A. The English Origins of the Doctrine: Judicial Immunity and the Development of Appellate Procedures.
These challenges to the record were costly and lengthy. Moreover, the fact that the challenged court — rather than the successful party to the original action — had to defend against the action of false judgment meant that such actions could be, and often were, brought to intimidate a judge.13 Gradually, false judgment proceedings were transformed: combat was avoided (usually by agreement of the parties), and both parties were heard on review,14 but the burdensome attacks on the record were still possible.
Other features of the system of correcting errors by false judgment were also unsatisfactory to the central government. False judgments in the local courts were redressed in the court of the lord immediately superior to the original court, and the appeal proceeded upwards through the ranks of the feudal courts.15 This meant that the king’s courts received no amercements from lower courts and could redress errors only after long delays, if at all. That the system of false judgment did not permit an authoritative declaration of law by the central government also became apparent when compared with the ecclesiastical courts:
In the twelfth century, under the influence of the canon law, Englishmen became familiar with appeals (appellationes) of a quite other kind [than criminal appeals of felony]; they appealed from the archdeacon to the bishop, from the bishop to the archbishop, from the archbishop to the pope. The graduated hierarchy of ecclesiastical courts became an attractive model. The king’s court profited by this new idea; the king’s court ought to stand to the local courts in somewhat the same relation as that in which the Roman curia stands to the courts of the bishops.16The attractiveness of the ecclesiastical model lay in its hierarchical structure. Both a hierarchical system of review and a horizontal one (in which rehearing is by another inferior court) offer correction of errors, but proceedings in a hierarchical system enable the higher court to authoritatively ascertain and declare legal precepts.17 For the judges of the king’s courts to stand in such a hierarchical relation to the local courts, they needed to monopolize the existing means of correcting errors, the complaint of false judgment. By statute, therefore, false judgment was made a royal plea, which could be heard only in the king’s courts.18
A judgment of a king’s court could not be challenged through a complaint of false judgment, however, because of the doctrine of the sanctity of records. From a very early time, the proceedings of the king’s court had been written in Latin on rolls of parchment.19 This process of recording, coupled with royal prerogative, led to the view that the king’s record of factual findings concerning what took place before him, whether maintained on parchment or stated viva voce, was superior to every other record. This very useful doctrine of the finality of the record was first applied in the court in which the king sat in person, and remained with the king’s courts as they expanded their functions.20 The doctrine of the sanctity of records of courts of record, which originated by virtue of royal prerogative, thus survived because it eliminated time-consuming attacks on the findings of fact in the record.21
Nonetheless, the need for correction of the royal courts’ errors of law remained; indeed, it increased as the local courts dwindled and were replaced by the royal justices of the peace and assizes. Inevitably a method for correcting the errors of the royal courts developed in response. Because a complainant could not challenge the truth of the king’s courts’ findings of fact,
the only manner in which such a complaint could be distinctly formulated was [for a complainant] to look at the formal record of the case, and indicate clearly some error or errors [of law] appearing thereon. It followed therefore that a complainant could only succeed if he could point out an error on the record.... The first step was the removal of the record into the higher court. Then came the assignment of errors by the plaintiff in error, the summoning of the defendant in error by writ of Scire Facias to hear the errors assigned, and the joinder of issue on the question whether the errors so assigned were really errors.22Thus the writ of error came into being.
In the development of the writ of error lay the seeds of the doctrine of judicial immunity. Although the benefits of finality that the doctrine of the sanctity of records brought about appeared most clearly in the context of proceedings in error, the scope of the doctrine was not confined to that context. The factual findings of a court of record could not be traversed by anyone in any proceeding, whether the proceeding was appellate in nature or a collateral attack.
In the case of courts of record ...it was held, certainly as early as Edward III.’s reign [1326-1377], that a litigant could not go behind the record, in order to make a judge civilly or criminally liable for an abuse of his jurisdiction. This is shown by a case reported in one of the books of Assizes, which runs as follows: “J de R was arraigned for that, whereas he was a justice to hear and terminate felonies and trespasses, and whereas certain persons were indicted for trespass, he made entry in his record that they were indicted for felony. And judgment was demanded for him [for all that he did] from the time that he was justice by commission, and that which he [the accuser] presents will be to undo his record, which cannot be by law, if to such a presentment the law puts him to answer. And it was the opinion of the justices that the presentment was bad.” The only recourse open to the suitor in such a case was to attack the [legal conclusions in the] record by writ of error, founded either on the record or on a bill of exceptions to a ruling of the judge.23Other case from the Year Books show that it was soon accepted that no action would he against a judge of record for that which he did as judge.24 The case reveal that judicial immunity was an integral part of the development of a hierarchical appellate system in England. The doctrine of the sanctity of records had provided the legal system with a necessary, though limited, finality by eliminating attacks on the record. It enabled, in Coke’s phrase, an “end of causes.”25 Under the old procedure of false judgment, that end came only after long delays, if at all. The monopolization of procedures in error by the king’s courts was intended in part to remedy this situation; it was also intended to give the royal courts the last word in legal controversies, thus adding another dimension to the concept of finality: authoritativeness.
In sum, as the hierarchical appellate system developed, the king’s courts found that attacks on the record of die royal courts were unnecessary and intolerably wasteful. The doctrine of the sanctity of records thus came to be established and lent a degree of finality to judgments. The system of appeal which these steps created had to monopolize the correction of errors in order to be authoritative;26 collateral attacks framed as actions against judges were therefore eliminated by the development of the doctrine of judicial immunity. Judicial immunity followed naturally from the doctrine of the sanctity of records27 but was ultimately accepted because it strengthened the appellate system by cutting off collateral attacks on judgments.28
B. The Development of the Doctrine of Judicial Immunity.
First,
[I]f the judicial matters of record should be drawn in question ...there never will be an end of causes: but controversies will be infinite; et infinitum in jure reprobatur....33Second, Coke noted that
insomuch as the Judges of the realm have the administration of justice, under the King, to all his subjects, they ought not to be drawn into question for any supposed corruption, which extends to the annihilating of a record, or of any judicial proceedings before them... except it be before the King himself; for they are only to make an account to God and the King, and not to answer to any suggestion in the Star-Chamber...34Third, a judge’s having to answer to a collateral court such as the Star Chamber
would tend to the scandal and subversion of all justice 35And fourth,
those who are the most sincere, would not be free from continual calumniations... ,36Coke’s policy bases for judicial immunity can be summarized as follows:
(2) the need for protecting the independence of common law courts from rival courts controlled by the king;39
(3) the need for maintaining public confidence in the system of justice; and
(4) a recognition that independent, conscientious judges would be most subject to prosecutions in the Star Chamber.
