Judicial Immunity – Is NOT Absolute!
By David C. Grossack, Constitutional Attorney
Common Law Copyright © 1994 All Rights Reserved
Also see article on How To Sue A Judge and always remember, case law is ALWAYS changing.
Here is a selection of case/reference citations regarding judicial immunity when personally suing a Judge for money damages, from the collection of former Phoenix, AZ Attorney Robert A. Hirschfeld, JD. (Warning: Look up and read the cited case for consistency with your situation, before citing it in your own brief.)
When a judge knows that he lacks jurisdiction, or acts in the face of clearly valid statutes expressly depriving him of jurisdiction, judicial immunity is lost. Rankin v. Howard, (1980) 633 F.2d 844, cert den. Zeller v. Rankin, 101 S.Ct. 2020, 451 U.S. 939, 68 L.Ed 2d 326.
In Rankin v. Howard, 633 F.2d 844 (1980) the Ninth Circuit Court of Appeals reversed an Arizona District Court dismissal based upon absolute judicial immunity, finding that both necessary immunity prongs were absent; later, in Ashelman v. Pope, 793 F.2d 1072 (1986), the Ninth Circuit, en banc , criticized the “judicial nature” analysis it had published in Rankin as unnecessarily restrictive. But Rankin’s ultimate result was not changed, because Judge Howard had been independently divested of absolute judicial immunity by his complete lack of jurisdiction.
Some Defendants urge that any act “of a judicial nature” entitles the Judge to absolute judicial immunity. But in a jurisdictional vacuum, (that is, absence of all jurisdiction) the second prong necessary to absolute judicial immunity is missing. Stump v. Sparkman, id., 435 U.S. 349.
“Where there is no jurisdiction, there can be no discretion, for discretion is incident to jurisdiction.” Piper v. Pearson, 2 Gray 120, cited in Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872)
A judge must be acting within his jurisdiction as to subject matter and person, to be entitled to immunity from civil action for his acts. Davis v. Burris, 51 Ariz. 220, 75 P.2d 689 (1938)
Generally, judges are immune from suit for judicial acts within or in excess of their jurisdiction even if those acts have been done maliciously or corruptly; the only exception being for acts done in the clear absence of all jurisdiction. Gregory v. Thompson, 500 F2d 59 (C.A. Ariz. 1974)
There is a general rule that a ministerial officer who acts wrongfully, although in good faith, is nevertheless liable in a civil action and cannot claim the immunity of the sovereign. Cooper v. O’Conner, 99 F.2d 133
When a judicial officer acts entirely without jurisdiction or without compliance with jurisdiction requisites he may be held civilly liable for abuse of process even though his act involved a decision made in good faith, that he had jurisdiction. State use of Little v. U.S. Fidelity & Guaranty Co., 217 Miss. 576, 64 So. 2d 697.
“… the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument.” Marbury v. Madison, 1 Cranch 137 (1803).
“No judicial process, whatever form it may assume, can have any lawful authority outside of the limits of the jurisdiction of the court or judge by whom it is issued; and an attempt to enforce it betond these boundaries is nothing less than lawless violence.” Ableman v. Booth, 21 Howard 506 (1859).
“The courts are not bound by an officer’s interpretation of the law under which he presumes to act.” Hoffsomer v. Hayes, 92 Okla 32, 227 F 417.
> Journal: Cato Journal Vol 8, No. 1 – 1988
> Author : Bruce Benson
> Title : An Institutional Explanation for Corruption of Criminal Justice Officals
> Journal: Cato Journal, Vol. 7, No. 2, 1987
> Author : Robert Craig Waters
> Title : Judicial Immunity versus Due Process: When Should a Judge Be Subject to Suit?
Justice Field in Bradley v. Fisher. (13 Wall) 353 (1871) stated: “…judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction.”
“The doctrine of judicial immunity originated in early seventeenth-century England in the jurisprudence of Sir Edward Coke. In two decisions, Floyd & Barker and the Case of the Marshalsea, Lord Coke laid the foundation for the doctrine of judicial immunity.” Floyd & Barker, 77 Eng. Rep. 1305 (1607; The Case of the Marshalsea, 77 Eng. Rep. 1027 (1612) were both cases right out of the Star Chamber.
