Michael Wennerlund

Table of Contents

The United States Supreme Court 4

Oklahoma Cases in the U.S. Court of Appeals, Tenth Circuit 8

Cases from the State Courts of Oklahoma................................................................................................9

Cases from the other States in the Union…….........................................................................................11(A) States of the First (1st) Federal Judicial District

Maine.................................................................................................................................11New Hampshire..................................................................................................................11Massachusetts....................................................................................................................12Rhode Island......................................................................................................................14

(B) States of the Second (2nd) Federal Judicial DistrictVermont..............................................................................................................................15Connecticut........................................................................................................................16New York............................................................................................................................19

(C) States of the Third (3rd) Federal Judicial DistrictPennsylvania......................................................................................................................23New Jersey.........................................................................................................................23Delaware............................................................................................................................26

(D) States of the Fourth (4th) Federal Judicial DistrictWest Virginia.....................................................................................................................26Maryland...........................................................................................................................27Virginia..............................................................................................................................28District of Columbia..........................................................................................................29North Carolina...................................................................................................................30South Carolina...................................................................................................................31

(E) States of the Fifth (5th) Federal Judicial DistrictTexas..................................................................................................................................32Louisiana...........................................................................................................................35Mississippi.........................................................................................................................37

(F) States of the Sixth (6th) Federal Judicial DistrictTennessee...........................................................................................................................37Kentucky............................................................................................................................38Ohio...................................................................................................................................40Michigan............................................................................................................................41

(G) States of the Seventh (7th) Federal Judicial DistrictIndiana...............................................................................................................................42Illinois................................................................................................................................43Wisconsin...........................................................................................................................44

(H) States of the Eighth (8th) Federal Judicial DistrictArkansas.............................................................................................................................45Missouri.............................................................................................................................46Iowa....................................................................................................................................47Minnesota..........................................................................................................................48Nebraska............................................................................................................................49South Dakota.....................................................................................................................50

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North Dakota.....................................................................................................................50(I) States of the Ninth (9th) Federal Judicial District

Arizona...............................................................................................................................51Nevada...............................................................................................................................51Idaho..................................................................................................................................52Montana.............................................................................................................................52Washington........................................................................................................................53Oregon...............................................................................................................................55

California...........................................................................................................................56Alaska.................................................................................................................................58Hawaii................................................................................................................................58

(J) States of the Tenth (10th) Federal Judicial District [except for Oklahoma, explored supra]New Mexico.......................................................................................................................59Utah...................................................................................................................................59Colorado............................................................................................................................60Wyoming............................................................................................................................60Kansas...............................................................................................................................61

(K) States of the Eleventh (11th) Federal Judicial DistrictAlabama.............................................................................................................................62Georgia..............................................................................................................................63Florida...............................................................................................................................63

Implied Rights of Action – Due Process, Equal Protection, and 42 U.S.C. §1983...............................64(A) 42 U.S.C. §1983……………………………………………………………………………...65

(1) Procedural Due Process………………………………………………………………68(2) Substantive Due Process…………………………………………...………………...69(3) The Fifth Amendment………………………………………………………………..70(4) The Fourteenth Amendment……………………………………………...………….70(5) The Full Faith and Credit Clause...…………………………………………………..71

42 U.S.C. §1985 – The Conspiracy Arm of 42 U.S.C. §1983..................................................................72

Action for Neglect to Prevent – 42 U.S.C. §1986.....................................................................................74

The Rooker-Feldman Doctrine – The Jurisdictional Barrier to Federal District Court....................74

Conclusion...................................................................................................................................................82

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Research Note

Question Presented:

1. What is the extent of Judicial Immunity within all fifty states, with the focus being on Oklahoma; what is the extent of judicial liability throughout the states?

ANALYSIS

I. The United States Supreme Court

As a starting point in the analysis, the US Supreme Court has ruled on several occasions

throughout its existence about the nature and scope of judicial immunity. The first such recorded

case was in Ross v. Rittenhouse, 2 U.S. 160 (1792), which stated that no person is liable in a civil

action for what he has done as a judge while acting within the limits of his jurisdiction. The next

such case came in Randall v. Brigham, 74 U.S. 523 (1868), where the Court ruled that judges of

superior or general authority are not liable to civil actions for their judicial acts, even when such

acts are in excess of their jurisdiction in the absence of malice or corruption. The Randall Court

also announced that judges of limited and inferior authority are protected from civil action only

when they act within their jurisdiction. Thus, the Randall Court made the delineation of judicial

immunity as being whether the judge has “superior or general authority” or “limited and inferior”

authority. The Court abandoned this delineation in Bradley v. Fisher, 80 U.S. 335 (1871),

adding the requirements of jurisdiction over both persons and subject matter to invoke judicial

immunity:

[J]udges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly. A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter. Where there is clearly no jurisdiction over the subject-matter any authority exercised is a usurped

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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.

Bradley, 80 U.S. 335, 351-352. In Pierson v. Ray, 386 U.S. 547 (1967), relying on Bradley the

Court stated:

Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine, in Bradley. (citations omitted) This immunity applies even when the judge is accused of acting maliciously and corruptly, and it “is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.” Scott v. Stansfield, L.R. 3 Ex. 220, 223 (1868) (quoted in Bradley, 349, note, at 350.) It is a judge's duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation.

Pierson, 386 U.S. 553-554. The doctrine of judicial immunity came under attack via dissent in

Stump v. Sparkman1, 435 U.S. 349 (1978). There the majority ruled first that a judge will not be

deprived of immunity because an action he took was in error, was done maliciously, or was in

excess of his authority; rather, he will be subject to liability only when he has acted in clear

absence of all jurisdiction. Second, the majority ruled that in courts of general jurisdiction,

neither procedural errors a circuit judge may have committed in considering sterilization petition,

nor lack of a specific statute authorizing his approval of the petition, rendered him liable in

damages for consequences of his actions. Next, the Court developed the idea that this

determination hinges upon whether the action done by the judge is a “judicial one,” for the

1 In this case, a mother of a semi-retarded daughter approached the court to approve a “Petition to have Tubal Ligation performed on Minor and Indemnity Agreement.” Judge Stump approved the petition, the daughter’s tubes were tied under the pretense of a false “appendectomy”, and once the daughter married and discovered her infertility, brought this suit under 42 U.S.C. §1983 for damages against the judge et al.

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purposes of conferring judicial immunity. The factors relate to the nature of the act itself, i.e.,

whether it is a function normally performed by a judge, and to the expectations of the parties,

i.e., whether they dealt with the judge in his judicial capacity. Lastly, the Court stated,

“Disagreement with the action taken by the judge, however, does not justify depriving that judge

of his immunity…The fact that the issue before the judge is a controversial one is all the more

reason that he should be able to act without fear of suit.” Stump, 435 U.S. at 363-364. The

dissent, led by Justice Stewart in which Justices Marshall and Powell joined, took a contrary

view to the majority’s logic. Justice Stewart believed that the entire case turned on the definition

of what reasonably constituted a judicial act, and that “if the limitations inherent in that concept

have any realistic meaning at all, then I cannot believe that the action of Judge Stump in

approving [the] petition is protected by judicial immunity.” Id. at 365. As Justice Stewart

interpreted the majority, he viewed the Court’s decision as being based on two reasons: First,

that Judge Stump’s actions were encompassed in “a function normally performed by a judge,”

and second, that the act was performed in Judge Stump’s “judicial capacity.” Id. Justice Stewart

viewed these two reasons as “factually untrue” and “legally unsound2.” Id. Justice Stewart goes

on to examine the existence of specific administrative proceedings in which such a petition could

be brought via Indiana state law, and that since none of these procedures were followed, then

Judge Stump acted outside of his judicial capacity in approving the petition. Id. at 366. Justice

Stewart, the main crux of which Justice Powell added to in a separate dissent later in the opinion,

ended his dissent with an examination of the procedural aspects of the “judicial act” that Judge

Stump performed:

2 “When the Court says that what Judge Stump did was an act ‘normally performed by a judge,’ it is not clear to me whether the Court means that a judge ‘normally’ is asked to approve a mother's decision to have her child given surgical treatment generally, or that a judge ‘normally’ is asked to approve a mother's wish to have her daughter sterilized. But whichever way the Court's statement is to be taken, it is factually inaccurate.” Stump at 365-366.

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There was no “case,” controversial or otherwise. There were no litigants. There was and could be no appeal. And there was not even the pretext of principled decision-making. The total absence of any of these normal attributes of a judicial proceeding convinces me that the conduct complained of in this case was not a judicial act.

Stump at 368-369. Later in 1978, in Butz v. Economou, 438 U.S. 478 (1978), the Court ruled that

judges have absolute immunity not because of their particular location within government, but

because of the special nature of their responsibilities. In Dennis v. Sparks, 449 U.S. 24 (1980),

the Court continued to promulgate this standard by announcing that judicial immunity arose

because it was in the public interest to have judges who were at liberty to exercise their

independent judgment about the merits of a case without fear of being mulcted for damages

should an unsatisfied litigant be able to convince another tribunal that the judge acted not only

mistakenly but with malice and corruption. The Court took the analysis a step further in Briscoe

v. LaHue, 460 U.S. 325 (1983), by stating that the common law provided absolute immunity

from subsequent damages liability for all persons, governmental or otherwise, who were integral

parts of the judicial process. The Court backed off this broad stroke of immunity in Pulliam v.

Allen, 466 U.S. 522 (1984), by stating that judicial immunity is not a bar to prospective

injunctive relief against a judicial officer acting in their judicial capacity. The Court narrowed

the scope of judicial immunity further in Forrester v. White, 484 U.S. 219 (1988), stating that

while judges enjoy absolute immunity from liability in damages for their judicial or adjudicatory

acts, judges are not absolutely immune from liability and damages for administrative, legislative,

or executive functions that judges may occasionally be assigned by law to perform; it is nature of

function performed—adjudication—rather than identity of actor who performed it—a judge—

that determines whether absolute immunity attaches to act. Finally, the Court narrowed the

scope further in Mireles v. Waco, 502 U.S. 9 (1991), by stating that judicial immunity is

overcome in only two sets of circumstances: the judge is not immune from liability of non-

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judicial actions, i.e., actions not taken in the judge’s judicial capacity; and the judge is not

immune from actions, though judicial in nature, taken in complete absence of all jurisdiction.

II. The U.S. Court of Appeals for the 10th District

As the next point in the analysis, the Federal District Court of Oklahoma, is the subject.

Since the overall focus of this memorandum is on cases originating in the state of Oklahoma, I

restrict my analysis to U.S. Court of Appeals cases that originated in Oklahoma. First, in Harris

v. Champion, 51 F.3d 901 (C.A.10.Okla. 1995), the Court of Appeals for the 10th Circuit ruled

that absolute immunity protected judges of the state court of criminal appeals of Oklahoma from

suit for monetary damages brought by defendants in criminal cases claiming that their Sixth and

Fourteenth Amendment rights were violated by delays in processing appeals because the

challenged conduct involved judicial acts performed within cases properly before the judges.

Nevertheless, the Court of Appeals went on to state that while absolute immunity shields judges

from liability in their individual capacity, it does not shield them from claims for prospective

relief. Furthermore, in the criminal law arena, in Mehdipour v. Chapel, 12 Fed.Appx. 810

(C.A.10.Okla. 2001), the Court of Appeals stated that state appellate judges had subject matter

jurisdiction to decide criminal and habeas appeals, and thus they were absolutely immune even if

their actions were erroneous, malicious, or in excess of their judicial authority. This ruling

would appear to be restricted by Mireles, supra, but the Court of Appeals did not mention the

restriction in their opinion. In Eidson v. Burrage, 113 Fed.Appx. 860 (C.A.10.Okla. 2004), the

Court of Appeals stated that federal judges enjoyed absolute immunity from liability in actions

alleging that judges improperly issued warrants, accepted evidence, and applied the law, which

were judicial actions. Furthermore, in McFall v. Bednar, 407 F.3d 1081 (C.A.10.Okla 2005), the

Court of Appeals reiterated the U.S. Supreme Court’s view that judges are entitled to absolute

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immunity for actions taken in their judicial capacity. Even further, in Andrews v. Heaton, 483

F.3d 1070 (C.A.10.Okla. 2007), the Court of Appeals stated that absolute immunity bars suits for

money damages for acts made in the exercise of prosecutorial or judicial discretion. The Court

of Appeals went on in Andrews to state that federal judges were entitled to absolute immunity in

actions seeking money damages on the basis of an alleged conspiracy to deprive the plaintiff of

his rights because the judges were performing judicial acts when they engaged in the alleged

unconstitutional conduct.

III. The State of Oklahoma

In the next point of analysis, we will examine the rulings on the nature and scope of

judicial immunity in the courts located within the state of Oklahoma. The first case of record

involving judicial immunity is Comstock v. Eagleton, 69 P. 955 (Okla.Terr. 1902), where the

Supreme Court of the Territory of Oklahoma3 ruled that where a probate judge, in rendering

judgment in a case pending in his court, acts judicially, and is not amenable to a civil action for

damages, though the judgment was erroneous, and, in rendering it, he erroneously exceeds the

jurisdiction of his court, still enjoys judicial immunity. Next, in Waugh v. Dibbens, 160 P. 589

(Okla. 1916), the Oklahoma Supreme Court ruled that judicial immunity extends to judges of

inferior and limited, as well as to those of general jurisdiction as to liability for official acts. In

Francis v. Branson, 31 P.2d 870 (Okla. 1933), the Oklahoma Supreme Court ruled that members

of the Oklahoma Supreme Court had the right, without civil liability, to give in the form of an

opinion or directly from the bench their reasons for not participating in a given cause of action,

though they exceeded their jurisdiction in doing so, which thereby caused an injury to another.

