An Overview Judicial Immunity - OCLC

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An II Overview of Judicial Immunity Including Legal Representation of Judges,

By Samuel P . - Stafford

Research Essay Series Number EO01

National Center for State Courts Suite 200, 1660 Lincoln Street, Denver, Colorado 80203

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An Overview of Judicial Immunity

This report provides a current and objec- tive examination of the doctrine of judicial immunity as it applies to all levels of state court judges and certain court relatedper- sonnel. It also describes methods andpro- cedures for providing legal representation for state judges sued in their oflcial capacities. The study was initiated in' response to a requestfrom the Missouri Ju- dicial Conference and expanded by the National Center to include a limited na-

*: tional review of various jurisdictions to jdevelop data on these topics. The study

was supported by funds granted to the Na- E tional Center by the Law Enforcement As- 5 sistance Administration.

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By Samuel P . Stafford

During the last decade lawsuits attack- ing teaching, medical, legal, and other formerly sacrosanct professions have steaddy increased. The judiciary has not escaped this critical reassessment by the American public. A few years ago, an action against a judge in his official capacity was highly unusual. Today, owing to closer scrutiny of the myriad civil rights acts by an activist bar and an informed public, there exists an atmosphere in which members of both the bench and the bar are, with some regularity, being sued for various alleged violations of their professional responsibilities.

The increased success of such suits against judges and court related personnel' has made judicial immunity and judicial representation important topics. Tradi- tional protections for the court have been gradually yet significantly reduced over the years, and the doctrine of judicial immunity is not as absolute as was once be- lieved. New legislation and court interpretations of civil rights cases involving judicial defendants have invaded traditional sanctuaries of judicial protection, and because of the close, derivative nature of most court related jobs, clerks, stenog- raphers and other support personnel are also threatened by a corresponding reduction in the immunity protection.

The concepts of judicial immunity and judicial legal representation require re- examination for several reasons. First, judicial salary increases-or lack of them-affect both the quality and effi- ciency of the state bench. When judges are asked to work long and hard for inadequate pay, and at high personal and professional risks, qualified individuals are discour-

aged from seeking judicial posts. Second, the problems of increasing trial delays and mounting case backlog cannot be freely and adequately attacked if the bench and court support personnel must operate under fear of reprisals from disgruntled litigants. Further, in the event of a suit the diversion of judicial energy to financing and organizing a legal defense undermines effective court operations.

While the problem has not reached crisis proportions, it may be beneficial to exam- ine the reasons for the successful challenge of judges and support staffs.

This report provides a current and objec- tive examination of two issues: (1) the doctrine of judicial immunity as it applies to all levels of state court judges and certain court related personnel, and (2) methods and procedures for providing legal representation for state judges sued in their official capacities.

The study was initiated in response to a request from the Missouri Judicial Confer- ence for information in these areas. Sub- sequently, the National Center for State Courts conducted a limited national review of various jurisdictions to develop data on these topics. The responses revealed a strong interest by the judicial a,dministra- tion community in the concepts of judicial immunity and legal representation for judges.

Traditional protections for the court have been gradually yet significantly reduced.

Both issues-judicial immunity from civil liability for acts performed by a judge in his judicial capacity and the right of a judge to have legal representation in the event he is sued-are presently changing. The doctrine of judicial immunity is being altered rapidly, and apparently there is no

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~ n i f ~ m methodl of providing representa- tiom for judges.

The purpose of this report is to provide timely infomation on these topics for use by judges, COW^ administrators, coupe sup- p01-t personnel, and others concerned with judicial administration. Comments and d d i t i o ~ d infomation are solicited.

The legal issues are complicated. They often involved both federal mal state constitutional or statutory mandates. Con- seqnenEly, this report does not purport to provide leg4 interpretation or guidance on these matters. Nonetheless, every effort has been wade to assure that this is an accurate report.

JUJDECJAIL M M r n I I r n

Am ovewiew The doctrine ofjudicial immunity2 is of

ancient common law rigi in.^ Over the years, legislative enactments and court interpretations have expanded the doctrine so that it applies to ip variety of individuals within the broad ambit of the judicial field.‘ Thus, the protections of the doctrine mow apply to judges, traditional quasi-judicial individuals, and some court related personnel, such as COIN^ clerks and cowrt reporters.

The &iditionall concept of judicial immunity has also been inoaified with respect to the type or level of jurisdiction held by the judge.5 W i l e early English CQWQD law did no& apply the imuni ty protection to limited jurisdiction C O U ~

judges who acted outside of their physical or legal jurisdictions, the current rule extends to & grades of judges and from the highest to the lowest levels of COWS.^

One of the earliest pronouncements of the CQIIII-IIO~ law rule of the doctrine of judicial immunity was in the 1882 decision Q ~ G P O W v. Van Duyn: “[Baln action will W O ~ lie against the judge for wrongful commitment, OH for an erroneous judg- mewe, or for any other act made OH done by him in his judicid capacity.”7

In 1974, the United States Court of Ap- peals for the Ninth Circuit restated the doctrine.

The general rule laid down over a cen- tury ago is that judges are immune from suit for judicial acts within and even in excess of their jurisdiction, even if those acts were done maliciously or corruptly; the only exception to this sweeping cloak of immunity exists for acts done in the clear absence of all jurisdiction.*

Despite apparently clear ronouncernent s , the octrine is fettered by a umber of restraints.

Many theories have been advanced to S U P ~ Q I - ~ continuance of the doctrine of absolute judicial immuni t~ .~ In 1872 the United States Supreme Court emphasized that in the administration of justice a judicial officer should be free to use his unfet- tered discretion without fear of reprisal. lo

Later, in 1937, one writer posited nine reasons that the doctrine of judicial immunity should remain viable: the necessity of finality in court actions; preservation of the doctrine of the separation of powers; judicial self-protection; the judiciary’s duty to the public only, and not to individuals; the availability of other opportunities for review of adverse decisions; preserving and economically utilizing a judge’s time; the unfairness of penalizing the judiciary for honest error; removing an impediment to judicial service; and preventing undue in- fluence on judicial decisions through fear of subsequent suits.l’

More recently, Chief Justice Warren il- lustrated his concern with past and present considerations in upholding the doctrine.

[It] is not for the protection or benefit of the malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be

at liberty to exercise their functions with independence and without fear of consequence. l2

But despite these apparently clear and uncontradictory pronouncements, the doctrine is fettered by a number of restraints, many of which have their basis in the Civil Rights Act of 1871 .13 In essence, this law holds “every person” liable who, under color of state law, deprives another citizen of his constitutional rights and privileges.

In an effort to square these contradictory legal precepts, an historical theory evolved supporting the judiciary’s belief that, at the time the 1871 civil rights statute was enacted, the doctrine of judicial immunity was accepted and settled in the states.’* Thus, the argument is made that judges are not subject to the civil rights acts because 1 the immunity doctrine was well settled when Congress passed these laws. In fact, however, recent research indicates that this belief was only partially true.15

Nor would Congress have found a clearly defined doctrine of absolute immunity in the prevailing law of the states. By 1871, thirteen states had adopted the absolute Ijudicial] immunity rule; six states had ruled that judges were liable if they acted maliciously; in nine states courts had faced the issue but had not ruled clearly one way or the other; and nine states had apparently not faced the issues.16

Civil Rights Acts I The collective Civil Rights Acts of

The Civil Rights Act of 187lZ3 provides

Congress comprise a wide foundation for legal actions based on violation of individual civil rights.’? The original five actsls were enacted by Congress during the Re- construction Period following the Civil War.lS More recently, the 1964 Civil Rights Actz0 created new categories of civil rightsz1 and added provisions affecting the functions of the Commission on Civil Rights.22

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every person, who, under color of any statute, ordinance, regulation, cus- tom, or usage of any state or territory, subjects or causes to be subjected any citizen of the United States or other persons within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities procured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceedings. 24

According to Monroe v. Pape, 25 an action is “under color” of state law when

.there is a misuse of power made possible only because the wrongdoer is clothed with the authority of state law.26 Con- sequently, private individuals not acting under color of state law within the meaning of 42 U.S.C. 0 1983 are not liable for civil rights transgressions under 0 1983. How- ever, it has been held that private individuals acting in concert with the state officials who are performing under the color of state law may also be deemed to be within the sanctions of that statute.27

The 1871 Civil Rights Act has generally been used to obtain redress for deprivation of rights guaranteed by the United States Constitution and laws.28 In this regard, the Court of Appeals for the Seventh Circuit said:

Section 1983 has been held to apply solely and exclusively to acts by state officers who use their authority, or misuse it, or purport to use their authority (although in fact acting outside their official function) to deprive a person of federally protected rights.29

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I Modifications to Traditional Doctrine In an effort to resolve the dichotomy

between the public policies expressed by the doctrine of judicial immunity and the B civil rights acts, judicial interpretations have developed distinctions in the two last decades.30 Limited exceptions to the application of the immunity concept have developed in two broad areas based on (1)

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the type of relief sought, and (2) the nature of the act or misdeed.

