cause’ sufficient to protect
the Justice of the Peace in acting thereunder and issuing the warrant of
arrest. Obviously, ‘colorable invocation of jurisdiction’ in a case
involving jurisdiction over the person could not be the same as in cases
involving jurisdiction over the subject matter. If complaints were filed with appellee Justice of the Peace before the
issuance of the warrants of arrest charging appellant with the offense of
speeding, and of failing to appear, charges over which the court had general
jurisdiction, then admittedly there was both general jurisdiction over the
subject matter and actual jurisdiction over the person accused, and the
question of ‘colorable invocation of jurisdiction’ is not involved. This,
however, is not the case before us. We must assume for the purpose of this
appeal that no complaint was filed before the issuance of the warrants of
arrest, and that appellee was therefore at least guilty of an error in judgment
in issuing such warrants. But we see no reason why a Justice of the Peace is
not protected against an error in judgment, made in good faith, in reference to
the existence of jurisdiction over the person where there have been preliminary
proceedings which ‘colorably’ invoked his jurisdiction.
“Under the provisions of Article 6701d, Sections
148, 149, Tex.Civ. St., and Article 792 of the Texas Penal Code, it is the duty
of a peace officer who apprehends and arrests a person for the offense of
speeding to give him a duplicate ticket or summons to appear in court to answer
the charge, and to thereupon release the person arrested, if he gives his
written promise to appear. The violation of such a promise to appear in court
is made a misdemeanor offense regardless of the disposition of the charge upon
which the arrest was made.
“Article
343, Texas Penal Code, provides as follows:
‘The word ‘accusation’ as used in this Code
means a charge made in a lawful manner against any person that he has been
guilty of some offense which subjects him to prosecution in the name of the
State. One is said to be ‘accused’ of an offense from the time that any
‘criminal action’ shall have been commenced against him.
‘A legal arrest with or without warrant; a
complaint to a magistrate, or an indictment are examples of accusation.’
“Article
24, Texas Penal Code, provides as follows:
‘A ‘criminal action’ means the whole or any part
of the procedure which the law provides for bringing offenders to justice; and
the terms ‘prosecution’ and ‘accusation’ are used in the same sense.’
“Unquestionably a criminal action or proceeding was commenced against appellant when he
was apprehended by the highway patrolman and signed the ticket agreeing to
appear in the Justice Court on a charge of speeding. This original
apprehension of appellant by the patrolman was a lawful arrest even though
there was no warrant. In our opinion this
arrest of appellant, the ticket or summons given to him by the highway
patrolman to appear before the Justice Court on a charge of speeding and his
written promise to appear constitute ‘other preliminary proceedings’ and show
‘colorable cause’ or ‘invocation of jurisdiction’ which protect appellee in his
determination to issue the warrants of arrest, if his determination was made in
good faith.
“We now
come to a consideration of the question of appellee’s good faith. Appellee,
in his motion for summary judgment, stated
under oath that in executing such warrants of arrest he acted in good faith in
his official capacity as Justice of the Peace. We agree with the trial
court that a judicial question was presented to appellee concerning his
authority to issue the warrants of arrest. Even so, he was not entitled to
judicial immunity for his erroneous decision unless he was acting in good
faith. Appellee stated under oath that
he was so acting. Since, however, he is an interested witness his sworn
statement that he was acting in good faith, though undisputed, is not
conclusive. There was an issue of
fact, not only on the question of whether a complaint had been filed at the
time appellee issued the warrants of arrest, but also, on the question of
whether appellee acted in good faith in issuing the warrants if it should be
found that no complaints were then filed.
“For the reasons stated, the judgment is reversed and the cause is remanded.
“ON
MOTION FOR REHEARING.
“Appellee urges in his motion for rehearing that
we erred in holding that appellee’s liability is contingent upon the question
of whether he was acting in good faith in issuing the warrants of arrest, and
that appellee had the burden of showing his good faith; erred in holding that a
jury question exists in this cause and erred in holding that there was an issue
of fact as to appellee’s good faith; that we erred in not holding that
appellee, a judicial officer, acted in good faith in issuing the warrants of
arrest, and that we erred in reversing and remanding and in not affirming the
judgment.
“Upon
reconsideration we have decided that we did err in reversing the judgment and
in remanding the cause, and have concluded that the judgment should be
affirmed. There were ‘other preliminary
proceedings’ which showed ‘colorable cause’ or ‘invocation of jurisdiction’
over the person of appellant, and a judicial question was presented
concerning appellee’s authority to issue the warrants of arrest. Since there was colorable jurisdiction over
the person of the appellant and a judicial determination was involved appellee
cannot be held liable even though he improperly determined the question of his
jurisdiction and this is true even if it could be determined that he did not
act in good faith. We are now of the opinion that we erred in holding that the
burden was on appellant to show his good faith. In Rains v. Simpson, 50
Tex. 495, 499 it was stated:
‘From the very necessity of the case, this
immunity from private liability extends not only to negligent, but willful and
malicious judicial acts. * * *
“That able jurist, Judge Cooley, in a valuable
contribution on this subject in 3 Southern Law Review, (N.S.,) 547, says: ‘But
our own view is, that the doctrine that a public officer, acting within the
limits of his jurisdiction in the discharge of a discretionary duty, can be
held liable upon an assumption that he has acted willfully or maliciously, is
an exceedingly unsatisfactory and dangerous one; and that those decisions are
safest and most consonant to public policy which deny it altogether. Motives
are not always readily justified to the public, even in cases where they have
been purest; and the safe rule for the public is that which protects its
officers in acting fearlessly, so long as they keep within the limits of their
legal discretion.’
“In Turner v. Pruitt,[102] Judge Calvert, speaking for our Supreme
Court, stated as follows:
‘The same reasons underlying immunity of
district judges from tort liability for acts performed or not performed in
judicial proceedings require a conclusion that justices of the peace should
enjoy like immunity when acting in the course of judicial proceedings of which
they have jurisdiction.’
“In affirming the trial court in the cited case
the Supreme Court approved the dissenting opinion of Associate Justice Wilson
in the Court of Civil Appeals.[103] Justice Wilson stated in his dissent as
follows:
‘In Mabry v. Little, Justice Wheeler held that
even if the unlearned justice of the peace had no jurisdiction, if the
plaintiff submitted to his jurisdiction he waived the trespass and an action
for damages would not lie. In Anderson v. Roberts, the rule is stated that even
if the justice improperly determines he has jurisdiction, he cannot be held
liable for his acts for ‘When the state confers judicial powers upon an
individual it confers him with full immunity from private suits.’ The general
rule is similarly stated in 51 C.J.S. Justices of the Peace Sec. 19, p. 36, and
173 A.L.R. 802. The jurisdictional test has been reiterated by such venerable
authorities as Coke, Bacon, Blackstone, Kent and the ancient Dalton’s ‘Country
Justice.’[104]
“The ticket or summons given to appellant by the
highway patrolman to appear before the Justice Court on a speeding charge and
his written promise to appear constituted ‘other preliminary proceedings’ and
were a colorable invocation of jurisdiction over the person of appellant. This
colorable jurisdiction protected appellee in his decision to issue the warrants
for appellant’s arrest and he is immune from personal liability in a civil
action even though his acts may have been in excess of his jurisdiction.
“The
judgment is affirmed.” Tedford v. McWhorter 373 S.W.2d 832 (Tex.Civ.App.-Eastland 1964)
*
* * * *
Goats create a mess.
Undivided interests in land are a mess.
Rea v. Cofer 879 S.W.2d 224
(Tex.App.-Dallas 1994)
Issues:
Affirmative defense, burden of proof, evidence, subject matter jurisdiction.
“The instant case arose from two previous litigations. The first
litigation involved appellant and the City of Bryan, Texas. Appellant was cited
for violating a city ordinance regarding the appearance and suitability of real
property. After a jury found appellant guilty, the trial court imposed a civil
penalty of $500 and ordered
appellant to have the subject property
cleaned. A subsequent agreement between appellant and the city resulted in
the removal of several goats[105] from the property as well. The judge
presiding over this cause of action was appellee, Judge J.D. Langley. Appellant
was represented in this action by appellee, D. Brooks Cofer, Jr. and his law
firm, D. Cofer, Jr., Inc., (now Cofer & Cofer, Inc.).