Officers of courts of justice act either judicially or ministerially. A judicial act is one which involves the exercise of a discretion, in which something has to be heard and decided. A ministerial act is one which the law points out as necessary to be done under the circumstances, without leaving any choice of alternative courses.43Three hundred years earlier, Dalton had described the duties of a justice of the peace in almost identical terms:
The Power and Authority of the Justices of Peace... is in some case Ministeriall or Regular, and limited as a Minister onely; and in some other case Judicial or Absolute, and as a Judge.This distinction was necessary to determine the appropriate means of control by the King’s Bench. Mandamus issued only to compel the performance of ministerial duties, while certiorari and prohibition could issue only to control the exercise of judicial power.45 Ministerial actions were largely beyond the effective control of the King’s Bench, because such actions could not be restrained through certiorari and prohibition. In their determination to supervise the actions of public authorities, “the courts ...chose to assume that [these new public authorities] were controllable in the same manner by means of certiorari and prohibition. Hence almost all non-ministerial functions vested in statutory bodies were treated as judicial for the purpose of review by certiorari and prohibition”.46
Ministeriall, when he is thereto commanded by a higher Authority:
As upon { A Supplicavit...
A Writ upon the Statute of Northhampton...
In the execution of which two writs, the Justice of Peace may proceed no further, or otherwise, than he is authorized by such Writ; and is also to return the Writ, and to certifie his doings therein, into the Court whence the Writ came.
But in all other case within their authority, the power of the Justices of Peace, seemeth to be Absolute (in some manner) so as they and every of them, may of their owne power proceed ex officio, and as a Judge; yet this their power is also limited, for they may neither hang a man for a trespasse, nor fine him for a felony, but must proceed in all things according as they are prescribed by the Commission, and by the said several Statutes.44
The same classification used in the extension of judicial review of administrative action was used also to determine whether the public authority was immune from tortious liability. As to justices of the peace, for example, Hawkins stated the rule thus:
Justices of the peace are not punishable civilly for acts done by them in their judicial capacities, but if they abuse the authority with which they are entrusted, they may be punished criminally at the suit of the king by way of information. But in case where they proceed ministerially rather than judicially, if they act corruptly, they are liable to an action at the suit of the party, as well as to an information at the suit of the king.47This rule extending immunity to all of a justice’s discretionary acts cannot be regarded as anything but a mistake, for the administrative duties of justices of the peace were extensive and diverse; in Maitland’s phrase, they were the “rulers of the county,”48 at least by the sixteenth century. A justice’s duties were all performed through the use of judicial procedures. Routine matters like bridge repairs, for example, were handled through the machinery of the quarter sessions requiring charging, presentment, indictment, and trial, under the forms and rules of the criminal law.49 Much of the work of a justice of the peace also required some exercise of discretion. Thus, under the judicial-ministerial dichotomy, most of a justice’s administrative acts were classified as judicial and therefore qualified for absolute immunity as judicial acts.50
Although it had early been recognized that an officer’s discretion was not absolutely unlimited in matters given over to his authority,51 the force of the distinction between judicial and ministerial actions remained. Administrative actions of justices, as long as they were discretionary, were protected within very wide limits. In time, Parliament and the courts came to realize that drawing the line of liability according to the discretion with which a judicial officer could act resulted in too much protection for the justices of the peace and the other inferior judicial officers and tribunals that executed the great bulk of the laws of Great Britain. In Bernardiston v. Some,52 for example, the plaintiff argued that the sheriff of Suffolk had acted ministerially in making a double return of an election writ.53 The court decided that the sheriff was acting as a judge in the declaring of a majority of the election, and that no action would lie against a judge for what he did judicially.54 This decision demonstrates the basic weakness in the judicial-ministerial dichotomy: Clearly the sheriff’s duties were administrative and had been circumscribed by statute; he had no discretion beyond the application of arithmetic rules. Yet under the rule of Bernardiston, almost any administrative action performed by an officer of justice (even an officer like a sheriff, whose duties are usually ministerial) could be characterized as judicial and thus be immunized. The outcry against this decision resulted in the enactment of a statute that created a cause of action against officials for making false returns willfully, or for making double returns falsely, willfully, and maliciously.55
Over time, as more authority was entrusted to the justices of the peace, seventeenth and eighteenth century courts also came to realize that many of a justice’s administrative duties were not judicial in the accepted sense, and that the mere exercise of discretion should not automatically insulate a justice from the consequences of an arbitrary exercise of his administrative powers. Courts facing problems of the liability of justices of the peace relied less and less on the doctrine of judicial immunity and more on judicial review of administrative acts. Superior courts became more willing to deny immunity to justices of the peace who maliciously abused their powers in administrative matters. A rule developed giving justices of the peace immunity for judicial functions exercised in good faith, even when not exercised in a court of record;56 in practice this good faith immunity encompassed many of their administrative duties.
There are numerous obiter dicta in the case law to the effect that justices are liable for malicious actions, and these are so broad in scope that they seem to apply to both ministerial and judicial acts.57 These dicta have led some critics of judicial immunity to argue that the English rule of immunity for judicial acts done within jurisdiction extended only to judges of superior courts; their argument for an “actual malice” , standard of liability rests in part on assertions that “inferior judges were liable for malicious acts within their jurisdiction.”58 There are, however, numerous equally broad dicta to the contrary.59 To reconcile this apparent conflict, one must turn to the decisions. An examination of the case law in Britain leads to the conclusion that inferior judicial officers were held liable for malicious acts when they were not performing judicial functions as judges of courts of record. Most often the acts for which such magistrates were held liable were clearly administrative.60
Seen in perspective, then, the case of justices of the peace is not an exception to or an evolution of the general rules of judicial immunity; rather it is the case of an officer subjected to more than one rule of immunity by the varied nature of his duties. Present-day judicial officers have administrative duties, although not as extensive as those of a justice of the peace in former times, and their liability should also vary in accordance with the nature of their duties.61
Various definitions of a judicial act were developed; often, when a definition appeared patently unsuitable in a particular context, the courts would discard it and adopt another definition, also supposedly universal in its application.63 Such flexibility resulted in ambiguities and inconsistencies. A particular act or function might be called “judicial” for purposes of review but be called “administrative” for purposes of determining liablity.64
The courts eventually ceased their attempts to state a conclusive test and came to rely on a flexible approach that emphasized the different characteristics of judicial, administrative, and legislative functions.65 Judicial functions were typically characterized by the exercise of the power to make a binding and conclusive decision, the exercise of power to hear and determine a controversy, the application of objective standards for the determination of an issue, the declaration or alteration of the rights and obligations of individuals, and certain procedural attributes.66 Administrative functions, on the other hand, were directed more toward public affairs and service than to disputes between individuals, and legislative functions were concerned with the institution of a general rule of conduct without reference to particular case.67 The development and use of such guides for classification has been discussed elsewhere.68 For the purposes of this Article, it is sufficient to note that British courts realized that not all of a judge’s official acts are judicial, and that therefore not all of them should be protected by absolute judicial immunity.69
Despite its lack of strong precedential underpinning, The Marshalsea was taken not only for the proposition that lack of jurisdiction over the subject matter renders a proceeding void ab initio, but also for the further proposition that lack of subject matter jurisdiction makes a judge liable for the consequences of his judicial acts.73 Even this limitation on the doctrine of immunity, however, was undercut in subsequent case.
