FORDHAM UNIVERSITY LAW REVIEW | VOL 53 ISS 6 ART 10
WHAT CONSTITUTES A JUDICIAL ACT FOR PURPOSES OF JUDICIAL IMMUNITY
Fordham
0 | INTRODUCTION
The leading modern case on the doctrine is Stump v. Sparkman,8 in which the Supreme Court held that a judge will remain absolutely immune from a damage suit if he acted within his jurisdiction, or even in "excess of his jurisdiction," but not in the "clear absence of all jurisdiction"9 and the act he performed was a "judicial act.""10
The importance and necessity of the judicial immunity doctrine is well established,11 but the extent to which the doctrine should shield judges from suits for damages is unclear.12 The definition of a judicial act for purposes of the second prong of the Stump test has caused confusion among the lower courts13 because of its broad and ambiguous nature.14 Indeed, there are both substantive problems in the test's interpretation and procedural problems in its application. The substantive issue is that Stump does not make clear whether certain executive, legislative, administrative, or ministerial acts taken by judges can be considered judicial acts.15 The procedural problem involves courts' incongruous application of the judicial act definition in a specific fact pattern: when a judge privately meets with a party prior to any judicial proceedings and agrees to rule in favor of that party.16 Although this conduct is a clear violation of section 1983 of the Civil Rights Act,17 these "private prior agreements" have been protected under the judicial immunity doctrine. Courts have reached this result by applying the judicial act definition to the subsequent judicial act, rather than to the specific private prior agreement.18
This Note focuses on the judicial act requirement for judicial immunity. Part I examines the controversial Stump decision and the broad nature of the judicial act definition. Part II discusses the substantive problems with the Stump definition and demonstrates how the definition should be read when addressing questionable judicial acts. Part III discusses the procedural problem connected with the judicial act definition and demonstrates how the definition should be applied when addressing a "private prior agreement." This Note concludes that only a more precise reading of the Stump definition will aid courts in analyzing challenged judicial acts and that because private prior agreements to rule in favor of one party are not judicial acts within the meaning of the Stump definition, the doctrine of judicial immunity should not apply to such cases.
Footnotes
I | THE STUMP DEFINITION OF JUDICIAL ACT
In Stump, a document containing a petition to have a tubal ligation performed on a minor was presented to Judge Stump by the minor's mother.24 She stated in the petition that her daughter was 15 years old and somewhat retarded, although the girl had attended public school and had been promoted with her class each year.25 The petition also stated that the minor had stayed out overnight on several occasions with youths and older men, and that as a result of this behavior and her low mentality a tubal ligation would be in the child's best interests and would prevent unfortunate circumstances from occurring.26 The judge approved and signed the petition in an ex parte proceeding without a hearing, and without notice to either the girl or to anyone on her behalf.27 The operation subsequently took place.
Two years later, and after her marriage, the girl discovered that she had been sterilized.28 She brought a section 1983 action for damages against the judge, claiming a deprivation of her constitutional rights.29
The Supreme Court in a five-to-three decision held that the judge was absolutely immune from damages under the doctrine of judicial immunity.30 The Court had no difficulty classifying the action as a judicial function: It stated that state judges are often called upon in their official capacity to approve petitions relating to the "affairs of minors," and that Judge Stump was "acting as a county circuit court judge."31
The normal judicial function factor of the definition was broadly applied by the majority: Approving a petition for a tubal ligation was equated with the routine approval of a petition relating to the affairs of a minor.32 Thus, the act in question need not be performed often or even at all in order to be considered a normal judicial function.33 Although less clearly developed in Stump, the second factor - dealing with the judge in his judicial capacity - was applied just as broadly. According to the Court, because the mother presented the sterilization petition to the judge and he signed it, the parties dealt with the judge in his judicial capacity.34 Under this reading, a judge's approval of a mother's petition to lock her daughter in the attic would be considered a judicial act merely because the mother had submitted her petition to the judge in his official capacity.35
Such a broad interpretation of "judicial act" demonstrates how far the Supreme Court is willing to go in upholding the doctrine of judicial immunity, even in the face of gross unfairness in the judicial process.36 Although Stump makes clear how paramount and unyielding the policies behind judicial immunity are, it explains neither the precise meaning of a judicial act, nor how to apply the majority's definition to a given act.