“The second litigation involved the partition and sale of a certain piece
of real property in Brazos County, Texas. On June 19, 1985, appellant filed
for partition alleging joint ownership in the real property including its
improvements. The petition sought the appointment of a receiver to sell the
property and divide the proceeds among the owners. D. Brooks Cofer, Jr. and the law firm of Cofer & Cofer, Inc.
represented appellant in this litigation as well. On March 25, 1987, appellee,
D. Michael Holt (Holt), was appointed substitute receiver by appellee, Judge
W.T. (Tom) McDonald, Jr., then presiding Judge of the 85th District Court of
Brazos County. Holt was to assist in the sale of the house. Holt filed his
“Receiver’s Report of Sale” on April
27, 1987. According to the report, the property was sold to a third party for
$18,500. The next day, Judge McDonald signed an order approving and confirming
the sale and ordered the funds disbursed.
“On August 10, 1992, appellant filed the instant
suit against D. Brooks Cofer, Jr., Cofer & Cofer, Inc., and Lawyers Title
Company. 2 Appellant alleged legal malpractice and DTPA violations in
connection with the sale of the property in Brazos County and the litigation resulting
in penalties for violations of a city ordinance. On November 20, 1992,
appellant filed her first amended petition, joining the remaining
defendants/appellees.
“. . . Judges Langley and McDonald filed their
motion for summary judgment. . . . the judges raised the affirmative defense of
judicial immunity. . . . [T]he trial court granted [the] motions for summary
judgment.”
Rea begins its judicial
immunity analysis by noting that judicial immunity is an affirmative defense.
All of its elements must be proven by the defendant judge.
“[W]e need review only the defense of judicial
immunity. Appellant’s allegations . . . arise from orders signed by Judge
Langley on November 4, 1987 and by Judge McDonald . . . in unrelated lawsuits. When a defendant moves for summary judgment
based on an affirmative defense, the defendant bears the burden of proving
conclusively all the elements of the affirmative defense as a matter of law
such that there is no genuine issue of material fact.[106] ”
Next, the court reviews the basics of judicial
immunity.
“A judge enjoys absolute judicial immunity from
liability for acts[107] performed or not
performed in the course of judicial proceedings over which he has jurisdiction.[108] ”
The court then looks at the acts which are
alleged by the plaintiff to see whether the acts were done, or not done, within
jurisdiction. The plaintiffs claim was based on an erroneous premise that the
case exceeded the county court at law’s jurisdictional limitations. The court
of appeal holds that the court had jurisdiction.
“Appellant’s suit seeks to impose civil
liability arising out of appellees’ performance of duties for which they enjoy
absolute immunity. Judge Langley’s
affidavit established that his only contact with appellant was in his official capacity
as the presiding judge[109] of the County Court
at Law Number 2, of Brazos County, Texas, in a suit[110] between appellant
and the City of Bryan. Judge Langley’s affidavit further contended that any
action of which appellant complains was taken in his official capacity as judge
of the county court.[111] Appellant
challenged Judge Langley’s assertion of immunity by contending that he acted
beyond the scope of his jurisdiction because the suit before him had an amount
in controversy of $10,000. This argument fails, however, because the Brazos
County Court at Law has concurrent jurisdiction with the district court in
civil cases in which the amount in controversy is between $500 and $50,000. TEX.GOV’T CODE §
25.0232(a)(2)(A).[112]”
“Likewise, Judge
McDonald’s affidavit established that his only contact with appellant came in
his official capacity as judge of the 85th District Court of Brazos County,
Texas.[113] Specifically, in a suit to partition real property. State district courts are
courts of general jurisdiction.[114] This jurisdiction
extends to suits to partition real estate.[115] ”
The
court finds the acts within the judge’s jurisdiction. Well, it almost does. It
actually just finds jurisdiction without mentioning the acts. We are required
to read between the lines that the acts were judicial acts within these
proceedings. That is easy to do in this case, but the court should specifically
address the acts as well as the court’s jurisdiction, and determine if the
specific acts are within that jurisdiction. Another sentence might be
sufficient to complete the analysis.
“Thus both judges established subject-matter
jurisdiction,[116] and conclusively established that they were
entitled to absolute judicial immunity, and summary judgment was properly
granted on that ground.” Rea
v. Cofer 879 S.W.2d 224 (Tex.App.-Dallas 1994)
*
* * * *
A court
fails to identify the “acts” which are in issue.
McDuffie
v. Blassingame
883 S.W.2d 329 (Tex.App.-Amarillo 1994)
Issues: What is the act for which immunity is sought?
In McDuffie,
a parent sued his former wife, the lawyers for his former wife, and the judge
who presided over a prior suit affecting child custody and support because they
“forced him into the emotional distress of a trial.” The judge plead the
affirmative defense of judicial immunity. The trial and appellate courts were
not impressed with the plaintiff’s case. In rejecting it, the court probably
arrived at the correct result, but without a proper analysis.
The first question is what action of the judge
created the basis for the plaintiff’s claim. A court must know what the act is
in order to determine whether the act is an act for which there is immunity.
Whatever the act of the judge was, it is likely that it is an act for which the
judge is clearly immune. The court’s failing is in not identifying an act.
Without an act to analyze, it is impossible to determine whether there is
immunity. For example, if the act was setting the prior case for trial, the
judge is immune. If it was failing to dismiss, the judge is immune. If the act
is identified, the conclusion of immunity may be easily reached. With no act
identified, there is immunity for the act of ______. That’s right. We don’t
know what goes in the blank. That is not an adequate analysis. This easy case
exemplifies the failure of a court to go through the proper analysis because
the court thinks it knows the answer.
It is possible that the plaintiff did not
identify any specific action of the judge. If that is the case, the proper
procedure is for the judge to file special exceptions. The plaintiff may then
amend the complaint to specify the action which is the basis of the claim.
Summary judgment is not the proper procedure, even if the complaint does not
state a proper claim.[117]
In McDuffie,
it is hard to imagine that the justice performed any act which would not be
within the protection of judicial immunity. But, this easy case makes bad law
if it suggests that an act need not be identified and a summary judgment may
substitute for special exceptions. McDuffie cited Spencer, but failed to perform Spencer’s
careful analysis of the specificity
of the pleadings and special exceptions. We turn to the courts opinion in McDuffie.
“Under the Texas Constitution, state district
courts are courts of general jurisdiction.[118] A judge has immunity when acting in the
course of a judicial proceeding over which he has jurisdiction.[119] The doctrine of absolute judicial immunity
encompasses all judicial acts unless such actions clearly fall outside the
judge’s subject-matter jurisdiction. This is so even where the judge is accused
of acting corruptly[120]
[121]
or maliciously.[122]
[123]
[124]
“The Texas Family Code provides that an order
setting the terms and conditions for conservatorship of, support of, or access
to a child may be modified by filing a motion in the court having continuing,
exclusive jurisdiction of the suit affecting the parent-child relationship.[125] The Family Code also provides that any party
affected by the prior decree may file such a motion. Id. Furthermore, in
determining the jurisdiction of the trial court, allegations made in good faith
in the petition are determinative of the cause of action.[126]
“Here, the record shows that Carol filed a
motion to modify the divorce decree in the court of continuing jurisdiction. By
her motion, Carol sought to modify and clarify the medical coverage and
visitation provisions of her’s and Ronald’s prior divorce decree. Carol sought
an order requiring Ronald to pick up the children or, alternatively, an order
requiring him to give her notice if he had no intention of exercising
visitation or if visitation was to be altered. Carol alleged that disputes had
arisen between her and Ronald regarding interpretation of visitation and
medical insurance provisions. Under these pleadings, Carol had standing to ask
for a modification of the divorce decree, and the district court had
subject-matter jurisdiction over any modification of its prior order involving
visitation. Thus, the trial court had subject-matter jurisdiction over the
motion to modify,[127] and O’Donnell acted[128] within his jurisdictional authority.
Consequently, O’Donnell established the defense of judicial immunity as a
matter of law and was entitled to summary judgment upon that ground.” McDuffie v. Blassingame, 833 S.W.2d
329 (Tex.App. Amarillo 1994)
*
* * * *
The Bradt Court Misunderstands.
Bradt v.
West 892 S.W.2d 56
(Tex.App.-Houston[1stDist.] 1994)
Issues: Is the jurisdictional requirement for
immunity satisfied if a court has subject matter jurisdiction but the judge
does not have authority or “jurisdiction” to preside over the court at the time
of the act, and the act is therefore void? Is a judge who conspires with others
to engage in actionable conduct immune?
A
clearly erroneous analysis of judicial immunity is contained in Houston’s First
Court of Appeals Bradt opinion. The
errors by the court provide an excellent teaching tool because they show how not to analyze judicial immunity.
The
court takes its shot, but misses the target. The reason it missed is simple. It
didn’t see the target. It did not comprehend the basis for the claim or the
basic judicial immunity law.
First,
we review the basic elements for judicial immunity. They are the “judicial”
nature of the act, and “jurisdiction.”
The
“judicial nature of the act” is not
involved in the error in Bradt.
