Grazzini-Rucki Reply Brief

No. 14-2569 In the

Wntteb ~tateti Qtourt of ~ppeal~ for the

~f ubtb Qtf rcuft

Sandra Grazzini-Rucki individually, et al., Plaintiffs-Appellants,

vs.

David L. Knutson, an individual, et al., Defendants-Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA,

NO. 0:13-CV-2477

RESPONSE AND REPLY BRIEF OF APPELLANTS

March 4, 2015

Michelle Lowney MacDonald MacDonald Law Firm, LLC

1069 So. Robert Street West St. Paul, MN 55118

Telephone: (651) 222-4400 Facsimile: (651) 222-1122

Counsel for Appellants

Appellate Case: 14-2569 Page: 1 Date Filed: 03/04/2015 Entry ID: 4250770

CORPORATE DISCLOSURE STATEMENT

Pursuant to Fed. R. App. P. 26.1 and Eighth Circuit Local Rule 26.IA, Appellants

certify that they are not a non-governmental corporate party.

11


TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT .............................................. i

TABLE OF AUTHORITIES ................................................................ iv

A. INTRODUCTION ..................................................................................... 1

B. ruDGE KNUTSON FAILED TO CARRY THE HEAVY BURDEN OF PROVING THE AFFIMATIVE DEFENSE OF ABSOLUTE IMMUNITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1. Judge Knutson Bears The Burden of Proving Immunity ................ 3

2. Neither the District Court Nor Judge Knutson Have Analyzed Historical Foundations for an Immunity of Accused Function .... .5

3. 3. The District Court Extended Immunity Based On Factors Not Relevant to Judicial Immunity .......................................... 6

C. ruDGE KNUTSON'S ADMINSTRATIVE BEHAVIOR IN ASSIGNING HIMSELF TO CERTAIN CASES IS NOT IMMUNE ............................ 7

D. ruDGE KNUTSON'S "LISTENING" PSYCHOTHERAPY SESSION WITH THE GRAZZINI-RUCKI CHILDREN IS NOT A ruDICIAL ACT ......................................................................................................... 11

E. MODERN FAMILY COURT JURISDICTION IS INFERIOR; IF IT HAS IMMUNITY IT IS EXTREMELY NARROW ....................................... 14

4. Judge Knutson's Assertion ofBroad Immunity Lacks Authority ..... 15

F. THE DISTRICT COURT'S "ruDICIAL CAPACITY" SCOPE RELIED ON ELEMENTS NOT RELEVANT TO ruDICIAL IMMUNITY ............. 18

G. THE DISTRICT COURT'S RELIANCE ON PIERSON V. RAY AND STUMP V. SPARKMAJVWAS ERROR ................................................................ 19

111


1. Section 1983 Does Not Require Proof of Malicious or Corrupt Intent .............................................................................................. 19

2. Pierson and Sparkman Erroneously Extended Common Law Immunity to Civil Rights Liability ................................................................................ 19

3. Pierson Incorrectly Analyzed Legislative Privilege Rather Than Judicial Immunity ................................................................. 20

4. Judicial Immunity is the Opposite of Legislative Privilege-Judges Are Sovereigns Possessing Not "Rights" but Delegated Authority ... 23

5. Congress Expressly Intended to Abrogate Judicial Immunity ....... 26

CONCLUSION ................................................................................ 30

CERTIFICATE OF COMPLIANCE AND VIRUS SCANNING .................... 34

CERTIFICATE OF SERVICE ............................................................. 35

IV


TABLE OF AUTHORITIES

CASES

Adams v. Mcllhany, 764 F.2d 294 (5th Cir. 1985) ................................................. 18

Adickes v. S. H. Kress & Co., 398 U.S. 144, 232 (1970) ........................................ 19

Affd, 1811 WL 1445 (1811) .............................................................................. 10,14

Ashe/man v. Pope, 793 F.2d 1072 (9th Cir. 1986) .................................................. 19

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ............................................ 30

Bracci v. Becker, No. 1:11-CV-1473 MAD/RFT, 2013 WL 12.3810 at *6

(N.D.N.Y. Jan. 9, 2013) ....................................................................................... 10

Buckley v. Fitzsimmons, 509 U.S. 259 (1993) .......................................................... 4

Burns v. Reed, 500 U.S. 478 (1991) ................................................................ 3,15,17

Butz v. Economou, 438 U.S. 478, 516, 521 (1978) ................................................... 7

Dykes v. Hosemann, 776 F.2d 942, 946 (11th Cir. 1985) ...................................... 18

Forrester v. White, 484 U.S. 219, 229 (1988) .......................................................... 7

Gentile v. State Bar of Nevada, 501 U.S. 1030, 1074 (1991) ................................. 24

Gregory v. Thompson, 500 F.2d 59 (9th Cir. 1974) ............................................... 18

Griffin v. Breckenridge, 403 U.S. 88, 99 (1971) ..................................................... 27

Harlow v. Fitzgerald, 457 U.S. 800 (1982) ............................................................ 30

Harper v. Merckle, 638 F.2d 848, 857 (5th Cir. 1981) ........................................... 18

Hoffman v. Harris, 511 U.S. 1060 (1994) ........................................................... 5,12

v


Holloway v. Walker, 765 F.2d 517, 522 (5th Cir. 1985) ........................................ 19

Imbler v. Pachtman, 424 U.S. 409 (1976) ......................................................... 11,15

Jensen v. Lane Cnty., 222 F.3d 570, 577 (9th Cir. 2000) ..................................... 5,12

Kalina v. Fletcher, 522, U.S. 118, 132 (1997) .................................................... 5,16

Kilbourn v. Thompson, 103 U.S. 168 (1880) .......................................................... 22

King v. State Educ. Dep't, 182 F.3d 162 (2d Cir.1999) .......................................... 14

Lopez v. Vanderwater 620 F.2d 1229, 1236 (7th Cir. 1980) ................................... 11

Lynch v. Johnson, 420 F.2d 818 (1970) ............................................................. 10,18

Malley v. Briggs, 415 U.S. 335, 339-340 (1986) .............................................. 4,9,28

Marshall v. Gordon, 243 U.S. 521 (1917) .............................................................. 22

Martinez v. Winner, 800 F .2d 230, 231 (10th Cir. 1986) .................................... 8, 10

McAlester v. Brown, 469 F.2d 1280 (5th Cir. 1972) ............................................... 18

Mireless v. Waco, 502 U.S. 9, 13 (1991) ................................................................ 18

Monell v. Department of Social Services, 436 U.S. 658, 665-94 703

(1978) ................................................................................................. 5,19,21,25,28