In Peacock v. Bell74 the burden of pleading and proving that the judge of a superior court had exceeded his jurisdiction was placed on the plaintiff. In Hamond v. Howell75 the court refused to apply the jurisdictional limit rule of The Marshalsea to a judge of a superior court acting “quatenus a judge.”76 In 1692 Gwinne v. Poole77 established that an inferior court judge retained immunity unless he was aware of facts suggesting a lack of jurisdiction.
These case developed a distinction between judges of inferior and superior courts, although the distinction would not be fully stated for another century.78 Scholars have found it difficult to justify the rule of The Marshalsea79 and almost impossible to reconcile the distinction that subsequently developed between the complete immunity for judicial acts that was enjoyed by judges of superior courts with the immunity limited to acts within jurisdiction that was allowed judges of inferior courts.80
An understanding of what “jurisdiction” meant to courts of the seventeenth and eighteenth centuries, and how it was used by them, may be helpful. According to modern theories,81 a court’s jurisdiction — its power to decide a case — depends only upon its authority over the subject matter of the general class of controversies of which the particular dispute at hand is a member, the territorial limits on its power, and its power over the person of the defendant. These elements of a controversy are capable of initial determination by a court. If these conditions are met the court has jurisdiction, and its decision, even if erroneous, is binding unless and until an appellate court overturns its order. Under this theory the court’s jurisdiction does not and cannot depend on anything the court might do in its subsequent disposition of the case. In short, “[t]he jurisdiction of a court depends upon its right to decide a case and never upon the merits of its decision.”82
These ideas did not prevail in the seventeenth century: the courts of that era never developed a theory of jurisdiction. As an eminent British writer explained, “the problem of defining the concept of jurisdiction for the purposes of judicial review has been one of public policy rather than one of logic.”83 The kings’ courts from the sixteenth century through the eighteenth century used prohibition and mandamus against the ecclesiastical courts to require them to apply common law and statutory rules of procedure and decision.84 The fiction that these writs were used to confine those courts to their proper jurisdiction was maintained by a requirement that an applicant for a writ of prohibition allege that the king’s interest was threatened.85
In controlling the proceedings of justices of the peace and other administrative tribunals, the practice of the King’s Bench was even less confined. Style’s Practical Register stated that “[the King’s Bench] hath authority to Quash Orders of Sessions, Presentments, Endictments &c made in inferior Courts, or before Justices of the Peace, or other Commissioners, if there be cause, that is, if they be defective in matter or form....”86 This use of an expansive sense of “jurisdiction” was made necessary by the shortcomings of the writ of error. Not all the decisions of justices of the peace could be appealed by writ of error, but only those “formal” or “plenary” decisions resulting in a traditional, extensive record that could be examined in King’s Bench.87 Statutes had increased the use of summary proceedings by both justices of the peace and the newer administrative tribunals; the records of these proceedings gave few details except the fact of the order.88 “[T]he significant fact is that it was held, or rather taken for granted, that error lay neither to justices out of sessions, nor to all the new statutory tribunals, such as the Commissioners of Sewers and Excise which came to life in the sixteenth century.”89 The King’s Bench could, however, effectively review administrative decisions by the use of a prerogative writ if it confined its review to jurisdictional defects. The eventual result was almost inevitable, given the constraints of the writ system: “The plain fact is that the High Court wanted to exercise as much control over these administrative bodies as possible, and has greatly extended the concept of jurisdiction for this purpose.”90
While this expansion of review authority over the jurisdictional errors of administrative tribunals was taking place, a tremendous growth in statutory law was underway. Much of this law created additional local administrative bodies and expanded the duties of the justices of the peace.91 The increasingly pervasive effects on a local society of these agents of the central government predictably put greater pressure on the legal system to provide a tort remedy for those damaged by administrative actions. Judicial immunity barred direct suit against a justice of the peace for administrative actions — unless a higher court found that the justice had acted without jurisdiction. The jurisdictional limit on judicial immunity was therefore retained because its application to inferior judicial officers provided a tort remedy for administrative wrongdoing.92
With respect to judges of superior courts there was no comparable need for a jurisdictional limit on immunity, because these courts played little part in the administration of local government. In any case, a jurisdictional limit on the immunity of superior court judges would have had little practical effect, because courts of general jurisdiction were, naturally enough, not subject to similar statutory jurisdictional requirements.93
Not until the twentieth century did common law courts develop an adequate method of reviewing administrative action;94 until that time, administrative action within a court’s jurisdiction was regarded as unreviewable by writ of error absent specific legislative provision for review.95 The recent development of judicial review of administrative action has now removed the need for the judicial control of administrative action by expansive use of the prerogative writs and of jurisdictional fictions.96 Similarly, the shift of administrative authority from justices of the peace to statutory agencies during the nineteenth and twentieth centuries has removed the barriers of res judicata and judicial immunity from the path of those seeking redress for damage from administrative action. As a result of these developments, the jurisdictional limit on judicial immunity no longer serves the purpose it served for so many centuries; there is no longer any reason to distinguish between the immunity of superior and inferior court judges.
C. The Doctrine of Judicial Immunity in America.
What is the case before us? A judge of an inferior [state] Court of Admiralty condemns a prize, declares who are the captors, and orders a distribution accordingly. On appeal to the Superior Court of Admiralty [a court of appeals of the United States], that Court reverses his judgment, and directs a different distribution. The Judge below refuses to obey the sentence, and persists in distributing the proceeds of the prize agreeably to his own decree. A suit is brought here, to compel the Judge to perform the decree of the Superior Court.... Can ours be a proper Court to decide between the sentences of two contending Courts of Admiralty, or to enforce the sentence of either? It is in vain to say, the times were such, that the Supreme Court could not, or would not, proceed to extremities with the Judge of the inferior Court. We are not authorized to aid a defective, or unwilling jurisdiction, by assuming an extraordinary power, unknown to the law .... In whatever light I view this question, I am satisfied, that the Court of Common Pleas were incompetent to carry into effect the decree of the reversal of the superior Court of Appeals, and that an action for money, had and received against the Judge who distributed the money according to his own decree, could not be sustained in a Court of law.100All the justices who authored opinions in Ross v. Rittenhouse agreed that the Court of Common Pleas, as a common-law court, had no jurisdiction to carry out a judgment of a court of appeals acting in admiralty, “and also,” added Chief Justice McKean, “that an action will not lie against a Judge for what he does as such.”101 Obviously the court’s decision did not rest on the doctrine of judicial immunity alone, but Ross v. Rittenhouse is a clear example of application of the doctrine in preventing improper collateral attack on a judgment.
