Texas Judicial Immunity #1

YouKnowItAll.com

© A. Hawkins 2004

Scope, Suitability and Objective

This course provides a comprehensive examination of the important but obscure concept of judicial immunity. Every published case is included.[1] It is suitable for any interested lawyer. You do not need expertise to take this course. When you complete this course, with respect to Texas judicial immunity, you will know it all. Few lawyers or judges understand this topic, so you will be a rare expert.

Two Courses

This course is split into parts which are presenteed as two courses for convenience. Courses #1 and #2 combine to constitute one course, so it is written as one course, with the assumption that you will take both #1 and #2.

The Process

1. Study this text.

2. When you finish this text, go to www.YouKnowItAll.com to observe the discussion. There, you may choose to ask questions or make comments, or you may choose to just observe any discussion posted by others.

3. Keep track of your actual study hours and dates. After you complete your study, you certify your actual study hours at www.YouKnowItAll.com and you choose to whether to pay by check or credit card. Study time counts. Procedural and administrative time does not count. You receive credit for the actual study time you put in, based on your certification, up to the maximum for the course. Tuition is similar. If your actual study time is more than the maximum, your tuition is capped at the maximum. If your actual study time is less than the maximum, tuition is calculated based on your actual study time, at $20 per hour. Please certify your actual study time even if it is above the maximum. This allows us to better calibrate our courses, and helps the MCLE regulators recognize the real time you spend in your study.

4. YouKnowItAll.com provides a certificate of your attendance with the course name, course number, and the CLE credit hours you earned. If you are in the Texas bar, we report your credit to the State Bar of Texas. If you are in another bar and need something else, let us know.

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This course is primarily a case study which relies on the words of the courts which are quoted so that you may read them yourself. The teacher has selected quotations, deleted original emphasis, added the authors emphasis, and moved citations to footnotes. Commentary by the teacher is included in the text and in footnotes. Five asterisks ( * * * * * ) identify each new case, If a case doesn’t interest you, just search for * * * * * to find the next one. This also helps if you wish to go back to reread a case.

There are three kinds of footnotes.

1. Footnotes by the court retain the court’s original number. Our footnote is a footnote to that number.

2. Footnotes that move citations to the footnotes are intended to make the material more readable. Our footnote has the court’s citations.

3. Footnotes that contain some of the author’s commentary.

If you read this course online, your browser will probably let you click on a footnote number to go to the footnote and click on the number in the footnote to return to the text. Some browsers will show the footnote if you hold your curser over the footnote number without clicking If you print the text, you may wish to staple the footnotes separately so you may easily refer to them. They are at the end because of technicalities of the internet. This is a Microsoft Word document displayed as a web page. You may copy it into a word processor to print it if you like. If you have any problems, let us know.

Optional Telephone Conference

The teacher is available for an optional personal telephone conference on the substance of this course. If you have a question about the application of the material in this course to a particular case, or would just like to visit about this topic, you may do so. A brief basic phone conference is $20 per course. If you would like to schedule a phone conference, email or call YouKnowItAll.com.

Table of Contents

Part 1

Analysis

A. Basic Concepts

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

Bribery and Civil and Criminal RICO

Civil RICO

Salinas v. United States (US 1997)

Bustamonte

Feingold

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

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Course #2

Application to 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 Illegal City Warrant Fees.

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.

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

Texas court warned on clerks' pay

Prosecutor says bonuses from firms may be illegal

D.A. probes judge’s legal assignments

DM-354

JM-161

Chung’s allegations require Reno to appoint a prosecutor, House Rules chairman says