Furthermore, in Francis, the Oklahoma Supreme Court stated that judges of courts of superior or

3 Oklahoma was not admitted to the Union until 1907, thus the courts there held provincial status until then.

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general jurisdiction are not liable to civil actions for their judicial acts, even when acts exceed

their jurisdiction and are allegedly malicious or corrupt; but immunity of a judge from liability to

civil action does not follow him when he is not acting in his judicial capacity. The Oklahoma

Supreme Court extended the scope of judicial immunity in Brightmore v. District Court of Tulsa

County, 424 P.2d 425 (Okla.Crim.App. 1967), by stating that an action will not lie against a

judicial officer for a judicial act, where there is jurisdiction of the person and subject matter,

although it was alleged and proved that such an action was done maliciously or even corruptly.

In Hathcock v. Barnes, 25 P.3d 295 (Okla.Civ.App.Div.1, 2001), the Oklahoma Court of Civil

Appeals, Division 1, defining the scope of judicial immunity even further, ruled that judges,

advocates, and witnesses are immune from suit where those suits are based upon communication

made during or preliminary to judicial proceedings as long as the communication is in some way

relevant to the proceeding. In Gregory v. Fransein, 42 P.3d 298 (Okla.Civ.App.Div.1, 2001), the

same court of Hathcock ruled that a judge will not be deprived of immunity because the action

he took was in error, was done maliciously, or was in excess of his authority; rather, he will be

subject to liability only when he has acted in the clear absence of all jurisdiction. In defining the

scope even further in Allen v. Zigler, 41 P.3d 1060 (Okla.Civ.App.Div.1, 2001), the Oklahoma

Court of Civil Appeals, Division 1, ruled that a judge performing administrative, legislative, or

executive functions may not be entitled to the same absolute immunity that attaches to a judicial

act. Also in Allen, the court ruled that there are only two exception to the doctrine of judicial

immunity: first, there is no immunity for actions not taken in the judges judicial capacity, and

second, there is no immunity for actions, though judicial in nature, taken in complete absence of

all jurisdiction. Lastly in Allen, the court ruled that judicial immunity applies even when the

judge is accused of acting maliciously and corruptly.

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IV. The Other States of the Union4

A. The States of the Federal Court for the 1st Circuit

Maine

In Morrison v. McDonald, 21 Me. 550 (Me. 1842), the Maine Supreme Court ruled that

where the act of a judge is a judicial one, done pendente lite (while the litigation is pending), no

action lies, however wrong and injurious to the party, whether the act was done mala fide (in bad

faith), or with the most honest intentions, provided the justice had jurisdiction of the parties and

of the subject matter of the suit. The Morrison court went on to state that if the judge does not

have jurisdiction of the subject matter or of the parties, his judicial action in the case are coram

non judice (not in the presence of a judge), and void; and the judge, and all persons concerned in

executing the judgment, are trespassers5. In Stone v. City of Augusta, 46 Me. 127 (Me. 1858),

the Maine Supreme court ruled that a judge will be liable for violation of a ministerial duty. In

Inhabitants of Waterville v. Barton, 64 Me. 321 (Me. 1874), the Maine Supreme court ruled that

inferior courts of limited jurisdiction are responsible in trespass to those whom their acts in

excess of their jurisdiction injuriously affect. Lastly, in Richards v. Ellis, 233 A.2d 37 (Me.

1967), the Maine Supreme Court rules that a judge has absolute immunity from civil suits for

damages arising from his judicial acts.

New Hampshire

In the first recorded case of judicial immunity within this state, Evans v. Foster, 1 N.H.

374 (N.H. 1819), the New Hampshire Supreme Court ruled that judges are not liable in civil

4 I organized the remaining states in the Union by their position within the U.S. Federal Districts, but of course with the emphasis being the rulings made within the state courts and not the Federal districts of those states.5 Note: early courts appear to deem the acts of judges outside their official judicial capacity as a “trespass.”

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actions for judicial acts within the scope of their jurisdiction. This ruling was reiterated verbatim

in Burnham v. Stevens, 33 N.H. 247 (N.H. 1856). In Sweeney v. Young, 131 A. 155 (N.H. 1925),

the New Hampshire Supreme Court ruled that even if a particular judgment was prompted by

malice and was set aside and reversed subsequently, such an occurrence still did not pierce the

absolute immunity afforded to judges. Moore v. Cotton, 54 A.2d 167 (N.H. 1947), relying on

Evans and Burnham, again announced that judges are not liable for civil action for judicial acts

done within the scope of their jurisdiction. In Gould v. Director, New Hampshire Div. of Motor

Vehicles, 639 A.2d 254 (N.H. 1994), the Maine Supreme Court extended the scope of their

state’s judicial immunity to the director of the New Hampshire motor vehicles division by ruling

that a governmental employer of a quasi-judicial official enjoys the same immunity under the

doctrine of quasi-judicial immunity as does the official. Further in Gould, the New Hampshire

court stated that to determine the scope of immunity to be afforded in specific situations under

the doctrine of quasi-judicial immunity, the Maine Supreme Court examines the act complained

of, not merely the title of the actor. Lastly, in Gould, the court ruled that under the doctrine of

quasi-judicial immunity, absolute immunity would be afforded only to those actions that are

quasi-judicial in nature.

Massachusetts

In Jaffarian v. Murphy, 183 N.E. 110 (Mass. 1932), the Massachusetts Supreme Court

ruled that generally, parties aggrieved by rulings and orders of one exercising judicial powers

must appeal or bring exception and cannot have private actions against the judge. In Allard v.

Estes, 197 N.E. 884 (Mass. 1935), the Massachusetts Supreme Court ruled that every judge is

exempt from liability to an action for any judgment or decision rendered in exercise of

jurisdiction vested in him by law to end so that the administration of justice may be independent,

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based upon free and unbiased convictions, and not influenced by apprehension of personal

consequences. See also Joyce v. Hickey, 147 N.E.2d 187 (Mass. 1958) (relying on Allard).

Similarly in DeLoach v. Tracy, 223 N.E.2d 918 (Mass. 1967), where a district court judge had

allowed plaintiff’s motion to remove a default judgment, and subsequently denied a motion to

dismiss complaint and where there was an allegation that summons in lieu of warrant was served

day after its return date, the Massachusetts Supreme Court ruled that there was a failure to show

that judge was acting otherwise than in the exercise of jurisdiction vested in him by law and that

the principle of judicial immunity was applicable. Judicial immunity was narrowly construed in

Chief Administrative Justice of the Trial Court v. Labor Relations Com’n, 533 N.E.2d 1313

(Mass. 1989), where the Massachusetts Supreme Court ruled that absolute judicial immunity did

not extend so far as to prevent a chief administrative judge from having to testify and explain his

administrative actions before an administrative agency, and that absolute immunity was not

sufficient to support an injunction to prohibit the agency from conduction hearings concerning

the judge’s administrative employment decisions. In Com. v. O’Neil, 641 N.E.2d 702 (Mass.

1994), the same court ruled that every judge, whether of higher or lower court, is exempt from

liability to action for any judgment or decision rendered in exercise of jurisdiction vested in him

by law. In Comins v. Sharkansky, 644 N.E.2d 646 (Mass. 1995), the Massachusetts Supreme

Court widened the scope of judicial immunity by ruling that judicial immunity was not limited to

judges, but rather the same considerations of public policy apply to arbitrators who, under

Massachusetts law, exercise judicial functions. Lastly, in Schneider v. Associate Justice of

Housing Court Dept., 711 N.E.2d 601 (Mass. 1999), the Massachusetts Supreme Court stated

that an Associate justice of the housing court department enjoyed absolute judicial immunity for

his conduct in connection with a summary process action brought against tenant by her landlord,

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including his appointment of a guardian ad litem for the tenant, and his denial of tenant’s

application for a restraining order.

Rhode Island

In Calhoun v. City of Providence, 390 A.2d 350 (R.I. 1978), the Rhode Island Supreme

Court ruled that certain types of activity such as judicial decision making and the enforcement of

the criminal law by the Attorney General must be engaged in by those types of officials freely,

independently, and unimpeded by the possibilities of personal liability. The same court ruled in

Hartt v. Hartt, 397 A.2d 518 (R.I. 1979), that the claim that a judge exceeded his jurisdiction

will not suffice to show clear absence of jurisdiction over subject matter required to impose civil

liability in damages. See also Laird v. Chrysler Corp., 460 A.2d 425 (R.I. 1983) (judges and

prosecutors are deemed immune from suit for the benefit of the public in whose interest it is that

they remain free to perform their functions without fear of consequences). Finally, in Estate of

Sherman v. Almeida, 747 A.2d 470 (R.I. 2000), the Rhode Island Supreme Court set out several

points of law in their ruling. First, they ruled that judicial immunity is immunity from suit, not

just immunity from an ultimate assessment of damages. Second, they ruled that although it may

be unpalatable at times, particularly where the judge is obviously corrupt, the official conduct of

a judge is immune from suit. Lastly, the Rhode Island Supreme Court ruled that the doctrine of

judicial immunity barred an action against a judge in his official capacity for acts leading to

convictions for corruption and bribery in his judicial capacity.

B. The States of the Federal Court for the 2nd Circuit

Vermont

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The first recorded case of judicial immunity was Barnard v. Flanders, 12 Vt. 657 (Vt.

1840), where the Vermont Supreme Court ruled that in an action against a justice for willfully

and maliciously recusing himself from the trial of a cause, records made by him are admissible

on his own behalf and conclusive, and cannot be impeached by parol testimony, and that the

validty of the record in such a case is to be decided by the court. In Blood v. Sayre, 17 Vt. 609

(Vt. 1843), the same court announced that where a person having a limited judicial authority

does any act beyond the scope of his authority, he thereby makes himself a trespasser. The

Vermont Supreme Court further defined the scope of judicial immunity in First Universalist Soc.

in Fletcher v. Leach, 35 Vt. 108 (Vt. 1862), by stating that officers having quasi-judicial powers

are not liable for injury resulting from acts done understandably and in good faith within the

limits of an authority expressly granted to them. Further defining the scope, the same court ruled

in Kibling v. Clark, 53 Vt. 379 (Vt. 1881), that a justice of the peace and town grand juror were

not liable for their judicial acts, done in good faith, when they have jurisdiction of the subject

matter, the process, and the person of the party dealt with. In regards to criminal procedure, the

Vermont Supreme Court, in Banister v. Wakeman, 23 A. 585 (Vt. 1891), ruled that a justice of

the peace, before whom one is being tried for assault and battery, has a right to interrogate

witnesses offered by the accused, or to exclude them, and reject their evidence, it being within

his judicial discretion to do so, and he is not answerable in a civil action for such acts. Also in

Banister, the court ruled that the issuing of a “mittimus” (literally, “we send”; it was a written

document that served as a warrant for the commitment of an individual to prison) by a justice of

the peace in a criminal case was a ministerial act, for which he may be liable in damages if done

without right and with a malicious intent. In Verrill v. Dewey, 299 A.2d 182 (Vt. 1972), the

Vermont Supreme Court narrowed the reach of judicial immunity by stating that a judge is

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civilly liable when he acts outside jurisdiction conferred upon him by law. In LaPlaca v.

Lowery, 349 A.2d 235 (Vt. 1975), a case involving allegations of slander by a judge, the

Vermont Supreme Court ruled, first, that the doctrine of judicial immunity applies to judges,

attorneys, and witnesses, and second, that in the absence of an allegation that the words of a

judge complained of were so irrelevant to the judicial proceedings in which they were spoken as

to remove the protection of judicial immunity of a judge, an action could not be maintained for

slander. In further defining the scope of judicial immunity, in LaShay v. Department of Social

and Rehabilitation Services, 625 A.2d 224 (Vt. 1993), the Vermont Supreme Court stated that

absolute immunity applies to judges, legislators, and the state’s highest executive officers when

they are acting within their respective authorities. In Politi v. Tyler, 751 A.2d 788 (Vt. 2000),

the Vermont Supreme Court again visited the issue in ruling that, first, the determination of

whether judicial immunity exists is a question of law, and second, that judicial immunity extends

only during the performance of an act which was judicial and within claimant’s general

authority. Finally, in Czechorowski v. State, 872 A.2d 883 (Vt. 2005), the Vermont Supreme

Court ruled that absolute immunity protects judges and the state’s highest executive officers,

including prosecutors, from civil suits for certain actions closely associated with their judicial or

prosecutorial activities, including, among other things, the decision whether to prosecute and the

prosecution of an action.

Connecticut

The cases of Phelps v. Sill, 1 Day 315 (Conn. 1804) and Case v. Bush, 106 A. 822 (Conn.

1919), both involved probate judges and both involved rulings that enumerated absolute

immunity over the respective judge’s actions. In Aetna Ins. Co. v. Blumenthal, 29 A.2d 751

(Conn. 1943), the Connecticut Supreme Court ruled that when a magistrate acts judicially with

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respect to subject matter of which he has a general jurisdiction, but in the particular case he

acquires no jurisdiction of the person affected, he is not liable if the act involves his present or

previous affirmative decision that he has jurisdiction, provided that a colorable case has been

presented to him which fairly calls for or permits the exercise of his judgment with respect

thereto, and provided that he has determined in good faith, without malice or corruption, that

case called for the exercise of his general jurisdiction. In Tolisano v. State, 111 A.2d 562

(Conn.Super. 1954), the Superior Court of Hartford County, Connecticut, ruled that a judge who

has jurisdiction of a person, process to the action, and its subject matter is not liable in damages

because of erroneous issuance of an illegal order. Depending upon Tolisano, the Superior Court

of New Haven County, Connecticut, in Ferraiuolo v. Henchel, 156 A.2d 798 (Conn.Super.

1959), ruled that the judge of an inferior court of record is never answerable in a civil suit for a

judgment rendered by him, in his judicial capacity, however erroneous, provided he has

jurisdiction over the person, the process and the subject matter and if judge has a general

jurisdiction, but no jurisdiction of person, he is still not liable if act involves his present or

previous affirmative decision that he has jurisdiction of such person and authority to proceed in

particular case provided that a colorable case has been presented to him fairly calling for or

permitting exercise of his judgment and that he has determined in good faith that case presented

calls for exercise of his general jurisdiction. Over thirty years later, in Delaurentis v. City of New

Haven, 597 A.2d 807 (Conn. 1991), the Connecticut Supreme Court ruled that the mantle of

judicial immunity covers not only judges, but all adjuncts to the judicial process. In Lombard v.