Two South Carolina case were also decided before Phelps v. Sill. In Lining v. Bentham102 the plaintiff sued a justice of the peace in an action on the case for imprisoning him for contempt. Counsel for the defendant justice urged the distinctions between a justice’s ministerial and judicial acts, and his liability for actions taken in those capacities. The court held “that a justice of the peace is not answerable in an action for what he does by virtue of his judicial power.”103 The next case, Brodie v. Rutledge,104 was an attempted suit for libel against the recently deceased Justice Rutledge. The report of the case is brief, but it shows clearly that South Carolina adopted the English rule of complete immunity from defamation accorded all judges for any words spoken from the bench: “[N]o suit will lie against a judge for any opinion delivered by him in his judicial capacity, either supreme or subordinate.”105 The English rule of immunity for defamation was broader than the general rules of judicial immunity;106 the court’s decision is thus not a rejection of the English distinction between the immunity accorded judges of superior courts and that granted judges of inferior courts.
The Supreme Court did not face the issue of judicial immunity until 1868.107 In the meantime, the doctrine of judicial immunity had often been affirmed in state court decisions that are of little interest today. Nevertheless, a brief summary of these decisions is necessary because knowledge of the status of the doctrine in the common law of the nineteenth century aids in understanding the context in which Congress enacted the 1871 Civil Rights Act.108 Some authors have underestimated that status. Feinman and Cohen assert that “American courts ...held many, if not most, judicial officers liable for their wrongful acts much, if not most, of the time.”109 They are joined in this evaluation of nineteenth century law by a student author who states that the doctrine of judicial immunity was not uniformly accepted in state courts. This writer offers as evidence the results of a survey of decisions in those courts before the passage of the Civil Rights Act of 1871: “By 1871, thirteen states had adopted the absolute immunity rule [and] six states had ruled that judges were liable if they acted maliciously....110 judgment of Chief Justice Cooley of the Michigan Supreme Court, an observer more familiar with the courts of the day: “There are dicta in some case that a justice is civilly responsible when he acts maliciously or corruptly, but they are not well founded, and the express decisions are against them ....”111
One can reach a proper interpretation only by examining the case themselves. The case cited by the authors noted above deal with justices of the peace (or other quasi-judicial officers) who, as previously discussed,112 were liable under the traditional rule of qualified immunity for some abuses of their administrative authority. These case are fully consistent with the traditional rules of judicial immunity; none of them resulted in a judicial officer’s being held liable for a judicial act done within his jurisdiction.113 The very case cited by these authors” With these assertions one can compare the for the contrary point strongly suggest that the doctrine of judicial immunity and the rules of that doctrine that had been developed in England were indeed universally accepted in the state courts of the United States.
In 1868 the Supreme Court of the United States decided the case of Randall v. Brigham,114 an action for damages against a Massachusetts judge who had disbarred the plaintiff. The Court, by Justice Field, concluded that judges of general jurisdiction were not liable to civil suit for their judicial acts, even when they acted outside their jurisdiction, “unless, perhaps, when the acts in excess of jurisdiction are done maliciously or corruptly.”115 One author has used this phrase of tentative qualification to attack the continued validity of the doctrine of judicial immunity;116 in light of the historical development of the rules of judicial immunity as applied to justices of the peace and other inferior officers of justice, however, these words of qualification are not surprising.117 In fact, such a qualification would have to appear in any statement of a rule of immunity that attempted to cover all the functions of both judges and justices of the peace, and would enable the Court to account for the state court dicta discussed above without undertaking a thorough re-examination of those case.
Three years after Randall, in Bradley v. Fisher,118 Justice Field withdrew his qualifying remarks and explained:
The qualifying words were inserted upon the suggestion that the previous language laid down the doctrine of judicial exemption from liability to civil actions in terms broader than was necessary for the case under consideration, and that if the language remained unqualified it would require an explanation of some apparently conflicting adjudications found in the reports. They were not intended as an expression of opinion that in the case supposed such liability would exist, but to avoid the expression of a contrary doctrine.In Randall Justice Field had restated the doctrine of judicial immunity as it had been expounded by English and American judges from Coke to Kent. In Bradley Field went beyond a bare statement of the doctrine itself to state two policy bases for judicial immunity: protection of judicial independence and the need for finality. The latter was a catch-all term for the ends accomplished by a hierarchical appellate system for the correction of error, as discussed above.120 In all respects, Field’s statement of the rules and doctrine of judicial immunity followed the mainstream of precedent.121
In the present case we have looked into the authorities and are clear, from them, as well as from the principle on which any exemption is maintained, that the qualifying words used were not necessary to a correct statement of the law, and that judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly.119
During Reconstruction, Congress enacted several statutes, later called the Civil Rights Acts, under the enforcement powers granted to it by the Civil Rights Amendments. One of these acts was the Act of March 1, 1875,123 which provided that
no citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State, on account of race, color, or previous condition of servitude; and any officer or other person charged with any duty in the selection or summoning of jurors who shall exclude or fail to summon any citizen for the cause aforesaid shall, on conviction thereof, be deemed guilty of a misdemeanor, and be fined not more than five thousand dollars.124A Virginia county court judge was arrested and held in custody under an indictment which alleged that he did “exclude and fail to select as grand and petit jurors certain citizens ...of African race and black color ....”125 In Ex parte Virginia126 the Supreme Court denied the judge’s petition for habeas corpus, rejecting the argument that the doctrine of judicial immunity prohibited the indictment.127
Under Virginia law all male citizens between the ages of twenty-one and sixty who were eligible to vote and hold office were subject to jury duty. If the preparation of a jury list involved no more than the listing of those eligible to serve, Ex parte Virginia would have been an easy case. Virginia’s law, however, required the judge of each county court to prepare a list of from one hundred to three hundred eligible inhabitants of the county “as he shall think well qualified to serve as jurors, being persons of sound judgment and free from legal exception.”128 The statute required the county court judge to exercise considerable discretion; under the judicial-ministerial classification, therefore, this function would be regarded as judicial.