Assume that the act was judicial, and this element of the affirmative defense
of judicial immunity was met by Judge West.
The
jurisdiction element is the issue.
Think of the jurisdiction element as a three legged stool upon which the judge
is standing when the judge engages in the “judicial act” which gives rise to
the claim. All three legs of the jurisdictional stool must be present. All must
be sturdy. If any leg fails, neither the judge, nor the judge’s judicial
immunity defense, can stand. We review the three legs one leg at a time.
1. The court
must have subject matter jurisdiction. This element or “leg” is about the power of the court as an institution,
not the power of the individual who presides as judge. Subject matter jurisdiction
allows the act to be done by the court
in that kind of case.
2. The court must have jurisdiction over the particular case or matter. Generally this
means that a case must be pending. That generally requires that a pleading was
filed to activate the court’s jurisdiction. This element or “leg” is also about
the power of the court as an institution, not the power of the individual who
presides as judge.
3. The judge
must have authority to act as the judge. The judge must have “jurisdiction”
over that court in that particular case. This element is sometimes mentioned in
passing. It is generally not in doubt. It is
required. This element may be
loosely[129] stated as, “the judge must be a judge” and “the judge must be the judge of the
particular court with power over the particular case.” This is the issue raised
in Bradt, but missed by the court. We
examine it in detail.
The issue might arise if the person purporting
to be a judge is a fraud. Yes, this is rare, but it illustrates the concept. If
a petty criminal, waiting in an urban courthouse corridor for trial of her
case:
(1) sees a judge’s robe and puts it on,
(2) walks into a courtroom,
(3) takes the bench, and announces: “I am Judge
Con, a visiting judge from Fanciful County. Texas. I have been appointed to
preside today. Call the next case.”
(4) while purporting to preside over the “next
case” holds the assistant district attorney in contempt, orders him jailed,
and the assistant district attorney is
jailed.
Does Con have judicial immunity for actions
taken as “judge” of that case? Should
Con have immunity? Is immunity for Con good public policy? The issue is the
authority or “jurisdiction” of the individual to preside. This issue is not about the court’s
jurisdiction. It is about the authority
or “jurisdiction” of a particular person to exercise the court’s jurisdiction
over the case.
A slightly more likely case would be a judge who
fails to meet the requirements for a judge, by lacking basic requirements of
office such as age, or years of law practice; failing to file an oath or
agreement not to privately practice law; or failing to pay law license fees or
dues. The issue is whether such a failure disqualifies the person from judicial
immunity if the person presides despite the lack of compliance with a
requirement for serving as judge.
A more likely case is a judge who really is a
judge, but does not have authority to preside in the particular court over the
particular case. For example, in a
jurisdiction with two levels of courts, a judge of the higher level might be
eligible to serve as visiting judge in the lower level, but the reverse may not
be legal. If a lower level judge is appointed to preside in the higher level
court for which the judge is ineligible, is there immunity?
The situations described above are not common in
judicial immunity litigation, so we merely acknowledge that the issue might
arise and need resolution. The common
circumstance is that a court will mention that the defendant is a judge with
authority to preside over the court. Since judicial immunity is an affirmative
defense, the defendant judge has the burden to plead and prove the authority to
preside over the case in the court at the time of each act which give rise to
the suit, and the defense should fail if the judge neglects to do so, or cannot
do so. With that background, we turn to the examination of Bradt.
The Bradt
situation arises with some frequency in Texas.
It gives rise to serious questions of whether judicial immunity protects
a judge is created when a judge purports to preside despite lacking authority
or “jurisdiction” over a case because the judge is (1) the subject of an
unresolved motion to recuse, (2) the subject of a valid objection to an
assigned judge, or (3) constitutionally disqualified from presiding. [See the continuing legal education courses
on recusation, objection, disqualification, and appointment at
YouKnowItAll.com]
Mr.
Bradt sued a judge for an act taken while
the judge was the subject of an unresolved motion to recuse. The court had subject matter jurisdiction. A
case had activated the court’s
jurisdiction. The “act” arose within that case.[130] The two legs of the
stool which relate to the power of the court
were satisfied.
The
Bradt issue involved the third leg.
Did Judge West have authority to preside at the time he acted? Was he eligible
to wield the court’s power at the time he acted? That was the one and only
jurisdictional leg challenged by Mr. Bradt.
The court of appeals failed to recognize the issue. It failed to examine
this leg of the jurisdictional stool. Instead it examined the first leg. Just
as a surgeon who amputates one leg from a two legged person must amputate the
correct leg, a court must examine the leg of the jurisdictional stool that is
challenged. When only one leg is challenged, a court which examines a different
leg has engaged in a meaningless exercise.
We
will review Bradt’s claim, the court of appeal’s analysis, and present the
author’s analysis.
Bradt’s
claim against Judge West was based on Judge West’s act during a time when Judge
West was barred from acting in the case. Some history is required. Bradt is an
attorney who filed a suit on behalf of his clients. At one time Judge West had
been the judge presiding over the case. On June 16, 1992, after judgment and
appeal, but while post judgment matters were pending, a motion to recuse Judge
West was filed. Judge West refused to recuse, but referred the motion to recuse
to the presiding judge of the judicial administrative region as required by
law.[131] The presiding judge of
the administrative region appointed Judge Casseb to hear the motion. Judge
Casseb denied the motion on jurisdictional grounds.[132] Later, the First Court of Appeals granted
mandamous[133] and ordered:
“(1) Judge West shall make no further orders and
shall take no further action in the case until the motion to recuse is ruled
on, “except for good cause stated in the order in which further action is
taken,” as provided in TEX.R.CIV.P.
18a(d).
“(2) Judge Casseb’s September 28, 1992 order
denying relator’s motion to recuse for lack of jurisdiction is vacated and set
aside. Judge Casseb or another judge assigned by Judge Stovall shall hold a
hearing on relator’s motion to recuse, and rule on it.”
Metzger v. Casseb, 839 S.W.2d 160
(Tex.App.-Houston [1st Dist.] 1992)
After the motion to
recuse was filed, and before the court of appeals granted mandamous, Judge West
signed a void purported order on August 18, 1992. This was the “act” which gave
rise to this suit.
The
facts give rise to a serious judicial immunity issue. It was the issue that Mr.
Bradt raised. It is the issue that the court of appeals missed. The general
issue is whether a judge who purports to preside over a case over which he has
no authority to preside has judicial immunity for the void acts taken without
authority. The specific issue is whether a Texas trial judge who is the subject
of a procedurally proper motion to recuse, and barred from taking any action in
the proceeding except actions allowed by Rule 18a(d),[134] but purports to preside
by taking an action which is not allowed by Rule 18a(d), is protected by
judicial immunity. While the question is clear, the answer is unknown. It was
not addressed in Metzger or the later
Bradt cases because the court of
appeals failed to recognize the issue.
The
court of appeals held that Judge West was protected by judicial immunity.
Whether that conclusion is correct or
not, the analysis of the court of
appeals was incorrect. The court of appeals failed to recognize the three legs
of the jurisdictional stool, those being the court having subject matter jurisdiction, the court’s jurisdiction being activated by a pleading, and the judge having authority over that case
in that court at the time of the act. In
Bradt, the issue was not the authority,
or “jurisdiction” of the court. It
was the authority or “jurisdiction” of Judge West to preside over the case at
the time of his action. Whether the court had subject matter
jurisdiction was not the issue. Yet, that is the one and only leg of the jurisdictional
stool the court examined. The court held that Judge West had jurisdiction
and was immune solely because the court
had subject-matter jurisdiction and the act was a judicial act. The court
of appeals failed to address whether Judge West had “jurisdiction” to act for
the court while his authority to act in the case was suspended[135] as a result of the pending and unresolved
motion to recuse Judge West.
We
turn to the jurisdictional leg that the court of appeals did analyze - the
subject matter jurisdiction leg that was not an issue in the case.
“[Judge] West moved for summary judgment on the
ground of absolute immunity.
“. . . West was sued for his conduct after he
refused to recuse himself in [lawsuit number two].... Specifically, the
appellants complain of . . .[136] the signing of a show cause order on August
18, 1992--when [West] was devoid of any
jurisdiction to act . . . . We must determine whether West has absolute
judicial immunity from being sued for the acts of which the appellants complain
in their pleadings.