Edward J. Peters, Jr., P.C., 749 A.2d 630 (Conn. 2000), the Connecticut Supreme Court made

several rulings on the issue. First, they ruled that a judge may not be civilly sued for judicial acts

he undertakes in his capacity as a judge; the rationale is that a judge must be free to exercise his

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judicial duties without fear of reprisal, annoyance or incurring personal liability. Second, The

protection of absolute judicial immunity extends only to those who are intimately involved in the

judicial process, including judges, prosecutors, and judges' law clerks. Third, even judges do not

enjoy absolute immunity for administrative as opposed to judicial actions. Lastly, they ruled that

the determination of whether a judge’s action are administrative or judicial, for purposes of

determining whether a judge is entitled to enjoy absolute judicial immunity, is made using a

functional approach: immunities are grounded in the nature of the function performed, not the

identity of the actor who performed it. These exact announcements were maintained verbatim in

Carruba v. Moskowitz, 840 A.2d 557 (Conn.App. 2004). In Day v. Smith, 2008 WL 544536

(Conn.Super. 2008) the Superior Court of Connecticut, in the Judicial District of New Haven, in

an inmate’s 42 U.S.C. §1983 action, ruled that absolute immunity from civil suit, as afforded to

judges and other officials conducting quasi-judicial proceedings, involves a jurisdictional

question that may be raised in a motion to dismiss. In its most recent ruling on judicial

immunity, the Appellate Court of Connecticut, in Leseberg v. O’Grady, 971 A.2d 86 (Conn.App.

2009), made several reiterations to the prevailing law in the state. First, the Appellate court ruled

that a judge may not be civilly sued for judicial acts he undertakes in his capacity as a judge.

Next, they ruled that the protection of absolute judicial immunity extends only to those who are

intimately involved in the judicial process, including judges, prosecutors, and the judges’ law

clerks. Third, they ruled that judges do not enjoy absolute immunity for administrative as

opposed to judicial actions. Next, the determination of whether a judge’s actions are

administrative or judicial, for the purpose of determining whether a judge enjoys absolute

judicial immunity, is made using the functional approach mentioned above in Carruba. Fifth, a

judge is entitled to absolute judicial immunity unless the judicial conduct is so far outside the

18

normal scope of judicial function that the judge was in effect not acting as a judge. Lastly, the

court ruled that judicial immunity is overcome in only two sets of circumstances: first, where the

actions were not taken in the judge’s judicial capacity, and second, when the actions are taken in

the complete absence of all jurisdiction.

New York

The first case of record in New York dealing with the issue of judicial immunity is Yates

v. Lansing, 5 Johns. 282 (N.Y.Sup. 1810), where the Supreme Court of New York6 ruled that a

judge, in allowing a habeas corpus in vacation, acts ministerially, and, if he refuses, is liable to

the penalty of the act. Further in Yates, the court ruled that where courts of special and limited

jurisdiction exceed their powers, the whole proceeding is coram non judice, and all judges taking

part in such void proceedings are liable in trespass. Finally, they ruled that judges of all courts of

record, from the highest to the lowest, are exempted from prosecution for acts done by them in

their judicial character and within their jurisdiction. In the second suit of Yates v. Lansing, 9

Johns. 395 (N.Y. 1811), the Supreme Court of the New York ruled that no person is liable in a

civil action for what he has done as a judge while acting within the limits of his jurisdiction. In

Willis v. Havemeyer, 12 N.Y.Super.Ct. 447 (1856), the court ruled that a judgment rendered in

proceedings conducted according to law, while in force and not reversed, will protect the officer

rendering it, where he has acted bona fide, against an action for hearing the complaint and

issuing process to execute his judgment. In East River Gaslight Co. v. Donnelly, 48 Sickels 557

(N.Y. 1883), the New York Court of Appeals again ruled that no person is liable in a civil action

for what he has done as a judge while acting within the limits of his jurisdiction. However, the

6 Note: Today, the “Supreme Court” in New York refers to the trial level. The Supreme Court, Appellate Division, is the intermediate appellate court. The State Court of Appeals is the highest appellate court. In 1810, however, and until 1846, the courts in the state of New York were subject to a circuit system, eight (8) in all.

19

scope of judicial immunity was narrowed in Bowman v. Seaman, 137 N.Y.S. 568

(N.Y.App.Div.2.Dept. 1912), where the court ruled that where the court having jurisdiction of

the person and the subject matter of the controversy imposes a fine for contempt, there is no civil

liability on the part of the judge or those enforcing his orders, unless jurisdiction is subsequently

divested, and it is shown that he acted out of actual malice. Nevertheless, in Seneca v. Colvin,

162 N.Y.S. 834 (N.Y.App.Div.4.Dept. 1917) the court ruled that a judge having general or

limited jurisdiction of the subject matter and the parties is not liable civilly for erroneous, illegal,

malicious, or corrupt action, or for failure to exercise ordinary care. See also Gans v. Callaghan,

238 N.Y.S. 599 (N.Y.Sup. 1930) (judicial officer is exempt from tort liability for mistake, or

even corrupt misconduct); Lucky v. Goddard, 13 N.Y.S.2d 808 (N.Y.Sup. 1939) (an action does

not lie for misconduct or delinquency, no matter how gross, in the performance of judicial

duties); Whitehead v. De Andrea, 60 N.Y.S.2d 44 (N.Y.Sup. 1945) (judges both of courts of

record and of courts of limited jurisdiction are exempt from liability in a civil action for acts

performed in the exercise of their judicial functions). The New York courts also extended this

protection to suits in which defamation is alleged in O’Connell v. Hallinan, 64 N.Y.S.2d 198

(N.Y.Sup. 1946). The New York courts began to narrow the scope of judicial immunity in

Koeppe v. City of Hudson, 95 N.Y.S.2d 700 (N.Y.App.Div.3.Dept. 1950), where the Appellate

division of the New York Supreme Court ruled that when a judge acts, he is clothed with

jurisdiction; when he is acting without such jurisdiction, he is but an individual, falsely assuming

an authority he does not possess and in such cases he acts in a private capacity, and the

responsibility of his actions is his own. Further narrowing the scope, in Jameison v. State, 158

N.Y.S. 496 (N.Y.Ct.Cl. 1956), the court ruled that if a judge does not have jurisdiction then his

actions and proceedings, including entry of judgment, are void, and the judge has been acting in

20

a private capacity and the responsibility is his. However, the Jameison court held that when a

judge does act outside his jurisdiction in good faith, judicial immunity will attach. In Meola v.

City of New York, 226 N.Y.S.2d 777 (N.Y.Sup. 1961), the court ruled that judicial immunity

does not arise until jurisdiction is established, and this is not done until it is demonstrated that the

person was served with summons and the person charged is before the court. For the next

decade, the “good-faith mistake” standard was promulgated in Doran v. Savoca, 240 N.Y.S.2d

835 (N.Y.Sup. 1963), Speare v. State, 248 N.Y.S.2d 146 (N.Y.Ct.Cl. 1964), and Rodriguez v.

State, 285 N.Y.S.2d 896 (N.Y.Ct.Cl. 1967).

In Moore v. Caponera, 417 N.Y.S.2d 603 (N.Y.Sup. 1979), the court turned away from

the “good-faith mistake” standard they had created, and instead implemented a jurisdictional

approach. The court ruled that it is only when there is a clear absence of jurisdiction that a

judicial officer may be subject to civil liability. New York continued this standard in Jade

Square and Tower, Ltd. v. C.I.T. Corp., 448 N.Y.S.2d 194 (N.Y.App.Div.1.Dept. 1982), where

the court held that the reality of a judge being free of reprisal is a necessary corollary to the

jurisdictional approach. In furtherance of this approach, the appellate division widened the scope

of the jurisdictional approach in Sassower v. Finnerty, 465 N.Y.S.2d 543 (N.Y.App.Div.2.Dept.

1983) by ruling that judicial immunity extends to all judges and encompasses all judicial acts,

even if such acts are in excess of a judge’s jurisdiction and are alleged to have been done

maliciously or corruptly. However, the appellate division of New York then distinguished

Sassower in LaPier v. Deyo, 474 N.Y.S.2d 597 (N.Y.App.Div.3.Dept. 1984), by stating that

judicial immunity is lost when a judge acts in clear absence of jurisdiction. The difference

between when a judge “acts in excess of his jurisdiction” and when a judge “acts in clear absence

of jurisdiction” appear to be differences in degree that are examined on a case-by-case basis.

21

Lombardoni v. Boccaccio, 504 N.Y.S.2d 260 (N.Y.App.Div.3.Dept. 1986) demonstrated this

distinction. In Lombardoni, the appellate division ruled that a family court judge’s actions in

authorizing and directing the arrest of a person who failed to comply with a prior family court

order of visitation, even if doing so was in excess of his jurisdiction, were not performed in clear

absence of any jurisdiction so as to fall outside the cloak of absolute immunity afforded to

judges. See also Colin v. County of Suffolk, 580 N.Y.S.2d 460 (N.Y.App.Div.2.Dept. 1992) (a

judge will not be deprived of immunity because an action he or she took was in excess of

authority, he or she will be subject to liability when the action was taken in clear absence of all

jurisdiction). In Harley v. Perkinson, 589 N.Y.S.2d 655 (N.Y.App.Div.3.Dept. 1992), the court

announced that absent an allegation of facts sufficient to demonstrate that judicial actions were

performed in clear absent of any jurisdiction over a subject matter, then judicial immunity will

cover the judge. The court continued the jurisdictional approach, and elaborated on it in Alvarez

v. Snyder, 702 N.Y.S.2d 5 (N.Y.App.Div.1.Dept. 2000), where they ruled that, first, as with other

forms of immunity, judicial immunity is an immunity from suit, not just from the ultimate

assessment of damages, and second, that the only two exceptions to the doctrine of judicial

immunity are when a judge does not act as a judge or when a judge, though acting under color of

judicial authority, lacks any jurisdiction supporting the judicial authority for that action taken.

Finally, in Mickens v. State, 881 N.Y.S.2d 854 (N.Y.Cl.Ct. 2009), the New York Court of Claims

ruled that absolute immunity protects actions taken by judges when they are performing their

judicial functions and by other government officials when they are lawfully carrying out duties

that are classically judicial, that is, decisions which involve the officials’ expertise, an

application of law, and an exercise of their judgment.

C. The States of the Federal Court for the 3rd Circuit

22

Pennsylvania

In Petition of McNair, 187 A. 498 (Pa. 1936), the Pennsylvania Supreme Court ruled that

magistrates cannot be subjected to liability, civil or criminal, for any of their judicial acts, no

matter how erroneous, so long as they act in good faith. The Pennsylvania Court of Common

Pleas continued and expanded the doctrine of judicial immunity in Cooney v. Greevy, 1962 WL

6859, 8 Lycoming 172 (Pa.Com.Pl. 1962), by stating that a civil suit, commenced by a defendant

in a desertion and nonsupport action, against the judge who heard and decided the domestic

relations case, seeking damages for alleged improper actions by the judge, will be dismissed on

preliminary objections since a judge is exempt from civil suit for his judicial acts where there is

jurisdiction of the subject matter, and this holds even though irregularity and error attended the

exercise of the jurisdiction and allegations of malicious or corrupt motives are made. The

Pennsylvania Court of Common Pleas continued to define the scope of judicial immunity in

Feingold v. Hill, 44 Pa. D. & C.3d 610 (Pa.Com.Pl. 1986), when they ruled that absolute

immunity is granted to judges from liability for damages when performing judicial acts, even if

their actions are in error or performed with malice, providing that there is not a clear absence of

all jurisdiction over the subject matter and person; this rule was again reiterated verbatim in

Logan v. Lillie, 728 A.2d 995 (Pa.Cmwlth.App. 1999) and Beam v. Daihl, 767 A.2d 585

(Pa.Super. 2001).

New Jersey

The first recorded case in New Jersey on this subject was Little v. Moore, 4 N.J.L. 74

(N.J. 1818), where the Supreme Court of New Jersey ruled no action can be maintained against

the judge of any court for mere error of judgment, as one can only be maintained if the judge

23

exceeded his jurisdiction, which would make him liable for trespass because he is not within the

exercise of his judicial authority. New Jersey maintained and further defined their jurisdictional

approach in Taylor v. Doremus, 16 N.J.L 473 (N.J. 1838), where the New Jersey Supreme Court

ruled that where the act of a judge is a judicial one, done pendente lite, no action lies, however

wrong and injurious to the party, whether the act was done mala fide, or with the most honest

intentions, provided the justice had jurisdiction of the parties and of the subject matter of the suit.

But, the Taylor court added, if the judge does not have jurisdiction of the subject matter or of the

party, his judicial acts in the case are coram non judice, and void; and the judge, and all persons

concerned in executing his judgment, are trespassers. In defining jurisdiction, the New Jersey

Superior Court in O’Regan v. Schermerhorn, 50 A.2d 10 (N.J.Sup. 1946), ruled that

“jurisdiction” means the judicial power to hear and determine a matter, not the manner, method,

or correctness of the exercise of such power, and a “judicial act” means the actual exercise of

such judicial power in the process of reaching a decision in a particular manner. Further in

O’Regan, the court expanded the scope by ruling that judicial immunity applies even when the

judge acts erroneously, illegally, irregularly, maliciously, or in excess of jurisdiction. Prejudice

to the party was found irrelevant in Zalewski v. Gallagher, 375 A.2d 1195 (N.J.Super.App.

