CATHOLIC UNIVERSITY LAW REVIEW | VOL 29 ISS 4
THE JUDGE NEEDS A LAWYER

⁵ 80 U.S. (13 Wall.) 335 (1871). In an earlier case, Randall v. Brigham, 74 U.S. (7 Wall.) 523 (1868), the Court appeared to carve out an exception to the immunity doctrine "where the acts are palpably in excess of the jurisdiction of the judges, and are done maliciously or corruptly." Id at 537. Any such exception was expressly rejected in Bradley. 80 U.S. (13 Wall.) at 350-51.

⁶ Judicial immunity attaches only when the judge acts in a discretionary, rather than a ministerial, capacity. See Ex Parte Virginia, 100 U.S. 339, 348 (1879). Moreover, the judge must have subject matter jurisdiction over the action. The Court in Bradley distinguished acts in the absence of jurisdiction from acts in excess of jurisdiction as follows:

Where there is clearly no jurisdiction over the subject-matter, any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible. But where jurisdiction over the subject-matter is invested by law in the judge, or in the court which he holds, the manner and extent in which the jurisdiction shall be exercised are generally as much questions for his determination as any other questions involved in the case, although upon the correctness of his determination in these particulars the validity of his judgments may depend.

⁷ 80 U.S. (13 Wall.) at 348-49. See also Smith, An Independent Judiciary: The Colonial Background, 124 U. PA. L. REV. 1104 (1976).

⁸ The All Writs Act, 28 U.S.C. § 1651(a) (1976), provides: "The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." See 16 C. WRIGHT, A. MILLER, E. COOPER & E. GRESSMAN, FEDERAL PRACTICE AND PROCEDURE: JURISDICTION §§ 3932-3936 (1977); Note, Supervisory and Advisory Writs Under the All Writs Act, 86 HARV. L. REV. 595 (1973).

⁹ See, e.g., Will v. United States, 389 U.S. 90 (1967); Schlagenhauf v. Holder, 379 U.S. 104 (1964); La Buy v. Howes Leather Co., 352 U.S. 249 (1957).

¹⁰ 426 U.S. 394 (1976).

¹¹ Id at 403. See Will v. Calvert Fire Ins. Co., 437 U.S. 655 (1978).

¹² 426 U.S. at 402.

¹³ Under rule 21 of the Federal Rules of Appellate Procedure, all parties in the trial court, except for the petitioner, are deemed respondents for all purposes. As a further means of relieving the trial judge from responding, and in recognition that most petitions are denied, rule 21 also allows denial of the petition without an answer and provides for ordering an answer from the respondents if the appellate court is "otherwise" inclined. Fed. R. App. P. 21.

This is a partial answer to the trial judge's need for counsel but it does not solve the problem of the perceived less capable lawyer. Moreover, for the balance of the proceedings in the trial court, one party is in the unique position, for practical purposes, of having been the trial judge's lawyer. To the lay litigant, this surely appears suspect. The rule 21 provision of naming some parties as additional respondents does not remedy this seeming impropriety.

¹⁴ See Stafford, An Overview of Judicial Immunity, STATE CT. J. 3, 5 (Summer 1977). See also Comment, An Intolerable Accommodation: A Fresh Look at the Immunity Doctrine, 27 AM. U.L. REV. 863 (1978).

¹⁵ See, e.g., Gregory v. Thompson, 500 F.2d 59 (9th Cir. 1974). The court in Gregory held that "[t]he [judge's] decision to personally evict someone from a courtroom by the use of physical force is simply not an act of a judicial nature." Id at 64. Thus, the judge was not absolutely immune from a suit for assault and battery. See generally Alschuler, Courtroom Misconduct by Prosecutors and Trial Judges, 50 TEX. L. REV. 629 (1972). See also Strawbridge v. Bednarik, 460 F. Supp. 1171 (E.D. Pa. 1978); Luttrell v. Douglas, 220 F. Supp. 279 (N.D. Ill. 1963).

¹⁶ See, e.g., Zarcone v. Perry, 572 F.2d 521 (2d Cir. 1978). In Zarcone, the Second Circuit affirmed a district court's award of $80,000 in actual damages against a judge and a sheriff and $60,000 in punitive damages against the judge under 42 U.S.C. §§ 1983, 1988 (1976), because the judge had abused his official powers. See also Raitport v. Provident Nat'l Bank, 451 F. Supp. 522 (E.D. Pa. 1978); O'Bryan v. Chandler, 356 F. Supp. 719 (W.D. Okla. 1973), af'd, 496 F.2d 403 (10th Cir.), cert. denied, 419 U.S. 986 (1974); Wade v. Bethesda Hosp., 337 F. Supp. 671 (S.D. Ohio 1971); Rhodes v. Houston, 202 F. Supp. 624 (D. Neb.), aff'd, 309 F.2d 959 (8th Cir. 1962), cert. denied,383 U.S. 971 (1965).