Monroe v. PApe, 365 U.S. 167, 172-85 (1961) .................................... 5,20,21,25,26

Myers v. Morris, 810 F.2d 1437, 1448 (8th Cir. 1987) ................................. 15,16,17

New York Times Co. v. Sullivan, 376 U.S. 254, 282-83 (1964) .............................. 23

Owen v. City of Independence, Mo., 445 U.S. 622,643 (1980) .............................. 28

Parent v. New York, 786 F. Supp. 2d 516, 532 (N.D.N.Y. 2011) ...................... 5,8,9

V1


Pearson v. Callahan, 555 U.S. 223 (2009) ............................................................. 30

People United for Children, Inc. v. City of New York, 108 F. Supp. 2d 275, 286

(S.D.N.Y. 2000) ................................................................................................... 14

Peterson v. Peterson, 24 Haw 239, 246 (1918) ...................................................... 14

Picking v. Pennsylvania R.R., 151F.2d240 (3rd Cir. 1945) .............................. 26,28

Pierson v. Ray, 386 U.S. 547, 559-62 (1967) ............................ 3,5,7,11,19,20,21,25

Phelps v. Sill, 1Day315, 327 (1804) ..................................................................... 15

Pulliam v. Allen, 466 U.S. 522, 543 (1984) .................................................. 21,25,29

Randall v. Brigham, 74 U.S. 523, 531 (1868) ........................................................ 14

Rehberg v. Paulk, 132 S.Ct. 1497, 1503 (2012) ....................................... 4,5,6,11,12

Reh'g, 583 F.2d 779 (5th Cir. 1978) ........................................................................... 8

Rheuark v. Shaw, 628 F.2d 297, 305 (5th Cir. 1980) ................................................. 8

Scheuer v. Rhodes, 416 U.S. 232, 249-50 (1974) ........................................... 5,12,25

Scott v. Stansfield, 3 Law Reports, Exchequer, 220 .......................................... 16,20

Slavin v. Curry, 574 F.2d, 1256, 1263-64 (5th Cir.) .................................................. 8

Sparks v. Duval Cnty Ranch Co., 604 F.2d 976 (5th Cir. 1979) ................................ 8

Stump v. Sparkman, 435 U.S. 349, 362 (1978) ................................................. 3,9,19

Sparkman v. McFarlin, 601F.2d261, 267 (7th Cir. 1979) ....................................... ..

.................................................................................... 3,6,7,9,10,11,14,18,19,21,29

Tenney v. Brandhove, 341 U.S. 367 (1951) .................................................. 22,23,25

vu


Theide v. Town of Scandia Valley, 217 Minn. 218, 226-27, 14 NW 2d 400,

406 (1944) ....................................................................................................... 24,25

Tower v. Glover, 467, U.S. 914, 920 (1984) ............................................................. 4

United States v. Mo"ison, 529 U.S. 598, 621 (2000) ............................................ 23

Yates v. Lansing, 5 Johnson 282, 291 (N.Y. Sup. Ct. 1810) 1810 WL 1044 ......... 14

Zahl v. Kosalasky, No. 8 Ciu, 8308 LTS, THK, 2011 WL 779784 (S.D.N.Y.

Mar. 3, 2011) .................................................................................................... 9,10

STATUTES

§ 1983 ........................................................................................................... 4,5,13,25

20 USC § 76cc ......................................................................................................... 10

18 U.S.C. § 242 ....................................................................................................... 26

OTHER AUTHORITIES

Minn. Const. Art 3, sec 1 ........................................................................................ 24

United States Constitution at Article I, Sec. 6, cl. 1 ............................................... 22

The Federalist No. 78 (A. Hamilton) (1788) .......................................................... 23

RULES

Fed. R. Civ. P. 56(c) .................................................................................................. 6

Fed. R. Civ. P. 8(c)(l) ............................................................................................... 3

Minn. Stat 148.88, Psychology Practice Act .......................................................... 12

Minn. Admin. Rules 7200 ....................................................................................... 12

vm


OTHER AUTHORITIES

L. Friedman, Rights of Passage: Divorce Law in Historical Perspective 63

OR. L. REV. 649, 667 (1984) ................................................................................ 13

Robert F. Kelly, Sarah H. Ramsey, Child Custody Evaluations: The Need

for Systems-Level Outcome Assessments, 47 FAM. CT. REV. 286, 291 (2009) .... 13

Robert H. Mnookin, Child-Custody Adjudication: Judicial Functions in the Face of

Indeterminacy, 39 LAW AND CONTEMP. PROB. 226, 234 (1975) .......................... 14

T. Flemming, J. Norby, The Minnesota Bill of Rights: Wrapt in the Old Miasmal

Mist, 7 HAMLINE L.REv. 194 (1984) .................................................................... 25

Note, Liability of Judicial Officers Under Section 1983, 79 YALE L.J. 322, 322-328,

337 (1969) ("Yale Note") ..................................................................................... 25

Cong. Globe, 42nd Cong., 1st Sess. 60 (App.) (1871) ......................................... 26,27

Cong. Globe, 39th Cong., 1st Sess. 1758 (1866) ...................................................... 27

Cong. Globe, 42nd Cong., 1st Sess. 186 (1871) 365-366 ......................................... 28

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function

to determine that the function accused-testimony of a grand jury witness-enjoyed

immunity at common law. Id. at 1503-07.2

An officer's failure to prove up a common law analog is dispositive of the issue

regardless of countervailing policy considerations. Rehberg at 1502-03 ("We do not

simply make our own judgment about the need for immunity. We have made it clear that

it is not our role 'to make a freewheeling policy choice,' and that we do not have a

license to create immunities based solely on our view of sound policy."). Granting an

immunity absent this historical analysis is error. Scheuer v. Rhodes, 416 U.S. 232, 249-

50 (1974) ("These cases, in their present posture, present no occasion for a definitive

exploration of the scope of immunity available to state executive officials.").

2. Neither the District Court Nor Judge Knutson Have Analyzed Historical Foundations for an Immunity of Accused Function

Judge Knutson proffered, and the district court undertook, no historical analysis of

whether any of the two dozen functions accused in the Amended Complaint were

functions that enjoyed judicial immunity at common law in 1871. The district court's

2 Similar historical analyses are apparent in Monroe v. Pape, 365 U.S. 167, 172-85 (1961); Monell v. Department of Social Services, 436 U.S. 658, 703 (1978); Pierson v. Ray, 386 U.S. 547, 559-62 (1967) (Douglas, J., dissenting); Hoffman v. Ha"is, 511 U.S. 1060 (1994) (Thomas, J., dissenting from denial of cert.) ("The courts that have accorded absolute immunity to social workers appear to have overlooked the necessary historical inquiry; none has seriously considered whether social workers enjoyed absolute immunity for their official duties in 1871. If they did not, absolute immunity is unavailable to social workers under§ 1983; Kalina v. Fletcher, 522 U.S. 118, 132 (1997) (Scalia, J., concurring). See also Jensen v. Lane Cnty., 222 F.3d 570, 577 (9th Cir. 2000) (finding no "firmly rooted tradition" of immunity for function of a private psychiatrist employed by prison).

