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TAKING THE HARD KNOCKS OF JUDICIAL IMMUNITY By Jeremy M. Miller, The Practitioner, Los Angeles Daily Journal, 03-30-92, P. 7 LEGAL ETHICS: Although it is obvious that judges must enjoy a broad immunity, when there is an accusation of extreme misconduct the plaintiff deserves to have his case heard on the merits. To many, the ascension of a lawyer to the bench is tantamount to the ascension of a human to heaven. For many, a lawyer becoming a judge is analogous to becoming an archangel. In fact, in many ways, it is similar. Angels, I have heard, are virtually immortal... and judges, at least federal judges, are blessed with lifetime tenure. It may not be the best-paying job - but it pays better than being a law professor, has more than all of the benefits of tenure and demands a great amount of respect. Despite all these fine benefits, life tenure may not be such a good idea particularly as it regards abusive, politicized or otherwise inept federal judges. State judges, fortunately, usually are not so blessed. But federal judges, alas, they are another story. Probably all judges should enjoy the bench for a set term... then return to the private sector. That utopia, however, is not our system at present... Instead, the purpose of today's column is to set out the parameters of judicial immunity. In a remarkably terse, readable and comprehensive opinion, the U.S. Supreme Court set out the ins and outs of judicial immunity. Mireles v. Waco, 91 Daily Journal D.A.R. 12908 (Oct. 21, 1991). In this case, the Honorable Raymond Mireles, a California Superior Court judge apparently had had quite enough of defense attorneys failing to appear on time for their cases in his court. Were such true, the judge could hardly be blamed. Lose Angeles County public defender Howard Waco, in fact, was not present as he should have been. Then the plot develops rather nicely. According to Waco's tort complaint, Judge Mireles ordered that he be abducted by officers from another courtroom, using excessive force and abusive language. If Waco's story is true, one would think he would have a civil remedy. The U.S. Supreme Court did not see it that way, however. Regardless of how improper a judge's conduct may be, if he is functioning as a judge, he is absolutely immune from civil suit. The high court did not break new ground with its statement of the law. In a 1978 case, an Indiana state judge, at her mother's request and with jurisdiction, ordered the sterilization of a mildly retarded 15-year-old girl without the girl's knowledge. Upon later marrying and discovering her sterility, the then-woman sued the judge. The high court found the judge to be absolutely immune. Stump v. Sparkman, 435 U.S. 349 (1978). The court noted that even if the judicial action was in error, were malicious and performed in "excess of his authority," there would nevertheless be immunity. The next basic query is, when, if ever, is a judge's conduct NOT immune from suit? Part of the answer was set out in Forrester v. White, 484 (U.S. 219 (1988). Here a state judge from Illinois had wrongfully terminated a probation officer. The high court, in allowing tort damages, held that the judge's conduct was "ministerial" - not judicial. Thus he did not enjoy immunity. Moreover, when a court, as part of its function, enforces certain rules, then it, again, is not acting in a judicial capacity and is thus susceptible to civil suit. So held, Supreme Court of Virginia v. Consumers Union, 406 U.S. 719 (1980). In this case, the Virginia Supreme Court had refused to allow attorney advertising, despite the fact that the U.S. Supreme Court had held such to be a First Amendment, protected commercial speech. Therefore, declaratory and injunctive relief was proper for preventing the punishment of First Amendment protected attorney advertising. Analogously, injunctive relief and the awarding of attorney fees was proper against a judge who was jailing arrestees who could not post bail even though the offenses, themselves, were not jailable. Pulliam v. Allen, 466 U.S. 522 (1984). Most fundamentally, judges are not immune from prosecution for crimes committed while performing their ministerial duties. In Ex Parte Virginia, 100 U.S. 339 (1879) a judge was indicted for failing to include blacks as jurors. The function of choosing jurors was held to be ministerial. In synthesizing the present law, Mireles indicated that judges are not immune when the action is non-judicial ("ministerial"), when the jacks lacks all jurisdiction, when the judge commits a crime and when the action against the judge is for prospective injunctive relief [emphasis added]. The only problem with the court's synthesis is, were public defender Waco to be telling the truth, then Mireles committed a criminal battery against him that was ministerial not judicial in nature. The alleged battery against him had NOTHING to do with the adjudication of a particular case. Mireles correctly summarizes the law but glaringly misapplies the facts: the unchallenged facts indicate the judge to have been acting in an enforcement/ministerial capacity (Supreme Court of Virginia v. Consumers Union), and the allegation implied that a crime (battery) was committed with no relation to the adjudication of a particular case - thus the action was, again ministerial (Ex Parte Virginia). Although it is obvious that judges must enjoy a broad immunity, otherwise the system will grind to a halt, nevertheless when there is an accusation of extreme misconduct, as here, particularly when such is not with regard to a pretrial or trail proceeding (the "judicial" functions), then the plaintiff deserves to have his case heard on the merits. Justices John Paul Stevens, Anthony M. Kennedy and Antonin Scalia dissented and have to be saluted for not simply "looking out for No. 1." | ||
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