¹⁷ See, e.g., Lynch v. Johnson, 420 F.2d 818 (6th Cir. 1970). The Lynch court found the defense of judicial immunity inapplicable when the judge was presiding over a county fiscal court which was actually a county legislative and administrative body. See also Atcherson v. Siebenmann, 458 F. Supp. 526 (S.D. Iowa 1978); Doe v. Lake County, Indiana, 399 F. Supp. 553 (N.D. Ind. 1975).

¹⁸ 42 U.S.C. § 1983 (1976) provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, 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.

¹⁹ 435 U.S. 349 (1978). See Rosenberg, Stump v. Sparkman: The Doctrine of Judicial Immunity, 64 VA. L. REV. 833 (1978).

²⁰ 435 U.S. at 357 - 60. In an earlier case, Pierson v. Ray, 386 U.S. 547 (1967), the Supreme Court held that the common law principle of judicial immunity was not abrogated by the enactment of § 1983, noting that errors made by a judge respecting the judicial process could be corrected on appeal. In reaffirming the immunity principle espoused in Bradley, the Court stated that imposing liability on judges under § 1983 would result in intimidation and prevent "principled and fearless decision-making." Id at 554. See generally Kates, Immunity of State Judges Under the Federal Civil Rights Acts: Pierson v. Ray Reconsidered, 65 Nw. U.L. REV. 615 (1970).

²¹ 435 U.S. at 363-64. Although this was the articulated justification for the Court's decision, other considerations such as preservation of judicial dignity, judicial authority, and finality of judicial decisions have been suggested as underpinnings for judicial immunity. See Nagel, Judicial Immunity and Sovereignty, 6 HASTINGS CONST. L.Q. 237 (1978). See generally Note, Judicial Immunity and Judicial Misconduct.: A Proposal for Limited Liability, 20 ARIZ. L. REV. 549, 579-88 (1978).

²² 435 U.S. at 362.

²³ See Jacobson v. Schaefer, 441 F.2d 127, 130 (7th Cir. 1971). The question of whether the immunity principle extends to actions against judges for declaratory or injunctive relief has been the subject of considerable dispute. One line of cases holds that the doctrine of judicial immunity is not a bar to such relief. See, e.g., Mills v. Larson, 56 F.R.D. 634 (E.D. Pa. 1972); Stambler v. Dillon, 288 F. Supp. 646 (S.D.N.Y. 1968). Other courts, however, maintain that the immunity doctrine bars suits for injunctive or declaratory relief. See, e.g., Woolbridge v. Virginia, 453 F. Supp. 1333 (E.D. Va. 1978); Smallwood v. United States, 358 F. Supp. 398 (E.D. Mo.), aff'd,486 F.2d 1407 (8th Cir. 1973); MacKay v. Nesbett, 385 F. Supp. 498 (D. Alaska 1968), affd, 412 F.2d 846 (9th Cir.), cert. denied,396 U.S. 960 (1969). Except for official action in respect to bar discipline, the Supreme Court left this issue open in its recent decision in Supreme Court of Va. v. Consumers Union of the United States, 48 U.S.L.W. 4620, 4624 (June 2, 1980).

²⁴ 470 F. Supp. 1055 (E.D. Va. 1979) (three-judge court), vacated and remanded, Supreme Court of Va. v. Consumers Union of the United States, Inc., 48 U.S.L.W. 4620 (June 2, 1980).

²⁵ 42 U.S.C. § 1988 (1976) provides in pertinent part: "In any action or proceeding to enforce a provision of Section... 1983... the Court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." See Hutto v. Finney, 437 U.S. 678 (1978).

²⁶ 470 F. Supp. at 1061.

²⁷ Id at 1059.

²⁸ See id at 1061.

²⁹ Supreme Court of Va. v. Consumers Union of the United States, Inc., 48 U.S.L.W. 4020, 4025 (June 2, 1980).

³⁰ P.R. Sup. Ct. (Feb. 1, 1979) (summary at 48 U.S.L.W. 3134), cert. denied, 100 S. Ct. 143 (1979).

³¹ 99 S. Ct. 2264 (1979).

³² Id at 2269.

³³ Id at 2276.

³⁴ Id at 2278. See generally Note, "Damages or Nothing," The Efficacy of the Bivens Type Remedy, 64 CORNELL L. REV. 667 (1979).