5


sweeping Order proclaimed that Judge Knutson's "case management, his signing of

orders, the substance of his orders, and the trial proceeding" were all taken in a ')udicial

capacity." Order p 33. The district court reached this conclusion finding only that (1)

"Judge Knutson has not interacted with Plaintiff outside of his courtroom or his judicial

chambers" and (2) "the underlying family law case was within [his] jurisdictional

authority. Order p. 33. On these purported findings, the district court found Judge

Knutson acted in a "judicial capacity" and was thus immune. Id.

Analyzed below, this broad-brush "judicial capacity" scope and summary analysis fails to

"affrrmatively state" the defense, which was exclusively Judge Knutson's burden. Fed.R.

Civ.P. 8(c); Rehberg, supra.

3. The District Court Extended Immunity Based On Factors Not Relevant to Judicial Immunity

The district judge applied a "judicial capacity" scope of immunity that was far broader

than that provided in controlling Supreme Court authority. Immunity does not depend on

the act or actor, but on the nature of the accused act. Sparkman at 362. Immunity may

exist only if the accused act is both ( 1) ')udicial in nature" and (2) within statutory

subject matter jurisdiction. Id. The first "Judicial in nature" factor in turn depends on (a)

"the nature of the act itself, i.e., whether it is a function normally performed by a judge,"

and (b) "the expectations of the parties, i.e., whether they dealt with the judge in his

judicial capacity." Id. Not all official or authorized acts of a judge are "judicial acts"-

judges also perform administrative, ministerial, or other types of acts that are not entitled

6


to judicial immunity. See, e.g., Forrester v. White, 484 U.S. 219, 229 (1988) (firing court

employees could be performed by administrator and thus not ''judicial").

The test to distinguish between ''judicial" and other types of acts is to analyze whether

the act can only be performed by a judge. See Ex parte Virginia, 100 U.S. 339, 340

(1879) (selection of jurors could be performed by administrator, thus not "judicial");

Forrester, supra; Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 435 (1993) (court

reporters ''part of judicial function" yet not absolutely immune). Absolute immunity is

justified because judicial acts-and only judicial acts-are subject to standardized,

scrutinized proceedings, restrained by principles of law, and are subject to appellate

review. Butz v. Economou, 438 U.S. 478, 516 (1978); Pierson v. Ray, 386 U.S. 547, 564

n. 4 (1967). Because judicial acts are subject to such safeguards, the Supreme Court has

justified relieving the actors from liability for civil money damages. Id.

C. Judge Knutson's Administrative Behavior in Assigning Himself to Certain Cases is Not Immune

The district court's high-level "analysis" that Judge Knutson's "case management" and

"trial proceedings" extended immunity far beyond Sparkman's scope of immunity to

include behaviors which are clearly not judicial acts. As one example, Judge Knutson's

"case management" behaviors in assigning all Grazzini-Rucki cases, even allfature cases

with third parties, and those with the State of Minnesota, to himself is clearly an

administrative act because it cannot be reviewed on appeal, is not subject to law, is

7


hief Administrator

statute prohibits a non-judge from undertaking the role of"chief administrator", meaning

that, like juror selection, it is an act that may be performed by a non-judge, and thus not a

judicial act. See Ex Parle Virginia, supra. A "Chief Administrator's" assignment

process is ministerial-the only "function" is to follow the assignment procedure.

Failure to abide the ministerial process is not an appealable event. A judge or

administrator is not applying law to facts. The process is not highly scrutinized. As

such, Parent reached its holding on analysis inconstant with controlling Supreme Court

authority, and is error.

Similarly, in Zahl v. Kosovsky, No. 08 CIV. 8308 LTS THK, 2011 WL 779784

(S.D.N.Y. Mar. 3, 2011) the district court considered a claim for immunity of a judge

who allegedly "manipulated the assignment system to take control of Plaintiffs case ....

" According to the district court in Zahl, the plaintiff "cite[ed] no relevant authority in

support of his conclusory assertions that such actions vitiated Justice Diamond's

jurisdiction to handle his case, and the Court has found none." Id. at *9. The Zahl

plaintiff apparently failed to identify any of the abundant relevant authorities including

Ex Parle Virginia, Forrester, and Antoine, supra, which provide means to distinguish

non-appealable acts of administrators from appealable acts only judges may perform.

Moreover, like the district court and Judge Knutson, the Zahl court improperly placed the

burden of proving immunity on the Plaintiff rather than the official. Malley at 339.

9


Zahl also erroneously relied on language in Stump v. Sparkman, 435 U.S. 349 (1978)

instructing courts to construe subject matter jurisdiction (the second element of

Sparkman's two-element immunity test) broadly. Zahl at *9. Sparkman's instruction

does not apply to the first "judicial act" element. Sparkman at 362. As above, the

Supreme Court has been "quite sparing" in extending immunity under the judicial act

element of the test. Buckley at 269. Zahl also focused analysis on failure to recuse when

faced with motion identifying conflict of interest. Id. Ruling on a motion is an act which

only a judge "normally" performs, and thus falls within Sparkman's 'Judicial act" scope.

Bracci v. Becker, No. 1:11-CV-1473 MAD/RFT, 2013 WL 123810, at *6 (N.D.N.Y. Jan.

9, 2013) affd, 568 F. App'x 13 (2d Cir. 2014) is derived from Martinez, Parent, and Zahl

and is error for the same reasons. Further, in Bracci the plaintiffs accused Judge

Mulvey's (a "chief administrative judge") failure to remove Judge Becker (the trial

judge) form the case, making Bracci more of a recusal case. Like Zahl, recusal requires

ruling on a motion-a judicial act. .

In both cases the courts found what they (incorrectly) identified as ')urisdiction"

based on statutes authorizing judges-as well as non-judge administrators-to assign

cases. Statutory empowerment goes to Sparkman's second "within the jurisdiction"

element of the immunity test-but is insufficient to satisfy the first, "judicial act"

10


element. Sparkman, supra.5 Judge Knutson repeats the error. Knutson Brf. at 29-30

(citations to Billingsley and Duty).