The Court found, however, that the duty of making up jury lists was a ministerial duty rather than a judicial one, and that therefore the doctrine of judicial immunity did not apply. The Court recognized, at least tacitly, the inadequacy of the judicial-ministerial dichotomy:
Whether the act done by him was judicial or not is to be determined by its character, and not by the character of the agent. Whether he was a county judge or not is of no importance. The duty of selecting jurors might as well have been committed to a private person as to one holding the office of a judge.... That the jurors are selected by a court makes no difference. So are court-criers, tipstaves, sheriffs, &c. Is their election or their appointment a judicial act?129The Court did not really address the soundness of the judicial/ministerial distinction (as Justice Field intimated in dissent).130 Nonetheless, the Court’s reasoning was effective, for it enabled the majority to avoid a conflict between two principles of constitutional stature — equal protection and judicial independence. Because the act for which the judge was prosecuted was not judicial, prosecution could not threaten judicial independence. Indeed, the Court concluded by disavowing the idea that the 1875 Act infringed on judicial immunity: “It is idle...to say that the act of Congress is unconstitutional because it inflicts penalties upon State judges for their judicial action. It does no such thing.”131
The possibility that other civil rights statutes might reach a state judge’s judicial acts was not raised for many years. In 1944, when a California judge was indicted under the criminal provisions of the Enforcement Act of 1870,132 the district court remarked: “It is worthy of note that in nearly three-quarters of a century no similar action has been passed upon by a court of record.”133 That 1944 case, United States v. Chaplin,134 presented the issue absent in Ex parte Virginia: whether a state judge could be prosecuted in a federal proceeding for his judicial acts. The indictments left no doubt that the defendant, Judge Griffin of the city court of Beverly Hills, had acted in his judicial capacity and within his jurisdiction. For guidance in his deliberations, Judge O’Connor of the district court turned to the “long line of [judicial immunity] decisions over a period of years which marks the span of our national existence ....”135 After reviewing British and American case, Judge O’Connor explained what he thought would result from permitting federal prosecutions of judicial acts under the civil rights statutes:
A decision in favor of the Government in the instant criminal actions would place the official action of every justice of the peace, municipal or city court judges, Superior Court judges, Appellate Court judges and Supreme Court judges in our country at the mercy of a United States Attorney. Every sentence imposed on a defendant would be subject to review by the representative of the Department of Justice, and if, in the judgment of the Attorney General of the United States or the United States Attorney for the District, the decision deprived the defendant of his civil rights, the judge could be indicted, tried, and if convicted, punished. Every defendant sentenced to the county jail or the penitentiary is deprived of his civil rights, and in many instances the civil rights are not revived upon release. The same reasoning would apply to our Federal Courts. To sustain the Government’s contention would be to destroy the independence of the judiciary and mark the beginning of the end of an independent and fearless judiciary.136Ex parte Virginia and Chaplin were concerned with immunity from criminal prosecution under the Civil Rights Acts for judicial acts. Those statutes also gave civil causes of action for civil rights deprivations; these, like their criminal provisions, fell into desuetude after Reconstruction. Although the Ku Klux Klan Act of 1871137 imposed civil liability on any person who under color of state law caused anyone to be deprived of his civil rights, no federal district court addressed the question of tort liability of judges under the Act’s provisions until 1945. In that year the Court of Appeals for the Third Circuit held in Picking v. Pennsylvania Railroad138 that judicial immunity was not available in actions against judges under what is now section 1983.139
The plaintiffs in Picking claimed that they were arrested illegally in Pennsylvania under a bench warrant “unlawfully issued on a falsified and substituted pleading”140 by a New York judge. The arrest had been for “placing an advertisement upon a flag of the United States on their car ....”141 The plaintiffs’ suit was dismissed at the district court level for failure to state a cause of action against the twenty-four named defendants, who included the Pennsylvania Railroad, which had transported the plaintiffs back to New York as part of their extradition, and the New York judge.142
The Third Circuit reversed; its decision was prompted by the Supreme Court’s then recent holding in Screws v. United States143 that a state official acts “under color” of state law when he acts with official power, even though the action itself violates state law. According to the court in Picking, the Supreme Court’s interpretation of “under color of law” in Screws meant that
if the plaintiffs... were deprived of a federal right by state officials or officers acting under color of any law’ — or as may be stated more aptly in the instant case ‘under color of any statute... of any State’ — these officials must respond in damages to the plaintiffs as prescribed by [section 1983].144The Picking court noted with regret the precarious position judges would occupy under such a rule, but concluded that in light of Screws, nothing could be done to mitigate their situation:
[W]e are compelled to the conclusion that Congress gave a right of action sounding in tort to every individual whose federal rights were trespassed upon by any officer acting under pretense of state law. A field was created upon which a state officer could not tread without being guilty of trespass and liable in damages. The concept is clear enough but the boundaries of the forbidden territory are ill-defined. Mr. Justice Douglas stated the danger vividly when he said in the Screws decision: “The treacherous ground on which state officials — police, prosecutors, legislators, and judges — would walk is indicated by the character and closeness of decisions of this court interpreting the due process clause of the Fourteenth Amendment.... Those who enforced local law today might not know for many months (and meanwhile could not find out) whether what they did deprived some one of due process of law. The enforcement of a criminal statute so construed would indeed cast law enforcement agencies loose at their own risk on a vast uncharted sea.”145The Picking court thus relied upon Justice Douglas’s opinion in Screws to reach a result that was unacceptable to Douglas himself. Douglas had been dealing with the argument that the criminal provisions of the Enforcement Act of 1870 were void for vagueness as to the necessary standard of intent. Douglas had concluded that the Act required specific intent, noting that if “the customary standard of guilt for statutory crimes” of general intent were to apply, a local law enforcement officer “commits a Federal offense ...if he does an act which some court later holds deprives a person of due process of law. And he is a criminal though his motive was pure and though his purpose was unrelated to the disregard of any constitutional guarantee.”146 If the Court of Appeals for the Third Circuit had interpreted section 1983 in strict accordance with the Screws decision, it would therefore have concluded that section 1983 required specific intent for liability in damages. It did not do so.
Despite Picking’s faults, the Court of Appeals for the Second Circuit followed its example in Burt v. City of New York.147 In Bottone v. Lindsley148 the Court of Appeals for the Tenth Circuit refused to follow Picking, holding that “to make out a cause of action under the Civil Rights Statutes, the state court proceedings must have been a complete nullity, with a purpose to deprive a person of his property without due process of law.”149 The Court of Appeals for the Sixth Circuit, in McShane v. Moldovan,150 distinguished Bottone on its facts and followed Picking.