“The judges of Texas courts have absolute
immunity for their judicial acts ‘unless such acts fall clearly outside the
judge’s subject-matter jurisdiction.’[137] Spencer[138] v. City of Seagoville;[139][140][141] Thus, in determining whether absolute judicial
immunity applies, we face a two-part inquiry: First, were the acts of which the
appellants complain ‘judicial’ ones? Second, were those acts ‘clearly outside’
the judge’s[142] jurisdiction? Bradt v. West 892
S.W.2d 56 (Tex.App.-Houston[1stDist.] 1994)
Note
that, before addressing the disputed issue of jurisdiction, the court of
appeals discusses whether the nature of the act is a judicial one. In a case in
which the act is a purported court order, how could it be otherwise? This element of judicial immunity does not
warrant much discussion. A court order in a case is a “judicial act.” Can that be doubted? The court’s struggle to
justify this obvious conclusion is strained because it is so clearly a judicial
act that the strained analysis is excessive. We quote the court in the footnote
to this sentence, while suggesting that the court’s analysis carries little
precedential or educational value as it struggles to articulate a complicated
resolution to a simple issue that isn’t an issue at all.[143]
“Was West’s act ‘clearly outside’ his[144] jurisdiction?” Bradt v. West 892
S.W.2d 56 (Tex.App.-Houston[1stDist.] 1994)
The court of appeals describes Bradt’s argument
against Judge West’s judicial immunity defense. The statement of the argument
is clear. It is about the third leg of the jurisdictional stool, i.e. whether
the judge has the authority to preside over the court at the time of the act.
“The appellants
argue that when West signed the show-cause order on August 18, 1992, ‘West
was without any jurisdiction to act....’ According to the appellants, West lacked jurisdiction because, on June
16, 1992, well before he signed the show-cause order, he had been presented
with a timely motion to recuse in lawsuit number two, and so should have
either recused himself or asked the presiding judge of the administrative
judicial district to assign a judge to hear the motion. This argument misses
the point.”
The
court says that Mr. Bradt missed the point. That is erroneous. What does the court of appeals think is the
point? The court of appeals analyses the jurisdictional stool as a one legged
stool with the court’s subject matter jurisdiction being the only requirement
for judicial immunity. The court of appeals missed the point.
“The term ‘jurisdiction’ has a connotation in
judicial immunity analyses that is entirely different from its usual meaning.[145] ‘Where a court has some subject-matter jurisdiction, there is sufficient
jurisdiction for immunity purposes.’ Malina, 994 F.2d at 1125; Adams, 764 F.2d
at 298; accord Harris, 780 F.2d at 916 (holding that a judge acts in the ‘clear absence of all jurisdiction’ only if the judge ‘completely lacks subject matter
jurisdiction’[146]). Furthermore, ‘the
term ‘jurisdiction’ is to be broadly construed to effectuate the policies of
guaranteeing a disinterested and independent judicial decision-making process.’
Holloway;[147] accord Stump v. Sparkman,[148][149]
“In determining whether an act was clearly
outside a judge’s jurisdiction for judicial immunity purposes, the focus is not
on whether the judge’s specific act was proper or improper, but on whether the judge had the jurisdiction necessary to
perform an act of that kind in the case. See Mireles v. Waco,[150] 502 U.S. 9, 13, 112 S.Ct. 286, 289, 116
L.Ed.2d 9 (1991) (where judge was alleged to have authorized and ratified
police officers’ use of excessive force in bringing recalcitrant attorney to
judge’s courtroom, and thus to have acted in excess of his authority, his
alleged actions were still not committed in the absence of jurisdiction where he
had jurisdiction to secure attorney’s presence before him); Malina, 994 F.2d at
1124 (because judge had power to cite for contempt and to sentence, where judge
cited motorist for contempt and sentenced him to jail, these acts were within
his jurisdiction, even though judge had acted improperly in stopping the
motorist himself, privately using an officer to unofficially ‘summon’ the
motorist to court, and charging the motorist himself);[151] Sindram v. Suda, 986
F.2d 1459, 1460 (D.C.Cir.1993) (judge’s prohibiting plaintiff from filing any
new civil actions pro se before paying outstanding sanctions was ‘well within’
judge’s ‘jurisdiction’ as term is used for judicial immunity test);[152] Holloway, 765 F.2d at 523 (where judge was
alleged to have committed many illegal acts from the bench, but there was ‘no
question that he was generally empowered to conduct proceedings of the sort he
[was] conduct[ing]’ at the time he allegedly committed the illegal acts, the
acts were within his jurisdiction for judicial immunity purposes). Even the
commission of ‘grave procedural errors’ does not deprive a judge of
jurisdiction as the term is meant in absolute judicial immunity analyses.[153] Stump, 435 U.S. at 359, 98 S.Ct. at 1106;
Malina, 994 F.2d at 1125.[154]
“Thus, the question is not whether West acted
improperly when he signed the specific order complained of, but whether he had the jurisdiction necessary to
sign an order of that kind, i.e., a show-cause order, in the case. He clearly did.[155] Signing a show-cause order--even a void
one--in a case before him[156] is an act within a district judge’s ‘jurisdiction,’ as that term is used for
judicial immunity purposes.[157] Therefore, regardless of the motion to recuse, West acted within his
‘jurisdiction,’ as that term is used
in judicial immunity analyses, when he signed the show-cause order. . . .
“Conclusion regarding West
“Judge West has absolute judicial immunity from
being sued for the acts of which the appellants complain.”
“We . . . affirm the summary judgment granted to
Judge West.” Bradt v. West 892 S.W.2d 56
(Tex.App.-Houston[1stDist.] 1994)
An Alternate judicial immunity analysis when a judge’s
authority is suspended, terminated, or
prevented by recusation, objection, disqualification or other factor.
The
following analysis is suggested by the author as appropriate in a Texas
judicial immunity case in which a judge’s authority to preside is suspended,
terminated, or prevented by any of a number of factors. We review several
different circumstances, then consider the consequences of those situations.
Recusation. One situation is the
one raised by Bradt, with a judge’s authority temporarily suspended until a
motion to recuse is decided. The judge’s authority may be reinstated by denial
of the motion to recuse by the judge appointed to hear the motion, or it may be
permanently terminated by granting the motion. For this discussion, we assume
that the rule 18a(d)[158] exception does not apply. If the judge
purports to preside and “act” while the judge’s authority is suspended by this
unresolved motion to recuse, the judge’s act is void because the judge did not
have authority to act. In this context, it has been said that the judge lacks
“jurisdiction.” If a judge acts after a motion to recuse the judge has been
granted and the judge’s authority to act permanently terminated, the situation
is similar. The judge lacks “authority” or “jurisdiction” over the case. [For
details on recusation, see YouKnowItAll.com’s Texas continuing legal education
course on Texas judicial recusation.]
Objection. Objection refers to
the objection under Texas Government Code §74.053(b) or §74.053(d) to a judge
appointed under Chapter 74. A valid objection terminates the judge’s authority
or “jurisdiction” over the case. Any
action by the judge is void. There is no discretion. When a valid objection is
filed, the authority ends. [For details on recusation, see
YouKnowItAll.com’s continuing legal
education course on Objection to the
Texas Appointed Judges.”]
Disqualification. Disqualification
applies to a judge who is constitutionally disqualified from presiding over a
case. The judge has no authority or “jurisdiction” over the case. Any action by
the judge is void. No action by the parties is required. [For details on disqualification, see
YouKnowItAll.com’s continuing legal
education course on disqualification of
Texas Judges.]
End of Plenary Power. This concept applies to
various situations. One occurs when a judge is appointed to preside over a
family law issue involving a child. This might involve custody or support. For
example, two years after a divorce, a judge may be appointed to preside over a
request for a change in visitation. When that matter is resolved and plenary
power as to that matter ends, the authority of the appointed judge ends. Yet,
the continuing jurisdiction of the court may continue for years. If, three
years, or three minutes, after the termination of plenary power as to the
original matter, a new request for another change in visitation is filed, that
is a new matter over which the previously appointed judge has no authority. If
that appointed judge purports to preside under the original appointment, any
order is void. The judge has no “authority” or “jurisdiction” over this new
matter.[159]
A
similar situation may exist in probate proceedings. A judge may be appointed to hear a will contest. When that
contest is finally resolved, the authority granted by that order expires. If a
more recent will is offered for probate after plenary power over the original
matter ends, and the judge appointed to
hear the prior matter purports to preside pursuant to the original appointment,
the result may be the same void order and lack of “jurisdiction” by the judge
over the court as in the family law context. Texas probate jurisdiction creates
an abundance of situations in which jurisdiction can be a problem. In some counties, a will contest may be
transferred from the constitutional county court to a district court. If a
separate estate administration matter is originally filed in the district court
with the caption[160] of the will contest
case and the district judge purports to preside over that matter, the matter is
outside of jurisdiction because the district court lacks jurisdiction over the
matter.[161] If a purported transfer purports to move a
probate case from a constitutional county court to a district court in a county
in which there are statutory county courts at law with probate jurisdiction
(but not necessarily “statutory probate courts”) the purported transfer is
void. If a matter is filed in a probate court but is not within probate court
jurisdiction, the proceedings are void. If a gas pipeline suit is filed in a
rural district court, but a party dies in Houston, and a Harris County Probate
Court transfers the case to itself, but the estate then settles its part of the
case, what happens? [If these situations seem bizarre or beyond comprehension,
you may get a sample of probate jurisdiction problems in the continuing
education course on recent Texas probate, estate, and trust cases on jurisdiction
at YouKnowItAll.com. Some of the issues can affect any type of Texas
litigation, including gas pipeline disputes, not just litigation that is
categorized as probate litigation.]