Footnotes
II | SUBSTANTIVE PROBLEMS WITH THE STUMP DEFINITION OF JUDICIAL ACT
The problems with this two-factor test41 develop when the act in question is not clearly a judicial function. A judge's act can be ministerial,42 administrative,43 executive,44 legislative,45 or purely judicial.46 As long as the particular act is considered a normal function, however, it will pass the first prong of the judicial act test.47 As a result, normal administrative and executive functions of a judicial officer have been protected under the doctrine of judicial immunity.48 Likewise, normal ministerial or legislative acts of a judicial officer might be considered to be judicial acts under Stump, and therefore protected by judicial immunity.49
The flaw in applying this prong of the Stump test in this manner is that a certain act performed by a judge in a given case may be a normal official function for that judge without being a judicial act.50 A judicial act requires the kind of discretion or judgment closely connected to the adjudication of controversies.51 The purpose behind the doctrine of judicial immunity is to assure independent judicial decisionmaking52 Ministerial acts, such as properly filing court papers,53 require no discretion or judgment.54 Thus, lack of immunity for such acts poses no threat to the decisionmaking process.55 Similarly, there is no threat to the independence of the judiciary if the doctrine is inapplicable to the performance of executive, administrative or legislative acts. Executive or administrative acts, such as evaluating and appointing judicial officers, or hiring and firing employees,56 require some discretion, but not discretion that bears on independent decisionmaking in the adjudication process.57 The same reasoning applies to legislative acts, such as the promulgation of disciplinary rules.58
The second factor - that the judge be dealt with in his judicial capacity - might be read as excluding these other acts that literally are not performed in any judicial capacity.59 Some courts, however, have granted judicial immunity for such nonjudicial acts as discharging a probation officer and appointing and supervising court reporters.60 This erroneous application results from the lack of a more precise definition of what constitutes a judicial act for purposes of judicial immunity.61
In order to protect the important policies behind judicial immunity, the Stump definition of judicial act must be read in light of Justice White's statement in the majority opinion: "Because Judge Stump performed the type of act normally performed only by judges and because he did so in his capacity as a Circuit Court Judge, we find no merit to respondents' argument that... his action [was] nonjudicial and deprived him of his absolute immunity."62
The first factor should therefore be read as meaning a function normally performed by judges only and not by administators or executives or legislators. A judge who hires city employees or sits on a county fiscal court with legislative powers only or evaluates candidates for judicial office may be performing a normal function, but it is not one normally performed only by a judge.63 Policy reasons favoring absolute immunity do not apply under these circumstances. Liability arising from these actions can hardly cause fear in the judicial decisionmaking process.64 Moreover, these actions do not stem from any case or controversy, and thus can have no effect on the finality of judicial proceedings.65
That the second factor - "judicial capacity" - is a narrower concept than "official capacity" is supported by Lynch v. Johnson,66 to which the Stump majority referred in addressing the second factor.67 The court noted in Lynch that although the defense of judicial immunity is very broad, "it does not afford any protection to a judge acting... in nonjudicial activities.68 Thus, the county judge could not invoke the doctrine of judicial immunity "because his service on a [county fiscal court] with only legislative and administrative powers did not constitute a judicial act."69 Although these actions may be official functions of the judge, they are not judicial acts warranting immunity.70 Under this factor it is important to look to the character of the act, not the character of the actor.71 Indeed, Stump states as the first factor the "nature of the act itself."72 Thus, if, for example, a court clerk exercises discretion in the course of a judicial proceeding, he may be able to invoke the doctrine of judicial immunity.73
In short, the doctrine of judicial immunity is meant to protect only judicial acts,74 which, by definition, are acts requiring judicial discretion.75 When a judge does not exercise judicial discretion,76 the policies supporting absolute immunity disappear.77 A ministerial act requires no discretion,78 and while administrative, legislative, or executive acts require varying degrees of discretion, it is not judicial discretion merely because the actor is a judge.79 Judicial immunity should therefore not be granted to such exercises of discretion.