Coke’s reasoning for judicial immunity was presented in four public policy grounds:
1. Finality of judgment;
2. Maintenance of judicial independence;
3. Freedom from continual calumniations; and,
4. Respect and confidence in the judiciary.
The Marshalsea presents a case where Coke denied a judge immunity for presiding over a case in assumpsit. Assumpsit is a common-law action for recovery of damages for breach of contract. Coke then explained the operation of jurisdiction requirement for immunity:
. “[W]hen a Court has (a) jurisdiction of the cause, and proceeds iverso ordine or erroneously, there the party who sues, or the officer or minister of the Court who executes the precept or process of the Court, no action lies against them. But (b) when the Court has not jurisdiction of the cause, there the whole proceeding is [before a person who is not a judge], and actions will lie against them without any regard of the precept or process…”
Although narrowing the availability of judicial immunity, especially in courts of limited jurisdiction, Coke suggested that there was a presumption of jurisdiction and that the judge must have been aware that jurisdiction was lacking.
Thus, questions of personam, rem and res jurisdiction are always a proper issue before the court to obviate the defense that the court had no way to know they lacked jurisdiction.
“Stump v Sparkman Revisited” continues to show it was Chief Justice Kent (circa 1810) that was instrumental in establishing the “doctrine” of JI in America, in Yates v. Lansing, 5 Johns 282. Thereafter Justice incorporated the “doctrine” in two cases: Randall v. Brigham, 74 U.S. (7 Wall.) 523, and Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1871). Both Yates and Randall dealt with officers of the court.
“The belief that Bradley narrowed the scope of the doctrine respresents a serious misunderstanding of the decision. First, Bradley provides no authority for the belief that a judge of general jurisdiction may be liable for acts taken in absence of subject matter jurisdiction. The distinction between excess of jurisdiction and absence of jurisdiction in the opinion is simply explanatory. Because a court of general jurisdiction has jurisdiction over all causes of action, a judge of such a court will always be immune for his judicial acts, even if he exceeds his authority. See Bradley, 80 U.S. at 351-52.”
CASE NOTE: “Federal tort law: judges cannot invoke judicial immunity for acts that violate litigants civil rights; Robert Craig Waters. Tort & Insurance Law Journal, Spr. 1986 21 n3, p509-516”
A Superior Court Judge is broadly vested with “general jurisdiction.” Evidently, this means that even if a case involving a particular attorney is not assigned to him, he may reach out into the hallway, having his deputy use “excessive force” to haul the attorney into the courtroom for chastisement or even incarceration. Mireles v. Waco, 112 S.Ct. 286 at 288 (1991). Arguably, anything goes, in a Superior Court Judge’s exercise of his “general jurisdiction”, with the judge enjoying “absolute judicial immunity” against tort consequences. Provide he is not divested of all jurisdiction.
A Judge is not immune for tortious acts committed in a purely Administrative, non-judicial capacity. Forrester v. White, 484 U.S. at 227-229, 108 S.Ct. at 544-545; Stump v. Sparkman, 435 U.S. at 380, 98 S.Ct. at 1106. Mireles v. Waco, 112 S.Ct. 286 at 288 (1991).
Administrative-capacity torts by a judge do not involve the “performance of the function of resolving disputes between parties, or of authoritatively adjudicating private rights,” and therefore do not have the judicial immunity of judicial acts. See: Forrester v. White, 484 U.S. 219, 98 L.Ed.2d 555, 108 S.Ct. 538 (1988); Atkinson-Baker & Assoc. v. Kolts, 7 F.3d 1452 at 1454, (9th Cir. 1993). A Judge as a State Actor is not vested with the sovereign immunity granted to the State itself . See: Rolfe v. State of Arizona, 578 F.Supp. 987 (D.C. Ariz. 1983); Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, (9th Cir, 1981) cert. granted Kush v. Rutledge, 458 U.S. 1120, 102 S.Ct. 3508,73 L.Ed.2d 1382, affirmed 460 U.S. 719, 103 S.Ct. 1483, 75 L.Ed.2d. 413, appeal after remand 859 F.2d 732, Ziegler v. Kirschner, 781 P.2d 54, 162 Ariz. 77 (Ariz. App., 1989).
It is said that absolute judicial immunity is favored as public policy, so that judges may fearlessly, and safe from retribution, adjudicate matters before them. True. But equally important, is the public expectation that judicial authority will only be wielded by those lawfully vested with such authority.
The history of Arizona’s admission to the Union reveals at least one reason why historic public policy in Arizona would favor ARCP Rule 42(f)(1)’s complete and expeditious divestiture of jurisdiction, and its concurrent divestiture of absolute judicial immunity in the event a renegade judge persists in wielding the tools of his office after having been affirmatively stripped of them.