1977), as the court ruled that an action is not recognized against a judicial officer for an error of

judgment, no matter how prejudicial to a person the error may be. New Jersey defined the

normative reasoning for judicial immunity in Centennial Land and Development Co. v. Medford

Tp., 397 A.2d 1136 (N.J.Super.Law. 1979), by ruling that resolution of the issue as to whether to

grant immunity to participants in judicial and quasi-judicial process involves a balancing of the

citizen’s interest in having a remedy for a wrong suffered and society’s interest in attracting

qualified person to public office who will adjudicate application of law on their merits without

24

consider of matters foreign to the law. In K.D. v. Bozarth, 713 A.2d 546 (N.J.Super.App. 1998),

New Jersey announced the main crux of its doctrine of judicial immunity. First, the court ruled

that judges are absolutely immune from liability for their judicial acts. Next, they ruled that

judicial immunity applies even as to judicial acts that are wrong, malicious, or beyond the

judge’s authority. Third, the court announced that the purpose of judicial immunity is to

encourage judges to decide cases independently and without fear of being held accountable in

damages to a disappointed litigant. Fourth, they ruled that the ban against suing judges is

justified by the availability of other safeguards against judicial error, especially the right to

appeal. Fifth, the court ruled that judicial immunity has two prerequisites: (1) the act complained

of must be a judicial act, and (2) the judge must have subject matter jurisdiction at the time he

acts. Next, the court held that for judicial immunity purposes, a “judicial act” is one normally

performed by a judge in his judicial capacity; also, whether a judge has subject matter

jurisdiction must be broadly construed in the immunity context, such that immunity will be

denied only where the judge acted in the clear absence of all jurisdiction, such as when a probate

court tries a criminal case. Lastly, the court ruled that if a judge merely exceeds his jurisdiction,

as when a criminal court judge convicts a defendant of a nonexistent crime, judicial immunity

still applies. In Loigman v. Township Committee of Tp. of Middletown, 889 A.2d 426 (N.J.

2006), the court announced that the purpose of judicial immunity is not to protect the few judges

who may be corrupt, but to encourage fearless decision-making by the vast majority of judges

who are honest. The New Jersey Supreme Court reiterated the factors and general findings of

Bozarth in Pasqua v. Council, 892 A.2d 663 (N.J. 2006) and Malik v. Ruttenberg, 942 A.2d 136

(N.J.Super.App. 2008).

Delaware

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In King v. Lank, 61 A.2d 402 (Del.Super. 1948), the Delaware Superior Court ruled that a

judicial officer cannot be held personally liable in a civil proceeding, but if he acts wholly

without even color of jurisdiction he may he sued personally in a civil action for damages for

false imprisonment. King was subsequently abrogated, and in Vick v. Haller, 512 A.2d 249

(Del.Super. 1986), the Delaware Superior Court ruled that a trial judge and the prosecuting

attorney were absolutely immune, under state and federal law, from liability founded upon their

alleged acts or omissions arising out of the performance of their official duties, absent allegations

that the court did not have jurisdiction over the matter for which liability the claimant was

convicted. Lastly, in Lee v. State Bd. of Pension Trustees, 739 A.2d 336 (Del. 1999), the

Delaware Supreme Court ruled that the sine qua non of judicial independence is the freedom to

decide cases without fear of retribution.

D. The States of the Federal Court for the 4th Circuit

West Virginia

The first recorded case involving this issue in West Virginia was Fausler v. Parsons, 6

W.Va. 486 (W.Va. 1873), in which the West Virginia Supreme Court ruled that where the

subject matter and the person are within the jurisdiction of the court, the judge, whether of a

superior of inferior court, is not subject to a civil action for any matter done by him in the

exercise of his judicial functions. This was reiterated in Pritchard v. Crouser, 332 S.E.2d 661

(W.Va. 1985), in which the court announced that judicial immunity applies to both superior and

inferior courts, and further that for the purposes of judicial immunity, a judicial officer acts

inside his jurisdiction even when he acts outside his authority. The West Virginia Supreme

Court, in Carey v. Dostert, 406 S.E.2d 678 (W.Va. 1991) ruled that defamation suits, even when

26

the allegedly defamatory statements were made outside the courtroom, are still within the

umbrage of judicial immunity. Also in Carey, the court ruled that the fact that a judge acts upon

a void or invalid law does not deprive him of immunity if he otherwise has jurisdiction—which

certainly derives from the doctrine of collateral estoppel. In Roush v. Hey7, 475 S.E.2d 299

(W.Va. 1996), a rare case in which judicial immunity did not apply, the West Virginia Supreme

Court ruled that when it is beyond reasonable dispute that a judge has acted out of personal

motivation and has used his judicial office as an offensive weapon to vindicate personal

objectives, and it further appears certain that no party has invoked the judicial machinery for any

purpose at all, then that judge’s actions do not amount to a “judicial act,” and the judge is not

entitled to judicial immunity with respect to such an act. Nevertheless, the Roush court echoed

the same jurisdictional approach announced in other states—that when a judge has jurisdiction

over the party and subject matter, and does a judicial act, regardless of whether he is of a

superior or inferior court, he would be protected by judicial immunity.

Maryland

In Bevard v. Hoffman, 18 Md. 479 (Md. 1862), judicial immunity was first brought to

issue in the State of Maryland. In Bevard, the Maryland Court of Appeals ruled that judicial

officers are not responsible for an honest and faithful exercise of judgment, and are liable only

for fraud or corruption, and not for mistakes honestly made. The Bevard court also ruled that a

judges liability may be either civil or criminal. This good-faith-only standard was reiterated in

Hiss v. State, 24 Md. 556 (Md. 1866), where the court ruled that judges are liable for wrongs

committed, willfully, fraudulently, or corruptly; the Hiss court also ruled that, as a general

7 The judge appeared on a nationally televised program to vindicate a position he expressed in a decision he made in a pending case relating to child custody. The W.Va. Supreme Court ruled that such an act was not protected under judicial immunity from claims of defamation and false light.

27

principle, that a judge should not be liable civilly or criminally for good-faith errors in judgment

during the discharge of their office. See also Roth v. Shupp, 50 A. 430 (Md. 1901) (a judicial

officer, acting in good faith, is not liable in damages to a litigant in his court). Maryland moved

away from its good-faith standard in favor of a jurisdictional standard in Mandel v. O’Hara, 576

A.2d 766 (Md. 1990), where the court ruled that absolute immunity protects both judges and

legislators, so long as their acts are judicial or legislative in nature and within a very general

scope of their jurisdiction. In Parker v. State, 609 A.2d 347 (Md.Spec.App. 1992), Maryland

moved fully into the jurisdictional approach by ruling that where action is founded upon judicial

conduct, the judge will enjoy absolute immunity from liability for damages if, in performing that

conduct, the judge had general subject matter jurisdiction, whether or not he or she also

possessed personal jurisdiction over the plaintiff. In the appeal of Parker, 653 A.2d 436 (Md.

1995), the court affirmed the lower court in its rulings.

Virginia

The early case of Johnston v. Moorman, 80 Va. 131 (Va. 1885) adopted an early

articulation of the jurisdictional approach by ruling that every judicial officer is exempt from

liability in damages for his actions in matters within his jurisdiction, even if he errs in his

judgment. In Berry v. Smith, 139 S.E. 252 (Va. 1927), the Supreme Court of Appeals of Virginia

ruled that judicial officers, acting within jurisdiction, are exempt from civil liability for official

acts, although it is alleged the acts were malicious and corrupt. This same point of law was

reiterated verbatim in Bellamy v. Gates, 200 S.E.2d 533 (Va. 1973). The seminal case in

Virginia on judicial immunity is Harlow v. Clatterbuck, 339 S.E.2d 181 (Va. 1986), where

several propositions of the matter were discussed. First, the court held that judges can be held

liable only when they act in clear absence of all jurisdiction. Next, the court ruled that the

28

compelling public policy in maintaining judicial independence is the basis for judicial immunity.

Third, they announced that although judicial immunity, in the strictest sense, is limited to judges,

quasi-judicial immunity may extend to other public officials acting within their jurisdiction, in

good faith and while performing judicial functions. Lastly, the Virginia courts adopted what

they called the “functional comparability” test for determining whether actions were “judicial

functions,” which requires that a court ascertain whether the procedure in question shares enough

of the characteristics of a judicial process that those who participate in such adjudications should

also be immune from suits for damages.

District of Columbia

In Stanton v. Chase, 497 A.2d 1066 (D.C. 1985), the District of Columbia Court of

Appeals announced several rulings. First, they ruled that judicial immunity would protect a

judge from liability for a given act only if the act was not taken in clear absence of all

jurisdiction and if it was a judicial act. Next, they ruled that, for the purpose of judicial

immunity, a “judicial act” is one that is normally performed by a judge and one performed in

relation to parties dealing with a judge in his judicial capacity. In McAllister v. District of

Columbia, 653 A.2d 849, the District of Columbia Court of Appeals further defined the scope by

ruling that judicial immunity applied to a damages suit against a sentencing judge by a criminal

defendant who was sentenced and served a term of imprisonment which exceeded the maximum

penalty for the offense because the acts complained of were an integral part of the judicial

process. Lastly, in District of Columbia v. Pizzulli, 917 A.2d 620 (D.C. 2007), the court made

several rulings. First, they announced that certain judicial actors, such as judges and receivers,

are entitled to absolute immunity from civil liability for acts committed within their judicial

capacity if the particular act at issue is a judicial act. Furthermore, the court ruled that whether

29

an act by a judge is a judicial one, for the purposes of immunity, depends on the nature of the act

itself, i.e., whether it is a function normally performed by a judge, and the expectations of the

parties, i.e., whether they dealt with the judge in his official capacity.

North Carolina

In the first recorded case on judicial immunity, State Bank v. Davenport, 2 Dev. & Bat.

45 (N.C. 1836), the Supreme Court of North Carolina ruled that, where a bond is to be issued in

a case, the justices of the county court in which the bond was issued are liable for failure to take

a proper bond from the clerk—failure to do so may be acted upon by a party to the litigation

through summary proceedings. However, adopting an early version of the jurisdictional

approach, in Cunningham v. Dillard, 20 N.C. 485 (N.C. 1839), the court ruled generally that no

person is liable in a civil action for what he has done as a judge while acting within the limits of

his jurisdiction. Furthering this approach, in Town of Fuquay Springs v. Rowland, 79 S.E.2d 774

(N.C. 1954), the North Carolina Supreme Court ruled that a judge is not subject to civil action

for errors committed in discharge of his official duties. The North Carolina Supreme Court

further defined the scope of judicial immunity in Gilkin v. U.S. Fidelity & Guaranty Co. of

Baltimore, Md., 118 S.E.2d 606 (N.C. 1961), by ruling that a judicial officer cannot be held

accountable in an action for damages for the manner in which he performs his duties even if he

acted corruptly and maliciously. The North Carolina courts furthered this widened scope

covering even corrupt, malicious, or intended-to-do-injury actions by a judge in State ex. rel.

Jacobs v. Shehard, 243 S.E.2d 184 (N.C.App. 1978). Lastly, in Dalenko v. Collier, 664 S.E.2d

425 (N.C.App. 2008), the Court of Appeals of North Carolina ruled that North Carolina

substantive law in regards to judicial immunity had been developed in such a way that arbitrators

were clothed in judicial immunity in the same way that judges were.

30

South Carolina

Brodie v. Rutledge, 1796 WL 551 (S.C.Const. 1796), marked the first case in which

judicial immunity was discussed in South Carolina. There, the Constitutional Court of Appeals

ruled that a judge, either supreme or subordinate, is not liable in an action for damages for any

opinion he may deliver as such. The Brodie court also ruled that no person is liable in a civil

action for he has done as a judge while acting within the limits of his jurisdiction. Thus, South

Carolina, like many other states, developed a jurisdictional approach from the outset. The South

Carolina Supreme Court, relying exclusively on the U.S. Supreme Court’s ruling in Bradley v.

Fisher, supra, ruled in McCall v. Cohen, 16 S.C. 445 (S.C. 1882), that the rule is the same where

a judge’s error of judgment was about his jurisdiction of the persons of the defendants, in a case

where he had undoubted jurisdiction over the subject matter—that as long as he did not act in

clear absence of jurisdiction then the judge would enjoy judicial immunity. The McCall court,

however, made an exception for a willful bad act or having a corrupt motive as a situation that

would remove the judge from the enjoyment of absolute immunity. In McEachern v. Black, 496

S.E.2d 659 (S.C.App. 1998), the court ruled that, first, a judge is absolutely immune from

liability for his judicial acts even if his exercise of authority is flawed by the commission of

grave procedural errors; and second, that even if a judge acts maliciously in pursuing a contempt

action, judicial immunity still protects his actions as long as his acts were judicial in nature. The

McEachern court, however, placed limitations on judicial immunity: first, no judicial immunity

exists if the judge acts in clear absence of all jurisdiction; second, judicial immunity extends only

to judicial acts; third, judges cannot claim judicial immunity for suits seeking only prospective,

injunctive relief. Also, the McEachern court ruled that the test for determining whether a judge

acts in clear absence of all jurisdiction for purposes of judicial immunity is whether at the time

31

he took the challenged action he had jurisdiction over the subject matter. Lastly, McEachern

announced that a finding of judicial immunity renders a complaint alleging judicial misconduct

meritless. The McEachern ruling was reiterated verbatim in O’Laughlin v. Windham, 498 S.E.2d

689 (S.C.App. 1998), adding that judicial immunity acts not only as a bar to suit, but also as an

ultimate bar to relief. The Supreme Court of South Carolina, in Faile v. South Carolina Dept. of

Juvenile Justice, 566 S.E.2d 536 (S.C. 2002), defined the scope further by ruling that judges and

other officials are not entitled to judicial immunity if: (1) they did not have jurisdiction to act; (2)

the act did not served a judicial function; or (3) the suit is for prospective, injunctive relief only.

In Plyler v. Burns, 647 S.E.2d 188 (S.C. 2007), further defined judicial immunity by ruling that

when a court undertakes any adjudicative act within its jurisdiction, regardless of allegations of

malicious or corrupt motive, the act is considered a judicial function for which the court will

have absolute immunity. Also, the Plyler court announced that in determining whether an act

serves a judicial function for the purposes of judicial immunity, the court must look to the nature

and function of the act as opposed to the title of the person committing the act—the line must be

drawn between acts which are truly judicial and those acts which simply happen to have been

performed by a judge.