Type of Relief Sought The greatest erosion of the traditional

immunity doctrine is based on a distinction as to the type of relief requested by the injured plaintiff.31 As a consequence, some case law now holds that a judge may be liable in an equitable action, but not in an action for damages.32

It is notable that the leading Supreme Court cases dealing with judicial immunity are not significantly concerned with the issues of equitable or injunctive relief. One of the oldest cases was decided in 1872, not under any of the civil rights acts, but as a suit for damages, by an attorney against a judge who had stricken the attorney’s name from the list of practicing lawyers.33 As recently as 1967 the United States Su- preme Court granted certiorari on the limited question of “whether a local judge is liable for damages under § 1983 for an unconstitutional conviction. . . .”34 The Court did uphold judicial invulnerability in damage suits, but did not consider the application of judicial immunity when injunctive or other equitable relief is sought. This case largely adopted the Court’s doctrine in Bradley v. Fisher, stating that judges are immune from civil “liability for damages for acts committed within their judicial jurisdiction. . . .”35

The 1974 ruling of a United States Dis- trict Court held that judicial immunity under 42 U.S.C. 0 1983 is restricted to damage suits and does not extend to suits for protective, equitable, or injunctive relief:

[N]o sound reason exists for holding that federal courts should not have the power to issue injunctive relief against the commission of acts in violation of a plaintiff‘s civil rights by state judges acting in their official capacity.36 The Court went on to state that in its

circuit, “State judges are not immune from suits for injunctive relief under 0

1983. . . .”37 This case involved an action brought under the Civil Rights Act by the executors of a deceased attorney’s es- tate. They sought injunctive and declarat- ory relief to vacate an order of a judge of the New York State Appellate Division, which suspended the attorney from the practice of law for three years.

Nature of Act Traditionally, judicial immunity has not

extended to every category of a judge’s conduct. The doctrine usually provides a defense only for those acts that are of a judicial nature,38 and in determining what is a judicial act, many decisions have turned to Justice Douglas’s dissenting opinion in Pierson v. Ray: “I do not think that all judges, under all circumstances, no matter how outrageous their conduct, are immune from suit under 17 Stat. 42 U.S.C. 5 1983.”39

As a consequence, various types of acts are no longer recognized as judicial conduct within the protection of immunity. Thus, with references to the class of exceptions based on the nature of the judicial act, four distinctions are emerging: (1) acts showing lack of good faith; (2) acts criminal in nature; (3) acts in absence of authority or in excess of jurisdiction; and (4) acts

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Samuel P . Stafford, staff attorney on the Research and Information Service staff, is a graduate of the Duke University Law School and a member offhe Florida Bar. He has served as legal assistant in the Division of Administrative Lmo of the Florida arror- ney general‘s office.

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annhaisiaa nity continued of m administrative or ministerid nature.

Lack of G o d Faith. In some jnrisdic- ticpns, it is generally accepted hat judicial officers who act wikhina their jurisdictions are not liable for their official acts, even though those acts may have been maliciously committed. But the place of “good faiuh” in the challenged judicial act appears t~ have developed recently as m melioration BO the rigidity of the Pierson standard. As a consequence, the question of whether a judge’s act is “judicial” can be examined, in part, by looking at his attitude whew performing the act. A recent example involving this aspect

was presented in a 1974 confrontation of the judicial immunity doctrine md the ~ ~ Q V ~ S ~ S W S of 5 1983.‘O Plaintiff brought a civil Hights action against a justice of the peace, alleging that the judge had committed assault and battery on him in the cow- rmm. The Ninth Circuit held that the judge was acting under color of state law when he allegedly assaulted plaintiff, and therefore p8ainkiff‘s claim came under the Civil Rights Act. Applying the immunity doctrine, the C Q U ~ h n d that the judge was acting in excess of jwisdiction and SO

did not have absolute immunity from lia- Mity. Bua the c o w ruled he could chiaim qualified immunity, which could insulate him from civil liability, if he acked im good hi&. In S U ~ ~ Q H P ole this C O ~ C % U S ~ O ~ , the corn refemed.to a 1974 United States SU- preme CQW ruling in which parents of college skudents killed in a campus riot filed a 0 I983 action against the state Gov- ernor, who had ordered the National Guard to quell the disturbance. The actions were initially dismissed by the DistricU C o w md affirmed by h e @QUIT QP Appeals. In reversing and remanding the cases for furthen: proceedings, Chief Justice Burger described the issue as

whether the Governor and his S U ~ C X -

din& officers were acting within the scope of uhek duties under uhe Con- stimuion md Paws of Ohio; whether

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they acted within the range of discretion permitted the holders of such office under Ohio law and whether they acted in good faith, both in proclaim- ing an emergency and as to actions to cope with the emergency so de-

It has beera suggested that “the appropriate standard for 0 1983 judicial liability be one of ‘actual malice,’ a term which is defined to include ‘reckless disre- gad.’ ”42 To sustain this position, the legislative history of the act is referred to as supportive of the drafters’ intent that state judges be held liable only if they “acted knowingly, viciously or oppres- sively in disregard of a law of the United States. . . .”43

On a related issue, the Supreme Court earlier ruled that policemen could assert Uhe defense of good faith and probable cause to a 0 1983 action against them for unconstitutional

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The greatest erosion is based n a distinction as to the type

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Criminal Acts. It is axiomatic that COIIHDQ~ Paw judicial immunity has never been extended to shield a judge from c r h - i d liability. In a case involving a class action brought against the magistrate and an associate judge of a county circuit court alleging racial discrimination in the application ofthe county’s criminal justice system, the United States Supreme Court S&

[Wle have never held that the per- fommce of the duties of judicial, legislative, or executive officers, requires QB contemplates the immuniza- tion of otherwise criminal depriva- L ~ W S of constitutional rights. . . On the C Q I I @ ~ , the judicially fashioned d o c h e of official immunity does not ueach “SQ fa as to immunize criminal

conduct proscribed by an Act of Con- gress. . . .” [Gravel v . Unitedstates, 408 U.S. 606, 627, 33 L.Ed.2d 583, 92 S.Ct. 2614 (1972)].45 This principle was established in 1879,

when a state judge was punished for violat- ing the criminal provision of the Civil Rights Act by excluding blacks from jury lists solely because of their race.46

Thus, judicial officers receive no protective immunity from criminal liability, even if the conduct is within the scope of their judicial duties.47

Absence of Authority; Excess of Juris- diction. Judicial acts that are entirely without authority, as distinguished from acts that are in excess of jurisdiction, are not protected by the immunity In exam- ining the nature of a judicial act, the initial determination must be whether the defendant judge acted in “clear absence of all jurisdiction,” not whether he acted merely in excess of his ju r i~dic t ion .~~