Several years after Picking the Supreme Court, in Tenney v. Brandhove,151 addressed the problem of whether the Civil Rights Act of 1871 (section 1983) subjected state legislators to civil liability for actions within the sphere of legislative activity. After taking note of the history of legislative immunity and the “general language of the 1871 statute,” the Court remarked, “We cannot believe that Congress — itself a staunch advocate of legislative freedom — would impinge on a tradition so well grounded in history and reason by covert inclusion in the general language before us.”152 Following Tenney, federal courts found by analogy a similar immunity for judges. Almost without exception, these courts rejected Picking, reasoning, as did one court of appeals, that “the doctrine of judicial immunity is at least as well grounded in history and reason as is the rule of legislative immunity....153 For more than a decade, the Court of Appeals for the Third Circuit stood alone in following Picking;154 in fact, one district court within the Third Circuit announced that in light of Tenney, it no longer regarded Picking as binding precedent even within that circuit.155 In 1966 the Court of Appeals for the Third Circuit finally abandoned Picking.”156
For several years the Supreme Court declined opportunities to address the question of judicial immunity from civil suit under section 1983, denying review of decisions by courts of appeals upholding judicial immunity in such actions.157 Then in 1967 the Court heard Pierson v. Ray.158
The plaintiffs in Pierson were “freedom rider” ministers arrested and charged with breach of the peace for attempting to use segregated facilities in a Mississippi bus station. The ministers were brought before a municipal police justice, who convicted them and imposed the maximum sentence, despite a Supreme Court decision supporting the ministers’ acts that was brought to his attention. On appeal, the ministers were granted a trial de novo in the county court, where they were victorious. The ministers then brought an unsuccessful action for damages under section 1983 against the arresting officers and the police justice who had convicted them. The Court of Appeals for the Fifth Circuit affirmed the immunity of the defendant justice, but held that the police officers would be liable in a section 1983 suit for an unconstitutional arrest.159 Both the ministers and the police officers sought, and were granted, certiorari.160
Chief Justice Warren, in his opinion for eight members of the Court, disposed of the challenge to judicial immunity with facility and brevity. His opinion devoted one paragraph to the history of the doctrine at common law,161 and then turned to the effect of the enactment of section 1 of the Civil Rights Act of 1871 (section 1983):
We do not believe that this settled principle of law was abolished by § 1983, which makes liable “every person” who under color of law deprives another person of his civil rights. The legislative record gives no clear indication that Congress meant to abolish wholesale all common-law immunities. Accordingly, this Court held in Tenney v. Brandhove ...that the immunity of legislators for acts within the legislative role was not abolished. The immunity of judges for acts within the judicial role is equally well established, and we presume that Congress would have specifically so provided had it wished to abolish the doctrine.162The Court was assisted in its determination by the fact, which Warren noted, that “[s]ince [the] decision in Tenney... the courts of appeals have consistently held that judicial immunity is a defense to an action under § 1983.”163
Justice Douglas, in dissent, severely criticized Chief Justice Warren’s reading of the legislative history of section 1983. Douglas noted that the members of the Forty-second Congress “were not unaware that certain members of the judiciary were implicated in the state of affairs which the statute was intended to rectify.”164 He quoted two members of the Republican majority, Rainey of South Carolina and Beatty of Ohio, who, during debates on the 1871 Civil Rights Act, criticized the actions of judges in the Reconstruction South. These congressmen, according to Douglas, had described what Congress believed to be the conditions in the South and the relevant actions of government officials. “It was against this background,” he wrote, “that the section was passed, and it was against this background that it should be interpreted.”165
Douglas did not challenge the majority’s statement that the legislative history of the 1871 Act did not indicate that Congress intended to abolish all defenses of immunity to the Act. Instead, he noted that three members of Congress spoke directly to the issue of judicial immunity during the debates on the statute, and that all three “assumed that ...judges would be liable”166 under section 1983, and hence opposed its passage. Douglas concluded that “[i]n light of the sharply contested nature of the issue of judicial immunity it would be reasonable to assume that the judiciary would have been expressly exempted from the wide sweep of the section, if Congress had intended such a result.”167 Nonetheless, he recognized the need for a restrictive interpretation of section 1983:
It is necessary to exempt judges from liability for the consequences of their honest mistakes.... But that is far different from saying that a judge shall be immune from the consequences of any of his judicial actions, and that he shall not be liable for the knowing and intentional deprivation of a person’s civil rights.168Douglas is not alone in criticizing the majority’s reading of the legislative history of section 1983. Several authors169 have attacked the Court’s interpretation as unsound or unjustified. The legislative history of section 1983, however, leads one to view the Court’s efforts more favorably. There was more to the Ku Klux Klan Act of 1871 than its first section (which is now section 1983). Other sections of the Act imposed civil and criminal penalties for conspiracies to deprive persons of their civil rights,170 disqualified former Confederate soldiers from serving as jurors in federal courts,171 and gave the President the power to suspend the writ of habeas corpus and to use armed forces to suppress insurrection.172 Most of the debate on the Act concerned these provisions; section 1 drew little comment.173 As for Douglas’s citation of the objections of those opponents of the 1871 Act who feared that its first section would abolish judicial immunity, another critic of the Pierson decision has written that
[n]o proponent of § 1983, which was, after all, but a very minor and uncontroversial section of the entire Ku Klux Klan Act, appears to have either confirmed or contradicted [these apprehensions]. Following traditional canons of statutory interpretation, the majority felt free to disregard as hyperbolic, the comments of opposing legislators.174The issue of abrogation of judicial immunity was therefore not at all “sharply contested,” as Justice Douglas claimed.
As with many enactments, the proponents of the Act apparently had no concern whatsoever about judicial immunity and certainly did not propose its abolition. In such situations, the Court can look to maxims of construction and considerations of public policy, as it did in Pierson,175 The Court quite properly concluded that it should not attribute to Congress an intention to abolish a long-standing doctrine with a strong basis in public policy, unless Congress clearly states such a purpose.
(a) The facts.
The petition was an unusual document .178 It included Mrs. McFarlin’s affidavit that her daughter Linda was a minor and “somewhat retarded” although she attended public school and had “been passed along with other children in her age level.”179 The petition also stated that Linda had spent nights with men; and that since Mrs. McFarlin could not maintain a watch over her daughter, it would be in Linda’s best interests if she underwent a tubal ligation “to prevent unfortunate circumstances.”180 The petition contained Mrs. McFarlin’s unilateral “agreement” to indemnify and hold harmless the physician who was to perform the tubal ligation and the hospital where the operation was to take place.
At the bottom of the second page of the petition a typewritten paragraph stated that Judge Stump approved the petition.181 The legal effect of this paragraph is unclear; one author has suggested that the petition and order of approval may have had no legal effect whatsoever, since the petition did not ask for any affirmative relief.182 The existence of the threshold question of judicial immunity made it unnecessary for any of the reviewing courts to address the shortcomings of the document . Whatever the legal impact of his approval, Judge Stump signed the petition the day it was presented, as respondent Sparkman described in her brief to the Supreme Court,
in an ex parte manner in an undisclosed location.... There was no appointment of a guardian ad litem to represent Linda’s interests. The petition was not filed with the DeKalb Circuit Court. No notice was given to Linda or anyone on her behalf of the petition, which was approved without any hearing.183Eight days later the sterilization was performed. Linda had been told that she was being hospitalized for an appendectomy; several days later she was released, still unaware that she had been sterilized. Two years later she married, and two years after her marriage she learned for the first time that she had been sterilized. Linda and her husband then brought suit, under the federal civil rights statutes,184 against her mother, the attorney who prepared the petition, Judge Stump, the doctors who performed the operation, and the hospital where the operation took place, attaching pendent state claims for assault and battery, medical malpractice, and loss of potential parenthood. The United States District Court for the Northern District of Indiana granted the defendants’ motion to dismiss the federal claims, holding that only the actions of Judge Stump constituted the state action necessary to state a claim under sections 1983 and 1985(3), and that Judge Stump was absolutely immune from suit under the doctrine of judicial immunity.185
The court then stated that for questions of judicial immunity, “jurisdiction” refers to jurisdiction over the subject matter of the case, citing Bradley for support.190 This line of attack committed the court to demonstrating that the subject matter of Mrs. McFarlin’s petition was clearly outside the broad statutory grant of jurisdiction to Indiana circuit courts:
Jurisdiction. — Said court shall have original exclusive jurisdiction in all case at law and in equity whatsoever ...and it shall have jurisdiction of all other causes, matters and proceedings where exclusive jurisdiction thereof is not conferred by law upon some other court, board or officer.191To evade the broad sweep of this statute, the court ignored the second part of the statutory grant (“all other causes”) in formulating its test for subject matter jurisdiction: “A claim must be characterized as a case in law or equity in order to come within the statute.”192 The court then shifted to an examination of Judge Stump’s power to order sterilization, a different matter entirely.193
The court first considered the possible statutory bases for the power to order sterilization, and found none. Indeed, the court said that “[t]he statutory scheme in existence at the time in fact negated his right to assert any jurisdiction over the petition.”194 The court reasoned that the very existence of statutes authorizing the sterilization of institutionalized persons under certain circumstances and after specified procedures “clearly negates jurisdiction to consider sterilization in case not involving institutionalized persons and in which these procedures are not followed.”195 These words show that the court of appeals confused the existence of jurisdiction over the subject of a petition for an order of sterilization with the correctness of a court’s decision to grant the relief sought.