In 1912, the U.S. Congress refused to admit Arizona to the Union for the stated reason that Arizona’s proposed Constitution provided the public with a mechanism for removing sitting judges from office. Joint Res. No. 8, 8/21/11, 37 U.S. Stat. 39, cited in Vol. 1, Ariz. Rev. Stats., p.130. To facilitate admission to the Union, the judge-removal mechanism was excised from the State Constitution, allowing Arizona to become a State on 2/14/12. Soon afterward, on 11/5/12, Arizona voters restored the mechanism by amendment. Ariz. Constitution, Art. VIII “Removal from Office”, section 1; A.R.S. Vol. 1, p. 178. So strong was the citizens’ distrust of sitting State Court Judges in Arizona, that after Arizona copied the Federal Rules of Civil Procedure, it added the present Rule 42(f)(1) to provide a mechanism for a litigant to permanently remove the assigned judge from the case.
The difference between selectively disabling a judge in various aspects of adjudication (such as during the appellate period) and the permanent extinguishment of his jurisdiction in a given case, has a logical relevance to a Judge’s expectation of enjoying absolute judicial immunity in that case.
In examining entitlement to immunity, the U.S. Supreme Court focused upon the nature of the act: is it an act ordinarily performed by a Judge? Unfortunately, judges sometimes exceed their jurisdiction in a particular case. But an act done in complete absence of all jurisdiction cannot be a judicial act. Piper v. Pearson, id., 2 Gray 120. It is no more than the act of a private citizen, pretending to have judicial power which does not exist at all. In such circumstances, to grant absolute judicial immunity is contrary.
How to Sue a Judge Without Using a Lawyer
By David C. Grossack, Constitutional Attorney
Common Law Copyright © 1994 All Rights Reserved
Has a judge violated your constitutional rights? Have you been discriminated against by being treated differently than other people in similar situations by reason of race, religion, national origin, gender, sexual preference or political opinion? Have you lost certain rights without a meaningful hearing or even an opportunity to be heard?
Have you been deprived of any other constitutional protection? Have you been subject to Court action for the purpose of intimidating you from exercising an opinion, or practicing your faith? Don’t let them get away with it.
Although it is almost impossible to recover monetary damages from a judge (unless you can prove he or she acted ultra-vires beyond his or her legal jurisdiction) it is in fact possible to obtain relief in equity against a judge through civil rights actions. Equitable relief includes:
a. declaratory relief – (rulings by another judge in the form of opinions establishing the constitutionality or lack of constitutionality of another judges actions.)
b. injunctive relief – a command or order to do something or refrain from doing so.
As a general rule, however, judges cannot be held liable for money damages for acts done in the exercise of his judicial function, within the limits of his jurisdiction, no matter how erroneous, illegal or malicious his acts may be. (48A Corpus Juris Secundum §86) A minority of decisions have held that if an inferior judge acts maliciously or corruptly he may incur liability. Kalb v. Luce, 291 N.W. 841, 234, WISC 509.
Federal Civil Rights statutes, and possibly Bivens actions, appear to offer the best path for redressing constitutional grievances with state and federal judges, respectively, in Federal Court. As a practical matter, such cases will usually be brought by pro se litigants. Neither the politics nor economics of law practice permits lawyers to pursue such cases nor makes them affordable except to a small elite of citizens.
However, lawyers who do successfully sue state judges in federal court in Title 42 U.S. Code § 1983 cases can recover attorney’s fees from judicial defendants provided they can show time sheets kept contemporaneously with their work.
The most important step you have to take in beginning your lawsuit is in writing the complaint that will be conforming to the Federal Rules of Civil Procedure (available in every Government Bookstore or from the Government Printing Office in Washington, DC.)
Properly drafted complaints need not be prepared by a lawyer. All that is required is a very fundamental understanding of a few basic constitutional principles and a typewriter and paper. Handwritten complaints can also be filed in court.
Each federal court publishes its own local rules which can impose some additional requirements, but essentially there are only a handful of things you need to know. 1. Each complaint has a caption reading “United States District Court, District of (name the jurisdiction e.g. Southern New York or Eastern California.) 2. Each complaint includes a caption indicating the name of the plaintiff, and the name of the defendant. The words “individually and in his official capacity” should appear after the name of the defendant judge. The words “Verified Complaint” should appear on the right side of the caption. Your caption should appear like this:
United States District Court
District of (State)
Civil Docket No. _______
vs. VERIFIED COMPLAINT
individually and in his/her official capacity as Justice of the Superior Court ) of [*****] County,
A couple of spaces below, you must begin to spell out your reasons for bringing your complaint to Court. Make an outline of your case. First, state your “Jurisdictional Basis” in Paragraph I. I usually write as follows:
I. Plaintiff claims federal jurisdiction pursuant to Article III § 2 which extends the jurisdiction to cases arising under the U.S. Constitution. Next you should write Paragraph II stating the precise Statutory Authority why you brought the case. If you are suing a state judge, you will state:
II. Plaintiff brings this suit pursuant to Title 42 U.S. Code § 1983 for violations of certain protections guaranteed to him by the First, Fifth, Eighth, Ninth and Fourteenth Amendments (select which apply) of the federal Constitution, by the defendant under color of law in his/her capacity as a judge in the Superior Court of (****) County.