Some examples of judicial acts that have been found “in the clear absence” of all jurisdiction include the following: a judge ordered a person sterilized without any statutory a ~ t h o r i t y ; ~ ~ a judge interfered with judicial proceedings after he disqual- ified himself from acting;51 a state court judge excluded persons from jury service solely on the basis of race in violation of the Civil Rights Act criminal provision^;^^ and a magistrate directed a police officer to take an individual into custody who was not named in the arrest warrant.53

On the other hand, “excess of jurisdiction,” as distinguished from the entire absence of authority, means that the act, although within the general power of the judge, is not authorized and is therefore void with respect to the particular instance. Stated differently, if the conditions which alone authorize the exercise of judicial power in a particular case are lacking, the judicial power cannot be lawfully in- ~ o k e d . ~ ~ Most modem court decisions hold that judges of both limited and general jurisdiction courts are usually exempt

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, from civil liability in damages for judicial acts committed in excess of their jurisdic- t i o n ~ . ~ ~ However, some jurisdictions have additionally required that there not be a clear absence of authority-that the judge act without malice and with an honest belief that he had proper ju r i sd i~ t ion .~~

Acts held to be in excess of jurisdiction include: a judge improperly approved of sureties on bail bonds through his negli- gent and misplaced confidence in a certain bondsman;57 ajudge issued arrest warrants based on a void city ordinance;58 a circuit judge held several county judges in con- tempt for failing to comply with his order to increase the salary of a deputy clerk;59 and a justice of the peace issued an arrest warrant on the basis of an affidavit insuffi- cient to charge any criminal offense.60

Administrative or Ministerial Acts. The fourth area of exceptions based on the nature of the act involves administrative or ministerial duties. In general, judicial immunity case law holds that if there is no infringement on the independence and discretion of the judiciary, the doctrine of absolute judicial immunity does not apply. Thus a judge can be sued for failure to perform an administrative act when that failure creates a violation of constitution- ally protected rights. One example of this principle is the Florida ruling that a justice of the peace could be sued under § 1983 for failing to advise indigents before trial of their right to court appointed counsel. The court also held the justice of the peace liable for subsequently failing to appoint counsel for the indigent misdemeanants in the absence of an intelligent and voluntary waiver. That court denied a claim of judicial immunity, since observance of the constitutional rights of plaintiffs would not have hampered judicial discretion or interfered with court functions.62

In a civil rights action against the chief judge and a juvenile judge of a county superior court challenging the adequacy of “treatment” at a county juvenile detention center, the state court denied defendant

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judges’ motion to dismiss, holding: (1) judicial immunity did not apply to the judges because the suit was directed solely against their administrative and ministerial duties and requested only such equitable relief as was necessary to safeguard the plaintiffs’ constitutional rights, and (2) the judges could be sued in both their individual and official capa~ i t i e s .~~

When judicial personnel and city officials were sued for arresting and unrea- sonably detaining certain individuals for “investigation” purposes, the court re- jected the defendants’ claim of judicial immunity on the grounds that the plaintiffs’ complaint was directed toward the city officials’ administrative acts. 64

It appears, then, that whether an act is judicial or ministerial is largely deter- mined by the character of the act, and not the character of the agent.65

Application of Doctrine to Court Support Personnel

Most court related jobs are directly linked to a judge’s function and to his orders. One purpose of this interlocking cooperation is to produce an efficient court. Because of the derivative nature of this employment, any reduction in judicial irhmunity correspondingly threatens the protection afforded court support personnel. For this reason, any modification of the traditional judicial immunity doctrine is of great importance to the support staff of a court. It is also important because of the possible impact on court operations.

Quasi-Judicial OfSicers and Support Personnel. Quasi-judicial officers and support personnel who exercise discretion in matters directly affecting court functions are usually viewed as being within the protective powers of an immunity doctrine.ss As used in this report, quasi- judicial officers are individuals who are not judges, but who perform acts of a judicial nature that require an exercise of discretion or judgment;67 court support personnel are those individuals who provide

for the daily internal operation of a court, such as court clerks, bailiffs, stenog- raphers and court reporters, research and managerial staff and other individuals of a similar nature. Many such individuals have been subjected to § 1983 suits for damages and actions in equity involving the performance of their official acts.

Court support personnel are considered to be acting “under color of state law” when they execute their duties. Their liability under § 1983 depends upon whether they are protected by some form of official immunity. Early cases recognized a protective privilege for court officers who executed the orders of the courts. How- ever, the immunity privilege depended upon the proper jurisdictional authority of the court issuing the order.

[If a court acts] without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void; and form no bar to a recovery sought; even prior to a rever- sal, in opposition to them. They constitute no justification; and all persons concerned in executing such judgments or sentences are considered, in law, as trespassers.68 Contemporary cases have also protected

other court officials who executed orders of courts having proper j u r i s d i c t i ~ n . ~ ~ Thus, the rule has developed that if court support personnel act pursuant to a judicial mandate that is within the court’s jurisdiction, and that has no obvious defects, then these officers are protected from civil liability by the immunity doctrine if their duties are executed in a proper manner.70 This rule has also been based on the fact that court support personnel generally have no reasonable alternative except to execute the judge’s order.71

Derivative Immunity. Another protective principle called “derivative immunity” has been defined as the protection provided for any public official whose acts are performed pursuant to a court directive or judicial order.72 Thus, court officers

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and employees such as court stenog- raphers, reporters, and jurors, acting directly under orders of a judge, receive a degree of protection from civil actions leveled against them in performance of their directed actions. Derivative immunity, however, is subject to the same limi- tations as the more traditional immunity doctrines that protect judges. ]In a case involving a civil rights action

against a policeman, municipal super- visor, and officers of a municipal court for unreasonable search and seizure at plaintiff‘s residence, the Ninth Circuit stated that court personnel acting “at the direction of a judge. . . to whom they were immediately and directly responsible” 73 would be protected by a form of quasi- judicial immunity. The court required that court support personnel prove only that all of their challenged acts were performed at the direction of a judge or judges in the court where they worked. Later, however, the Ninth Circuit stated that protective immunity would apply only as long as proper authorization was given by the individual in charge. The court presented a hypothetical situation in which a judicial order to use excessive force on an individual would clearly lie outside the immunity doctrine, since such an authorization would be beyond the jurisdiction of the judge or official who gave the order.74

Proseculing and Defense Attorneys. Prosecuting attorneys,75 on the other h a d , historically have not been liable for acts committed in bad faith since the immunity doctrine applies as long as the attorney was acting within the scope of his jurisdiction and under the law.76 Mow- ever, this position appears to be eroding.77

Sirnillady, the position of the defending attorney, whether publicly or privately employed, is presently undergoing some change. Public defenders and court appointed lawyers are increasingly threatened with civil malpractice claims by disgruntled clients. Some jurisdictions have protected these defenders with vari- “legal representation” encompasses the

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ous forms of immunity,78 while other courts have not.7s

Thus, the protection afforded quasi- judicial and court support personnel is not without its own exceptions. The immunity of judges and support personnel from civil liability extends only to official decisions or acts. Like judges, court support personnel have been found liable for violations of purely ministerial duties imposed upon them by statute.80

Summary The doctrine of judicial immunity re-

mains a potent and viable defense for judges sued in their official capacities. However, legislative enactments and court interpretations have reduced the doctrine’s broad based application. Further, erosion of the protection theory appears inevitable as suits against judges and court support personnel increase.

LEGAL REPRESENTATION

This section presents selected data on legal representation for judges sued in their official capacities. The information was derived from responses to a questionnaire circulated by the National Center in late 1975 to each chief justice or state court administrator in the fifty states and four territories. The written responses were ver- ified by telephone or letter in the spring of 1977. The 99 percent response rate indicates the keen interest of the states and territories in these matters.

Data in this section cover three areas: (1) how legal representation is provided by each state for judges who are sued in their official capacities; (2) who pays for official or substitute legal counsel; and (3) recent cases and relevant comments about each state. The case citations were provided in large part by the responding states; however, additional references have been included where appropriate.

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provision of either legal counsel or money for the defense of a state judge sued in his official capacity.