E. The States of the Federal Court for the 5th Circuit

Texas

In Glavecke v. Tijirina, 24 Tex. 663 (Tex. 1860), the Supreme Court of Texas ruled that

where a judge is charged with conspiring to waste assets by an administrator, and the charge

relates to matters not within the judge’s official character, a personal action against him for

damages is the proper remedy. In Taylor v. Goodrich, 40 S.W. 515 (Tex.Civ.App. 1897), the

32

Texas Court of Civil Appeals ruled that a judge of the district court is not civilly liable to a

person committed by him for contempt while sitting as a district judge, and having general

jurisdiction of contempts, irrespective of his motive in so doing, and though the alleged

contemptuous acts were not contempt in view of the law, and the person charged was not guilty

of such acts. The Texas Court of Civil Appeals continued along this vein in Kruegel v. Cobb,

124 S.W. 723 (Tex.Civ.App. 1910), when they ruled that a judicial officer is not civilly liable for

his judicial acts whether negligently, willfully, or maliciously committed. When a district judge

temporarily suspended a county judge under statutory authority in a removal suit in Morris v.

McCall, 53 S.W.2d 667 (Tex.Civ.App.Beaumont 1932), the district judge was held to be not

civilly liable even though the suspension order was allegedly entered negligently, willfully, or

maliciously.

Two years later, in Jarnagin v. Garrett, 69 S.W.2d 511 (Tex.Civ.App.Texarkana 1934),

the Texas Court of Civil Appeals ruled that liability does not attach for failure or erroneous

performance of judicial discretion. The Kruegal decision, supra, was maintained and reaffirmed

in Overstreet v. Dearmore, 77 S.W.2d 700 (Tex.Civ.App.Fort.Worth 1934); Welsh v. Kent, 153

S.W.2d 284 (Tex.Civ.App.Beaumont 1941) (the law imputes good faith to judicial action and the

burden is on the one attacking it to allege and prove the absence of good faith); Johnson v. State

Bd. of Morticians, 288 S.W.2d 214 (Tex.Civ.App.Galveston 1956) (a judge who acts in a purely

judicial capacity is insulated against liability for malicious prosecution, even when he acts in

conspiracy with others not protected by judicial immunity); Morris v. Nowotny, 323 S.W.2d 301

(Tex.Civ.App.Austin 1959) (defining “judicial function” for purposes of judicial immunity). In

Spencer v. City of Seagoville, 700 S.W.2d 953 (Tex.Civ.App.Dallas 1985), the Court of Civil

Appeals further defined the issue by ruling that absolute immunity extends to all judicial acts

33

unless such acts fall clearly outside the judge’s subject matter jurisdiction. The Texas Court of

Appeals extended the scope of judicial immunity to public officials and employees whose job

status is classified as “quasi-judicial” when the actions of that person are discretionary and not

merely ministerial in Eakle v. Texas Dept. of Human Services, 815 S.W.2d 869 (Tex.App.Austin

1991). See also GAB Business Services, Inc. v. Moore, 829 S.W.2d 345 (Tex.App.Texarkana

1992); Lazaro v. University of Texas Health Science Center, 830 S.W.2d 330

(Tex.App.Houston.14.Dist. 1992); Garza v. Salvatierra, 846 S.W.2d 17 (Tex.App.San.Antonio

1992); Hatley v. Kassen, 887 S.W.2d 4 (Tex. 1994); Albright v. Texas Dept. of Human Services,

859 S.W.2d 575 (Tex.App.Houston.1.Dist. 1993) (which established quasi-judicial immunity for

negligent or erroneous conduct as long as decision was made in good faith); City Mission v.

Ramirez, 865 S.W.2d 579 (Tex.App.Corpus.Christi 1993); Gonzalez v. Avalos, 866 S.W.2d 346

(Tex.App.El.Paso 1993); Ervin v. James, 874 S.W.2d 713 (Tex.App.Houston.14.Dist. 1994);

Koerselman v. Rhynard, 875 S.W.2d 347 (Tex.App.Corpus.Christi 1994).

In Delcourt v. Silverman, 919 S.W.2d 777 (Tex.App.Houston.14.Dist. 1996), the Court of

Appeals ruled that, first, judges are granted broad immunity because of the special nature of their

responsibilities; second, that when judges delegate their authority or appoint others to perform

services for the court, judicial immunity attaches to judge and may follow the delegation of

authority or appointment. In Garza v. Morales, 923 S.W.2d 800 (Tex.App.Corpus.Christi 1996),

the Court of Appeals ruled that absolute immunity extends to all judicial acts unless such acts fall

clearly outside of a judge’s subject matter jurisdiction; and immunity applies even when a judge

is accused of acting corruptly or maliciously. The Texas courts continued this standard in

Kubosh v. City of Houston, 2 S.W.3d 463 (Tex.App.Houston.1.Dist. 1999), where the Court of

Appeals ruled that judges enjoy absolute judicial immunity from liability for judicial acts, no

34

matter how erroneous the act or how evil the motive, unless the act is performed in the clear

absence of all jurisdiction. The scope was further defined in Hawkins v. Walvoord8, 25 S.W.3d

882 (Tex.App.El.Paso 2000), where the Court of Appeals ruled that, with regard to jurisdiction,

where a court has some subject matter jurisdiction, there is sufficient jurisdiction for immunity

purposes, and the focus is not on whether the judge’s specific act was proper or improper, but on

whether the judge had the jurisdiction necessary to perform an act of that type. Many cases went

on to reaffirm the rulings in Hawkins, including: In re Lincoln, 114 S.W.3d 724 (Tex.App.Austin

2003); B.K. v. Cox, 116 S.W.3d 351 (Tex.App.Houston.14.Dist. 2003); Sledd v. Garrett, 123

S.W.3d 592 (Tex.App.Houston.14.Dist. 2003); Twilligear v. Carrell, 148 S.W.3d 502

(Tex.App.Houston.14.Dist. 2004); Freeman v. Wirecut E.D.M., Inc., 159 S.W.3d 721

(Tex.App.Dallas 2005); and Chambers v. Pruitt, 241 S.W.3d 679 (Tex.App.Dallas 2007).

Louisiana

In State ex rel. Duffard v. Whitaker, 1 So. 361 (La. 1887), the Supreme Court of

Louisiana ruled that though rulings of a judge in a cause may be erroneous, he is protected, via

motives of public policy, from liability for resulting costs. In Killeen v. Boland, Gschwind Co.,

102 So. 672 (La. 1924), the scope was further defined when the court ruled that judges cannot be

held liable for acts done by them in their judicial capacity. Even further, in Cleveland v. State,

380 So.2d 105 (La.App.1.Cir. 1979), the Court of Appeals ruled that, first, a judge may not be

sued for damages for his errors unless he has acted outside his judicial capacity, and second, that

even if a judge has technically acted outside of his jurisdiction and contrary to the law, he will 8 The Hawkins court announced four factors in determining whether a judge’s acts are judicial: (1) whether the act complained of is one normally performed by a judge; (2) whether the act occurred in the courtroom or an appropriate adjunct such as the judge’s chambers; (3) whether the controversy centered around a case pending before the judge; and (4) whether the act arose out of a visit to the judge in his judicial capacity. These factors are broadly construed in favor of immunity, so that immunity may exist even if three of the four factors are not met, and the factors need not be given equal weight in all cases, but rather, they should be weighed according the facts of a particular case.

35

remain protected from damages for his errors unless his actions were based on malice or

corruption. The Louisiana Supreme Court, in Imbornone v. Early, 401 So.2d 953 (La. 1981),

ruled as other jurisdictions have that judicial immunity does not cover suits for prospective,

injunctive relief. In Moore v. Taylor, 541 So.2d 378 (La.App.2.Cir. 1989), the Louisiana Court

of Appeals ruled that a judge will be protected by judicial immunity even when he technically

acted outside his jurisdiction and contrary to law unless his actions were based on malice or

corruption.

Contrary to the majority of jurisdiction’s approach to what constitutes a “judicial act,” the

Court of Appeals in Johnson v. Foti, 583 So.2d 1210 (La.App.4.Cir. 1991) ruled that whether an

act is judicial in character, and thus subject to the doctrine of judicial immunity, does not depend

on whether it is discretionary or ministerial, but rather the act the judge performs is integral to

the judicial process. See also Amato v. Office of Louisiana Com’r of Securities, 644 So.2d 412

(La.App.4.Cir. 1994); Harris v. Brustowicz, 671 So.2d 440 (La.App.1.Cir. 1995). The exception

for malice and corruption was narrowly discussed in Knapper v. Connick, 681 So.2d 994 (La.

1996), where the Louisiana Supreme Court ruled that judges acting within the scope of their

subject matter jurisdiction cannot be held liable for acts done in their judicial capacities; and that

this absolute immunity attaches to all acts within the judge’s jurisdiction, even if those acts can

be shown to have been performed with malice, in order to insure that all judges will be free to

fulfill their responsibilities without threat of civil prosecution by disgruntled litigants.

Nevertheless, in McCoy v. City of Monroe, 747 So.2d 1234 (La.App.2.Cir. 1999), the court

reiterated its ruling in Moore v. Taylor, supra, by announcing that when a judge is outside their

jurisdiction and contrary to law, only when it is proved that their actions were malicious or

corrupt will judicial immunity not apply. See also Corley v. Village of Florien, 889 So.2d 364

36

(La.App.3.Cir. 2004); Viator v. Miller, 900 So.2d 1135 (La.App.3.Cir. 2005) (stating that if the

acts alleged involve both judicial and non-judicial conduct, the unprotected behavior must be

separated from the protected, and judges are liable for the acts that were not judicial); Major v.

Painter, 945 So.2d 100 (La.App.5.Cir. 2006).

Mississippi

In Loyacono v. Ellis, 571 So.2d 237 (Miss. 1990), the Mississippi Supreme Court ruled

that judicial immunity makes judges of courts of superior or general jurisdiction not liable to

civil actions for their judicial acts, even when the acts are in excess of their jurisdiction and are

alleged to have been done maliciously or corruptly. In Wheeler v. Stewart, 798 So.2d 386 (Miss.

2001), the Mississippi Supreme Court announced that the key factor in determining whether

judicial immunity exists is whether at the time the judge took the challenged action he had

jurisdiction over the subject matter before him. Loyacono was reaffirmed verbatim in Vinson v.

Prather, 879 So.2d 1053 (Miss.App. 2004).

F. The States of the Federal Court for the 6th Circuit

Tennessee

In Hoggatt v. Bigley, 25 Tenn. 236 (Tenn. 1845), the Tennessee Supreme Court ruled that

judicial officers are not responsible for errors of judgment in cases in which they have

jurisdiction and act without malice. Thus, Tennessee began their development of the substantive

law of judicial immunity by enumerating that to have absolute immunity, a judge must have

jurisdiction over the cause of action and have acted without malice (i.e. in good faith). In

furtherance of this approach, the Tennessee Supreme Court ruled in Boyd v. Ferris, 29 Tenn. 406

(Tenn. 1849), that a judge of a county court, who willfully and maliciously neglects to require

37

guardians to renew their bonds every two years, is liable to the wards in a civil action for

damages arising therefrom. The Boyd ruling was reaffirmed in Cope v. Ramsey, 49 Tenn. 197

(Tenn. 1870) (holding, inter alia, that the true rule in regard to personal liability of a judge is that

he is personally responsible to the injured party only for the errors committed in the arbitrary,

corrupt, and malicious exercise of an assumed judicial authority, without regard to the question

of his jurisdiction). The standards announced in Cope and Boyd were, however, discarded for

another in Webb v. Fisher, 72 S.W. 110 (Tenn. 1903), where the Tennessee Supreme Court ruled

that a civil action for damages will not lie against a judge of a court of superior and general

jurisdiction for his judicial acts in pronouncing and entering a decree even though it is alleged

that such acts were done corruptly, maliciously, wickedly, and oppressively9. See also Heath v.

Cornelius, 511 S.W.2d 683 (Tenn. 1974); Graham v. Dodson, 830 S.W.2d 70 (Tenn.App. 1991);

Mercer v. HCA Health Services of Tennessee, Inc., 87 S.W.3d 500 (Tenn.App. 2002).

Kentucky

The Kentucky courts started out with the “absence of malice or corruption” standard in

Hollon v. Lilly, 38 S.W. 878 (Ky. 1897), where the Kentucky Supreme Court ruled that a judge

acting within his jurisdiction is not liable to a suit for damages, however illegal or erroneous his

acts may be, in the absence of a malicious or corrupt motive. See also Reed v. Taylor, 78 S.W.

892 (Ky. 1904); Willis v. Linn, 148 S.W. 11 (Ky. 1911); Rammage v. Kendall, 181 S.W. 631

(Ky. 1916) (judge acting without jurisdiction held not immune from liability for damages for

illegal acts, whether actuated by malice, corruption, and impure motives, or not); King v.

Cawood, 3 S.W.2d 616 (Ky. 1928) (judge acting illegally and without jurisdiction becomes

9 “A reason for a different rule with respect to the liability of justices of the peace may be found in the fact that under our constitution they are not liable to impeachment for crimes and misdemeanors in office, or removal from office for cause by a two-thirds vote of the general assembly. They are made liable to indictment and removal from office by the court upon conviction.” Webb v. Fisher, 72 S.W. 110, 111-112.

38

trespasser and is liable). The Kentucky courts then moved towards a jurisdictional approach in

Henry v. Wilson, 61 S.W.2d 305 (Ky. 1933), where the Kentucky Supreme Court ruled that a

judicial officer is not subject to a civil suit when in performance of judicial duties and within his

jurisdiction, although his ruling is the result of a mistake of law, error of judgment, malice, or is

made corruptly. Kentucky attempted to narrow the scope in Hargis v. Maloney, 153 S.W.2d 944

(Ky. 1941), where it was ruled that though the judge of an inferior court of limited jurisdiction

attempting to act entirely out of his jurisdiction is not exempt from civil liability—he is exempt

from liability when acting within his jurisdiction.