Footnotes
In Consumers Union, the Court stated that the promulgation of the Virginia Bar Code is a legislative act, and that the judicial officers were therefore not shielded under the doctrine of judicial immunity. See Consumers Union, 446 U.S. at 731. This Note, however, will address legislative acts of judicial officers in the context of judicial immunity for two reasons. First, the Court did not apply the Stump test to the act in question when addressing the judicial immunity doctrine, see Consumers Union, 446 U.S. at 731, and it is clear that Stump is still the "seminal" case on judicial immunity in damage suits. See Pulliam v. Allen, 104 S. Ct. 1970, 1978 & n.15 (1984). Second, the type of civil relief sought in Consumers Union was for declaratory and injunctive relief but not damages. Consumers Union, 446 U.S. at 726.
III | PROCEDURAL PROBLEMS WITH THE STUMP DEFINITION OF A JUDICIAL ACT
A private prior agreement to rule in favor of a party is a violation of section 1983 of the Civil Rights Act, which prohibits "the deprivation of any rights, privileges, or immunities secured by the Constitution," and holds liable any person in violation thereof.83 Nevertheless, the Eleventh Circuit has applied the doctrine of judicial immunity to hold a judge to be absolutely immune from suit under section 1983.84 The court did not apply the Stump two-factor test to the illegal agreement,85 but instead implicitly applied the test to the subsequent ruling by the judge in the judicial proceeding.86
If the Stump definition is properly applied to the private prior agreement, it will fail the test convincingly.87 Such an act cannot be considered a normal function of a judge even under the most expansive reading of the first factor.88 An illegal agreement by a corrupt judge prior to any judicial proceedings does not resemble anything close to a normal judicial function.89 Moreover, some courts hold that a judge who acts with any personal prejudice or economic interest in a case is not acting judicially, and should be held liable for any resulting damages.90
Thus, the true issue underlying the faulty procedural application of Stump is whether a private prior agreement - a clear nonjudicial act - can be separated from the ruling itself - a clear judicial function. Some courts contend that if a judicial officer commits both judicial and nonjudicial acts, he can be held liable for those damages caused by his nonjudicial conduct.91 Therefore, application of the judicial act definition must focus on the act that is deemed to be the proximate cause of any deprivation of federally protected rights.92 In a private prior agreement, the act is a judge's secret conspiracy with a party prior to any judicial proceeding.93 The Stump test requires the court to determine immunity by looking at the act, not its end result, the proceeding.94
The strongest reasons for not separating the two acts, and thus for the faulty procedural application of Stump, lie in the policies behind judicial immunity.95 An argument has been made that to hold judges liable for damages in such cases will encourage suits against judges,96 which may deter qualified candidates from seeking judicial office.97 Furthermore, judges could be haled into court and questioned about their actions, based only on conclusory allegations of prior agreements and conspiracies.98 Such frivolous claims conflict with the important policies underlying judicial immunity: judicial independence and finality.99
These policies, however, must be balanced against the fundamental policy of providing an adequate remedy to a wrongfully injured party.100 Furthermore, firm application of the summary judgment rule of Federal Rule of Civil Procedure 56101 would require the prior agreements to be supported by allegations of fact, thus substantially reducing the number of frivolous suits.102 In addition, holding corrupt judges liable for damages is likely to deter similar lawless conduct and thus uphold judicial integrity,103 which might encourage qualified judicial candidates.104 Thus, the arguments against separating the private prior agreement from the decision are not persuasive.