In summary, the data showed that the office of the attorney general serves as the official counsel for all but six states and one tenitory. (The Virgin Islands have no provisions for legal representation.) In the District of Columbia, corporation counsel handles legal representation of judges, in Kansas, local or private counsel provide legal representation, and in Montana, the Insurance and Legal Division. The legal department of the State Court Administra- tor’s Office provides legal service for Pennsylvania judges; in South Dakota and Texas, judges challenged in their official capacity must choose a private attorney to represent them.

With two exceptions, local or state funds cover the costs of official counsel for judges. In South Carolina, either state money or the state’s liability insurance fi- nances any judicial representation. In Texas, the individual judge is personally responsible for securing and paying for counsel.

When substitute legal counsel is necessary, all but six of the states use private attorneys. The six exceptions are Illinois (special assistant), Kansas (attorney general when requested and if there is a conflict), Michigan (county prosecutor), Minnesota (special or county attorney), Virginia (special counsel), and Wyoming (local or state bar association).

Six states have provisions requiring individual judges to pay for any substitute counsel if the official counsel declines. In Louisiana, Missouri, Oklahoma, and Texas, the challenged judge is personally responsible for funding substitute counsel. In Michigan and New York, judges who prefer private attorneys as substitute counsel must personally assume all costs. ’ The sources mentioned above represent the chief data base for this section on legal representation. If there are mistakes or in- accuracies, the reader is asked to contact

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the Research and Information Service of the National Center.

Alabama OfJicial counsel: Attorney general, or

local counsel, financed by state or local funds.

Substitute counsel: Private, financed by state or local funds.

General information and cases: The office of the attorney general represents Su- preme, Intermediate Appellate, District, and Circuit Court judges. Lower level judges are represented by city or county counsel. When official counsel declines, substitute counsel is provided by private counsel, paid by the state for appellate level court judges and by the county or municipality for lower court judges. Nicholson v . Board of Commissioners of Alabama State Bar Association, 338 F. Supp. 48 (M.D. Ala. 1975), and McGlasker v . Colton, 397 F. Supp. 525 (M.D. Ala. 1975).

Alaska Oficial counsel: Attorney general, fi-

nanced by state funds. Substitute counsel: Private, financed by

state funds. General information and cases: If offi-

cial counsel declines, private counsel is appointed at state expense. Appointment of counsel is by the presiding judge of the district with the approval of the Adminis- trative Director of the Courts.

Arizona Oficial counsel: Attorney general or

local counsel, finqced by state or local funds.


General information and cases: Attor- ney general’s office represents judges of the Supreme Court and Court of Appeals. County attorney represents judges of Superior Courts and Justice of the Peace Courts. City attorney represents municipal court judges. In “special actions” (ex-

traordinary writs), the judge is represented by the attorney who prevailed. Gregory v . Thompson, 500 F.2d 59 (9th Cir. 1974), A.R.S., tit. 41, f 192 andtit. 41, f 193(1), (2) 1974.

Arkansas OfJicial counsel: Attorney general or



General information and cases: The attorney general represents judges of the Su- preme, Circuit and Chancery Courts. Pro- secuting attorneys represent county-wide court judges, while municipal judges are defended by city attorneys. Upon the request of a prosecuting attorney, the office of the attorney general may assist the prosecuting attorney. If official counsel declines, the judge may select private counsel. Payment for substitute counsel is by either the county, with the approval of the Quorum Court, or by the state, with approval of the Claims Commission. Tate v . Arnold, 223 F.2d 782 (8th Cir. 19-55), and Harley v . Oliver, 404 F. Supp. 450 (W.D. Ark. 1975).

California Oficial counsel: Attorney general or



General information and cases: The attorney general’s office represents Supreme Court and Courts of Appeal judges. County counsel represents superior, municipal and justice court judges. If the county does not have county counsel, the district attorney represents judges of superior, municipal and justice courts. If official counsel declines, the attorney general authorizes a Supreme Court Justice or Court of Appeal judge to hire private counsel. For lower court judges, the county board of supervisors authorizes hiring of

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private counsel under a contract. Aatewa- tively, the judge can retain private counsel manad recover the CQSU of defense from the state or county, except in certain types of cases, e.g., corruption on the part of the judge. Cadena v. Perasso, 498 F.2d 383 (9th Ci. 1974).

Colorado Qficial counsel: Attorney general, Bi-

nmced by state funds. Szbbstitute counsel: Private, financed by

state funds. General informafion and cases: ]if offi-

cial counsel declines, private counsel is retained and paid for by the State Ofice of Administration, after the State Coupe Ad- mi~i s@at~r wakes a determination that the Office of the Attorney General will not represent the judge.

@omne&icunt Oficial counsel: Attorney general, fi-


state funds. General information and cases: Con-

necticut Seamtes, title 3, $ 125, “Duties of Attorney General,” notes that the Attor- ney General defends state employees sued for acts or omissions performed within the scope of their employment.

kUaaWlar@ &pficial counsel: AttQmey generd, fi-


state funds. General informtion and cases: Until

recently, the automey general’s office provided legal defense for all Bevels of judges, as a matter of courtesy. Presently, a recent Delaware law, 60 Delaware Laws 474 (1976), ~ P ~ w s the Attorney General to providle legal representation ~ Q T dl state employees. If there is a conflict, and the attorney general crawnot provide representation, then private counsel is appointed md paid hog by uhe state.

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District of Columbia Qficial counsel: Corporation counsel,

financed by local funds. Substitute counsel: No response on

questionnaire. General information and cases: Legal

representation is provided by corporation counsel, who is the appointed head of the Legal Office in the Executive Branch of the District of Columbia. Section 1-301, D.C.C.E. 1966.

€Florida Qficial counsel: Attorney general, fi-

nmced by state funds. Substitute counsel: No response on

questionnaire. General information and cases: Chal-

lenged judge must request that the state attorney general provide representation. Brarnlett v. Peterson, 307 F. Supp. 1311 (M.D. Pla. 1969).

Official counsel: Optional; may be either attorney general or private counsel, financed by state funds.

Substitute counsel: No response on questionnaire.

General information and cases: Pur- suant to 0 103-3(2) Hawaii Revised Stat- utes (1975 Supp.), a judge can retain a private attorney at state expense without the authorization of the attorney general. State v . Taylor, 49 Haw. 624, 425 P.2d 1014 (SCt. Hawaii 1967); Medeiros v. dkbndo, 55 Haw. 499, 522 P.2d 1269, 1270, note B (19774); and Akatsuka v. McKay, 24 Haw. 600 (1919).

Oficial counsel: Attorney general, pi- nmced by state funds.

Substitute counsel: Private, financed by state funds.

General information and cases: If offi- c id counsel declines, the state attorney general selects private counsel to provide representation at state expense. Brunette v.

Dann, 417 F. Supp. 1382 (D.C. Idaho 1976).

Illinois Oficial counsel: Attorney general, fi-

nanced by state funds. Substitute counsel: Special assistant, fi-

nanced by state funds. General information and cases: Special

assistant is designated by Illinois state attorney general. Dear v. Rathje, 391 F. Supp. 1 (N.D. Ill. 1975).

Indiana Oficial counsel: Attorney general, pri-

vate or local counsel, financed by state or local funds.


General information and cases: If official counsel declines, then a judge must first apply to the attorney general’s office to determine if any assistant attorneys general are available. If not, then the judge can hire private counsel. All local judges are represented by county counsel, although the attorney general can provide representation if requested by local counsel. Indiana Statutes Annotated, P.L. 131, Code: 33-2.1-9, Chapter 9, Defense of Judges and Prosecuting Attorneys in Civil Actions (1976 Pocket Parts), John Doe v. County of Lake, et al., 399 F. Supp. 553 (N.D. Ind. 1975).

Iowa

nanced by state funds.

state funds. General information and cases: If offi-

cial counsel declines, the Iowa Executive Council appoints counsel to represent the judge.