³⁵ 99 S.Ct. at 2277.

³⁶ 403 U.S. 388 (1971). In Bivens, the Court held that there was an implied right of action for damages against federal officials when fourth amendment rights are violated under color of law. Id at 397.

³⁷ The concept of a "constitutional tort" was reaffirmed in Butz v. Economou, 438 U.S. 478 (1978). Butz is also significant, however, for its holding that the function of the public official's office controls the nature of the immunity. Id at 508.

³⁸ See generally Davis v. Passman, 99 S. Ct. at 2279 (Burger, C.J., dissenting).

³⁹ See, e.g., W. BRAITHWAITE, WHO JUDGES THE JUDGES? (1971); Comment, Judicial Discipline, Removal and Retirement, 1976 Wis. L. REV.563. See also Traynor, Who Can Best Judge the Judges, 53 VA. L. REV. 1266 (1967).

⁴⁰ As former Judge Marvin Frankel has noted: "Judicial bad manners is a critical problem which renders a disciplinary technique vital. Although circumstances will not normally permit or justify removal, the public needs a tool to assert the standards of decency." Frankel, Judicial Discipline and Removal, 44 TEXAS L. REV. 1117, 1123 (1966) (footnotes omitted). For an examination of cases decided under the Code of Judicial Conduct, see Thode, The Code of Judicial Conduct - The First Five Years in the Courts, 1977 UTAH L. REV. 395.

⁴¹ See, e.g., Gasperini, Anderson & McGinley, Judicial Removal in New York. - A New Look, 40 FORDHAM L. REv. 1 (1971); Gillis & Fieldman, Michigan's Unitary System of Judicial Discipline." A Comparison with Illinois' Two-Tier Approach, 54 CHI.- KENT L. REV. 117 (1977); Comment, Judicial Tenure in the District of Columbia, 27 CATH. U.L. REV. 543 (1978); Note, Discipline of Judges in Maryland,34 MD. L. REV. 612 (1974); Note, Judicial Discipline - The North Carolina Commission System, 54 N.C.L. REV. 1074 (1976); Note, The Chandler Incident and Problems of Judicial Removal, 19 STAN. L. REV. 448 (1967).

⁴² See generally Overton, Grounds or Judicial Discipline in the Context of Judicial Disciplinary Commissions, 54 CHI-KENT L. REV. 59, 61-65 (1977). See also Comment, The Procedures of Judicial Discipline, 59 MARQ. L. REV. 190 (1976).

⁴³ Cf. In re Ruffalo, 390 U.S. 544, 551 (1968) (disbarment proceedings against lawyer are quasi-criminal in nature). See also Spevack v. Klein, 385 U.S. 511, 514-16 (1967) (disbarment of lawyer is a penalty such that right against self-incrimination attaches and person cannot be penalized for invoking it).

⁴⁴ See notes 54-59 and accompanying text infra.

⁴⁵ The resignation of Judge Charles W. Halleck from the Superior Court of the District of Columbia was inextricably intertwined with the disciplinary proceedings pending against him. See Comment, supra note 41, at 543, 561-77.

⁴⁶ Chief Justice Ben F. Overton of the Supreme Court of Florida has noted:

To allow disciplinary proceedings to evaluate judicial decisions could force the judge to walk an ill-defined and standardless line between propriety and impropriety. Clearly, such a sword over a judge's head would have a tendency to chill his independence. A judge would have to be as concerned with what is proper in the eyes of the disciplinary commission as with what is the just decision.

⁴⁷ ABA STANDARDS RELATING TO JUDICIAL DISCIPLINE AND DISABILITY RETIREMENT (1978) [hereinafter cited as ABA STANDARDS].

⁴⁸ ABA STANDARDS § 3.4.

⁴⁹ Id § 1.2 commentary.

⁵⁰ Id § 4.17. See In re Complaint Against "Judge Anonymous," 590 P.2d 1181, 1188 (Okla. 1978), where the court held that "fundamental fairness and fair play dictate that Judge Anonymous be permitted to appear as a witness with counsel" in a hearing before a disciplinary council on a complaint against him.

⁵¹ ABA STANDARDS § 5.29 commentary. For a defense of this provision, see Peskoe, Procedures for Judicial Discipline. Type of Commission, Due Process and Right to Counsel, 54 CHI.-KENT L. REV. 147, 164 (1977).

⁵² ABA STANDARDS § 6.7(g). In a disciplinary proceeding, the expense of witnesses are to be paid by the party calling the witnesses. If the judge is exonerated and can prove financial hardship, he may be relieved of the burden. Id § 5.26(b).

⁵³ Id § 8.3.