Judge Knutson's reliance on Hardy v. Nw. Mem'l Hosp., No. 93 C 1348, 1993 WL 85750,

at *2 (N.D. Ill. Mar. 22, 1993) is misplaced. Hardy erroneously analyzed judicial acts

under the test for prosecutorial immunity. Hardy cited Imbler v. Pachtman, applying the

"intimately related with the judicial phase of the criminal process" standard. Id. at *2.

Hardy failed to cite or analyze under judicial immunity precedents including Sparkman,

Pierson, Bradley, or Randall. Judges do not perform prosecutorial function, and thus the

immunity of a judge is lost if she performs such functions. Lopez v. Vanderwater, 620

F.2d 1229, 1236 (7th Cir. 1980) (finding judge performing functions of a prosecutor not

entitled to either judicial or prosecutorial immunity).

Finally, none of the authority relied on by Judge Knutson analyzed the critical

test-whether the function of assigning cases was a judicial act at 1871 common law.

Absent such analysis, the authority is error. Rehberg, supra.

D. Judge Knutson's "Listening" Psychotherapy Session with the Grazzini-Rucki Children is Not a Judicial Act

5 A simple example is that the Chief Justice of the United States is authorized by law to serve as the Chancellor of the Board of Regents of the Smithsonian Institution. 20 U.S.C. § 76cc. Such authorization does not convert such service to a judicial act. See, e.g., Lynch v. Johnson, 420 F.2d 818 (1970) ("A judge does not cease to be a judge when he undertakes to chair a PT A meeting, but, of course, he does not bring judicial immunity to that forum, either.") Id. at 820 (cited favorably in Sparkman at 370 n. 10).

11


Judge Knutson concedes he conducted a "listening session" with the five Grazzini-Rucki

children "for the sole purpose" of facilitating psychotherapy of the children ---complying

with a "request from a court-appointed therapist for a structured family meeting." 6•

During this psychotherapy session Judge Knutson harshly reprimanded and the children.

Days later two of them ran away from their home and have not been seen since. 7

Following Rehberg, the district court should have analyzed whether the function of

psychotherapy performed at the "listening session" was an immune function at 1871

common law. Rehberg at 1503. The district court's failure conduct this historical inquiry

is error sufficient to reverse. Scheuer at 249-50 (1974)

If the district court had conducted appropriate inquiry, it would fmd no tradition

for psychotherapy function at 1871 common law. Given that psychotherapy is a function

developed in the twentieth century, and is only legally performed by licensed

psychologists,8 it would seem unlikely that Judge Knutson could identify an 1871

common law immunity for his psychotherapy behavior.

Other courts considering the question have found no immunity for psychologists (Jensen

v. Lane Cnty., 222 F.3d 570, 577 (9th Cir. 2000) (finding no "firmly rooted tradition" of

immunity for functions performed by private psychiatrists employed by prison)). See

also Hoffman v. Harris, 511 U.S. 1060 (1994) (Thomas, J., dissenting from denial of

6 Br of Appellant's, APP 124 7 APP COA -291 8 Minn. Stat 148.88, Psychology Practice Act. Also see Minn. Admin. Rules 7200

12


cert.) ("The courts that have accorded absolute immunity to social workers appear to have

overlooked the necessary historical inquiry; none has seriously considered whether social

workers enjoyed absolute immunity for their official duties in 1871. If they did not,

absolute immunity is unavailable to social workers under§ 1983. This all assumes, of

course, that "social workers" (at least as we now understand the term) even existed in

1871. If that assumption is false, the argument for granting absolute immunity becomes

(at least) more difficult to maintain.").

Further, the history of psychologists in the divorce industry demonstrates such functions

are late twentieth century innovations. "Family Courts" are a creation of the 1970s after

the 1966 California Report on the Governor's Commission on the Family. L. Friedman,

Rights of Passage: Divorce Law in Historical Perspective 63 OR. L. REV. 649, 667

(1984). The function of"psychologist-as-judge" custody evaluator was unknown to a

divorce courtroom until the mid-1990s "as the supply of psychologists continued to

increase and stricter third-party payer regimens were imposed for mental health treatment

(Gould, 2006). [C]ustody evaluation services generally are neither highly regulated nor

institutionalized, but rather may be characterized as a cottage industry (Schepard, 2005)."

Robert F. Kelly, Sarah H. Ramsey, Child Custody Evaluations: The Need for Systems

Level Outcome Assessments, 47 FAM. CT. REv. 286, 291 (2009).

Finally, it is unlikely that the district court could have identified any function of a family

court-including "listening sessions," ''therapy", "reconciliation," custody evaluations, or

13


otherwise-existed at 1871 common law because in 1871 no civil judicial tribunal

possessed jurisdiction over marriage, divorce, or child custody. "It is elementary that in

the early history of jurisprudence in England the common law courts exercised no

jurisdiction over divorce cases, jurisdiction in such matters resting entirely with the

ecclesiastical courts of the realm." Peterson v. Peterson, 24 Haw. 239, 246 (1918). See

also Robert H. Mnookin, Child-Custody Adjudication: Judicial Functions in the Face of

Indeterminacy, 39 LAW AND CONTEMP. PROB. 226, 234 (1975).

E. Modern Family Court Jurisdiction Is Inferior; If It Has Immunity It is Extremely Narrow

Knutson's Brief spaciously asserts that general jurisdiction includes jurisdiction over

"family law matters." 9Family court jurisdiction is incontrovertibly inferior because it is

specific. Minn. Stat. 518. Many courts recognize family courts as inferior tribunals.

Family Court "in a dissolution proceeding is a court of limited jurisdiction." King v.

State Educ. Dep't, 182 F.3d 162 (2d Cir.1999); People United/or Children, Inc. v. City of

New York, 108 F. Supp. 2d 275, 286 (S.D.N.Y. 2000) (Family Court not a "court of

competent jurisdiction" for Rooker-Feldman analysis).

Randall v. Brigham, 74 U.S. 523 (1868) describes the limited scope of immunity for

"inferior courts": Judges exercising limited jurisdiction were immune for acts within the

limited jurisdiction, and could be liable for civil damages for acts in excess of their

9 Knutson's Brief page 21

14


jurisdiction, and for acts done "maliciously or corruptly." Randall at 531. 10 While Judge

Knuston bears the burden of demonstrating modem family court functions enjoyed any

immunity at 1871 common law, in no case will he achieve an immunity scope greater

than an 1871 inferior court; for judicial acts within their jurisdiction not done

"maliciously or corruptly." Id.