In Vaughn v. Webb, 911 S.W.2d 273 (Ky.App. 1995), the Court of Appeals ruled that,

first, a judge is immune from personal liability for judicial acts within his jurisdiction, and

second, that the factors in determining whether an act of a judge is a “judicial act” is (1) whether

the act is a function normally performed by a judge, and (2) whether the parties dealt with the

judge in his judicial capacity. The Kentucky standard evolved further in Baker v. Fletcher, 204

S.W.3d 589 (Ky. 2006), where the Kentucky Supreme Court announced that judicial immunity

applies even if the action the judge took was in error, was done maliciously, or was in excess of

his authority, so long as the judge did not act in the clear absence of all jurisdiction. See also

Godman v. City of Fort Wright, 234 S.W.3d 362 (Ky.App. 2007) (holding that absolute

legislative immunity derives from the doctrine of sovereign immunity, which holds that the state,

legislators, prosecutors, judges, and others doing the essential work of the state enjoy an absolute

immunity from suit).

Ohio

39

In Masters v. Johnson, 1 Tappan 238 (Ohio.Com.Pl. 1818), the Ohio Court of Common

Pleas ruled that a justice is not liable for judicial acts done within his jurisdiction. Ohio moved

towards a more comprehensive doctrine of judicial immunity in Nienaber v. Tarvin, 9 Ohio Dec.

241 (Ohio.Com.Pl. 1905), where the court ruled that judges of courts of general jurisdiction,

having original jurisdiction over both the person and the subject matter, are not liable in Ohio for

their judicial acts, even when they exceed their jurisdiction, and such judicial acts are alleged to

have been done maliciously or corruptly. See also McBride v. Gould, 16 Ohio Dec. 241

(Ohio.Com.Pl. 1905); Bated v. Black, 23 Ohio N.P.(N.S.) 558 (Ohio.Com.Pl. 1915); Fauber v.

Riber, 8 Ohio Law Abs. 342 (Ohio.App.4.Dist.Highland.Co. 1920); Voll v. Steele, 47 N.E.2d 991

(Ohio 1943); Maxey v. Gather, 114 N.E.2d 607 (Ohio.App.9.Dist.Summit.Co. 1952) (extending

judicial immunity to administrative or executive officers, whether constables, policemen, game

wardens, sheriffs, etc.); Newdick v. Sharp, 235 N.E.2d 529 (Ohio.App.4.Dist.Vinton.Co. 1967);

Willitzer v. McCloud, 453 N.E.2d 693 (Ohio 1983) (extending judicial immunity to defamatory

remarks made during and relevant to judicial proceedings); Wilson v. Neu, 465 N.E.2d 854 (Ohio

1984).

In Hopkins v. INA Underwriters Ins. Co., 542 N.E.2d 679 (Ohio.App.4.Dist. 1988), the

Ohio Court of Appeals defined the issue in more modern parlance by ruling that for civil

immunity to exist, the judge must lack jurisdiction, either personal or subject matter, and must

take some action in a judicial capacity which violates the rights of a party to the lawsuit. The

scope was defined further in State ex rel. Fisher v. Burkhardt, 610 N.E.2d 999 (Ohio 1993),

where the Ohio Supreme Court ruled that a judge who has requisite jurisdiction over a

controversy is immune from liability even though his acts are voidable as taken in excess of his

jurisdiction. The Ohio courts followed the other jurisdictions in Graham v. Ohio Bd. of Bar

40

Examiners10, 649 N.E.2d 282 (Ohio.App.10.Dist.Franklin.Co. 1994) when the court ruled that

while judicial immunity insulates defendants from liability for damages, it does not protect

defendants from appropriate injunctive relief. The jurisdictional approach of Ohio was

reaffirmed in In re Contemnor Caron, 744 N.E.2d 787 (Ohio.Com.Pl. 2000), where the court

ruled that judicial immunity is absolute, and thus a suit will not lie even if the judicial acts are

corrupt or made for purely malicious reasons. See also Cooke v. Montgomery Cty., 814 N.E.2d

505 (Ohio.App.2.Dist. 2004); Wochna v. Kimbler, 837 N.E.2d 1226 (Ohio.App.9.Dist. 2005)

(factors for determining judicial immunity); Borkowski v. Abood, 884 N.E.2d 7 (Ohio 2008) (an

absence of all jurisdiction exists subjecting judge to civil liability when the judge lacks either

personal or subject matter jurisdiction over the controversy, even when judge takes action in a

judicial capacity that violates the rights of a party to the lawsuit).

Michigan

In Olepa v. Mapletoff, 141 N.W.2d 350 (Mich.App. 1966), the Michigan Court of

Appeals ruled that no suit could be maintained against a judge for an act carried out in his

official capacity. Michigan extended the scope of judicial immunity in Ross v. Consumers

Power Co., 363 N.W.2d 641 (Mich. 1984), by ruling that judges, legislators, and the highest

executive officials of all levels of government are absolutely immune from all tort liability

whenever they are acting within their judicial, legislative, or executive authority. See also

Spruytte v. Owens, 475 N.W.2d 382 (Mich.App. 1991); Diehl v. Danuloff, 618 N.W.2d 83

(Mich.App. 2000) (judges are accorded absolute immunity from liability for acts performed in

the exercise of their judicial functions).

10 In this case, the Justices of the Ohio Supreme Court and the members of the Board of Bar Examiners were held to have acted in a judicial proceeding in denying an admission to the bar and, accordingly, were immune from an unsuccessful bar applicant’s suit for damages under doctrine of judicial immunity.

41

G. The States of the Federal Court for the 7th Circuit

Indiana

In State v. Libbert, 177 N.E. 873 (Ind.App. 1931), the Court of Appeals for Indiana, in

Indiana’s first recorded case involving judicial immunity, ruled that where a total lack of

jurisdiction exists, a judge’s office offers no protection, and his acts, though judicial functions,

are absolutely void. Also in Libbert, the court ruled that in doubtful cases, a judge is not to be

penalized where he assumes jurisdiction and the Appellate Court makes an adverse decision.

The Indiana Supreme Court announced a jurisdictional approach in Cato v. Mayes, 388 N.E.2d

530 (Ind. 1979), where they ruled that for the purposes of determining whether a judicial officer

may be liable for his action, it must be determined whether the act complained of was an exercise

of judicial authority and whether there was jurisdiction of the parties and subject matter; and if

these two questions are answered affirmatively, then the officer has judicial immunity. The Cato

court also announced that a judicial officer, acting in the exercise of a judicial function, is not

liable to a party injured by an erroneous decision, not matter how gross the error may have been

or however malevolent the motive which inspired it. See also Owen v. Vaughn, 479 N.E.2d 83

(Ind.App.4.Dist. 1985) (judge will be subject to liability only when he has acted in clear abuse of

all jurisdiction); Lake County Juvenile Court v. Swanson, 671 N.E.2d 429 (Ind.App. 1996)

(doctrine of judicial immunity only extends to persons who perform functions closely associated

with judicial process; courts are hesitant and cautious in applying judicial immunity to areas

outside traditional adversarial processes, such as quasi-judicial acts); Newman v. Deiter, 702

N.E.2d 1093 (Ind.App. 1998); H.B. v. State of Indiana-Eckhart Div. of Family & Children, 713

N.E.2d 300 (Ind.App. 1999) (court employs functional approach, looking to nature of function

performed, not identity of actor who performed it); Martin v. Heffelfinger, 744 N.E.2d 555

42

(Ind.App. 2001) (judicial immunity is granted even when judges act maliciously or corruptly).

In Sims v. Beamer, 757 N.E.2d 1021 (Ind.App. 2001) widened the scope of judicial immunity by

announcing that the only situation in which a judge may be held liable for his or her actions is

where the act is undertaken with clear and complete absence of jurisdiction over both the parties

and the subject matter. See also Bedree v. DeGroote, 799 N.E.2d 1167 (Ind.App. 2003); Dawson

v. Newman, 845 N.E.2d 1076 (Ind.App. 2006); Smith v. City of Hammond, 848 N.E.2d 333

(Ind.App. 2006).

Illinois

In Lund v. Hennessey, 67 Ill.App. 233 (Ill.App.1.Dist. 1896), the Illinois Court of

Appeals ruled that no judicial person, whether a chancellor, judge of common law court of

record, justice of the peace, inferior magistrate, member of a court martial or juror, is answerable

in a civil suit to a party aggrieved for any judicial act within his jurisdiction, however erroneous

or mistaken. The Illinois Court of Appeals extended the scope to include actions done

maliciously and corruptly in Tinkoff v. Padden, 85 N.E.2d 885 (Ill.App.1.Dist. 1949). See also

In re Mason, 210 N.E.2d 203 (Ill. 1965). In Generes v. Foreman, 660 N.E.2d 192

(Ill.App.1.Dist. 1995), the court fully adopted the jurisdictional approach by ruling that there

were two exceptions to the doctrine of absolute judicial immunity exist: first, the judge is not

immune from liability for non-judicial actions, i.e. actions not taken in a judge’s judicial

capacity; and second, a judge is not immune for actions, though judicial in nature, taken in

complete absence of all jurisdiction. See also Grund v. Donegan, 700 N.E.2d 157

(Ill.App.1.Dist. 1998).

Wisconsin

43

In Robertson v, Parker, 75 N.W. 423 (Wis. 1898), the Wisconsin Supreme Court first

defined the issue in regards to a municipal court judge, where they ruled that for such a judge to

be liable for an erroneously assumption of jurisdiction over a party and a subject matter, he must

have acted willfully, maliciously, or corruptly in exercising such jurisdiction. Further defining

the scope in Langen v. Borkowski, 206 N.W. 181 (Wis. 1925), the Wisconsin Supreme Court

ruled that a judge of the circuit court was immune from liability for errors committed where facts

have either legal value or color of legal value. Wisconsin further defined the jurisdictional

approach to the issue in Kalb v. Luce, 291 N.W. 841 (Wis. 1940), where the court ruled that

where an officer, as a county judge, has jurisdiction of the person and subject matter, he is

exempt from civil liability for his acts so long as he acts within his jurisdiction and in a judicial

capacity. In Abdella v. Caitlin, 255 N.W.2d 516 (Wis. 1977), the court ruled that even direct

allegations of collusion and direction are not sufficient to breach wall of judicial immunity when

a judge is sued as to acts committed in his judicial capacity where such a judge has jurisdiction

of person and subject matter involved. However, in Candee v. Egan, 267 N.W.2d 890 (Wis.

1978), the Wisconsin Supreme Court ruled that a statute [St. 1975, §256.24] made judges and

court commissioners personally liable for any willful violation of law in granting injunctions and

appointing receivers abrogates the doctrine of judicial immunity. The Court of Appeals of

Wisconsin extended the scope in Sheridan v. City of Janesville, 474 N.W.2d 799 (Wis.App.

1991), where the court ruled that “quasi-judicial” or “quasi-legislative” acts must involve an

exercise of discretion and judgment for the public officers and bodies are granted immunity. In

Evans v. Luebke, 671 N.W.2d 304 (Wis.App. 2003), the Wisconsin Court of Appeals ruled that

judges enjoy judicial immunity from liability for official acts or omissions. See also Berndt by

Peterson v. Molepske, 565 N.W.2d 549 (Wis.App. 1997).

44

H. The States of the Federal Court for the 8th Circuit

Arkansas

In Arkansas, the doctrine of judicial immunity was first discussed in Welsh v. Lloyd, 5

Ark. 367 (Ark. 1844), when the Supreme Court of Arkansas announced that to charge a judge

and those who act in obedience to his mandate as trespasser, he must have assumed an

unwarrantable jurisdiction of the matters in dispute—all of his acts in such a case are the acts of

a private person, and his judgments are coram non judice and mere nullities. The Welsh court

went further states that these acts, because they are nullities, they amount to a usurpation and

oppression, and thus the judge will be held answerable for such criminal conduct—but he is

excused for any errors in judgment. Therefore, as a starting point, the judges of Arkansas were

first held to a jurisdictional and good-faith standard for judicial immunity. Arkansas further

defined the scope in Borden v. State, to Use of Robinson, 11 Ark. 519 (Ark. 1851), where the

Supreme Court of Arkansas ruled that judges of superior courts are protected absolutely and

universally from prosecution or suit for they do in their judicial capacity. Therefore, Arkansas

imputed a “judicial act” standard in addition to the jurisdictional and good-faith standard when it

involved superior court judges. The Arkansas Supreme Court defined the scope for inferior

court judges in McClure v. Hill, 36 Ark. 268 (Ark. 1880), by ruling that judges of inferior courts

of limited jurisdiction are civilly liable if they transcend it—their acts are nullities and they

become participants in a trespass. The McClure court, however, ruled that judges of courts of

general jurisdiction are protected against civil suits for any act done in a judicial capacity. In

McIntosh v. Bullard, Earnheart & Magness, 129 S.W. 85 (Ark. 1910), the Arkansas Supreme

Court reaffirmed and added to McClure and Borden by ruling that judges of courts of superior or

general jurisdiction are not civilly liable for their judicial acts in excess of their jurisdiction.

45

Thus, the McIntosh court added a “clear absence of jurisdiction” factor to the judicial immunity

analysis for certain judges. The Arkansas courts added another factor in Hutson v. State, 287

S.W. 398 (Ark. 1926), when it was announced that no distinction is drawn in the application of

judicial immunity between acts of judicial officers which are mistakes and acts which are willfull

and corrupt. In Chambers v. Stern, 994 S.W.2d 463 (Ark. 1999), the Arkansas Supreme Court

simply ruled that judicial immunity is absolute immunity. See also Robinson v. Langdon, 970

S.W.2d 292 (Ark. 1998).

Missouri

In Lenox v. Grant, 8 Mo. 254 (Mo. 1843), the Missouri Supreme Court ruled that where

the act of a judge is a judicial one, done pendent elite, no action lies against the judge, however

wrong and injurious to the party, whether the act was done mala fide, or with the most honest

intentions, provided the justice had jurisdiction of the parties and of the subject matter of the suit.