Finally, there is analagous authority to support the separation of the private prior agreement from the actual decision. A legislator who receives a bribe in exchange for his vote can be criminally prosecuted for the bribe alone without any inquiry into the legislative act itself, which is protected by legislative immunity.105 The notion is that although the illegal bribe and the actual vote are closely connected, the bribe undermines the integrity of the legislative process.106
Similarly, a prior private agreement undermines the integrity of the judiciary.107 The act of ruling in favor of one party is obviously closely connected with the prior agreement or conspiracy to do so. The private prior agreement does not pass muster under the Stump judicial act definition, however, and therefore the doctrine of judicial immunity should not apply.108 This illegal conduct necessarily erodes the integrity and proper administration of the justice system. Thus, there are compelling reasons to hold a corrupt judge liable in damages for harm he causes an individual. If the doctrine of judicial immunity is misapplied in such cases, improper and unethical acts will be treated like proper judicial acts and will therefore become part of our judicial system.
Footnotes
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.... Id.Although § 1983 uses the sweeping language of "every person," the settled common law doctrine of judicial immunity was not abolished. Pierson v. Ray, 386 U.S. 547, 554-55 (1967); see Pulliam v. Allen, 104 S. Ct. 1970, 1974 (1984) ("[C]ommon-law principles of...judicial immunity [are] incorporated into our judicial system and... should not be abrogated absent clear legislative intent to do so.") (citing Pierson, 386 U.S. at 554-55); Stump v. Sparkman, 435 U.S. 349, 356 (1978) ("[The] doctrine of judicial immunity [is] applicable in suits under § I of the Civil Rights Act of 1871, 42 U.S.C. § 1983, for the legislative record [gives] no indication that Congress intended to abolish this long-established principle."); Gregory v. Thompson, 500 F.2d 59, 62 (9th Cir. 1974) ("A seemingly impregnable fortress in American Jurisprudence is the absolute immunity of judges from civil liability for acts done by them within their judicial jurisdiction.").
In Harper, the court noted in dictum "that even a judge who is approached as a judge by a party for the purpose of conspiring to violate § 1983 is properly immune from a damage suit." Harper, 638 F.2d at 856 n.9. The Harper court relied on Dennis v. Sparks, 449 U.S. 24 (1980), see Harper, 638 F.2d at 856 n.9, in which a judge issued an illegal injunction resulting from a conspiracy with a private party. See Dennis, 449 U.S. at 26. The Supreme Court in Dennis granted certiorari on the issue of derivative immunity, see 445 U.S. 942 (1980), but denied certiorari on the issue of judicial immunity, see id. at 943. The Court stated in dictum, "[t]he courts below concluded that the judicial immunity doctrine required dismissal of the § 1983 action against the judge who issued the challenged injunction, and as the case comes to us, the judge has been properly dismissed from the suit on immunity grounds." Dennis, 449 U.S. at 27.
The Court's dictum in Dennis, however, resembles the faulty reasoning of the Scott court, because the Court only addressed the judicial act of issuing the illegal injunction, but not any prior understanding to commit the act. Id. Moreover, the facts of the case are distinguishable from a private prior agreement pattern because the alleged conspiracy in Dennis to rule in favor of one party took place after the judicial proceeding had already begun. See Sparks v. Duval County Ranch Co., 588 F.2d 124, 125 (5th Cir.) ("Under the alleged conspiracy, [defendant] bestowed financial favors upon [the judge], who in return would rule as [defendant] directed in cases before his court.") (emphasis added), modified on other grounds, 604 F.2d 976 (5th Cir. 1979) (en banc), cert denied, 445 U.S. 943, 449 U.S. 1021, aff'd on other grounds sub nom. Dennis v. Sparks, 449 U.S. 24 (1980).
IV | CONCLUSION
You might need to reference it during your pursuit of justice.
For instance, you might need to examine this law review in order to protect yourself from judges/lawyers/organizations who break the law (see this example of a Florida judge who outright committed perjury).
Nevertheless – and as always – please get the justice you deserve.
Sincerely,
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