Judge Knutson's Assertion of Broad Immunity Lacks Authority

Judge Knutson asserts: "Acts and orders related to overseeing a family law case,

including orders requiring therapy and efforts to facilitate it, are acts inherently judicial in

nature." Knutson Brf. p. 35. His authority does not support this proposition.

Judge Knutson cites Myers v. Morris, 810 F.2d 1437, 1448 (8th Cir. 1987), abrogated by

Burns v. Reed, 500 U.S. 478 (1991). Myers was the first case in this Circuit to consider

the 1976 decision of Imbler v. Pachtman, 424 U.S. 409 (1976). Imbler was the seminal

Supreme Court case extending prosecutorial immunity under Section 1983 to acts of "the

prosecutor in his role as advocate for the State." Id. at 431 n. 33. The Court recognized

10 This distinction was recognized in Sparkman, 435 U.S. 349, 356 (1978), fn. 7. See also Randall v. Brigham, 74 U.S. 523, 535-36 (1868) ("In reference to judges of limited and inferior authority, it has been held that they are protected only when they act within their jurisdiction."); Yates v. Lansing, 5 Johnson 282, 291 (N.Y. Sup. Ct. 1810) 1810 WL 1044, affd, 1811WL1445 (1811) ("[T]he judges of the king's superior courts of general jurisdiction were not liable to answer personally for their errors in judgment. . . . [W]ith respect to the inferior courts, it was only while they act within their jurisdiction."); Phelps v. Sill, 1Day315, 327 (1804). See also 1871 comments of Representative Arthur, infra, describing common law immunity: "Hitherto, in all the history of this country and of England, no judge or court has been held liable, civilly or criminally, for judicial acts .... Willfulness and corruption in error alone created a liability .... "

15


that its general description was broad, and could potentially encompass administrative

acts as well as prosecutorial acts, yet declined to provide a more precise definition: "At

some point, and with respect to some decisions, the prosecutor no doubt functions as an

administrator rather than as an officer of the court. Drawing a proper line between these

functions may present difficult questions, but this case does not require us to anticipate

them." Id.

Myers picked up where Imbler left off, analyzing several acts by Scott County

Prosecuting Attorney R. Kathleen Morris which fell within Imbler 's broad range of

potentially-immune acts. Meyers at 1449. Myers extended a generous scope of

immunity to every function of Ms. Morris that plaintiffs accused, including "her role in

the initiation of criminal proceedings against them and her handling of evidentiary

material." Id. These several functions included investigation, advising police,

interviewing children, and advocacy for the state during the criminal proceeding. Id. at

1446-1452.

Meyers' limited immunity incorrectly, drawing a line between pre-charging and

post-charging phases. Today post-charging investigative, administrative, administrative,

and enforcement functions are not immune. See, e.g, Kalina v. Fletcher, 522 U.S. 118

(1997). Myers correctly limited prosecutorial immunity to criminal proceedings. Meyers

at 1452. Myers also recognized that absolute immunity would not extend to enforcement

16


or investigative functions in "approv[ing] or direct[ing] the removal of children from

their homes upon the arrest of one or both parents." Id. at n. 11.11

In Burns v. Reed, 500 U.S. 4 78 (1991 ), the Supreme Court revisited Imbler and

analyzed Meyers to resolve circuit splits on the scope ofprosecutorial immunity. It found

the immunity extends to a prosecutor's "participation in a probable cause hearing, which

led to the issuance of a search warrant" but not to "the use of hypnosis12 and the existence

of probable cause to arrest petitioner" Id. at 491-93. Contrary to Myers, the Court found

no absolute immunity for a prosecutor's investigative and administrative activity despite

that activity occurring after initiation of the criminal prosecution. Id.

Judge Knutson claim Myers immunizes "family law judges to work with experts to

determine the care provided to children in custody and applying judicial immunity to that

work." Knutson Brf. at 35. This is incorrect. Myers involved a criminal prosecution, not

"family law judges." Myers at 1452. Myers did not involve Minnesota laws regarding

''best interests," nor ajudge or psychologist determining "best interests"-but criminal

prosecution. Moreover, Myers expressly recognized that investigative functions such as

the "listening session" in which Dr. Gilbertson and Judge Knutson "the session was held

11 Specific to family issues, the Meyers plaintiffs accused ''us[ing] the interviews [of children] to coerce perjured statements from young and vulnerable witnesses" in a criminal investigation and "initiat[ ing] neglect proceedings in the family court on behalf of the Scott County Human Services Department [and] sign[ing] and approv[ing] the neglect petitions." Id. at 1450. Because these functions are "functionally comparable to prosecutor's initiation of the judicial process," this Court extended absolute immunity. Id. at 1452. 12 A psychotherapeutic function.

17


for the sole purpose of facilitating therapy ... " are not prosecutorial. 13 Myers did not

extend immunity to psychotherapy.

Judge Knutson finally claims-citing no authority-that "sealing the transcript of the

session" was a judicial act. The record indicates the opposite-that Judge Knutson was

not undertaking the listening session pursuant to any order. Having no relationship to

any judicial act, the transcript-and its sealing-cannot be converted into one.

F. The District Court's "Judicial Capacity" Scope Relied on Elements Not Relevant To Judicial Immunity

The district judge's sweeping analysis of the dozens of acts accused focused on a single

fact that Judge Knutsen interacted with Grazinni-Rucki inside of his courtroom. Order at

33. Judge Knutson repeats the error. Knutson Brf. p. 31.

The location of an accused act is not relevant to Sparkman's two-factor test, which

focusses onfunction regardless of location. For example, Sparkman favorably cited

Gregory v. Thompson, 500 F.2d 59 (9th Cir. 1974), which held that physically evicting a

litigant.from a courtroom is not an act "of a judicial nature." Sparkman at 370, fn. 10.

Justice White also cited a Sixth Circuit decision, Lynch v. Johnson, 420 F.2d 818 (6th

Cir. 1970), holding that a county judge who had a plaintiff "forcibly removed" from a

"fiscal court" and jailed was not immune. Id. See also Harper v. Merckle, 638 F.2d 848,

857 (5th Cir. 1981) (child support enforcement proceeding inside of courtroom and

13 Appellants' Brf, APP 125

18


Pierson v. Ray Stump v. Sparkman

common law tort liability-it turns on a "strict liability" standard, requiring no proof of

intent. Id. See also n. 22, infra (comment of Representative David A. Clark).