Reno Takes The Next Step On Prosecutor For O'Leary

Webb County DA says charges' timing politically motivated

Laredo area DA’s future tied to case

DA remains calm in eye of scandal

Ill. Prosecutor in Political Storm

RICO

California Bribery

Yahoo! Judge Sues Over Allegations Made in Yahoo Suit

Tape unravels into lawyer vs. judge

Friendship shattered by accusations of bribery, witness tampering

Town reserves judgment on accused justice

Witnesses say Sullivan used heroin before holding court

Judicial Immunity Applies Even if Trial Judge Met Witness Ex Parte

New Details Surface in Bribery Case Against New York Judge

Texas Criminal Laws to Consider

Texas Penal Code

TITLE 8. OFFENSES AGAINST PUBLIC ADMINISTRATION

CHAPTER 36. BRIBERY AND CORRUPT INFLUENCE

§ 36.03. Coercion of Public Servant or Voter

§ 36.04. Improper Influence

§ 36.05. Tampering With Witness

§ 36.07. Acceptance of Honorarium

§ 36.08. Gift to Public Servant by Person Subject to His Jurisdiction

§ 36.09. Offering Gift to Public Servant

§ 36.10. Non-Applicable

§39.01: Official Misconduct

§39.02: Official Oppression

Bustamante back in DC causing stir

Convicted ex-congressman seeking presidential pardon

Sound Ethics Haven't Been Ruled Out

Salinas v United States (US 1997)

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Observe the Discussion (at www.youknowitall.com)

Students are invited to comment, but not required to do so. Students may read the comments of others.

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The Course Text

Texas Judicial Immunity #1

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, and this course includes some Federal decisions.

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 decisions.

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 consists of other material.

The fourth part of this course is the Discussion located at www.YouKnowItAll.com.

Part 1

A. Basic Concepts

Judicial Immunity is Immunity From Suit for Money

Courts and commentators sometimes use the word “absolute” to describe judicial immunity. The word “absolute” may confuse more than it clarifies. 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 are often muddled when facts involve 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 the courts adopt clear and correct language, 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 abundant confusing language in Texas cases about immunity that 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[2] who is lawfully presiding in a specific court[3] with jurisdiction over a specific pending case[4] in which the court[5] has subject matter jurisdiction and the legal authority to take the action in question, the jurisdiction and plenary power of the court[6] has been activated, and the court[7] has personal jurisdiction or in rem jurisdiction,[8] the judge[9] 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 if the judge is named as a party, 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.[10]

Sometimes the acts of a person who is a judge are not protected by judicial immunity.[11]

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[12] is judicial.

The second requirement is the circumstance in which the act[13] occurred.[14]

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. Purchasing paper is not judicial. Judges may hire secretaries, administrators, court reporters, probation officers, auditors, etc. The act of hiring is not judicial. Making general[15] rules for lawyers or others to follow is not judicial.[16]

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 from liability arising from hiring, firing, buying, or legislating. Defenses other than judicial immunity, such as legislative immunity, may be apply. Those defenses are beyond the scope of this course.

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 merely protection against groundless little harassing suits. It is protection against all suits. It protects well intended judges. It protects judges who act 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 engendering a willingness to serve as judge and by instilling in the judge 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 either 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. The attorney general reminded Dallas judges that they may consider the opinions of others, but must make the decisions for the court.

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 both lawyers and their own courts.[17] On its face, among its weaknesses, the order violated the basic concepts of regulation of lawyers on a statewide basis by the Texas Supreme Court, the constitutional requirements of equal protection, and constitutional prohibition against taking of property without due process. It also purported to delegate judicial power and judicial 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 El Paso County Attorney asked the Attorney General for an opinion. The Attorney General did not reach the fundamental constitutional issues because the attorney general ruled that 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.

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 in exchange for 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 in exchange for 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] Is their action therefore void? Are judges constitutionally disqualified under the Texas or United States Constitution 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]

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 is accosted by a thief while walking to the courthouse, and the judge, with her trusty Uzi, kills the thief, 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 was 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. The judge is authorized to preside. 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.

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, since 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 the court. If the judge mops the marble floor in the courtroom, leaving a slick wet floor and which causes 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 who is not 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.

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 judge’s own “judicial act?” The law has not developed on these issues.

Focus on the Basic Concept

It is best to focus on the basic concepts. Judicial immunity is for judicial 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 the premise 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 leave 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, or 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? Perhaps 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. 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 and 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,