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IMMUNITY STILL NOT ABSOLUTE, JUDGES LAMENT By Jean Guccione, Daily Journal Senior Writer, Los Angeles Daily Journal, 05-15-97, P. 1 New Federal Law Since Congress, with little fanfare, restored judicial immunity in federal civil-rights actions last year, most state court judges have been able to rest a bit more comfortably. After 13 years of being the targets - and potential targets - of civil rights actions by unsatis- fied litigants, judicial officers, in most cases, no longer can be sued for prospective injunctive relief, attorney fees and court costs under the federal Civil Rights Act (42 USC Sections 1983 and 1988). But some California judges warn that the lawmakers' action - and even the concept of "absolute judicial immunity" - is misleading. They say judges still are unfairly burdened by having to defend themselves in court against angry litigants with frivolous claims, even when judicial immunity is an acceptable defense. NONJUDICIAL ACTS "Congress addressed a very narrow area," said Los Angeles Superior Court Judge C. Robert Simpson, Jr. "We have anything but absolute judicial immunity." Besides civil rights actions, judicial immunity is available only in defense of civil lawsuits for damages. Judges still can be sued in their official capacity for nonjudicial acts, such as sexual harassment, employment disputes with court workers, the adoption of court procedures and rules, and a judge's criminal acts. Little can be done to stop an angry part from suing a judge. Such claims, however, are rarely mentioned and are resolved quickly, usually when a demurrer is granted. Yet such lawsuits can be a costly nuisance, wasting judges' time and draining them emotionally, judges say. CELEBRATED LOCAL CASE One example often cited is the case of Los Angeles Superior Court Judge Raymond D. Mireles, who was sued by a public defender who was physically removed from a courtroom and brought before the judge. Mireles had ordered the bailiff to "forcibly and with excessive force seize" the public defender and bring him into Mireles' courtroom. Although he claimed judicial immunity, Mireles lost in the lower court. Finally, the U.S. Supreme Court, in an unusual move, summarily reversed and remanded the case without oral arguments, finding that Mireles had performed a judicial act, and, therefore, was immune from liability . Mireles v. Waco, 502 U.S. 9 (1991). As many as 2,000 civil rights actions have been filed against judges nationwide since 1984, when the Supreme Court found that judicial immunity does not bar actions under the Civil Rights Act, said Chief Justice Joseph R. Weisberger of the Rhode Island Supreme Court. "As a result of this, many disappointed litigants, both criminal and civil, brought actions against judicial officers in their official capacities for violations of civil rights," said Weisberger, who led the fight to have Congress overturn the effects of the Supreme Court's decision in Pullium v. Allen, 466 U.S. 522 (1984). In that case, the high court, in a 5-4 decision, found that judicial immunity does not protect state judges from prospective injunctive relief in civil rights actions, so the judicial officer must pay the plaintiff's attorney fees and costs. The ruling came out of a challenge to a Virginia county magistrate's practice of jailing defendants charged with misdemeanor offenses when they did not post bail - though, if convicted, the offenders under state law could not be jailed. The magistrate, Gladys Pulliam, eventually paid the plaintiffs more than $43,000 in attorney fees and court costs after appeals, Weisberger said. The district court originally ordered her to pay $7,691 in fees and costs. That ruling alarmed many state judges nationwide. They saw it as a chink in their armor of judicial immunity. In response, the American Bar Association adopted a policy that sought to overturn the effects of Pulliam through legislation and a national insurance provider began offering the first judicial liability policy. The Pulliam decision "breached that wall" of absolute judicial immunity, Weisberger said, pointing to the long-established history of that doctrine. The common-law notion of judicial immunity was established in the 17th century, when members of the Star Chamber declared the judges of the King's Bench 8immune from prosecution in competing courts for their judicial acts, according to the Supreme Court's research in the Pulliam opinion. In October, after 12 years of being lobbied by lawyers and judges, Congress adopted a law protecting judges from actions brought against them under the Civil Rights Act. It essentially reversed the effects of the Pulliam decision. The little-noticed provision of the Federal Courts Improvement Act of 1996 now prohibits the assessment of attorney fees and costs against judges in civil rights cases for actions taken in their judicial capacity "unless such action was clearly in excess of such officer's jurisdiction." It also prohibits prospective injunctive relief against judges "unless a declaratory decree is violated or declaratory relief was unavailable." Weisberger said the amendment "adds to our judicial independence." Before, he said, judges "always were looking over his or her shoulder." In the years during which Pulliam was considered law, almost all the civil rights actions filed against judges eventually were found to be nonmeritorious, Weisberger said, but they had to be litigated to win the favorable rulings. During that