2. Pierson and Sparkman Erroneously Extended Common Law Immunity to Civil Rights Liability

Pierson and Sparkman stand in error for exceeding the judicial power vested in United

States courts under Article III of the United States Constitution. In deciding Pierson and

Sparkman, the Supreme Court construed Section 1983 to find an immunity which is not

present on-and entirely inconsistent with-the face of the strict liability statute. Monell

v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 665-94 (1978) Yet Section

1983 is not a subject for statutory interpretation; clearer language has likely never

emerged from Congress. Id.; see also Monroe at 185-191.

Instead of examining the unambiguous statute, Chief Justice Warren in Pierson

instructs us to examine congressional intent, which Chief Justice Warren claims does not

indicate an intent to abrogate the common law immunities of a judge. "The legislative

record gives no clear indication that Congress meant to abolish wholesale all common-

law immunities . . . . The immunity of judges for acts within the judicial role is equally

well established [as the speech and debate privilege], and we presume that Congress

would have specifically so provided had it wished to abolish the doctrine." Pierson at

554-555 (1967).

The "presumption" is as worthy as any speculation. It overlooks the most obvious

evidence of congressional intent-the unambiguous language of the statute itself.

20


Moreover, actual analysis of the congressional record, and history of judicial immunity

reveals Chief Justice Warren's presumption is simply wrong.

3. Pierson Incorrectly Analyzed Legislative Privilege Rather Than Judicial Immunity

In Pierson Chief Justice Warren ''presumed" that "the immunity of judges" was

"equally well established" as the legislative privilege. Remarkably, in presuming, he

failed to conduct analysis of the common law of judicial immunity-citing only to

Bradley's (post-Civil Rights Act) holding and Scott v. Stansfield, 3 Law Reports,

Exchequer, 220.15 Pierson at 554. Despite having on hand the meticulous historical

analysis of nineteenth century common law and the 42nd Congress' legislative intent

provided by Justice Douglas in 1961 's Monroe v. Pape decision, Chief Justice Warren's

1967 opinion ignored it.

Dissenting, Justice Douglas-the author of Monroe--did draw from his prior

historical analysis of common law and the congressional record to the Civil Rights Act,

reaching a forceful conclusion: "The Court's ruling is not justified by the admitted need

for a vigorous and independent judiciary, is not commanded by the common-law doctrine

of judicial immunity, and does not follow inexorably from our prior decisions." Pierson

v. Ray, 386 U.S. 547, 559 (1967) (Douglas, J., dissenting). Similar rich analyses and

enlivened opinions are evident in Monell v. Dep't of Soc. Servs. of City of New York, 436

15 Analyzed in Bradley at n. 16. "[A] judge of a county court was sued for slander, and he put in a plea that the words complained of were spoken by him in his capacity as such judge, while sitting in his court, and trying a cause in which the plaintiff was defendant."

21


U.S. 658, 665-94 (1978); Pulliam at 529-544; Sparkman at 368 (Stewart, J., Powell, J.,

dissenting), Dykes v. Hoseman, 776 F.2d 942, 954 (I Ith Cir. 1985) (Hatchett, J,

dissenting) ("[T]he en bane court holds that judicial immunity is complete, unqualified,

and without exception ... As the majority concedes, no precedent, Supreme Court or

otherwise, requires such a broad definition and application of the judicial immunity

doctrine. [N]o policy considerations justify such a result. . . . Judges ... will be able to

deal willy nilly with the rights of citizens without having to account for willful

unconstitutional actions.").

Instead of analyzingjudicial immunity, Justice Warren adopted analysis of

legislative privilege from Tenney v. Brandhove, 341 U.S. 367 (1951). In Tenney Justice

Frankfurter considered whether a California legislative committee conducting a contempt

proceeding against a man circulating a flyer protesting the committee was immune from

an action under Section 1983. Id. at 377. The question was whether a common law

"speech or debate" privilege protecting lawmaking activity could be extended to a

lawmaker's behavior in conducting the contempt hearing. Id.

Justice Frankfurter traced the history of English common law preserving legislative

speech or debate privilege as derivative of liberty-an extension of the voters' freedom

of speech and conscience. Id. at 3 72-73. Protection of "speech or debate" was necessary

to prohibit the English King and his aristocracy from persecuting members of Parliament

making laws unfavorable to the then-ruling class. Justice Frankfurter aligned the English

22


speech liberty with the federal "speech or debate" analog in the United States

Constitution at Article I, Sec. 6, cl. 1.16 Like Chief Justice Warren, Justice Frankfurter

presumed-analyzing no legislative history-that the 42nd Congress would not have

intended to limit any state's legislative activity in enacting the 1871 Civil Rights Act

because Congress was itself a "staunch advocate of legislative freedom." Id. at 376

(emphasis added).

Tenney justified extending the speech or debate liberty to the committee hearing

function because legislators are directly-elected and immediately accountable to voters.

Id. at 378. Tenney also held the narrow immunity was lost if"there was a usurpation of

functions exclusively vested in the Judiciary or the Executive." Id.

4. Judicial Immunity is the Opposite of Legislative Privilege-Judges Are Sovereigns Possessing Not "Rights" but Delegated Authority

Judicial authority and legislative freedom are night and day. Judges exercise jurisdiction

as sovereigns-not liberties from sovereigns. While judges have all the rights of any

16 That privilege is narrow: "The Senators and Representatives . . . shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place." The privilege is against arrest-not civil liability-does not extend to felonies or treason, or "breach of the peace"- a misdemeanor. Arrest outside of "Session" is permitted, and members maybe "questioned" for activity other than "speech or debate." Tenney at 377 (citing Kilbourn v. Thompson, 103 U.S. 168 (1880) (false imprisonment not privileged); Marshall v. Gordon, 243 U.S. 521 (1917). Even so limited Jefferson was fearful of the power it gave legislators. Tenney at 375. Hamilton was not so fearful of "the least dangerous branch"-because it exercised no similar liberty. The Federalist No. 78 (A. Hamilton) (1788).

23


citizen qua a citizen, a judge qua judge possesses no rights. "First and Fourteenth

Amendments restrain "only such action as may fairly be said to be that of the States."