If you are suing a federal judge, state:
“Plaintiff brings this action against (name), a federal judicial officer, pursuant to Title 28 U.S. Code § 1331, in claims arising from violations of federal constitutional rights guaranteed in the (fill in) amendments to the U.S. Constitution and redressable pursuant to Bivens v. Six Unknown Narcotics Agents 403 U.S. 388 (1971).”
Be aware that the issue of whether federal judicial officers can in fact be sued under this authority is unresolved, but my opinion is that there is a strong implication in the affirmative based on the language in many cases.
Your complaint should then have a section entitled “Parties”. The next two paragraphs would read:
III. Plaintiff (Your name) is a natural person residing at (Your address), (County), (State).
IV. Defendant is a Judge presiding at (fill in.)
Following this you must now describe your claim in detail, giving legal and factual basis for your case. This portion of the case is entitled “Statement of Case”
What kind of factual pattern would give rise to a successful claim under the federal civil rights law? Title 42 U.S. Code § 1983 reads as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
The burden of proof is upon the plaintiff to show that the defendant judge acted unconstitutionally or outside of his/her jurisdiction. If the judge engaged in an egregious discrimination against males in a divorce court, minorities in state criminal cases, members of an unpopular religious group in confrontation with government authorities and treated suspiciously in court or members of a “fringe” political group, these situations can give rise to a claim of denial of equal protection under the Fourteenth Amendment.
If a judge permits an ex parte attachment, i.e. seizure of real estate without giving you notice of a hearing in a state court proceeding, this is a deprivation of property without due process, violating the Fifth Amendment as well as the Fourteenth Amendment.
Ex parte restraining orders forcing men or women out of their homes based on abuse allegations in state courts are a primary and rampant example of violations of constitutional rights today, and certainly actionable in federal court.
The first ten amendments of the Bill of Rights are self explanatory. Violations of any of the rights described in these amendments give rise to causes of action, both against state judges under Title 42 U.S.C. § 1983 and arguably against federal judges in Bivens actions.
Pro se litigants should give a clear and concise description of what happened in chronological order, identifying the judge, the date, time, and place of his or her action, and specifying which acts violated which constitutional amendments.
The complaint finishes with a section entitled “Prayer for Relief.” In such a case you can ask for an injunction ordering another judge to so something, or to refrain from doing something. Successful use of these suits has been made to nullify attachments, end incarcerations, declare laws or court practices unconstitutional and scare the heck out of black robed tyrants with gavels. See Pulliam v. Allen, 466 U.S. 522 (1983).
I often phrase my prayers for relief as follows:
Wherefore plaintiff prays this Court issue equitable relief as follows:
1. Issue injunctive relief commanding defendant to . . .
2. Issue declaratory relief as this Court deems appropriate just.
3. Issue other relief as this Court deems appropriate and just.
4. Award plaintiff his costs of litigation.
Your name printed
City, State, Zip Code
Statement of Verification
I have read the above complaint and it is correct to the best of my knowledge.
Complaints are filed in the Civil Clerk’s Office in the United States District Court for your district.
Federal rules now allow for service of process by certified mail. You will be required to serve the defendant judge and also your state attorney general if you are suing a state judge.
The pro se road will be easier if you study the Federal Rules of Civil Procedure, obtain a Black’s Law Dictionary and familiarize yourself with legal research methods. You must also read the Local Rules of the Federal Court where you are suing, and learn Constitutional law fast.
Using a lawyer as a coach is helpful. Bear in mind that your lawsuit is disfavored because it is against a judge. Nevertheless, our system of “justice” is in such tough shape that suits against judges are a socio-political necessity.
Complaints should be photocopied, disseminated to the legislature, the media and political action groups.
Perhaps the cumulative impact of these suits will bring a healthy radical change for the American people.
The author is an attorney in private practice in Boston.
Post Office Box 90
Hull, Massachusetts 02045
Copyright ©1994 All Rights Reserved
NOTE: Please read article and cases related to Judicial Immunity before taking action.