KaIlSaS

sel, financed by state or local funds.

financed by state funds.

a

Oficial counsel: Attorney general, fi-

Substitute counsel: Private, financed by ‘i ’

3

I

1 Oficial counsel: Local or private coun-

Substitute counsel: Attorney general,

$’


General information and cases: Legal representation is provided by the city attorney, county attorney, or other private counsel. Generally, the attorney general’s office represents only upon request from the official counsel group, or where a conflict exists. In lieu of state, county or legal representation, governmental departments may pay premiums on insurance protect- ingofficialsfrom suit. § 75-4357, K.S.A., 1975 Supp. Black v. Stanley, 270 F. Supp. 993 (Kan. 1967).

Kentucky Official counsel: Attorney general or



General information and cases: The office of the attorney general represents all appellate level judges and will enter a local level case if requested by the judge being sued. The attorney general also defends circuit court judges by request if the judge is sued in federal court. Local county judges are defended by county counsel. The Commonwealth’s Attorney is the prosecuting attorney for each judicial circuit in Kentucky. The Commonwealth Attor- ney represents judges at the general trial level in suits arising out of criminal proceedings. If private counsel is necessary,

. the court of last resort must obtain author- 7 ity from the Chief Executive for approval

of a personal services contract for the private counsel. The county is to pay for

I private counsel for local judges if official .. counsel declines.

: ’

-

.- J

Louisiana Official counsel: Attorney general, fi-


the individual judge. General information and cases: G r f i n

v . Seismic Services, Znc., 353 F. Supp. 989 (E.D. La., 1973). If official counsel declines, then private counsel is hired at

Summer 1977 ?,

judge’s expense. Neyrey v . Gaudin, No. 74-573, U.S. District Court, Eastern Dis- trict of Louisiana, 1974-75.

Maine

nanced by state funds. Official counsel: Attorney general, fi-

Substitute counsel: None. General information and cases: None.

Maryland



Massachusetts

nanced by state funds. , Substitute counsel: None.

Official counsel: Attorney general, fi-

General iqformation and cases: None.

Michigan Official counsel: Attorney General, fi-

nanced by state funds. Substitute counsel: Local or private

counsel, financed by judges or local funds. General information and cases: The of-

fice of the Michigan attorney general will represent only those judges who are sued in their official capacities and who are sued for money damages. If the attorney general musi decline representation, then county prosecutors at local expense or private counsel at the judge’s expense represent the judges.

Minnesota Official counsel: Attorney general or


Substitute counsel: Special attorney or county attorney, financed by state or local funds.

General information and cases: The attorney general represents Supreme and District Court judges. County Court judges are represented by the county attorney of the county in which the judge sits. The county attorney can request that the

attorney general provide assistance. In case official counsel must decline, the attorney general has the power to assign a county attorney or to employ a special attorney to provide representation. M.S. § 8.06. Dotlich v. Kane, 497 F.2d 390 (8th Cir. 1974), and Peterson v. Knutson, 233 N.W.2d 716 (Minn. 1975).

Mississippi


Substitute counsel: None. General information and cases: Pierson

v . Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), and Burton v. Wal- ler, 502 F.2d 1261 (1974).

Missouri Official counsel: Attorney general or


Substitute counsel: Private, financed by the judge.

General information and cases: Attor- ney general’s office represents Missouri Supreme Court justices and Court of Ap- peals judges. It also represents judges of lower courts in cases where they are joined as defendants with other parties represented by the attorney general’s office. In all other cases, county prosecuting attorneys represent lower court judges. If official counsel declines, then private counsel is hired at the judge’s expense. Bonner v. Circuit Court of City of St. Louis, Mo. , 526 F.2d 1331 (8th Cir. 1975), and Davis v . Clerk of the Circuit Court of St. Louis County, U.S. District Court of the Eastern District of Missouri, No. 75-399C(4). See Section 532.610 RSM 1969: “Court Im- properly Refusing Writ, Penalty.”

Montana

Division, financed by state funds. Official counsel: Insurance and Legal

Substitute counsel: None. General information and cases: Legal

representation is provided by the Insurance

9 .

and Legal Division, Ch. 43, Title 83, W.C.M. 1947.

WQitnE6nSLa &pficia/ counsel: Attorney General OB


Substitute counsel: Special or private counsel, financed by state or locd funds.

General information and cases: Munic- ipal coua judges in Lincoln and h a h a are represented by the city attorney. The office of the attorney general provides legal de- feme for judges of all other cowt levels. If the attorney generd must deche , owing to a conflict of interest, then special counsel is appointed at state expense. Private counsel is hired at locd expense for the municipal courts in Lincoln and Omaha if the city attorney is unable to provide legal defense for the judges.

Nevada Oficial counsel: Attorney general or

local counsel, financed by state or locd funds.


General informtion and cases: Appel- late judges are represented by the attorney general. In the event of conflict, private counsel is appointed by the c o w at state expense. Trial judges are represented by the local district attorney but in appropriate cases by the attorney general. Inn the event of conflict, private counsel is appointed md then paid by the judicial district. Mirin v. hst ices of Supreme Court of Nevada, 415 IF. Supp. 1178 (D. Nev. 1976).

New zampswwe &pficial counsel: Attorney generd, fi-

Substitute counsel: None. GQMQPQ~ informtion and cases: None.

wmced by state funds.

Mew Jersey Oficical counsel: Attorney general, fi-

nmced by state funds.

10

Substitute counsel: Private or local counsel, financed by state or local funds.

General information and cases: In the event the attorney general is unable to represent the judge, the Supreme Court must specidly appoint private counsel at state expense to handle the case. On the lower levels, county counsel provides substitute counsel at local expense. N.J.S.A. tit. 59 00 3-1 through 3-14 (1976-77 Supp.). cashman v . Spann, 66 N.J. 541 (1975).

BfJicial counsel: Attorney general, f i -

Substitute counsel: None. General information and cases: Qcca-

sionally, private counsel is selected by the judge and paid for by the state.


New Ymk &pficial counsel: Attorney general or


Substitute counsel: Private or local counsel, financed by individual judge or local funds.

General information and cases: Legal representation is provided by the attorney general’s office or by county counsel. If official counsel declines, representation is provided either by private counsel at the judge’s expense, or by county counsel at the expense of the county in which the judge sibs. Before an individual judge can hire private counsel, the judge must first notify the New York State Department of Law. Javits v . Stevens, 382 F. Supp. 131 (S.D.N.Y. 1974). dsrile v . Benjamin, U . S . District Court for the Eastern District of New Yo& (pending). Jordan v . Mal- colm, U.S. District for the Southern Dis- trict of New York (pending). Wright v . Patrolmen’s Benevolent Association, et. ~ 1 . U.S. District Court for the Southern District of New York (pending) 75 Civ. 658. Virtu Boutique v. Job’s Lane Candle Shop, 380 N.Y.S.2d 263 (N.Y. 1976).

North Carolina

nanced by state funds. OfJicial counsel: Attorney general, fi-


North Dakota Oficial counsel: Attorney general or



representation for supreme and district court judges is provided by the attorney general’s office; representation for county or municipal court judges is provided by city or state attorneys.

Ohio Oflcial counsel: Attorney general or


Substitute counsel: None. General information and cases: The of-

fice of the attorney general defends supreme and other appellate court judges. Lower level judges are represented by county prosecutors, who are paid by the county in which the judge sits. Wade v . Bethesda Hospital, 337 F. Supp. 671 (S.D. Ohio 1971).

Oklahoma OfJicial counsel: Attorney general, fi-


judge. General information and cases: The at-

torney general will not defend judges if damages are sought. Francis v . Branson, 168 Okla. 24, 31 P.2d 870 (1934).

Oregon OfJicial counsel: Attorney general or


Substitute counsel: Private, financed by

General information and cases: Legal


1 judge.

representation is provided by the attorney general’s office or by the city attorney, depending upon the level of the judge being sued. If official counsel declines, the judge must document the refusal in writ- ing. The judge can then select private counsel and request that this outside counsel be paid from state funds for appellate level judges, or from local (city, county) funds for local judges. If an aggrieved party files a mandamus against a judge to get a decision or ruling changed, then the attorney on the earlier prevailing side must defend the judge.

