One traditional mechanism through which the acts of trial judges have been subject to appellate scrutiny has been the writ of mandamus.8 This remedy is used to confine the judge to the proper exercise of discretion or to order its exercise where it has been withheld.9 In Kerr v. United States District Court for the Northern District of California,10 the government had sought a writ of mandamus from the United States Court of Appeals for the Ninth Circuit to vacate a district court order granting the plaintiffs discovery motion for the production of prison documents. In upholding the Ninth Circuit's denial of the writ, the Supreme Court reaffirmed the long-established policy that a "writ will issue only in extraordinary circumstances."11 The Court recognized that an important reason for limiting the use of mandamus is that such actions "have the unfortunate consequence of making the [district court] judge a litigant, obliged to obtain personal counsel or to leave his defense to one of the litigants [appearing] before him in the underlying case."12 One could reason that, in most instances, the petition for writ of mandamus is only nominally against the judge. Consequently, it is appropriate to leave the matter of representation in the appellate court to counsel for the parties in the trial proceedings. However, the Supreme Court in Kerr acknowledged the anomalies in this situation and recognized that the judge may in fact have a personal stake in the outcome and thus may require personal representation. Moreover, the judge may believe that counsel for the parties in the case will not capably advocate his interests.13
Absolute judicial immunity is disappearing in favor of more limited immunity, depending on the nature of the judicial act involved.14 Classes of allegations where immunity from suit may not exist include:
acts of a criminal nature;15
acts in the absence of authority or beyond jurisdiction;16 and
acts of an administrative or ministerial nature.17
The extent of judicial immunity under section 1983 was recently explored in Stump v. Sparkman.19 This suit was brought against a state judge who had approved a parent's petition for sterilization of her "somewhat retarded" fifteen-year-old daughter. In reversing the Seventh Circuit's determination that the judge had not acted within his jurisdiction, the Supreme Court recognized that judicial immunity from damage suits is crucial to the survival of an independent judiciary. Thus, the Court established an immunity rule for judicial acts performed within the court's competence to act.20 In barring the recovery of damages, the Court reasoned that judges must be able to act without fear of personal consequences, including the expenses incident to a suit, in controversial cases.21
The Court, in Stump, identified two factors to be considered in determining whether a judge's act is in fact "judicial." First, the nature of the act itself must be examined to see if it is a function normally performed by the judge. Second, the expectations of the parties should be scrutinized to determine whether they dealt with the judge in his official capacity.22 While this may be the legal rule, there will always be questions as to what constitutes "judicial acts" and what is within the court's competence to act. Thus, although the judge may ultimately prevail, doing so will be a long and expensive process requiring counsel every step of the way.
While the doctrine of judicial immunity bars damage actions under section 1983, it does not necessarily preclude suits under section 1983 for declaratory or injunctive relief.23 In one recent case, Consumers Union of the United States, Inc. v. ABA,24 suit was brought under section 1983 against the Virginia State Bar, the Supreme Court of Virginia, the court's chief justice, and several officials of the state bar association, seeking injunctive and declaratory relief respecting the publication of information concerning the practices and fees of attorneys. The three-judge court granted the relief sought and also awarded the plaintiffs attorney's fees under the Civil Rights Attorney's Fees Act of 1976.25
In awarding attorney's fees, the trial court held that the Act was intended by Congress to abrogate judicial immunity respecting the awarding of such fees.26 Thus, the court ruled that, while the judges would not be personally liable, they would be liable in their official capacity,27 implying that the attorney fee award would actually be paid by the state.28 On appeal, the Supreme Court held the attorney fee award improper where it was based upon the failure of the Virginia court to exercise its rulemaking authority. However, an award against the Virginia court when acting in its "direct enforcement role" in disciplining, suspending, and disbarring attorneys was approved by the Court, thereby, implying official liability of judges in similar circumstances.29
Suits against judges and challenges to the doctrine of judicial immunity arise in other contexts as well. For example, the Supreme Court recently denied certiorari in Rivera v. Cruz,30 a case in which an attorney alleged that the defendants, members of the Puerto Rico Supreme Court, could not participate in a hearing on his appeal. The trial court had summarily dismissed his complaint, which sought to void his suspension from practicing law, as not presenting a justiciable controversy.
Another and relatively new risk of exposure to suit is presented by what might be called a "constitutional tort action," where the immunity defense appears open to question. For example, in Davis v. Passman,31 the plaintiff alleged that a congressman had violated the fifth amendment by dismissing her from his staff solely on the basis of her sex. Damages were sought in the form of backpay, and jurisdiction was predicated only on the existence of a general federal question under 28 U.S.C. § 1331(a) (1976).32 Although Congress has historically exempted itself from coverage under the various civil rights acts, the Supreme Court held that a right of action against the congressman existed under the fifth amendment33 and that damages would be available if the plaintiff prevailed on the merits.34
The Davis Court recognized that all government officers are bound to obey the Constitution but noted that some "special concerns" arise in a "suit against a Congressman for putatively unconstitutional actions taken in the course of his official conduct...."35 Consequently, it may be argued that Davis, when coupled with the Supreme Court's decision in Bivens v. Six Unknown Named Agents,36 establishes a "constitutional tort" equally applicable to the judiciary for violations of fourth and fifth amendment rights.37 The existence or extent of judicial immunity from such suits is yet to be litigated. However, it is not difficult to imagine that a judge may find himself required to respond to a suit alleging similar discrimination in hiring policies or staff administration.38