time, judges in Pennsylvania were forced to defend 275 such lawsuits, he said. It is unknown how many California cases were filed because no one keeps track of such cases. Frederick R. Bennet, an assistant Los Angeles County counsel, handles the 25 to 50 lawsuits in his county. About one in 10 litigants uses Pulliam as the basis for their lawsuits against judges, he said. And Bitten doesn't expect that to change much, especially among pro per nonlawyer litigants. "People will still file lawsuits under Pulliam, but they may get dismissed a little sooner," he said. "Most sue right in the face of judicial independence, then say that can't be the law." Claims against judges have included unsubstantiated allegations that judges accepted bribes or that they are biased against whatever group to which the losing litigant belongs, Bitten said. "Litigants look to anything other than the wisdom of the court's decision to explain" why they lost a case, he said. Because judges are immune in most situations, "I rarely worry about whether the judge ruled correctly or incorrectly or whether people might agree or disagree with the decision," Bitten said. Instead, he said he looks only to see if the judges acted within the scope of their duties "regardless of whether it was right or wrong or bad motive or the judge acted maliciously." The only thing that must be proved in a judicial immunity case is that the judicial officer acted within the officer's official capacity. More judges nationwide are buying professional liability insurance, a policy created to offer judicial officers the protection many thought they would need under Pulliam. The policy also gives them protection from claims for nonjudicial acts and disciplinary matters. Judges usually were represented by their state attorney general's office or county counsel or received counsel through their insurer, experts said. Under California law, judges, like other state employees, are provided a defense of any civil action brought against them in their official capacity "on account of an act or omission in the scope of his employment as an employee of the public entity." (Government Code Section 995.) "This obligation, on the face of it, would include Pulliam claims," wrote Los Angeles attorney Richard Chernick in a March survey of immunity, indemnity and insurance issues affecting California judges. Even with the amendment of the Civil Rights Act, Chernick wrote, "liability is still possible, and if an action is commended and a factual issue raised about the judge acting in excess of jurisdiction, the claim may not be able to be resolved on summary judgment and might be required to proceed to trial." "Any time a judge makes a decision a person doesn't agree with, that person can argue outside jurisdiction," Chernick said in an interview. Besides the nuisance factor, these lawsuits also could adversely affect a judge's credit and, in states with an elected judiciary, could be used as a campaign issue against a judge, an expert said. Judges and others anticipated the potential threat to judicial independence early in the Pulliam litigation. The American Bar Association, the Conference of Chief Justices and attorneys general of 49 of the 50 states filed amicus briefs, urging the high court to reverse the district court and protect judges from civil rights actions for official actions. (New Mexico's attorney general did not sign the brief.) On the other side, the American Civil Liberties Union and National Association of Criminal Defense Lawyers filed amicus briefs for the defendants. Civil rights lawyers argued both in the Supreme Court and in Congress each time the pro- posed amendment arose that the award of attorney fees is one of the few incentives they have for soliciting lawyers to pursue civil rights violations and even the limited exception of judges harms the intent of the act. In response to judicial concerns surrounding the Pulliam decision, National Union Fire Insurance Co. began offering one of the nation's few judicial immunity policies. It was sold by Herbert L. Jamison & Co. of West Orange, NJ. The need for such insurance is, according to Weisberger, "somewhat diminished" because judges no longer can be sued for civil rights violations. But the insurance covered so many additional legal threats to judges that it has become essential for reasons other than Pulliam claims. For instance, it can be used by judges to defend against disciplinary charges, a now-popular claim that far outnumbers civil rights claims. Even with judicial immunity in federal civil rights actions, judges still have to defend themselves in what could become costly litigation because immunity is decided as a matter of law, said Simpson, who studied judicial immunity for the Los Angeles Superior Court's Compensation, Benefits and Retirement Committee. "There are many hurdles to overcome to make judicial independence stick." He said he was asked to research judicial immunity after he responded in a judges' meeting that immunity probably would alleviate the need for insurance. "The deeper I got into the research, the more I decided I needed the insurance," said Simpson, who prepared a 17-page report for his court in August, before Congress overturned Pulliam. "Every judge should take a serious look at whether he needs or can afford this ($800-a-month) policy," Simpson said. "I think there is a heavy presumption in favor of the need for it." WORKING TOGETHER TO ATTAIN FAIRNESS | |||||
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