Pennsylvania

office, financed by state funds. Oficial counsel: Court administrator’s


General information and cases: Legal representation is provided by the Legal Department of the Pennsylvania State Court Administrator’s Office. In espe- cially difficult or controversial cases, outside independent counsel is selected by the court administrator and paid with state funds. No legislative approval is required for selection of counsel. An attorney general’s opinion states that the separation of powers doctrine constrains his office from representing judges sued in their official capacities. Official A.G. Opinion No. 75-9, 5 Pennsylvania Bulletin 460 Feb. 24, 1975. P.S.A. tit. 71, Q Q 291-300, 1976-77 Supp. Adams, et al. v . Berger, No. 75-76 U.S. District Court for the Western District of Pennsylvania, 1975.

< Bradley v . Fisher, 80 U.S. (13 Wall.) 335 (1871). Bauers v . Heisel, 361 F.2d 581 (3d Cir. 1966). Conover v . Montemuro, 477 F.2d 1073 (3d Cir. 1973).

’state funds.

- ’

-3

D m i ’ c E E L e l : Attorney general, fi-


General information and cases: If offi-


state funds. 7-

cial counsel declines, then private counsel is chosen by the judge and paid for by the state.

South Carolina Official counsel: Optional (attorney

general or private counsel), financed by state funds or liability insurance.


representation is provided by the attorney general’s office upon specific written request, as long as the judge was acting in good faith, without malice, and in the course of his employment. In the event it appears that the judge is covered by private personal liability insurance that requires the carrier to provide counsel, the attorney general may, at his discretion, provide no representation. Ch. 4 , Q 1-234.1, C.L.S.C. 1962. Attorney general’s opinion No. 3476, February 23, 1973, included information about the possible con- sequences of magistrate court judges’ using criminal processes for civil debt col- lection rather than for punishment of con- victed persons. The opinion further sum- marized that judges are not immune from $ 1983 actions when they act beyond their authority under these circumstances.

South Dakota

state funds. Official counsel: Private, financed by

Substitute counsel: None. General information and cases: Judge

chooses a private attorney to represent him. The private attorney is paid by the state, but the Attorney General’s approval is required. Presently the state will pay a maximum of $3,000 on the legal fees to be applied toward the insurance deductible. The South Dakota legislature recently passed a bill which will pay the entire insurance deductible for judges. This law will be effective on July 1, 1977. The state carries a liability insurance policy on all circuit and supreme court judges. S.D. C.H., Ch. 3, Q $ 19-1, 19-2, 19-3.

Tennessee Official counsel: Optional (attorney

general or private counsel), financed by state or other funds.


representation is provided by the attorney general’s office, except when ( 1 ) the defendant is charged with an intentional tort alleged to be outside the scope of his official duties, which results in actual injury, or (2) when the defendant is charged with negligence in the line of duty; there is actual damage; and the negligence is charged directly against the defendant personally and not under a theory of respon- deat superior. In these two situations, the defendant should obtain private counsel, and payment will be from the fund appropriated for the Defense Counsel Commis- sion. Ch. 42, $ 84203, T.C.A. (1973). In no case will counsel fees, court costs, or incidental expenses be paid in any action wherein punitive damages are awarded in a final judgment. Heath v . Cornelius, 5 11 S.W.2d 683 (Tenn. 1974).

Texas

individual judge. Official counsel: Private, financed by

Substitute counsel: None. General information and cases: State

judges must obtain their own counsel and at their own expense, with one exception: when a state district judge is sued in Fed- eral Court, the Attorney General defends the judge and is paid by the state. Article 4412(b) V.A.T.S. 1966, as amended.

Utah Oflcial counsel: Attorney general or


Substitute counsel: None. General information and cases: Local

level judges such as city judges and justices of the peace are represented by city and county attorneys at local expense.

Summer I977 I 1

OficiaZ counsel: Attorney general, pi- nmced by state funds.

Subs~itute counsel: Private, financed by state funds.

General information and cases: If ofi- cid counsel declines, the governor may approve private counsel to be paid by the state appropriation for courts. ~ P ~ Q C Q v. Lowery, 349 A.2d 235 (Vt. 1975).

Oficial counsel: Attorney general, financed by state funds.

$ubsEitute counsel: specid counsel, financed by state funds.

General information and cases: The office of the attorney general represents justices of the Supreme C o w and judges of circuit and district courts. I f the attorney generd deems it impracticable for his office to render legal service, he may employ special counsel, whose compensation will be see by the attorney general. Compensa- tion for the specid counsel is paid from funds appropriated for the administration of the court whose employees are being defended. PO 2.1-21, Code of Virginia (11976 Cum. Supp.). For more information on the employment of special counsel, see

2.1-22(a-d), Code of Virginia (1974 cum. Supp.).

W@s;8Eh@anrm Qficial counsel: Attorney general or

Il~cral counsel, financed by state or local funds.

SldbSEitUte counsel: Baivate, fmmced by state funds.

General informtion and cases: The office of the attorney general represents Su- preme, Appellate and occasionally Superior C o w judges, since half of the Superior C~pnfl’s financing comes from the sbue. County prosecuting attorneys defend County, Superior and District Court judges. Municipal court judges are represented by city attorneys at the city’s expense. Tn the event that the official counsel

12

declines, then an attorney is hired from the outside. On the Supreme, District and occasionally Superior court levels, the outside counsel is designated a special assistant attorney general. If the judge is alleged to have committed a tort, or to have violated 42 U.S.C. D 1983 while acting in his official capacity, then any monetary fines or legal defense fees will be paid from the Tort Claims Recovery Fund. Ch. 10.01.150, R.C.W. (1975).

West Virginia Oficial counsel: Attorney general, fi-


state funds. General information and cases: Before

substitute counsel is chosen, the judge must first determine if the office of the attorney general will provide substitute representation. If the attorney general will not handle the case, the judge requests the Supreme Court’s permission to hire private counsel. Ch. 5, art. 3, § 2, W.V. Code (1976).

Wisconsin Qfsicial counsel: Attorney general or

local counsel financed by state or local funds.

Substitute counsel: Private, financed by state funds.

General information and cases: The attorney general’s office represents Supreme and Appellate Court judges. Upon the request of the Chief Justice of the Supreme Court, the attorney general represents circuit judges also. The office of the attorney general does not represent judges in matters involving extraordinary writs. If the suit against the judge involves a mandamus or other extraordinary writ action, then the prevailing party’s attorney is appointed by the court to defend the challenged judge. County judges are usually defended by the county district attorney or by Corporation counsel. However, the Chief Justice of the Supreme Court may

request that the office of the attorney general handle the case. If the attorney general’s office, district attorney, or corporation counsel declines to represent their respec- tive judges, substitute counsel is provided by private counsel selected by the judge. Selection of private substitute counsel is subject to the approval of the Chief Justice, who also must establish the amount of compensation that the state will pay. Han- sen v. Ahlgrim, 520 F.2d 768 (7th Cir. 1975). Medved v. Hallows, 392 F. Supp. 656 (E.D. Wis. 1975). Jacobson v. Schuefer, 441 F.2d 172 (7th Cir. 1971).

Wyoming Official counsel: Attorney general, fi-

nanced by state funds. Substitute counsel: State or local bar

association. General information and cases: If offi-

cial counsel declines, the judge must request that the local or state bar association provide legal assistance. Usually, the legal defense is provided free and as a courtesy to the bench.

American Samoa

nanced by territory funds. Official counsel: Attorney general fi-


Guam , Oficial counsel: Attorney general, fi-

nanced by territory funds. Substitute counsel: None. General information and cases: None. 3

t

1 Puerto Rico

nanced by commonwealth funds. Oficial counsel: Attorney general, fi-

Substitute counsel: None. I

d General information and cases: None.

1 Virgin Islands Oficial counsel: None. Substitute counsel: None. General information and cases: There is -5


~ no recorded instance of a judge being sued in his official capacity.