The Lenox court further stated that if the judge does not have jurisdiction of the subject matter or

of the party, his judicial acts are coram non judice, and thus void, and the judge, and all persons

concerned in executing the judgment, are trespassers. See also Stone v. Graves, 8 Mo. 148 (Mo.

1843); Reed v. Conway, 20 Mo. 22 (Mo. 1854) (willful and malicious acts not covered by

judicial immunity even with jurisdiction over subject matter and the party); Pike v. Megoun, 44

Mo. 491 (Mo. 1869). Missouri began to give a more definite scope in Pogue v. Swink, 284

S.W.2d 868 (Mo. 1955), where the Missouri Supreme Court ruled that a circuit judge’s action in

authorizing an increase in salary of a deputy clerk and in adjudging county judges in contempt

for failure to pay the higher salary was not an action wholly without jurisdiction, even though it

was in excess of his jurisdiction, and did not subject the circuit judge to personal liability. See

also Howe v. Brouse, 427 S.W.2d 467 (Mo. 1968) (where court had jurisdiction of subject matter

46

and person, any erroneous action taken by a judge could only be in excess of his jurisdiction and

could not be basis for action of damages); State ex rel. Raack v. Kohn, 720 S.W.2d 941 (Mo.

1986); Nelson v. McDaniel, 865 S.W.2d 747 (Mo.App.W.Dist. 1993) (when judicial immunity is

at issue, a judge’s jurisdiction is to be construed broadly). In the most recent decision involving

this issue, the Missouri Court of Appeals ruled in Long v. Cross Reporting Services, Inc., 103

S.W.3d 249 (Mo.App.W.Dist. 2003) that, first, a judge with subject matter jurisdiction has

judicial immunity for all actions taken, even when acting in excess of his jurisdiction, and

second, that judicial immunity exists not for the protection or benefit of corrupt judges, but for

the benefit of the public, which has an interest in ensuring that judges can freely exercise their

functions with independence and without fear of consequences.

Iowa

In Londegan v. Hammer, 30 Iowa 508 (Iowa 1971), the Supreme Court of Iowa ruled that

a judicial officer is not civilly liable for judicial acts though his decision is erroneous, where it is

not shown that he acted maliciously or corruptly. The Londegan court also announced that this

rule applied to both inferior and superior court judges. Thus, the Iowa courts, as a starting point

included all judicial acts except those proven to be malicious or corrupt. See also Muscatine

Western R. Co. v. Horton, 38 Iowa 33 (Iowa 1873). The Iowa courts moved away from this

standard in Huendling v. Jensen, 168 N.W.2d 745 (Iowa 1969), where it was announced that

although corrupt officials may be removed by impeachment or subject to criminal prosecution, it

is essential to the independence of the judicial process that judges, whose mistakes can be

corrected on appeal, should not operate under threat of possible suit that questions the motives

for their decisions. See also Osbekoff v. Mallory, 188 N.W.2d 294 (Iowa 1971) (Doctrine of

judicial immunity extends to courts of limited jurisdiction). The Iowa Supreme Court extended

47

absolute immunity to quasi-judicial officials in Muzingo v. St. Luke’s Hosp., 518 N.W.2d 776

(Iowa 1994).

Minnesota

In Hoppe v. Klapperich, 28 N.W.2d 780 (Minn. 1947), the Minnesota Supreme Court

ruled that judicial immunity is inapplicable where the judge acts wholly without jurisdiction.

The Hoppe court also ruled that judicial immunity cannot be avoided simply by pleading that

acts complained of resulted from a conspiracy—indeed, the court announced that a judge cannot

be held liable in civil action for his determinations and acts in exercise of judicial authority no

matter how erroneous his decisions were or whatever motives he possessed in making them. See

also Peterson v. Knutson, 233 N.W.2d 716 (Minn. 1975). The Minnesota Court of Appeals

further defined the scope in Zimmerman v. Lasky, 374 N.W.2d 212 (Minn.App. 1985), where the

court ruled that to be immune from suit, a judge must be acting with jurisdiction and within

judicial capacity. In Sloper v. Dodge, 426 N.W.2d 478 (Minn.App. 1988), the Court of Appeals

announced that judicial immunity extends to persons who are integral parts of the judicial

process, including prosecutors, counsel, and witnesses. See also Myers Through Myers v. Price,

463 N.W.2d 773 (Minn.App. 1990) (judicial immunity extends to all classes of courts, from

highest court of the nation to the lowest officer who sits as a curt and tries petty cases); Koelln v.

Nexus Residential Treatment Facility, 494 N.W.2d 914 (Minn.App. 1993) (reason for judicial

immunity rule is to encourage full disclosure in court proceedings so the truth may be

determined); Zagaros v. Erickson, 558 N.W.2d 516 (Minn.App. 1997) (doctrine of judicial

immunity protects those who are appointed by court to perform judicial or quasi-judicial

functions); Mahoney & Hagberg v. Newgard, 712 N.W.2d 215 (Minn.App. 2006) (Judicial

immunity is a fundamental principle of American jurisprudence derived from the English

48

Common law); Simmons v. Fabian, 743 N.W.2d 281 (Minn.App. 2007) (judicial immunity

extends to suits for damages but not to suits for injunctive relief).

Nebraska

In Kelsey v. Klabunde, 75 N.W. 1099 (Neb. 1898), the Nebraska Supreme Court ruled

that a judicial officer is not personally liable for acts done within his jurisdiction and in a judicial

capacity. In McFarland v. State, 109 N.W.2d 397 (Neb. 1961), where the evidence showed that

the conduct of a county judge charged with contempt was calculated to destroy the authority,

dignity, and integrity of the district court of the same county and to obstruct proceedings and

hinder the administration of justice, the Nebraska Supreme Court announced that the rule of

judicial immunity could not be invoked in contempt proceedings against the offending judge.

Nebraska further defined the scope of judicial immunity in Koepf v. York County, 251 N.W.2d

866 (Neb. 1977), where the court ruled that as a general rule, judges are immune from civil

actions for damages for acts performed in the course of their official functions and judicial

capacity. The Koepf court, however, announced that an exception to the rule of judicial

immunity exists when it is proved that the judge acted in the clear absence of all jurisdiction and

where such jurisdictional deficiency was known by the judge when he acted. See also Jeffres v.

Countryside Homes of Lincoln, Inc., 333 N.W.2d 754 (Neb. 1983) (judges not protected if he

assumes to act beyond scope of his authority); Billups v. Troia, 570 N.W.2d 706 (Neb. 1997);

Frey v. Blanket Corp., 582 N.W.2d 336 (Neb. 1998); Noffsinger v. Nebraska State Bar Ass’n,

622 N.W.2d 620 (Neb. 2001).

South Dakota

49

In Brech v. Seacat, 179 N.W.2d 348 (S.D. 1969), the only reported case on judicial

immunity in South Dakota, the Supreme Court of South Dakota ruled that a judge performing a

judicial function enjoys absolute judicial privilege from civil actions for defamation.

North Dakota

In Root v. Rose, 72 N.W. 1022 (N.D. 1897), North Dakota first set out its rulings on the

doctrine of judicial immunity. First, the North Dakota Supreme Court ruled that a judge of a

superior court is not liable in a civil action on account of any judicial actions in a proceeding

before him in which he had jurisdiction—that he acted corruptly is irrelevant. Second, the court

ruled that even in a case where the judge had no subject matter jurisdiction, he is not liable

unless the want of jurisdiction is so egregious that it is obvious that he could not honestly assume

to act as the judge in such a matter. Lastly, the court announced that the fact that it is alleged

that the judge who rendered the decision, which was subsequently reversed, not only acted

corruptly in deciding the case, but also as one of the instigators of the prosecution, does not

establish any cause of action against him. In Lang v. State, 622 N.W.2d 238 (N.D.App. 2001),

the Court of Appeals ruled that a judge acting within his or her jurisdiction is immune from

liability for damages. Lastly, in Riemers v. State, 732 N.W.2d 398 (N.D.App. 2007), the Court

of Appeals ruled that as long as a judge is performing “judicial acts,” his conduct will be

protected under judicial immunity.

I. The States of the Federal Court for the 9th Circuit

Arizona

In David v. Burris, 75 P.2d 689 (Ariz. 1938), the Supreme Court of Arizona made its first

rulings on the issue of judicial immunity. First, the court ruled that a judge must be acting within

50

his jurisdiction as to subject matter and person to be entitled to immunity from civil action for his

acts. Second, the court ruled that a judicial officer is not liable in a civil action for acts done in

his judicial capacity, no matter how erroneous or by whatever motives. See also Evans v.

Copins, 546 P.2d 365 (Ariz.App.Div.2 1976). The scope was further defined in Yamamoto v.

Santa Cruz County Bd. of Sup’rs, 606 P.2d 28 (Ariz.App.Div.2 1979), where the Court of

Appeals ruled that a judge will not be deprived of immunity because actions he took were in

error, done maliciously or in excess of his authority, but only if he acted in clear absence of all

jurisdiction. See also Acevedo by Acevedo v. Pima County Adult Probation Dept., 690 P.2d 38

(Ariz. 1984) (agents who assist court in judicial process are also entitled to absolute immunity);

Lavit v. Superior Court In and For County of Maricopa, 839 P.2d 1141 (Ariz.App.Div.1, 1992)

(whether judicial immunity exists is a question of law for the court; judicial immunity exists

even when acts are in excess of jurisdiction or done with malice); Adams v. State, 916 P.2d 1156

(Ariz.App.Div.2, 1995) (Public employee’s acting pursuant to court order is basis for granting

absolute immunity). In Burk v. State, 156 P.3d 423 (Ariz.App.Div.1, 2007), the Arizona Court

of Appeals held that judicial immunity did not extend to judges in two situations—first, judges

are not immune from suit for the performances of official acts that are not judicial acts; and

second, judicial immunity does not apply if the contested actions were taken in the complete

absence of all jurisdiction.

Nevada

There are only two reported cases on judicial immunity in the state of Nevada. The first

case is Duff v. Lewis, 958 P.2d 82 (Nev. 1998), the court announced that the purpose behind the

grant of absolute immunity under the common law to persons who are an integral part of the

judicial process is to preserve independent decision-making and truthfulness of critical judicial

51

participants without subjecting them to fear and apprehension that may result from the threat of

personal liability. The second case, State v. Second Judicial District ex. rel. County of Washoe,

55 P.3d 420 (Nev. 2002), is where the functional analysis of the doctrine took place. In that

case, the Nevada Supreme Court ruled that, first, judicial immunity serves to provide absolute

immunity from subsequent damages liability to all persons, governmental or otherwise, who are

integral parts of the judicial process; and second, that a grant of absolute immunity applies even

when a judicial officer has been accused of acting maliciously and corruptly.

Idaho

Like Nevada, Idaho has only two reported cases on judicial immunity. In Sierra Life Ins.

Co. v. Granata, 586 P.2d 1068 (Idaho 1978), the Supreme Court of Idaho ruled that judges who

act without jurisdiction over the subject matter of a case may be liable for damages in civil

actions. In Frizzell v. Swafford, 663 P.2d 1125 (Idaho 1983), the same court ruled that where a

plaintiff’s constitutional challenge of the small claims system of Idaho sought only declaratory or

injunctive relief, the defendant’s defense of judicial or quasi-judicial immunity was inapplicable.

Thus, in Idaho, their courts use a jurisdictional approach, and judicial immunity does not extend

to claims simply for prospective, injunctive relief.

Montana

In the first recorded case on the issue in this state, Grant v. Williams, 169 P. 286 (Mont.

1917), the Montana Supreme Court ruled that a judicial officer (here, a Justice of the Peace)

cannot be held liable for judicial acts where he has jurisdiction. Two years later, in State v.

Tattan, 181 P. 984 (Mont. 1919), the scope was further defined when the court ruled that a

judicial officer cannot be held liable for damages in a civil suit for any act of his in that capacity,

52

if he had jurisdiction of the subject matter and of the person whose rights were affected by a

particular proceeding. The Tattan court went further in stating that a judicial officer who acts in

a matter not legally within his jurisdiction is civilly liable for the consequences of his acts. See

also Knutson v. State, 683 P.2d 488 (Mont. 1984) (the judicial immunity statute protects any

governmental agency involved in the judicial act of sentencing); Mead v. McKittrick, 727 P.2d

517 (Mont. 1986) (judges enjoy immunity for judicial acts which are performed in furtherance of

the lawful discharge of official duties associated with judicial actions); Steele v. McGregor, 956

P.2d 1364 (Mont. 1998) (absolute judicial immunity is immunity from suit rather than a mere

defense to liability). Lastly, in Montana Supreme Court Com’n on Unauthorized Practice of

Law v. O’Neil, 147 P.3d 200 (Mont. 2006), the Supreme Court ruled that the defamation,

tortuous interference with contract, and invasion of privacy claims that a tribal court law

advocate asserted in a counterclaim against the Commission on the Unauthorized Practice of

Law, in the Commission’s civil contempt and injunctive relief action against the law advocate,

were barred, as the Commission had immunity from litigation when exercising its functions; i.e.,

the Commission enjoyed the same immunity as the Montana Supreme Court would enjoy if the

latter was performing the same functions.