Appointed Judges. Appointments of judges
create a range of issues. Most remain unexplored by the appellate courts. A
judge may be appointed to a particular court to preside over all cases for a
period of time. A judge may be appointed to a particular court to preside over
a particular case. What is the result if the court does not exist, but the
judge purports to preside in an existing court pursuant to the appointment to
the nonexistent court? For example:
• A judge is appointed to Fanciful County Court
at Law #8 to preside over Lost v Found (which
is actually pending in Court at Law #4). If there is no such court, but the
judge purports to preside over Fanciful County Court at Law #8 (the nonexistent
court) in the case of Lost v. Found, what
is the result?
• What is the result if the appointment was to
Fanciful County Court at Law #4 (an actual court) to preside over the case of Lost v. Found but the judge purports to
preside over Fanciful County Court at Law #8 (a nonexistent court) case of Lost v. Found (which is actually pending
in Court at Law #4)?
• What is the result if the appointment was to
Meaningful County Court at Law #4 to preside over the case of Lost v. Found and the judge purports to
preside over Fanciful County Court at Law #4 case of Lost v. Found?
• What if the appointment is of Judge Barely
Able, and Judge Very Able purports to preside?
• What if there is no Judge Barely Able?
• What if several judges named George Foreman
exist and one is appointed, but another one purports to preside?
• What if the appointment of a judge to serve on
December 1, 2001 is dated November 15, 2100 or February 30, 2001?
• What is the effect on the authority of the
regular judge if an appointed judge is appointed to preside over a specific
court on a specific date or over a specific case? Does the regular judge lose
authority over the cases over which the appointed judge presides? In re Canales February 1, 2001 (Tex. 2001)
A
wide range of clerical and substantive issues can arise. The author has seen
some of these bizarre examples in Texas
trial practice or in reported appellate cases. Some are purely hypothetical.
Appointments are technical. The technicalities should be taken seriously. If
the judge lacks authority, the proceeding may be void, and the judge may not
have immunity. Consequences of these problems will depend on the technical
legal effect that these various situations create. The Texas Supreme Court has acknowledged that the authority
created by appointments is often unclear and subject to multiple
interpretations.
Consequences.
What is the consequence of a judge presiding without jurisdiction or authority
over the case? One of the three required legs of the jurisdictional stool is
missing. The jurisdiction element of the affirmative defense of judicial
immunity is lacking. There is no immunity. Or is there? The issue has not been
addressed by Texas courts outside of the Bradt
case. Bradt failed to recognize that
authority or “jurisdiction” of the judge to preside over the case is required
for judicial immunity. A judge who lacks authority or “jurisdiction” to preside
and act for the court is not within the normal boundaries of judicial
immunity. Stretching judicial immunity
to cover such a defendant requires more than mere stretching. It will require
either a new analysis of either judicial immunity concepts to extend judicial
immunity to judges who do not have authority or “jurisdiction” over a case or
court, or a new analysis of the status of a judge who lack authority as a
result of disqualification, objection, recusation, or termination of plenary
power. The courts will have to explain that they did not mean what they said in
one of those two areas. Or, they can either extend judicial immunity through
incorrect analysis that ignores the real issue, as was done in Bradt, or with no analysis at all, with
the hope that no one will notice. Texas
Judges like judicial immunity. No
theory supporting their own immunity should be ruled out.
Bradt - A Judge Who Conspires To
Commit a Tort
The
Bradt court mentioned a claim against
Judge West for conspiring with others to
maliciously prosecute. The court rejected the claim with citation to one
Federal case, but without analysis. The court does not explain why the claim is
rejected. It does not justify its conclusion, nor does it discuss the factual
basis for Bradt’s claim. The court’s minimalist rejection on the merits is
followed by rejection of the same claim on a procedural ground that the court
expounds upon. The court concluded that Bradt waived the issue by not
discussing the facts. On rehearing, the court acknowledges that Bradt cites
legal authority on the issue, but again concludes that Bradt waived the issue
by failing to discuss the facts. The court’s waiver analysis is included in the
footnote to this sentence.[162] The court’s minimalist rejection of the
conspiracy claim on the merits does not refer to any of the legal authority
cited by Bradt. The court’s entire analysis of the merits of the issue is the
following:
“The appellants argue that West ‘was [also] sued
for his conduct ... [in] joining the conspiracy to maliciously prosecute
Bradt....’ This contention does not aid the appellants. ‘The fact that it is
alleged that the judge acted pursuant to a conspiracy ... is not sufficient to
avoid absolute judicial immunity.’ Mitchell v. McBryde, 944 F.2d 229, 230 (5th
Cir.1991).” Bradt v. West 892 S.W.2d 56
(Tex.App.-Houston[1stDist.] 1994)
Bradt - The
purpose of Judicial Immunity
The
Bradt court stated the basic purpose
of judicial immunity. The only remarkable aspect of the court’s statement is
that it conflicts with the court’s holding. The court held that Judge West was
immune when acting contrary to his only duty. An unresolved motion to recuse
suspended his authority to act. He had no authority. He had no power. His only
duty was to not act.
“Despite the unfairness to litigants that
sometimes results, the existence of the doctrine of judicial immunity is in the
best interests of justice.[163] It allows a judge, in exercising the authority vested in him, to be free to act
according to his best judgment, unencumbered by anxiety about being sued for acts he performs in discharging his duties.
Id. The public has a right to expect the unfettered execution of those duties; this doctrine helps the
judge fulfill those expectations. Thus, absolute judicial immunity “should not be denied where the denial carries the
potential of raising more than a frivolous concern in a judge’s mind that to
take proper action might expose him to personal liability.”[164] “The fact that the issue before the judge is
a controversial one is all the more reason that he should be able to act
without fear of suit.”[165] ” Bradt v. West 892 S.W.2d 56 (Tex.App.-Houston[1stDist.] 1994)
Would
it have been bad if Judge West had refused to act out of fear of being sued?
Why? His action was void. Would the public suffer if judges who are prohibited
from presiding over a particular case do not preside? Is it better if they do not preside because of the law, rather
than because of fear of lawsuit? Is it better if they do not preside because of
fear of criminal prosecution rather than civil suit? Is Judicial Immunity in the public interest or in the judge’s
interest.
Affirmative Defense
Pleading and Proof
The Bradt states its standard for
affirmative defense pleading and proof.
“A party
that relies on an affirmative defense must specifically plead the defense, and,
when the rules of civil procedure require, must verify the pleading by
affidavit.[166] The
properly pled affirmative defense, when supported by uncontroverted summary
judgment evidence, may serve as a basis for summary judgment.[167] Even
an unpled affirmative defense may serve as a basis for summary judgment when it
is raised in the motion for summary judgment and the opposing party does not
object to the lack of pleading either in a written response to the motion for
summary judgment or before the rendition of judgment.[168]
“Whether the affirmative defense is pled or
unpled, the defendant must conclusively
establish all of the essential elements of the affirmative defense to be
entitled to summary judgment. [169] If
the defendant does so, the plaintiff, to avoid summary judgment, must then
introduce evidence that raises a fact issue on some element of the defendant’s
affirmative defense.[170] ” Bradt v. West 892 S.W.2d 56 (Tex.App.-Houston[1stDist.] 1994)
Appellate review of a
summary judgment
The Bradt states its standard for review of
a summary judgment.
“On appellate review of a summary judgment, we
must take all evidence favorable to the nonmovant as true, indulge every
reasonable inference in favor of the nonmovant, and resolve all doubts in favor
of the nonmovant.[171] We will not affirm a summary judgment on a
ground that was not specifically presented in the motion for summary judgment.[172] Nor will we reverse a summary judgment on a
ground that was not expressly presented to the trial court by a written motion,
answer, or other response to the motion for summary judgment.[173] Further, we will not reverse a summary
judgment on a ground that was expressly presented to the trial court by a
written motion, answer, or other response to the motion for summary judgment,
but that was subsequently abandoned by the nonmovant.[174] When the trial court’s summary judgment
order does not specify the ground or grounds on which summary judgment is
granted, we will affirm the summary judgment if any of the grounds stated in
the motion are meritorious.[175]” Bradt v. West 892 S.W.2d 56 (Tex.App.-Houston[1stDist.] 1994)
*
* * * *
Texas
District Court Employment and Political Decisions.