The court of appeals then found that Judge Stump had failed to comply with due process requirements, and that this failure took his actions outside the statutory grant of jurisdiction over “case at law or in equity. jurisdiction — and hence strip the judge of that court of his immunity — is uniquely at variance with both theory and precedent. That interpretation of the concept of jurisdiction would render the doctrine of immunity a nullity; the jurisdictional limit would swallow the rule.
Because the Court of Appeals for the Seventh Circuit did not face a challenge to the continued validity of the doctrine of judicial immunity or even to the validity of the Bradley v. Fisher formula, that court never discussed how the public policy considerations underlying the doctrine of judicial immunity related to the facts and issues of Sparkman, or how well the Bradley formula served these policies. The Supreme Court unfortunately repeated that mistake on review.”196 The notion that due process errors strip a court of its
Like the court of appeals, the Supreme Court began by citing the judicial immunity formula stated in Bradley v. Fisher. The Court also agreed that, under the Bradley formula, “the necessary inquiry in determining whether a defendant judge is immune from suit is whether at the time he took the challenged action he had jurisdiction over the subject matter before him.”198 Forgotten for the moment was the restriction of immunity to “judicial acts” that was part of the Bradley formula. The Court rejected the lower court’s reasoning that the Indiana statutory framework for the sterilization of institutionalized persons deprived Judge Stump of jurisdiction over the subject matter of petitions requesting authorization of sterilization. Justice White noted the breadth of the Indiana statutory grant of jurisdiction and pointed out the fault in the court of appeals’ logic: “The statutory authority for the sterilization of institutionalized persons in the custody of the State does not warrant the inference that a court of general jurisdiction has no power to act on a petition for sterilization of a minor in the custody of her parents.... that the grave procedural defects committed by Judge Stump in handling Mrs. McFarlin’s petition resulted in “an illegitimate exercise of his common law power” that “does not fall within the categories of case at law and equity. fused the existence of authority with its proper exercise.”199 Nor would the Court accept the conclusion ”200 This argument, the Court recognized, confused the existence of authority with its proper exercise.201
Justice White next turned his attention to the argument that the same procedural defects took Judge Stump’s actions outside the scope of “judicial acts.” White claimed the Court had not previously “had occasion to consider, for purposes of the judicial immunity doctrine, the necessary attributes of a judicial act,”202 ignoring the discussion in Ex parte Virginia203 about whether the selection of jurors was a judicial or ministerial function. Nor did he mention the long line of case in which a multitude of English and American courts had, during the last four centuries, distinguished judicial acts from administrative and legislative functions.204 After discussing two case,205 neither of which involved the problem of distinguishing a judge’s judicial functions from his other official duties, Justice White created a new rule for defining judicial acts:
The relevant case demonstrate that the factors determining whether an act by a judge is a “judicial” one relate to the nature of the act itself, ie., whether it is a function normally performed by a judge, and to the expectations of the parties, ie., whether they dealt with the judge in his judicial capacity.206Certainly a new rule was not necessary merely to avoid the respondents’ argument that Judge Stump’s actions were not judicial because of their procedural irregularity. That argument confuses “judicial” with o “judicious”; almost any definition of “judicial act” would have sufficed to refute it. If the Court was uncomfortable with any particular definition, it could have merely pointed out the essence of respondents’ mistake.
The dissenters attacked the majority’s “judicial act” rule most vigorously. They contended that Judge Stump’s actions were not judicial and hence that judicial immunity did not protect those actions. Justice Stewart argued that the term “judicial act” must be defined by the policies supporting judicial immunity:
It seems to me, rather, that the concept of what is a judicial act must take its content from a consideration of the factors that support immunity from liability for the performance of such an act. Those factors were accurately summarized by the Court in Pierson v. Ray...:Stewart’s dissent in Sparkman is noteworthy for suggesting, for the first time, that the limits of judicial immunity should be defined by the policies giving rise to the doctrine. Yet he, like the majority, confined himself to the elements of the familiar rule of Bradley v. Fisher. Instead of directly defining the scope of judicial immunity by looking to its policy basis, Stewart would use that policy basis to define “judicial acts.” Because the term “judicial act” has importance outside the context of judicial immunity, however, it should not be defined by policies limited to that context. Surely whether an act is judicial depends on the character of the act. Stewart’s suggestion demonstrates how limiting the Court’s focus to a particular formula of the rules of judicial immunity restricts its analysis and directs it away from the important issue of the proper scope of the doctrine itself.[I]t “is...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 consequences... It is a judge’s duty to decide all case within his jurisdiction that are brought before him, including controversial case that arouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation. Not one of the considerations thus summarized in the Pierson opinion was present here. There was no “case,” controversial or otherwise. There were no litigants. There was and could be no appeal. And there was not even the pretext of principled decision making. The total absence of any of these normal attributes of a judicial proceeding convinces me that the conduct complained of in this case was not a judicial act.207
Justice Powell’s dissenting opinion also concentrated on the “judicial act” element of the Bradley formula. The “central feature” in Sparkman, he wrote, was Judge Stump’s “preclusion of any possibility for the vindication of respondents’ rights elsewhere in the judicial system.”208 Powell noted that the Bradley Court accepted the injustices the doctrine of judicial immunity sometimes imposes because those injustices are usually mitigated by the availability of appeal.
But where a judicial officer acts in a manner that precludes all resort to appellate or other judicial remedies that otherwise would be available, the underlying assumption of the Bradley doctrine is inoperative....Again, the result Powell argues for would be correct, but would be achieved by the indirect route of defining the concept of “judicial act” by a policy that should limit the operation of judicial immunity directly.