CONCLUSION

Judicial immunity and judicial representation constitute a changing, and hence potentially problematic, area of concern for the judiciary. As more suits are suc- cessfully brought against the judiciary and court support personnel, both legal scho- lars and the courts are at loggerheads as to the proper scope and application of the doctrine of judicial immunity.82 Yet, except for a few articles on the areas under consideration, there is a lack of substantive or scholarly research on either topic.

Further erosion of the judicial immunity doctrine can be anticipated. A contemporary, full and enlightened examination of the role of the judiciary and of related public policy considerations should be in- stituted soon. At issue are such critical factors as retaining a robust, independent cadre of judges and insulating court support and court related personnel from de- bilitating legal attacks. Judges and court personnel cannot be above the law, but insofar as possible, their responsibilities, obligations and protections should be clearly defied. Uncertainty can lead to a defensive retreat on the part of judges in interpreting and applying the law as they see it, a posture that would surely weaken the American system of justice.

An awareness of the evolution of traditional judicial safeguards and the de- velopment of responsible state commit- ments to provide legal representation are desirable steps toward meeting this grow- ing concern.83 These issues are timely, and they must be recognized and dealt with by those who care about the inviolability of the American judicial system.

.

m

,

, ’

? . - 7 2

’

-

NOTES D ‘Comment, “Federal Comity, Official Immunity

and the Dilemma of Section 1983,” 1967 Duke L.J. ? 741, 742 (1967); phone conversation, March 8,

Summer I977

1977, with Jane E. Negbaur of the New York State Department of Law; the Downstate Office had knowledge of 54-60 cases in which state judges were sued, for the time period covering January 2, 1976- January, 1977.

2This section of the report is largely the product of a review of case law, an analysis of information gathered from state constitutions and statutes and telephone interviews with various state court officials.

Woyd v. Barker, 12 Co. Rep. 23, 77 Eng. Rep. 1305 (K.B. 1607). See also Wilkes v. Dinsman, 48 U.S. (How.) 89,129(1849);Rundall v. Brigham, 74 U.S. (7 Wall.) 523, 535-36 (1869); Grove v. Duyn, 44 N.J.L. 654, 656 (E. & A. 1882); Spaulding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 49 L.Ed. 780 ( 1896).

4 F ~ r a listing of state and court officials who have claimed immunity as a defense to suits based on 42 U.S.C. 6 1983, see Comment, “42 U.S.C. 5 1983-Civil Remedy-Its Circumvention and Emasculation,” 12 How. L. J. 285, 290-92 (1966); Shapo, “Constitutional Tort: Monroe v. Pape and the FrontierBeyond,”60Nw. U.L. Rev. 277,310n. 166 (1965); Note, “The Doctrine of Official Immunity Under the Civil Rights Acts,” 68 Haw. L. Rev. 1229, 1233-40 (1955).

%eeBradley v. Fisher, 80U.S. (13 Wall.) 335, 351, 20 L.Ed. 646, 650 (1872), where a distinction concerning the application of immunity to judges was based on whether the judge was from a limited or general jurisdiction court.

646 Am.Jur.2d. Judges, 5 73. See alsoBradley v. Fisher, SOU.S.(13Wall.)335,351,20L.Ed.646, 650 (1872).

’44 N.J.L. 654, 656 (E. & A. 1882). 8500 F.2d 59, 62 (9th Cir. 1974). s F ~ r a discussion of various theories underlying

official immunity, seeNorton v. McShane, 332 F.2d 855 (5th Cir. 1964); cert. denied, 380 U.S. 981 (1965);Robischaud v. Ronan, 351 F.2d 533 (9th Cir. 1965).

l’Brudley v. Fisher, 80 U.S. (13 Wall.) 335,347, 20 S.Ct. 646 (1872).

”Jennings, “Tort Liability of Administrative Of- ficers,” 21 Minn. L. Rev. 263, 271-73 (1937).

12Scoft v. Stansfield, L.R. 3 Ex. 220, 223 (1868), quoted inBradley v. Fisher, 80U.S. (13 Wan.) 335, 349, note at 350,20 L.Ed. 646,650 (1871), found in Piersonv.Ray, 386U.S.547,554,87S.Ct. 1213, 18 L.Ed. 288, 294, (1967).

1342 U.S.C. 5 1983. 14Pierson v. Ray, 386 U.S. 547, 560, 87 S.Ct.

15Comment, “Liability of Judicial Officers Under

I6Id., at page 326-327. 1742 U.S.C. 5 1981 et seq. 1814 Stat. 27 (April 9, 1866); 16 Stat. 140 (May

1213, 18 L.Ed.2d 288, 298 (1967).

Section 1983,” 79 Yale L.J. 322 (1969).

31,1870); 16Stat. 544(February28, 1871); 17 Stat. 13 (April 20, 1871); 18 Stat. 35 (March 1, 1875).

IgFor a historical account of legislative develop- ment, see 15 Am.Jur.2d. Civil Rights $ 5 11-17; 14 C.J.S. Civil Rights Supp. 60 5-7.

“42 U.S.C. 6 2000a et seq. 21United States v. Original Knights of Ku Klux

“42 U.S.C. 55 1975a-I975d(i). 23Presently 42 U.S.C. 6 1983. Section 1983 is

derived from § 1 of the original Civil Rights Act of 1871. The 1871 Act originated in the Ku Klux Klan Act of April 20, 1871, 17 5 13. The Civil Rights Act of 1871 provides a civil action to parties deprived of federal privileges, rights and immunities by an official’s misuse of his statutory power.

Z4The original section made reference to “any person,” rather than to “every person.” This alteration was the work of the official revisor, who prepared the Revised Statutes of 1878. Pierson v. Ray. 386 U.S. 547, 560, 87 S.Ct. 1213, 18 L.Ed.2d 288, 298 ( 1967).

Z5Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473,5 L.Ed.2d 492 (1961).

z615 Am.Jur.2d, Civil Rights, 5 14. 27Lukerv. Nelson. 341 F. Supp. 111, 121 (N.D.

Ill. 1972) and cases cited. 2814 C.J.S. Civil Rights Supplement, 5 6. See

Picking v. Pennsylvania R.R., 151 F.2d 240 (3d Cir. 1945), cert. denied. 332 U.S. 776 (1947). ThePick- ing case was subsequently overruled by the Third Circuit Court of Appeals in Bauers v. Heisel, 361 F.2d581 (3dCir. 1966),cert.denied, 386U.S. 1021 (1967).

“Duzynsky v. Nosal. 324 F.2d 924,930 (7th Cir. 1963).

3oJaffe, “Suits Against Governments and Officers: Damage Actions,” 77 Haw. L. Rev. 209 (1963).

31For examples of cases in which the immunity doctrine did not bar 6 1983 actions, seeLittleton v. Berbling, 468 F.2d 389 (7th Cir. 1972), rev. on other grounds, subnomO’Shea v. Littleton, 414U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974); Jacobson v. Schaefer, 441 F.2d 127 (7th Cir. 1971). Also see Conover v. Montemuro, 477 F.2d 1073, 1102 (3d Cir. 1973), for an informative list of cases where the courts have sought to determine “a distinction between immunity from liability for damages and immunity from compulsory process to control future Ijudicial] conduct.” See Comment, “Liability of Ju- dicial Officers Under Section 1983,” 79 Yale L.J. 322 (1969).

Klan, 250 F. Supp. 330 (E.D. La. 1965).

3214 C.J.S. Civil Rights Supplement 5 138. 33Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20

34Pierson v. Ray, 386 U.S. 547, 551, 87 S.Ct.

35fd., at page 554. 36Javits v. Stevens, 382 F. Supp. 131, 136

13

L.Ed. 646 (1872).

1213, 1216, 18 L.Ed.2d 288, 293 (1967).

