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 disting