United States v. Morrison, 529 U.S. 598, 621 (2000). "[T]he censorial power is in the

people over the Government, and not in the Government over the people." New York

Times Co. v. Sullivan, 376 U.S. 254, 282-83 (1964). There is no need for a judge to

express opinions, experiences, or desires of her own or those she represents to create

law-he/she is given law. 170ther than necessary for faithful adjudication, a judge's

"freedom of conscience" is irrelevant to judicial function-relevant "conscience" is given

in the form of law that has matured through free debate elsewhere. County Judges do not

function as a body, and (should) have no one to "debate." The United States and State of

Minnesota constitutions do not extend a speech or debate privilege to the judiciary

because courts are not empowered to speak or debate. The function of a judge is to

adjudicate-apply the given law to properly-admitted facts. There is no need to protect a

judge's "speech" other than to preserve the judge's ability to pronounce adjudication-

merely a "substantial state interest"18 that must yield to Minnesota's "fundamental

law"---citizen rights such as remedy, 19 due process, equal protection, speech, and

17 See Separation of powers Minn. Const. Art 3, sec 1. 18 Gentile v. State Bar of Nevada, 501 U.S. 1030, 1074 (1991). 19 Minnesota Constitution, Article 1. sec. 8 provides: Redress of injuries or wrongs.

Every person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive to his person, property or character, and to obtain justice freely and

24


association. See Theide v. Town of Scandia Valley, 217 Minn. 218, 226-27, 14 NW 2d

400, 406 (1944) (forcibly removing woman and children from their home in sub-zero

weather by the town sheriff and forced to return to their "legal settlement" in another

town for the purpose of obtaining poor relief violated "fundamental law"20 despite

consistency with state law.). Minnesota courts may not construe statutes contrary to

citizen rights under the "fundamental law." See T. Flemming, J. Norby, The Minnesota

Bill of Rights: Wrapt in the Old Miasmal Mist, 7 HAMLINEL.REv. 194 (1984).

The long history of preservation of legislative speech and debate-a fundamental

liberty-is entirely absent from the history of judicial immunity. See Monell at 665-94;

Pierson (Douglas, J. dissenting); Scheuer v. Rhodes, 416 U.S. 232, 243 (1974) ("Indeed,

as the Court also indicated in Monroe v. Pape, supra, the legislative history indicates that

there is no absolute immunity"); Pulliam at 540 (1984) ("every Member of Congress who

spoke to the issue assumed that judges would be liable under§ 1983"). There being no

"judicial speech" liberty in 1871, there is no reason to "presume" that the 1871 Congress

would have seen need to expressly abrogate a tradition that has never existed.

without purchase, completely and without denial, promptly and without delay, conformable to the laws. Judges are not representatives of voters, but independent of electoral will, passion, and accountability. 20 "The entire social and political structure of America rests upon the cornerstone that all men have certain rights which are inherent and inalienable. Among these are the right to be protected in life, liberty, and the pursuit of happiness; the right to acquire, possess and enjoy property; and the right to establish a home and family relations-all under equal and impartial laws which govern the whole community and each member thereof ... The rights, privileges, and immunities of citizens exist notwithstanding there is no specific enumeration thereof in State Constitutions." Theide at 226-27, 14 NW 2d at 406.

25


Far from tradition, the "hoary doctrine of judicial immunity"21 is expropriation. Tenney's

"presumption" was a modest stretch of liberty over the border with sovereignty to protect

the functions of elected representatives of the people. Pierson 's adoption of Tenney's

stretch to protect sovereigns of the people was a full-force embezzlement of liberty.

Deployed today to exonerate sovereign county judges in their oppression of those in

whom liberty is vested by the fundamental law, Pierson 's manufacture of judicial

immunity is-in perspective-nothing short of a third American revolution.

5. Congress Expressly Intended to Abrogate Judicial Immunity

Nor can Chief Justice Warren's "presumption" withstand the incontrovertible record-

The 1871 Congress repeatedly expressed intent that the Civil Rights Act would abrogate

judicial immunity. Congress adopted the language of Section 1983 from its criminal

analog-the 1866 Civil Rights Act, today codified at 18 U.S.C. § 242. Monroe v. Pape,

365 U.S. 167 (1961).22 Section 1983 was introduced by Ohio Representative

Shellabarger, who explained his bill on the House floor by referencing Section 2 of the

1866 Act: ''that section provides a criminal proceeding in identically the same case as this

one provides a civil remedy for ... "23 The Acts thus "must be construed as in pari

materia"-any construction of the 1871 Act must admit congressional intent in enacting

the 1866 Act. Picking v. Pennsylvania R.R., 151 F.2d 240 (3rd Cir. 1945).

21 See Note, Liability of Judicial Officers Under Section 1983, 79 YALE L.J. 322, 337 (1969) ("Yale Note"). 22 See also Yale Note at 327-328. 23 Cong. Globe, 42nd Cong., 1st Sess. 60 (App.) (1871); Yale Note at 327.

26


On that record it is incontrovertible that the 42nd Congress affirmatively rejected common

law judicial immunity.

I answer it is better to invade the judicial power of the States than permit it to invade, strike down, and destroy the civil rights of citizens. A judicial power perverted to such uses should be speedily invaded.

Cong. Globe, 39th Cong., 1st Sess. 1837 (1866) (remarks of Representative Lawrence).

The 1866 Act was vetoed by President Johnson because it abrogated common law

judicial immunity.24 In the fight to defeat the veto, Senate Judiciary Committee

Chairman Trumbull expressed revulsion at the entire concept of judicial immunity: "It is

the very doctrine out of which the rebellion was hatched. "25

Section 1 of the 1871 Act (now Section 1983) passed rapidly through Congress because

debate wasn't necessary-Congress recognized Section 1 as merely "adding" a civil

remedy to the 1866 Act. Debate instead focused on section 2 of the bill (modernly

Section 1985) because of concerns over federalism and regulation of private behavior.

Griffin v. Breckenridge, 403 U.S. 88, 99 (1971).

The recorded debate demonstrates unequivocally that Congress intended to abrogate

common law judicial immunity:

[T]he decisions of the county judges, who are made little kings, with almost despotic powers to carry out the demands of the legislature which elected thempowers which, almost without exception, have been exercised against Republicans without regard to law or justice, make up a catalogue of wrongs, outrageous

24 Yale Note at 327. 25 Cong. Globe, 39th Cong., 1st Sess. 1758 (1866) (remarks of Senator Trumbull); Yale Note at 328.

27


violations, and evasions of the spirit of the new constitution, unscrupulous malignity and partisan hate never paralleled in the history of parties in this country or any other.

Cong. Globe, 42nd Cong., 1st Sess. 186 (1871) (remarks of Representative Platt).

What is to be the case of a judge? ... Is that State judge to be taken from his bench? Is he to be liable in an action? ... It is the language of the bill: for there is no limitation whatsoever on the terms that are employed, and they are as comprehensive as can be used.

Id. (remarks of Senator Thurman).