(S.D.N.Y. 1974). Also seeJones v. Hildebrant, 550 P.2d 339, 343 (1976); Jacobson v. Schaefer, 441 F.2d 127, 130 (7th Cir. 1971); Erdman v. Stevens, 458 F.2d 1205, 1208 (2d Cir. 1972); Bramlett v. Peterson, 307 F. Supp. 1311, 1321 (M.D. Fla. 1969); Law Students CivilRights Res. Council, Znc., v. Wadmond, 299 F. Supp. 117, 133 (S.D.W.Y. 1969);affd, 401 U.S. 154,91 S.Ct.720,27L.Ed.Zd 749 (1970);Conover v. Montemuro, 477 F.2d 1073, 1096-1104 (3d Cir. 1973); 14 C.J.S. Civil Rights Supplement 5 138.

37Javits v. Stevens, 382 F. Supp. 131, 136 (S.D.N.Y. 1974).

38The United States Supreme Court has expressly statedthat “theimmunityofjudgesfor acts within the judicial role is. . . well established. . . ” Pierson v. Ray, 386 U.S. 547, 554-555, 87 S.Ct. 1213, 18 L.Ed.2d 288, 295 (1967). Also see Gregory v. Thompson, 500 F.2d 59 (9th Cir. 1974).

3yPierson v. Ray, 386 U.S . 547,558-59,87 S.Ct. 1213, 18 L.Ed.2d 288, 297 (1967).

4oGregory v. Thompson, 500 F.2d 59 (9th Cir. 1974).

41Scheuer v . Rhodes, 416 U.S . 232,250,94 S.Ct. 1683, 40 L.Ed.2d 90, 104 (1974).

44Kates, “Immunity of State Judges Under the Federal Civil Rights Acts: Pierson v. Ray Reconsid- ered,” 65 Nw. U. L. Rev. 615,623 (1970). See also Comment, “Liability of Judicial Officers Under Sec- tion 1983,” 79 Yale L.J. 322 (1969).

43Kates, Id., at 624. 44Piersonv. Ray, 386U.S. 547,87S.Ct. 1213,18

450’Shea v. Littleton, 414U.S. 488,503,94 S.Ct.

46Exparte Virginia, 100 U S . 339, 25 L.Ed. 676

47Braatelien v. United States, 147 F.2d 888, 895 (8th CU. 1945); see alsoUnitedStafes v. Manton, 107 F.2d 834 (2d Cir. 1939); U.S. v. Craig, 528 F.2d 773, 782 (7th Cir. 1976).

L.Ed.2d 288 (1967).

669, 38 L.Ed.2d 674 (1974).

(1880).

4846 Am.Jur.2d, Judges, 5 76. 49Burgess v. Towne, 538 P.2d 559 (Wash. App.

1975). For a discussion of different approaches to courts of general and limited jurisdiction, see 46 Am.Jur.2d, Judges, $5 76-79.

50Wade v. Bethesda Hosp., 337 F . Supp. 671 (S.D. Ohio 1971).

51Spires v. Botrorff; 317 F.2d 273 (7th Cir. 1963), cert.denied, 379U.S.938,85S.Ct.343,13L.Ed.2d 349 (1964).

“Exparre Virginia, 100 U S . 335, 25 L.Ed. 676 (1 880).

s3Yates v. Village ofHofman Est., Illinois, 209 F. Supp. 757 (N.D. Ill. 1962).

Am.Jur.Zd, Judges, 5 77. 551d. 561d. 571n re McGarry, 380 111. 359, 44 N.E.2d 17 (Ill.

14

1942). s8Rush v . Buckley, 100 Me. 322, 61 A. 774 (Me.

1905). 59Pogue v. Swink, 365 Mo. 503,284 S.W.2d 868

(Mo. 1955). 6oBroom v. Douglass, 175 Ala. 268, 57 So. 860

(Ala. 1912). e’Nicholson v . Board of Commissioners of

AlabamaStateBar Ass’n., 338 F. Supp. 48, footnote 4 at 52 (M.D. Ala. 1972).

6ZBramlett v. Peterson, 307 F. Supp. 131 1, 1322 (M.D. Fl?. 1969).

63Doe v. County of Luke, Indiana, 399 F . Supp. 553 (N.D. Ind. 1975).

64Dommer v. Hatcher, Civil No. 72 H 298 (N.D. Ind. June 21, 1974).

6546 Am.Jur.Zd, Judges, 5 83. BeJohnson v. Reagan, 524 F.2d 1123 (9th Cir.

1975); Cruz v. Skelton, 502 F.2d 1101 (5th Cir. 1974); Silver v. Dickson, 403 F.2d 642 (9th Cir. 1968), cert. denied, 394 U.S. 990,89 S.Ct. 1477,22 L.Ed.2d 765 (1969).

67State v. Winne, 9 1 A.2d 65, 74, 2 1 N. J. Super. 180 (1952).

68Elliott v. Piersol, 26 U . S . (1 Pet.) 328, 340 (1828).

W u n n v. Gazzola, 216 F.2d 709 (1st Cir. 1954). Rhodes v. Houston, 202 F. Supp. 624 (D. Neb.), aff d, 309 F.2d 959 (8th Cir. 1962); cert. denied, 372 U.S. 909 (1963).

7oErskine v. Hohnback, 81 U.S. (14 Wall.) 613, 616 (1871); Thompson v. Baker, 133 F. Supp. 247 (W.D. Ark. 1955). See Gray, “Private Wrongs of Public Servants,” 47 Calif. L. Rev. 303, 317-318 (1959); Engdahl, “Immunity and Accountability for Positive Governmental Wrongs,” 44 U. Colo . L. Rev. 1, 43-46 (1972).

7’Lockhart v. Hoenstine, 41 1 F.2d 455 (3d Cir. 1969).

7214 C.J.S. Civil Rights Supplement, $ 136. 73Gillibeau v. City of Richmond, 417 F.2d 426,

429 (9th Cir. 1969). 74Gregory v. Thompson, 500 F.2d 59,65 at note 6

(9th Cir. 1974). 75Prosecutors are sometimes considered quasi-

judicial or court officers. See Mullen, 14Am. Crim. L. Rev. 59, 68 M. 77-83 (1976).

76CIark v. Reed, 390 F. Supp. 1056 (S.D. Tex. 1975); Yaselli v. Goff, 12 F.2d 396 (2d Cir. 1926), af fd per cur., 275 U . S . 503 (1927); Imbler v. Pachrman, 424 U.S. 409,96 S .Ct. 984,47 L.Ed. 128 (1976).

‘?Briggs v. Goodwin, 384 F. Supp. 1228 (D.D.C. 1974).

7BWair~ v. McGowan, 516 F.2d 203 (3d Cir. 1975); Gardner v. Luckey, 500 F.2d 712 (5th Cir. 1974); O’Brien v. Colbath, 565 F.2d 358 (5th Cir. 1972); Sullens v. Carroll, 446 F.2d 1392 (5th Cir. 1971).

7ySee Mullen, “The Court-Appointed Lawyer and Legal Malpractice-Liability or Immunity,” 14Am. Crim. L. Rev. 59 (1976).

‘O46 Am.Jur.2d, Judges, $ 82; Sanborn v. McClatchy Newspapers, 56 C. App. 3d 492 (1976).

“Doe v. Counfy of Lake, Indiana, 399 F. Supp. 553 (N.D. Ind. 1975); McCray v. Maryland, 456 F.2d 1 (4th Cir. 1972); Washington v. Oficial Court Stenographer, 251 F. Supp. 945 (E.D. Pa. 1966).

‘*14 C.J.S., Civil Rights Supplement, $ 138; Hill v. McClelZan, 490 F.2d 859 (5th Cir. 1974); MacKay v. Nesbitt, 285 F. Supp. 498 (D. Alaska 1968),affd. 412 F.2d 846 (9th Cir. 1969), cert. denied, 396 U.S. 960, 90 S .Ct. 435, 24 L.Ed.2d 425 ( 1 969).

83Another conceivable area of protection is in the insurance marketplace. This area has not been tapped due to the present high risk of insuring judges. 0

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An Overview Judicial Immunity - OCLC