Guerrero
v. Refugio County
946 S.W.2d 558 (Tex.Civ.App.-Corpus Christi 1997)
Issues: Judicial
function. Function of county judge and district judges in employment,
supervision, removal, control and payment of county auditor. Pleading and proof
requirements to support summary judgment for immunity defense.
“Appellant, Ernest Guerrero, sued appellees,
Refugio County, Refugio County Judge Charles Stone, 135th District Court Judge
Marion M. Lewis, 267th District Court Judge Whayland K. Kilgore, and 24th
District Court Judge Joseph P. Kelly because he was not reappointed County
Auditor of Refugio County. Guerrero alleged age, national origin, and
politically motivated discrimination. Retired Judge Henry Schuble, III was
specially appointed to hear the case.
“All of the appellees filed motions for summary
judgment. On July 29, 1995, Judge Schuble granted the motions filed by Judge
Lewis, Judge Kilgore, and Judge Kelly. On August 12, 1995, Judge Schuble
granted the motions filed by Judge Stone and Refugio County. Appellant
challenges these summary judgments by eleven points of error. We reverse the trial court’s summary
judgments for Judge Lewis, Judge Kilgore, and Judge Kelly against Guerrero’s 42
U.S.C. § 1983 claim for political discrimination and remand that cause of
action to the trial court for further proceedings. We affirm the trial court’s
summary judgments for Judge Lewis, Judge Kilgore, and Judge Kelly against the
remainder of Guerrero’s causes of action. We affirm the trial court’s summary
judgments for Refugio County and Judge Stone.
“Guerrero
was appointed County Auditor of Refugio County by a majority of the district
judges in Refugio[176] A county auditor serves a two-year term.[177] Guerrero was appointed county auditor eleven
times and served for twenty-two years. He was last appointed in 1991, and his
term of office ended in 1993.
“Before 1993, the district judges did not seek
other applicants, and Guerrero was reappointed based on his application for the
position. In 1993, Judge Lewis received a letter from Judge Stone, dated July
15, 1993, suggesting that the district judges open the appointment process to
other applicants because independent auditors had criticized Guerrero’s
auditing practices. The district judges subsequently notified Guerrero that
public notice was being given to open the appointment process to all
applicants, and he was asked to reapply. The district judges received seventeen
applications. Guerrero was one of the seventeen applicants. Guerrero and seven
others were selected for an interview. After the interviews, Guerrero received a letter from Judge
Lewis, dated December 10, 1993, informing him that another person had been
appointed county auditor.
“Appellant
then filed a complaint with the Texas Commission on Human Rights, charging
Refugio County with age discrimination in the appointment process. Appellant
later amended the complaint to include discrimination because of national
origin. Appellant is Mexican-American and was fifty-nine years old. The new
appointee is not Hispanic and was thirty-eight years old.
“After
receiving a right to sue letter from the Texas Commission On Human Rights,
Guerrero sued the County and the district judges. Guerrero alleged that
appellees had violated the Texas Commission on Human Rights Act (TCHRA) because
they had discriminated against him on the basis of age and national origin.
Guerrero alleged violations of 29 U.S.C. 621, et seq., and 42 U.S.C.2000e, et
seq. He also alleged that the district
judges and the county judge, acting under the color of state law, deprived
him of property without due process as required by the U.S. Constitution and
without due course of law as required by the Texas Constitution. Guerrero
further alleged that, acting under the color of state law, the district judges and the county judge
discriminated against him for political reasons, thereby depriving him of
his free speech and associational rights in violation of the First and
Fourteenth Amendments to the U.S. Constitution. He based these last claims on 42 U.S.C. § 1983.
“All appellees moved for summary judgment on the
ground that there was no employer/employee relationship between (1) Guerrero
and the district judges or (2) Guerrero and the County. In addition, they
alleged that Guerrero had no property interest in his position because he was
appointed at the discretion of the district judges or, in the alternative, that
he received due process when he was informed of the application process and was
interviewed.
“The district judges asserted that they had not
discriminated against Guerrero, and that they had not violated section 21.051
of the TCHRA. They also claimed the affirmative defense of “failure to exhaust
administrative remedies” because they
were not identified as respondents in Guerrero’s charge to the Texas Commission
on Human Rights. The district judges contended that this failure deprived the
trial court of jurisdiction because they had not received notice of the
discrimination allegations prior to the commencement of the lawsuit. The district judges also asserted the
affirmative defenses of ‘absolute judicial immunity’ and ‘qualified immunity.’
“Judge Stone contended that his letter of July
15, 1993, was absolutely privileged, and that he was entitled to ‘qualified
immunity.’ The County and the county judge asserted that the district judges
had non-discriminatory reasons for not reappointing Guerrero and that the
district judges were exercising their discretion as state actors. Thus, any
harm to Guerrero as a result of exercising that discretion could not be
attributed to the County or Judge Stone.
“Without specifying the grounds, the trial court
granted all of appellees’ motions for summary judgment. Guerrero contends that
the trial court erred in granting the motions for summary judgment. . . .
“District Court Judges Lewis, Kilgore, and Kelly
moved for summary judgment on the ground that they were not Guerrero’s
employers as defined in section 21.002 of the TCHRA. Appellant contends that
summary judgment should not have been granted on this ground because section
21.002 specifically states that elected officials, such as district judges, are
employers.
“Guerrero is correct that the district judges fall within the statutory definition of
“employer.” However, that alone is
not enough.[178] An employment relationship must exist
between appellant and the judges.[179] We, therefore, look again to the hybrid
economic realities/common law control test for guidance in determining whether
such a relationship exists.[180]
“As we previously stated, the most important
part of the economic realities/common law control test is the right to control
an employee’s conduct.[181] Pursuant to state law, district judges must appoint a county auditor when the need for such a
function arises.[182] The
judges also decide whether the county auditor is entitled to assistant auditors
and approve the persons appointed to those positions.[183] In addition, the judges have the authority to remove a county auditor from office
when an investigation shows that he has committed official misconduct or is
incompetent to discharge the requisite duties.[184] Other than these statutorily imposed duties, the district judges have little control
over the office of county auditor.
“The duties of the county auditor are prescribed
in the Local Government Code.[185] The district judges have no authority to
determine who or what is audited, how the auditing functions are to be handled,
or when the audits are to be conducted. Only
when a county auditor fails to properly discharge these requisite duties, may
the district judges determine whether to remove him from office. Thus, as a
matter of law, district judges have a limited right to control the county
auditor by their appointment and removal powers only.
“The economic realities component of the test
looks at the economic realities of the relationship. In this case, many of the
economic realities are controlled by state law. For instance, state law
provides that the county auditor’s
salary must be set by the district judges and paid by the county.[186] The
auditor’s supplies are provided at the county’s expense.[187] By law, the
county auditor adopts and enforces the regulations necessary for a proper
accounting system in the county.[188] Once appointed to the position, the county
auditor is entitled to serve for two years, unless the office is discontinued
or the auditor is removed for cause.[189] Moreover, a review of the auditor’s duties,
as specified by statute, shows that the
auditor’s work is not an integral part of the business of the district judges.
We, therefore, conclude that the economic realities in this instance do not
favor a finding of an employment relationship between the district judges and
the county auditor.
“Having found that the district judges have
limited right to control the county auditor and that the economic realities
disfavor an employment relationship, we
hold that the district judges were not Guerrero’s employers under the TCHRA.
Therefore, the trial court did not err
in granting the district judges’ motions for summary judgment on Guerrero’s age
and national origin discrimination claims. . . .
“Appellant alleged that
the district judges and the county judge, acting under the color of law,
deprived him of a property interest in the position of county auditor without
due process.
All four judges moved for summary judgment claiming that as a public official,
Guerrero did not have a property interest in the position and was not entitled
to due process.
