SECTION IV | IMPROPER MOTIVE
Improper motive has been discussed primarily as the question of liability for malicious error. It seems clear that the common law granted absolute immunity for malicious acts within the jurisdiction of any judge of a superior court, and probably this immunity extended to any judge acting as a court of record.119 Errors of jurisdiction were actionable without proof of malice prior to Sirros v. Moore. 120 Malice is also an essential element in some of the statutory provisions governing the liability of other judges.121
Unfortunately, malice is a term which rivals jurisdiction for definitional uncertainty, and despite frequent reference to the term in the context of judicial immunity, no clear meaning has emerged.122 Malice does mean something more than m ere spite or ill will as the term is often used in common English. In a general sense, at law malice is a term used to denote some improper motive, and this in turn suggests two possible approaches. The first is to define certain specific motives as improper, and to make judicial errors so motivated actionable in tort.123 For example, any judicial error motivated by a desire to secure a private advantage, such as a bribe, might be classified as improper and actionable in tort. If this approach is preferred, the term malice can be aavoided altogether and replaced by a list of specified objectionable conduct. Alternatively, malice has been defined more generally by Mr. Justice Rand as “... acting for a reason and purpose knowingly foreign to the administration ...”124 of the judicial function. This definition corresponds almost exactly to Lord Denning’s concept of knowing jurisdictional error in Sirros v. Moore, yet Lord Denning expressly affirmed the desirability of maintaining judicial immunity for malice.125 One can only speculate that he was referring to malice in some other sense, such as, perhaps, ill will or bias towards the party.126 Although it is possible to make value choices about degrees of impropriety, sanctioning some and not others,127 it seems preferable that all knowing errors, or malicious acts, as defined by Rand J .,128 be treated alike. In that case, the basis of the action might with less confusion be called misfeasance of public office rather than malice.129
However one defines malice, the question next comes, how is the plaintiff to prove it. Malice might be conclusively proven by demonstrating a reckless error,130 in which case the term adds nothing to the recklessness test and may be aavoided altogether. At the other extreme, the plaintiff might be required to prove malice independently of the error itself;131 whereas an intermediate position would perm it, but not compel, the drawing of an inference of malice from the grossness of the error.132
If the latter approach were adopted, then it is questionable whether anything would be gained by phrasing the action in terms of malice rather than simply in terms of recklessness, employed either as the standard itself or as an indicator of knowing error. The case for immunizing malicious judicial acts rests largely upon the particularly unsavoury nature of the allegation, which, however groundless, is likely to ignore the policies which support judicial immunity. In addition to being a more straightforward basis of liability, the recklessness standard alone makes an accusation of malice technically unnecessary.133 Since not all reckless errors will necessarily support an inference of improper motive, the advantage to approaching the issue from the direction of malice is that fewer suits will actually succeed. But actual cases of either reckless error or malice are likely to be very rare, and there would seem to be no advantage to one approach over the other as to the more realistic concern with groundless suits. For those reasons, the less offensive recklessness standard is preferable.
If, on the other hand, the basis of the action is the independent proof of improper purpose, the arguments are somewhat different. Such conduct, independently proven, is sufficiently reprehensible that it may well outweigh the arguments in support of immunity.134 The requirement of independent proof of the specific malicious intent may also help to limit the number of groundless suits commenced, or at the very least make it easier to strike down the action at an early stage. But the disadvantage is that this is such an onerous burden on the plaintiff that those wronged by gross errors which would support an inference of malice may fail to establish liability.135
Improper motive may also be combined with the breach of the relevant standard as the basis for a cause of action. As such, malice can be used to limit liability based upon reckless or negligent conduct. However, the basic difficulties remain. It has, for example, been suggested in the United States that a cause of action based upon knowing or reckless error, and express malice, would be appropriate.136 But, as already suggested, independent proof of knowing error or express malice ought to be sufficient ground for liability, although perhaps not a necessary basis in view of the onerous burden it would place upon the plaintiff. The recklessness standard alone may provide an invitation to groundless suits, but if malice is to be inferred from the reckless error itself, then there would seem to be no advantage to incorporating the term into the definition of the case of action. A cause of action based upon the negligence standard plus malice has the same disadvantages: independent proof of malice is very difficult, and if the inference of malice is to be drawn largely from the error itself, it will be necessary to focus upon the reckless error in practice.137
Therefore, the only advantage to founding judicial liability exclusively upon improper judicial motive is that the insistence upon independent proof of malice may curtail groundless suits, but in so doing it may also render the cause of action impotent. By requiring malice, but permitting the inference to be drawn from the error itself, the recklessness standard may be better distinguished from a simple negligence standard, but the practical effect upon the judicial definition of the recklessness standard is questionable. On the whole, the simple recklessness standard which renders an inquiry into unsavoury judicial motives strictly unnecessary will probably serve equally well.
Footnotes
You might need to reference it during your pursuit of justice.
For instance, you might need to examine this passage 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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