"[T]he judge of a State court, though acting under oath of office, is made liable to a suit in the Federal Court and subject to damages for his decision against a suitor, however honest and conscientious that decision may be ... "

Id. (remarks of Representative Lewis). Representative Arthur recognized the law would

be a drastic reversal of common law immunity:

Hitherto, in all the history of this country and of England, no judge or court has been held liable, civilly or criminally, for judicial acts .... Willfulness and corruption in error alone created a liability . . . . Under the provisions of this section every judge in the State court. . . will enter upon and pursue the call of official duty with the sword of Damocles suspended over him ... "

Cong. Globe, 42nd Cong., 1st Sess. (1871) 365-366. 26

Courts considering parallel questions have deferred to this vivid record. See, e.g.,

Picking v. Pennsylvania R.R., 151F.2d240 (3rd Cir. 1945) ("But the privilege as we have

26 See also Yale Note at 328 and references to additional consistent comments inn. 38. "On three occasions during the debates, legislators explicitly stated that judges would be liable under the [1871] Act. No one denied the statements." "In sum, the question of congressional intent seems relatively clear: there was no universal acceptance of the broad English immunity rule in 1871, and the only legislative history available supports the proposition that Congress intended Section 1983 to cover judges." Yale Note at 328. Yale Note's 1969 author left open the door that "the legislative history does not preclude entirely the Court's construction of the statute if the policy reasons for judicial immunity are sufficiently persuasive." That "policy reasons" door was closed eleven years later in Malley.

28


stated was a rule of the common law. Congress possessed the power to wipe it out. We

think that the conclusion is irresistible that Congress by enacting the Civil Rights Act sub

judice intended to abrogate the privilege to the extent indicated by that act and in fact did

so . . . . The statute must be deemed to include members of the state judiciary acting in

official capacity."); Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 665

(1978); Owen v. City of Independence, Mo., 445 U.S. 622, 643 (1980) (''Nowhere in the

debates, however, is there a suggestion that the common law excused a city from liability

on account of the good faith of its authorized agents, much less an indication of a

congressional intent to incorporate such an immunity into the Civil Rights Act"); Pulliam

v. Allen, 466 U.S. 522, 543 (1984).

Far from an intent to incorporate common law judicial immunity, Congress in

passing both Acts specifically intended to eliminate it as the source of the monumental

evil of state-sponsored oppression jeopardizing our nation's existence by precipitating

civil warfare.27

27 Congress' intent to hold judges accountable is recorded as recently as 1979 by the 96th Congress:

[Section 1983] is an essential element of an extraordinary series of congressional enactments that transformed the relationship between the Federal Government and its constituent parts. [T]he very purpose of the 1983 was to interpose the Federal courts between the States and the people, as guardians of the people's Federal rights-to protect the people from unconstitutional action under color of State law, whether that action be executive, legislative, or judicial.

Statement of Representative David A. Clarke, Chairperson, Committee on Judiciary, Government of the District of Columbia on the Act of Dec. 29, 1979, 93 Stat. 1284, PL 170 LH, 1st Sess. (Dec. 29, 1979) (emphasis added).

29


CONCLUSION

If aura there be, it is hardly protected by exonerating [rom liability such lawless conduct as took place here2

Nineteenth and twentieth century American judges have overstepped constitutional

restriction to usurp powers reserved to the legislature and written for themselves an

immunity far greater even than that of an English judge, or even a King, at common

law.29

The purposes of immunity-to protect efficient process-is today accomplished at

the pleading stage. Unlike the 1871 era of federal procedure in which a judge could be

forced to stand trial on mere "ascription" of culpable intent to an accused act, 30 modernly,

like all litigants, a judge is protected by procedural barriers provided in Harlow v.

Fitzgerald, 457 U.S. 800 (1982) and Pearson v. Callahan, 555 U.S. 223 (2009) which

protect against a mere "ascription" of malice. These are bolstered by the plausibility test

provided in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Federal Rule of

Civil Procedure 56 thereafter.

28 Sparkman at 368 (Stewart, J. dissenting). 29 "[T]o no one will we sell, to no one deny or delay right or justice." Magna Carta (1215); "[W]here there is a legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded." Marbury v. Madison, 5 U.S. 137, 163 (1803) (quoting William M. Blackstone, 3 Commentaries *23). 30 "Few persons sufficiently irritated to institute an action against a judge for his judicial acts would hesitate to ascribe any character to the acts which would be essential to the maintenance of the action." Bradley at 348.

30


The expansion of a judge-made exception to the civil rights act , chief redress of

civil rights violations, has rendered state judges immune from suit even for the most

bizarre, corrupt or abusive judicial acts.

A Judge's invocation of the doctrine of judicial immunity has effectively denied

citizens any redress for injuries, embarrassment, and unjust imprisonment caused by

errant judges. If judicial immunity truly is to serve as a bulwark of justice, more clearly

defined limits must be placed on it, arising from the due process clause itself

Clothing a Judge with immunity simply because he performed a ''judicial act" overlooks

the real-world probability that even judicial acts can be utterly inconsistent with due

process. Important personal rights, such as the right to have a family here, can be

destroyed by the mere nod of a judge's head. Judges should not be privileged to violate

the rights of citizens unfortunate enough to find themselves in a biased, corrupt or

irresponsible court. Accordingly, the district court erred in dismissing Appellants' case.

Dated: __ M_ar~ch_4 ____ , 2015

MACDONALD LAW FIRM, LLC

Isl Michelle L. MacDonald Michelle L. MacDonald, # 1823 70 1069 South Robert Street West St. Paul, MN 55118 Telephone: (651) 222-4400 Facsimile: (651) 222-1122

COUNSEL FOR APPELLANTS

31


CERTIFICATE OF COMPLIANCE AND VIRUS SCANNING

1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B)

because this brief contains 6946 words, excluding the parts of the brief exempted by Fed.

R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(6)

because this brief has been prepared in a proportionality spaced typeface in Microsoft

Word 2010 in Times New Roman 14 pt. type.

3. Pursuant to Circuit Rule 28A(h), I also hereby certify that electronic files of

this Brief and accompanying Addendum have been submitted to the Clerk via the

Court's CMJECF system. The files have been scanned for viruses and are virus-free.

Respectfully submitted,

Dated: __ M_ar~ch_4 ____ , 2015




32


CERTIFICATE OF SERVICE

I hereby certify that on February 26, 2015, I electronically filed the foregoing with

the Clerk of the Court for the United States Court of Appeals for the Eighth Circuit by

using the CM/ECF system. I certify that all participants in the case are registered

CM/ECF users and that service will be accomplished by the CM/ECF system.

Dated: __ M~ar~c~h_4 ____ , 2015




33


Documents

Grazzini-Rucki Reply Brief