“Public office is a “right, authority, and duty
created and conferred by law which, for a given period either fixed by law or
enduring at the pleasure of the creating power, an individual is invested with
some portion of the sovereign function of the government to be exercised by him
for the benefit of the public.”[190] Public office can be properly described in
terms of trust, duty, and public benefit, rather than contract, employment,
ownership, or possession.[191] Stated briefly, public office should be
viewed not as a right, but a responsibility.[192] Every public officeholder remains in his
position at the sufferance and for the benefit of the public, subject to
removal from office by any constitutionally prescribed method.[193] ‘An officer has no vested right in the
office held by him, and thus cannot complain of an abolishment of such office
or of his removal or suspension, according to law[.]’[194]
“The determining factor which distinguishes a
public officer from an employee is whether any sovereign function of the
government is conferred upon the individual to be exercised by him for the
benefit of the public largely independent of the control of others.”[195] Other factors to consider include a fixed
term of office, removal provisions, and qualifications for holding the
position, all of which are prescribed by statute.[196] In addition, an officer will be required by
law to take an oath of office and to give a bond.[197]
“In the instant case, Guerrero held an appointed
position with a statutorily prescribed term of two years.[198] The Refugio County Auditor is appointed at
the discretion of the district judges who may abolish the office one year after
an appointment, or remove the auditor from office for cause.[199] Statutory qualifications exist for the
position, and the person appointed must take an oath of office as well as give
a bond.[200]
“Most significant, however, are the sovereign
functions conferred upon the county auditor. The auditor:
1) may adopt and enforce regulations, consistent
with the law, necessary for the proper and speedy collecting, checking, and
accounting of the revenues, funds, and fees of the county.[201]
2) shall maintain an account for each county,
district, or state officer authorized or required by law to receive or collect
money or other property intended for use by or that belongs to the county.[202]
3) must countersign a check or warrant to
validate it as a proper and budgeted item of expenditure.[203]
4) must examine and approve each claim, bill,
and account against the county before they can be allowed or paid, and such
approval may not be given unless the claim was incurred as provided by law.[204]
5) shall determine the time and manner for
making reports to the auditor, and any person required to make such a report,
who intentionally refuses to comply with a reasonable request, commits a
misdemeanor.[205] and
6) shall see to the strict enforcement of the
law governing county finances.[206]
“As county auditor, Guerrero could not delegate
these official duties[207] to another, other than to duly appointed
assistants.[208] Nor could he be compelled to delegate these
duties.[209]
“When acting as county auditor, Guerrero was not
subject to the orders of the commissioners court.[210] As county auditor, Guerrero had broad powers
to oversee county finances and prescribe systems for the accountability of
county funds.[211] The independent nature of Guerrero’s
position was assured by placing the power of appointment and dismissal in the
hands of the district judges.[212]
“For these reasons, we hold that Guerrero was a
public official who did not have a property interest in his position beyond the
end of the last two-year term to which he was appointed. See Tarrant County,
635 S.W.2d at 422 (public official has property interest that may be protected
from unlawful interference with possession and conduct of such office during
official’s incumbency). The record reflects that Guerrero completed his
eleventh two-year term before the new auditor assumed office. Lacking a
complaint about unlawful interference during his incumbency, Guerrero had no
property interest in his position. See id. The requirements of procedural due
process apply only to the threatened deprivation of property interests
requiring protection of the federal and state constitutions.[213]
“Because we have held that Guerrero did not have
a property interest in his position beyond the end of his eleventh two-year
term, Guerrero was not entitled to procedural due process when the district
judges decided to open the appointment process to other applicants. We hold
that the trial court did not err in granting all four judges’ motions for
summary judgment on this issue. We overrule Guerrero’s fifth point of error.
“Political
Discrimination
“A.
The County Judge
“Relying on 42 U.S.C. § 1983, Guerrero alleged that the county judge, for political
reasons, had urged that he not be reappointed, thereby acting under color of
law to deprive him of his First and Fourteenth Amendment rights. Guerrero
contended that the county judge’s letter of July 15, 1993 to the district
judges prevented his reappointment. Specifically, appellant complained of the
following sentence:
“This Commissioners Court wants an auditor that
will be impartial, independent, capable and willing to perform the statutory
duties and fulfill requirements of the position.”
“Guerrero claimed that this sentence showed that
Judge Stone was biased against him for political reasons. Guerrero’s § 1983
claim was made even though, by law, Judge
Stone had no role in the appointment process.
“To state a claim under 42 U.S.C. § 1983, a
plaintiff must allege the following two elements: 1) that he was deprived of a
right or interest secured by the Constitution and laws of the United States,
and 2) that the deprivation occurred under color of state law.[214] A person does not act under color of state
law solely by virtue of a relationship to the state; but depending on the
person’s function.[215] Regardless of one’s affiliation with the
state, “a person acts under color of state law only when exercising power
‘possessed by virtue of state law and made possible only because the wrongdoer
is clothed with the authority of state law.’ ”[216] If state law has imposed a duty to report,
investigate, monitor, or regulate without granting a duty to exercise
state-conferred legal control over the underlying persons or events, there is
no conduit through which an exercise of state power can be said to have caused
the constitutional injury.[217]
“The county commissioners court, with the county
judge as presiding officer, exercises power and jurisdiction over all county
business, as prescribed by state law.[218] Maintaining finance records and examining
accounting records of the county are among the functions of the commissioners
court.[219] In order to fulfill these functions, the
commissioners court may authorize an independent audit of the accounts and
officials if the audit would best serve the public interest.[220] This audit can include the office of the
county auditor.[221]
“In the instant case, the county judge and commissioners
of Refugio County determined at the end of 1991 and again at the end of 1992
that an independent audit of all county officials was necessary. At the time of
each audit, the accountants also performed an investigation and evaluation of
the county’s system of internal accounting control. Neil Snedeker, the
certified public account who conducted the audits, submitted the results of
these studies in the form of management letters. These management letters were
presented to the commissioners court, and appellant received a copy. According
to the 1991 letter, many county offices, most notably that of the county
auditor, were deficient in accounting procedures.
“In July 1993, the county judge sent copies of
the management letters to the district judges for their review. In addition,
Judge Stone sent his July 15, 1993 letter, expressing concern with Guerrero’s
accounting practices. Judge Stone noted that the management letters indicated
that Guerrero was not performing his statutory duties and not following accepted
accounting procedures. Judge Stone pointed out that the 1992 management letter
indicated that Guerrero had apparently not attempted to correct the
shortcomings noted in the 1991 management letter. Judge Stone then explained
his reluctance to address the issue with the county auditor because the
position was supposed to be free of all outside influence and because Judge
Stone felt corrective measures were better left to the district judges. Judge
Stone informed the district judges that the county commissioners court wanted
to continue the auditor’s position, and asked the district judges to consider
opening the position to other applicants when Guerrero’s term expired.
“In authorizing the audit, the commissioners
court was investigating facts concerning county financial procedures, and Judge
Stone’s letter informed the district judges of that investigation. However,
once the letter was written, Judge Stone
had no state-conferred legal control over how the district judges addressed the
issues raised by the letter. The summary judgment evidence established that, as
a matter of law, Judge Stone had no legal control over or duty to be involved
in the process of appointing the county auditor. Instead, appointing a county
auditor falls within the discretionary duties of the district court judges of
that county. As such, those judges could decide who to appoint as auditor,
to remove a person from that office, or to eliminate the position entirely,
whether this met with the approval of county officials or not. Even if Judge Stone’s letter was
interpreted as politically motivated, without state-conferred legal control,
Judge Stone could not be liable under § 1983. Thus, Guerrero has failed to establish an element of his cause
of action, namely that the judge was acting under color of state law.
Accordingly, we hold that the trial court did not err in granting Judge Stone’s
motion for summary judgment on Guerrero’s § 1983 claim.
B. The District Judges
“Guerrero
also asserted a § 1983 claim for political discrimination against the district
judges.
“It is well-settled that a motion for summary judgment must expressly state the grounds upon
which it is made.[222] Summary
judgments may not be affirmed or reversed on grounds not expressly set forth in
the motions presented to the trial court.[223] A
motion for summary judgment must stand or fall on the grounds expressly
presented in the motion, and a court may not rely on briefs or summary judgment
evidence in determining whether grounds are expressly presented.[224]
“After reviewing the record, we find that the district judges did not address
Guerrero’s § 1983 claim for political discrimination in their motions for
summary judgment. We find, however, that the district judges asserted the
affirmative defenses of “absolute judicial immunity” and “qualified immunity”
in their motions for summary judgment.
“Judges enjoy absolute immunity from damage
claims arising out of acts performed in the exercise of their judicial
functions even if acting in bad faith or with malice.[225]
“However, the
U.S. Supreme Court has held that in civil rights cases, absolute judicial
immunity applies only when a judge acts in a judicial capacity.[226][227] In Forrester, the Court held that the
termination of a probation officer by a judge was an administrative act, and
not a judicial act.[228] Because
Judges Lewis, Kilgore, and Kelly were not acting in a judicial capacity, we
conclude that they cannot assert the affirmative defense of absolute judicial
immunity against Guerrero’s § 1983 claim for political discrimination.