In sum, I agree with Mr. Justice Stewart that petitioner judge’s actions were not “judicial,” and that he is entitled to no judicial immunity from suit under 42 U.S.C. § 1983.209
The many criticisms of the Sparkman opinion as being hypocritical self-dealing by the judiciary show that observers expected the Court to explain why this particular judge’s actions deserved protection. The majority did not provide an acceptable explanation largely because the parties in Sparkman did not challenge the doctrine of judicial immunity, and the Court thus did not examine it. Nevertheless, the validity of the doctrine was implicitly challenged by the facts of Sparkman, and the Court’s failure to recognize and respond to the challenge detracted greatly from its decision.
The Court of Appeals for the Seventh Circuit denied the judge’s defense of judicial immunity on the grounds that “Judge Harvey’s attacks on plaintiff were not part of his duties....”213
Rheuark v. Shaw,214 however, presented an instance of a suit against a judge for an official, but not judicial, act. Several convicts sought damages and injunctive relief under section 1983 for long delays in the transcription of their trial court proceedings for use on appeal. The trial judge who presided over the trials of all the plaintiffs, and his court reporter — among others — were defendants in all the actions. The defendant judge asserted judicial immunity as a defense. The plaintiffs claimed to be damaged by the judge’s appointment of the defendant court reporter, by the judge’s failure to insure that the reporter prepared the plaintiffs’ statements of facts in a timely manner, and by the judge’s failure to appoint additional court reporters. In short, they complained that the judge had neglected his administrative duties. Responding to these complaints, the district court applied the Sparkman test: “When judicial immunity for an act is asserted, the court must determine whether that act is a function normally performed by a judge [and] whether the parties dealt with the judge in his judicial capacity....215 Naturally, the court found the acts complained of to be judicial in nature; judges normally appoint and supervise court reporters, and the parties certainly had dealt with the defendant judge in his judicial capacity.
One cannot imagine a clearer demonstration of the flaws in the Sparkman rule.216 The actions complained of bore none of the hallmarks of the judicial function discussed previously: no controversy ” was determined, no hearing was held, no binding determination was made, no objective standards were applied, no rights were declared. Clearly, the acts of the defendant trial judge were administrative, dealing only with the public service of the defendant court reporter.217 As such, the judge should not have been entitled to the absolute immunity that protects judicial acts, but only to the limited, good-faith protection appropriate for administrative actions.218
Rheuark v. Shaw highlighted the uselessness of the Sparkman “judicial act” test for distinguishing a judge’s judicial functions from his administrative duties — a problem not present in Sparkman. Consumers Union of the United States, Inc. v. ABA219 shows that the Sparkman test fares no better at drawing a line between judicial and legislative functions. In that case, two consumer groups sought declaratory and injunctive relief against the enforcement of Virginia state bar disciplinary prohibitions on lawyer advertising, and sought reimbursement for costs and attorneys’ fees incurred in the prosecution of their action against the Virginia State Bar, the Supreme Court of Virginia, the Chief Justice of that court, and two officers of the state bar.220 A three-judge district court held that the individual defendants were protected by judicial immunity from personal liability for attorneys’ fees:
The record reflects that defendant Supreme Court of Virginia has the jurisdiction to adopt, modify, or refuse to modify the Virginia Code of Professional Responsibility.... Chief Justice l’Anson’s actions, as a member of the Supreme Court of Virginia, relating to the Court’s failure to amend or repeal DR2-102(A)(6), were clearly judicial acts within the Court’s jurisdiction; Chief Justice 1’Anson therefore in the instant case enjoys absolute immunity from individual liability for attorneys fees.221Nonetheless, the court went on to hold that judicial immunity did not protect the defendants in their official capacities from liability for attorneys’ fees under the Civil Rights Attorneys’ Fee Awards Act of 1976:
“Both the extensive legislative history of 42 U.S.C. § 1988, as well as the numerous court opinions interpreting the statute clearly indicate that all branches and agencies of state governments may be liable for attorneys fees in 42 U.S.C. § 1983 actions.”222District Judge Warriner, in dissent, found it unnecessary to address the majority’s conclusion that section 1988 was intended to abrogate judicial immunity from awards of attorneys’ fees. He thought the actions complained of were legislative, not judicial:
This Court has previously indicated that the Supreme Court of Virginia acts in a legislative capacity in adopting disciplinary rules.... This view is readily supported by analysis. Disciplinary rules are rules of general application and are statutory in character. They act not on parties litigant but on all those who practice law in Virginia. They do not arise out of a controversy which must be adjudicated, but instead out of a need to regulate conduct for the protection of all citizens. It is evident that, in enacting disciplinary rules, the Supreme Court of Virginia is constituted a legislature.223Judge Warriner went on to argue that section 1988 was not intended to abrogate legislative immunity. Because the only acts of the Virginia Supreme Court complained of were, in his view, legislative, the Virginia Supreme Court retained its immunity. Only the Virginia State Bar had acted to enforce the ban on attorney advertising; hence, by Warriner’s reasoning, only the Virginia State Bar might properly be sued for attorneys’ fees.224
Judge Warriner’s analysis of the nature of a judicial act would not be remarkable were it not for the confusion created by Sparkman. In his own words the analysis was
nothing more than a common sense approach to the question of official immunity. These immunities are the creatures of public policy, and depend necessarily upon the function being performed by the official when he does the acts for which he is called upon to answer. The title of the office in no way determines the scope and character of the privilege enjoyed by the incumbent. Thus, the fact that the Supreme Court of Virginia is comprised entirely of judges does not determine the scope and character of the privilege enjoyed by the Supreme Court when it enacts disciplinary rules. If the function is legislative, then the applicable privilege is the legislative privilege 225The Supreme Court subscribed to Judge Warriner’s reasoning in overturning the three-judge panel’s disposition of the case.226 The Court, in a unanimous decision written by Justice White, held that the Virginia Supreme Court’s actions were legislative, not judicial.227 Accordingly, the actions were protected by legislative immunity 228 Similarly, the Court held that this legislative immunity barred the assessment of section 1988 attorneys’ fees against the Virginia Supreme Court.229
The Court affirmed the validity of the doctrine of judicial immunity, but conspicuously omitted any discussion of the Sparkman judicial-act test: “Adhering to the doctrine of Bradley v. Fisher..., we have held that judges defending against § 1983 actions enjoy absolute immunity from damages liability for acts performed in their judicial capacities. ”230 The opinion also acknowledged the split among the various circuits as to whether judicial immunity bars injunctive or declaratory relief.231 Justice White sidestepped that problem: “We need not decide whether judicial immunity would bar prospective relief, for we believe that the Virginia Supreme Court and its Chief Justice properly were held liable on their enforcement capacities.”232 The district court, however, had held the Virginia court liable in its judicial capacity, not for any enforcement actions.233