“Government officers also have a common law
immunity from personal liability in performing discretionary duties performed
in good faith within the scope of their authority.[229][230]
This immunity is known as qualified,
official, quasi-judicial, or good faith immunity.[231][232] Quasi-judicial immunity is an affirmative
defense, and a movant for summary judgment has the burden to come forward with
evidence to establish each element of the defense.[233] To prevail, the
district judges had to establish: 1) that their positions had quasi-judicial[234] status, 2) that they were acting within
their authority, and 3) that they were acting in good faith.[235]
“Even if we were to assume that the district
judges proved the first two elements, we conclude that they did not establish
the good faith element. The only
evidence we find in the record on the issue of good faith is contained in the
judges sworn affidavits. Although the affidavits state that the judges sole
concern was the appointment of the best possible person and that age, race,
gender, and disability were not considered, the affidavits do not address
Guerrero’s political discrimination claim. Moreover, the test for good faith is
one of objective legal reasonableness, without regard to whether the government
official involved acted with subjective good faith.[236]
“To be entitled to summary judgment, a
government official must prove that a reasonably prudent official might have
believed that the action taken was appropriate.[237] The official does not have to prove that it
would have been unreasonable to take a different action; nor must the official
prove that all reasonably prudent officials would have acted as he did.[238] The district judges offered no
evidence that could lead us to conclude that reasonably prudent judges would
believe their actions were appropriate.
“Because the district judges did not address
Guerrero’s § 1983 claim for political discrimination and because they did not
establish that they are entitled to immunity, we hold that the trial court
erred in granting the district judges’ motions for summary judgment against
Guerrero’s § 1983 claim for political discrimination.[239]
“We
reverse the trial court’s summary judgments for Judge Lewis, Judge Kilgore, and
Judge Kelly against Guerrero’s § 1983 claim for political discrimination and
remand that cause of action to the trial court for further proceedings. We
affirm the trial court’s summary judgments for Judge Lewis, Judge Kilgore, and
Judge Kelly against the remainder of Guerrero’s causes of action. We affirm the
trial court’s summary judgments for Refugio County and Judge Stone.” Guerrero v. Refugio County 946
S.W.2d 558 (Tex.Civ.App.-Corpus Christi 1997)
* * * * *
Judicial immunity does not attach to a city
charging illegal fees for warrants.
Kubosh v.
City of Houston,
2 S.W.3d 463 (Tex.App.-Houston [1st Dist.] 1999)
Issues: Is the act a judicial
function?
“The appellants brought a declaratory judgment
action against the City of Houston alleging the City assessed an unauthorized
warrant fee. Both parties moved for summary judgment. The trial court denied
the appellants’ motion and granted the City’s motion. In two points of error,
the appellants complain the trial court erred in rendering summary judgment in
the City’s favor. We affirm in part, and reverse and remand in part.
“FACTUAL AND PROCEDURAL HISTORY
“The
appellants sued the City and sought declaratory and injunctive relief, class
certification, the return of all fees paid, attorney’s fees, and costs. They
alleged the City was charging a $35 warrant fee that was not authorized by any
statute. They argued that although the Code of Criminal Procedure authorized
the imposition of the warrant fee at the time of conviction, the City had
charged them a warrant fee even though they were not convicted.
“[T]he City . . . moved for summary judgment on
the basis that it was not liable because: . . . the City is shielded from liability under the doctrines of
sovereign immunity, governmental immunity, and judicial immunity. . . .[240]
“The appellants moved for partial summary judgment
on the basis that: . . . the City unlawfully charged a $35 warrant fee;. .
. the City is not entitled to any
affirmative defenses. . . . .
“The trial court denied the appellants’ motion
and granted the City’s.
“The appellants contend there is no basis in law
for the City’s immunity. In their supplemental motion for summary judgment, the
City argued that Civil Practices and Remedies Code sections 101.053 and 101.055
precluded them from liability. We find the City’s arguments misplaced.
“Under
section 101.053, judges enjoy absolute judicial immunity from liability for
judicial acts, no matter how erroneous the act or how evil the motive, unless
the act is performed in the clear absence of all jurisdiction.[241] The waiver of immunity under the Texas Tort Claims
Act does not apply to:
a
claim based on an act or omission of a court of this state or any member of a
court of this state acting in his official capacity or to a judicial function
of a governmental unit. “Official capacity" means all duties of office and
includes administrative decisions or actions.[242]
“The City does not cite, nor do we find any
authority, supporting its contention that the $35 warrant fee was imposed
through a “judicial function” of the City. We conclude that the doctrine of
judicial immunity under section 101.053 does not shield the City from immunity
in this case. See City of Houston v. Swindall, 960 S.W.2d 413, 417 (Tex.
App.-Houston [1st Dist.] 1998, no writ) (in analyzing derived judicial
immunity, we determine whether activities of party invoking immunity are
intimately associated with judicial process, or whether party is functioning as
integral part of judicial system or as “arm of the court," and court
determines whether act is judicial in nature by its character, not by character
of agent performing it).
“Furthermore, the City does not cite any cases
holding that a governmental unit is shielded from liability for the
unauthorized assessment of warrant fees. We recognize that governmental units
may be immune from liability under certain circumstances involving collection
of fees and taxes. In a suit for personal injuries caused by the State
Comptroller, our Supreme Court stated the purpose behind section 101.055:
The exclusion contained in section 101.055 for
claims arising ‘in connection with assessment or collection of taxes by a
governmental unit,’ closely tracks the federal exclusion for ‘[a]ny claim
arising in respect of the assessment or collection of any tax. . . .’.[243] Prior to the passage of the Texas Tort
Claims Act, the federal counterpart had been construed to limit the United
States’ governmental immunity to claims regarding injuries which result
directly from the assessment or collection of taxes.[244] We adopt a similar construction for section
101.055 of the Tort Claims Act.
“Our decision today is consistent with our
interpretation of other exceptions to the waiver of immunity contained in the
Tort Claims Act. In State v. Terrell,[245] we considered the extent of protection from
suit for police and fire departments afforded by section 101.055(3) of the Act
for policy decisions as to when and how to provide protection. Interpreting
that exception narrowly, we held that the State could be sued for injuries
arising from the negligent non-emergency operation of a police vehicle because
the legislature intended to exclude only those acts or omissions which
constitute the execution of, or actual making of policy decisions concerning
protection. Similarly, we conclude that the legislature intended to limit the
Comptroller’s immunity to only those acts or omissions which constitute
implementation of policy decisions on how to collect or assess taxes.[246]
“We conclude that the imposition of unauthorized
fees does not constitute the ‘implementation of policy decisions on how to
collect or assess taxes.’ Accordingly, we
are persuaded that section 101.055 does not operate to bar the appellants’ suit
for the unauthorized assessment of a $35 warrant fee. Therefore, we
conclude that the rendition of summary judgment on the basis of sections
101.053 and 101.055 of the Texas Civil Practice and Remedies Code was not
proper.
“We hold the trial court
erred in rendering summary judgment for the City.”
* * * * *
The Court Reporter and Court Err
Halsey v. Dallas County No. 05-00-01518-CV May 31, 2001 (Tex.App. -
Dallas 2001)
Issues: Are errors
by a court reporter protected by judicial immunity? The court is confused by judicial immunity and other concepts
which Texas courts have called derived judicial immunity. If judicial immunity exists to allow judges
to make discretionary judgments whithout fear, do court reporters have the
discretion to prepare transcripts which do not reflect the words that were said
in court but contain other words? If
they do not have discretion to write the transcript as fiction, what is the
basis for immunity? This court’s
analysis is not much better than the court reporter’s transcription.
Sandra
Halsey brings this interlocutory appeal of a denial of her motion for summary
judgment.[247] Halsey brings one point of error contending
she was protected by derived judicial
immunity, and therefore, the trial court erred in denying her motion for
summary judgment. For the reasons set forth below, we reverse and render summary judgment for Halsey on her affirmative
defense of judicial immunity.
Background
Sandra
Halsey was the official court reporter
for the Criminal District Court No. 3 in Dallas County. Halsey was paid a
salary for her services as a court reporter and also was compensated for
preparing the reporter's record of the trials on which she reported. Halsey reported and prepared the reporter's
record in the case styled State of Texas
v. Darlie Lynn Routier, Cause No. F96-39973-J. On June 2, 2000, after
Halsey had prepared and filed the reporter's record in the Routier case, Dallas County brought suit against Halsey
for fraud, breach of contract, and violations of the Texas Deceptive Trade
Practices Act. Although Halsey certified the reporter's record was
"correct, just and unpaid," Susan Simmons, the certified court
reporter who later corrected the Routier transcript, testified that
approximately 18,000 errors were found
in 6,000 pages of transcript. On June 8, 2000, Halsey filed a motion for
summary judgment asserting the defense of judicial immunity. The trial court denied Halsey's motion for
summary judgment on August 31, 2000. Halsey brought this appeal from the
denial of her motion for summary judgment.
.
. .