Washington

In the first recorded case in this jurisdiction, In re Deming’s Guardianship, 73 P.2d 764

(Wash. 1937), the Washington state Supreme Court ruled that neither the court nor the judge is

responsible to a litigant injured by a court’s judicial error in discharging his official duties. The

scope of judicial immunity was better defined in Burgess v. Towne, 538 P.2d 559

(Wash.App.Div.1, 1975), where the court made several pertinent rulings. First, the Burgess

court ruled that judges are immune from liability for damages for acts committed within their

53

judicial jurisdiction even when a judge is accused of acting maliciously and corruptly. Next, the

Burgess court ruled that the inquiry must be whether the judge acted in clear absence of all

jurisdiction and not whether he acted in excess of his jurisdiction. Third, jurisdiction should be

construed broadly for the purposes of judicial immunity so that the judge will not be subject to

possible liability unless he acts without color of authority. Lastly, the Burgess court ruled that if

a judge has jurisdiction over the subject matter and person and in exercising jurisdiction

performs a judicial act, he is immune from suit even if he acts maliciously or corruptly. See also

Filan v. Martin, 684 P.2d 769 (Wash.App.Div.3, 1984) (immunity also extends to prosecutors);

Labrec v. State, Employment Sec. Dept., 758 P.2d 501 (Wash.App.Div.2, 1988) (when

administrative adjudication shares enough of the characteristics of the judicial process, agency is

absolutely immune from damage actions arising out of its adjudicatory acts); Taggart v. State,

822 P.2d 243 (Wash. 1992) (judicial immunity extends to governmental agencies and executive

branch officials performing quasi-judicial functions); Lutheran Day Care v. Snohomish County,

829 P.2d 746 (Wash. 1992) (quasi-judicial immunity is absolute); Westmoreland v. State, 869

P.2d 71 (Wash.App.Div.2, 1994) (if duties of he person whose decision or action is under review

are functions normally performed by a judge, including administrative law judge, absolute

immunity applied); Matter of Estate of Hansen, 914 P.2d 127 (Wash.App.Div.1, 1996) (judicial

officers are absolutely immune from liability, no matter how erroneous their decisions); Lallas v.

Skagit County, 225 P.3d 910 (Wash. 2009) (judicial immunity shields the recipient from liability

for willful misconduct as well as negligence).

Oregon

In the case of first impression for this jurisdiction, Shaw v. Moon, 245 P. 319 (Or. 1926),

the Supreme Court of Oregon ruled that, first, judges of courts of limited and those of general

54

jurisdiction are treated the same in terms of judicial immunity analysis; and second, that the law

does not subject courts to actions for damages while acting within their jurisdiction. Thus, Shaw

stands for a jurisdictional and judicial acts approach in Oregon from the outset. The Oregon

Supreme Court further defined the scope of judicial immunity in Clifton v. Hawkins, 345 P.2d

255 (Or. 1959), where they ruled that a judicial officer is not liable in civil action for his acts

performed in his judicial capacity unless there is a clear lack of jurisdiction. Thus, Clifton

expanded the jurisdictional part of the analysis in Oregon to a “clear absence of all jurisdiction”

standard. The Oregon Supreme Court set forth factors for the judicial immunity analysis in

Praggastis v. Clackamas County, 752 P/2d 302 (Or. 1988), including (1) whether the official’s

actions are functionally comparable to judicial actions or involve decisions normally performed

by judges in their judicial capacity, (2) whether an action depends on legal opinions or

discretionary judgments comparing facts of a present situation with general legal questions, and

(3) whether the acts in question are primarily concerned with the official’s role as a judicial or

quasi-judicial officer. The Praggastis court also announced that judicial immunity is granted or

withheld on a basis of the nature of the function being performed, and not on the basis of the

office being held. See also Jones-Clark v. Severe, 846 P.2d 1197 (Or.App. 1993).

California

In the first recorded case in the state of California on judicial immunity, Wyatt v. Arnot,

94 P. 86 (Cal.App.3.Dist. 1907), the California Court of Appeals ruled that a judge who, because

of malice or corruption, renders an erroneous decision, or fails to render a decision within a

reasonable time, is liable to impeachment, but in neither case can he be required to answer to a

private individual in an action for damages. See also Rogers v. Marion, 64 P.2d 760

(Cal.App.2.Dist. 1936); Malone v. Carey, 62 P.2d 166 (Cal.App.1.Dist. 1936); Perry v. Meikle,

55

228 P.2d 17 (Cal.App.1.Dist. 1951) (involving alleged conspiracy involving the judge, judicial

immunity still applied); Frazier v. Moffatt, 239 P.2d 123 (Cal.App.2.Dist. 1951) (immunity from

suit must be determined on basis of whether judge’s act was within general scope of his judicial

powers and whether he honestly believed he was legally warranted in doing such acts, not

whether he committed an error of judgment); Reverend Mother Pauline v. Bray, 335 P.2d 1018

(Cal.App.3.Dist. 1959); Lewis v. Linn, 26 Cal.Rptr. 6 (Cal.App.1.Dist. 1962) (defamatory

statements made by judge during judicial proceedings held not actionable for suit because of

judicial immunity).

In Franklin v. Municipal Court, 103 Cal. Rptr. 354 (Cal.App.1.Dist. 1972), however,

involved a complaint alleging that plaintiff was and continued to be lawful owner and entitled to

possession of confiscated revolver, that judge in his individual capacity was in possession of

revolver and had refused to return it, and that revolver was valued at $100, and the court ruled

that the complaint state an actionable claim against the judge in his individual capacity for

conversion. The Franklin court ruled that this action against the judge in his individual capacity

for conversion was not barred by judicial immunity not by the plaintiff’s failure to file the claim

with the city and county of San Francisco. Similarly, in Tagliavia v. County of Los Angeles, 169

Cal.Rptr. 467 (Cal.App.2.Dist. 1980), the California Court of Appeals ruled that the service by a

judge on a board with only legislative and administrative powers does not constitute a judicial

act and thus there is no judicial immunity. Nevertheless, the Tagliavia court ruled that judges, in

the exercise of their judicial functions, have immunity from civil suits even if acts are in excess

of the jurisdiction of the judge and are alleged to have been done maliciously and corruptly,

regardless of whether the acts are of an inferior court or one of general jurisdiction. See also

Greene v. Zank, 204 Cal.Rptr. 770 (Cal.App.2.Dist. 1984) (Acts of state Supreme Court justices

56

in deciding matters pertaining to admission to the Bar are judicial acts and thus protected by

absolute judicial immunity); Frost v. Geernaert, 246 Cal.Rptr. 440 (Cal.App.2.Dist. 1988)

(Superior court judges were immune from suit based on claims of fraud, conspiracy, and

intentional infliction of mental anguish, arising from rulings against plaintiff in prior actions);

Olney v. Sacramento County Bar Ass’n, 260 Cal.Rptr. 842 (Cal.App.3.Dist. 1989); Howard v.

Drapkin, 271 Cal.Rptr. 893 (Cal.App.2.Dist. 1990) (extending immunity to quasi-judicial

functions); Falls v. Superior Court, 49 Cal.Rptr.2d 184 (Cal.App.2.Dist. 1999) (quasi-judicial

officers do not enjoy absolute immunity when they act outside their official capacity); Soliz v.

Williams, 88 Cal.Rptr.2d 184 (Cal.App.2.Dist. 1999) (judicial immunity from a civil action for

monetary damages is absolute and is not dependent on the severity of the misconduct). In Regan

v. Price, 33 Cal.Rptr.3d 130 (Cal.App.3.Dist. 2005), the California Court of Appeals set forth

some outside parameters to judicial immunity when it ruled that the privilege of judicial

immunity can be overcome only when the actions in question are not taken in the judge’s judicial

capacity, or when the actions, though judicial in nature, are taken in the complete absence of all

jurisdiction. See also Jamgotchian v. Slender, 89 Cal.Rptr.3d 122 (Cal.App.2.Dist. 2009)

(reaffirming “clear absence of all jurisdiction” standard).

Alaska

In Lythgoe v. Guinn, 884 P.2d 1085 (Alaska 1994), the Alaska Supreme Court ruled that

judges are accorded absolute judicial immunity from liability for damages for acts performed in

exercise of judicial functions, even when they act maliciously or corruptly. Judicial immunity

was extended in Thoma v. Hickel, 947 P.2d 816 (Alaska 1997), when the same court ruled that

under federal law, prosecutors, judges, and legislators are entitled to absolute immunity from tort

suits for all acts within the scope of their protected functions. See also Trapp v. State, 53 P.3d

57

1128 (Alaska 2002) (absolute judicial immunity extended not only to judges but to others who

perform duties that are sufficiently related to the judicial process). In Greywolf v. Carroll, 151

P.3d 1234 (Alaska 2007), the Alaska Supreme Court further defined the scope of judicial

immunity when they announced that only judicial actions taken in the clear absence of all

jurisdiction will deprive a judge of absolute immunity.

Hawaii

In Gomez v. Whitney, 21 Haw. 539 (Haw.Terr. 1913), the Supreme Court of the Territory

of Hawaii11 ruled that a judge of a court of record of superior and general jurisdiction should not

be held liable in damages to a defeated litigant or others affected by his orders for mistakes in his

decisions of issues, whether of law or of fact, presented to him in his judicial capacity for

determination. In State v. Taylor, 425 P.2d 1014 (Haw. 1967), the Supreme Court of Hawaii did

away with the distinction between the courts by ruling that, with respect to judicial immunity

from liability for official acts, there is no distinction between courts of superior or general

jurisdiction and courts of inferior or limited jurisdiction. See also Seibel v. Kemble, 631 P.2d

173 (Haw. 1981) (absolute immunity extended to quasi-judicial functions).

J. The States of the Federal Court for the 10th Circuit12

New Mexico

In Vickrey v. Dunivan, 279 P.2d 853 (N.M. 1955), the New Mexico Supreme Court ruled

that judicial officers are not liable for the erroneous exercise of judicial powers vested in them;

however such officers are not immune from liability where they act wholly in excess of their

jurisdiction. See also Edwards v. Wiley, 374 P.2d 284 (N.M. 1962); Galindo v. Western States 11 Hawaii did not officially become a state in the Union until August 21, 195912 Other than the state of Oklahoma

58

Collection Co., 477 P.2d 325 (N.M.App. 1970); Hunnicut v. Sewell, 219 P.3d 529 (N.M.App.

2009).

Utah

In the first reported case on judicial immunity in Utah, Logan City v. Allen, 44 P.2d 1085

(Utah 1935), the Utah Supreme Court ruled that judicial or quasi-judicial officers are civilly

liable where they act in excess of their authority or where there is a total want of jurisdiction. In

Bailey v. Utah State Bar, 846 P.2d 1278 (Utah 1993), the same court ruled that whether a person

or entity should be afforded judicial immunity depends upon the specific work or function

performed and, thus, if acts were committed in performance of an integral part of the judicial

process, then policies underlying judicial immunity apply and immunity should be granted. See

also Ambus v. Utah State Bd. of Educ., 858 P.2d 1372 (Utah 1993) (quasi-judicial immunity

extends to the board of education); Parker v. Dodgion, 971 P.2d 496 (Utah 1998); Straley v.

Halliday, 997 P.2d 338 (Utah.App. 2000) (malice, fraud, and corruption irrelevant to judicial

immunity determination); Sanders v. Leavitt, 37 P.3d 1052 (Utah 2001) (judicial officers are

absolutely immunity from liability for damages for acts performed in their judicial capacities and

committed within their judicial jurisdiction).

Colorado

In Hughes v. McCoy, 19 P. 674 (Colo. 1888), the Supreme Court of Colorado made

several rulings in regards to judicial immunity. First, the court ruled that a judge who, acting in a

matter within his jurisdiction, enters an order reinstating a cause that had been vacated without

notice to the adverse party is not liable to the party aggrieved thereby, though the act was in

excess of his jurisdiction. Second, the court ruled that the motives of a judge cannot be inquired

59

into in a suit against him for judicial acts alleged to be in excess of jurisdiction. Lastly, the court

ruled that judges of superior courts are not liable in damages for official acts at the suit of private

parties, even though the acts complained of exceed their jurisdiction. See also Terry v. Wright,

47 P. 905 (Colo.App. 1896); Casserleigh v. Malone, 115 P. 520 (Colo. 1911) (motives of judge

irrelevant); Pomeranz v. Class, 257 P. 1086 (Colo. 1927) (judges liable for acts done without

jurisdiction); Patterson v. Cronin, 650 P.2d 531 (Colo. 1982) (judicial immunity did not extend

to municipality); Awai v. Kotin, 872 P.2d 1332 (Colo.App. 1993) (absolute immunity extended to

quasi-judicial functions); Stepanek v. Delta County, 940 P.2d 364 (Colo. 1997) (absolute

immunity extends to all persons who are an integral part of the judicial process); Merrick v.

Burns, Wall, Smith & Mueller, P.C., 43 P.3d 712 (Colo.App. 2001).

Wyoming

In Linde v. Bentley, 482 P.2d 121 (Wyo. 1971), the Wyoming Supreme Court ruled that

courts of general jurisdiction are exempt from liability of civil action for their official acts even if

in excess of their jurisdiction, although a distinction is observed between the “excess of

jurisdiction” and the “clear absence of all jurisdiction” over the subject matter. In the most

recent case involving judicial immunity in this jurisdiction, Condict v. Lehman, 837 P.2d 81

(Wyo. 1992), the Wyoming Supreme Court made several rulings on the issue. First, the Condict

court ruled that a judge will not be deprived of immunity because an action he took was in error,

was done maliciously, or was in excess of his authority—rather, he would be subject to liability

only when he has acted in clear absence of jurisdiction. Second, Condict stood for the

proposition that a judge is immune for his acts if he had jurisdiction, both personal and subject

matter, and a judicial act was involved.

60

Kansas

In Clark v. Spicer, 6 Kan. 440 (Kan. 1870), the first case in which the issue of judicial

immunity arose in this jurisdiction, the court ruled that a judicial officer cannot be held liable for

judicial acts where he has jurisdiction. See also Brown v. Larimer, 294 P. 906 (Kan. 1931)

(judges must be free to exercise their best judgment without fear of being personally liable). The

Kansas courts defined the scope of the analysis further in Holland v. Lutz, 401 P.2d 1015 (Kan.

1965), where the Kansas Supreme Court ruled that immunity from liability granted to judicial

officers for official acts performed within their scope of jurisdiction does not exist where the

officers acts in clear absence of all jurisdiction. Defining the scope further, the Kansas Court of

Appeals, in Knight v. Neodesha, Kan., Police Dept., 620 P.2d 837 (Kan.App. 1980), stated that

judges of courts of general jurisdiction as well as judges of courts of limited jurisdiction possess

immunity for official acts performed within the scope of their jurisdiction.

K. The States of the Federal Court for the 11th Circuit

Alabama

In Hamilton v. Williams, 26 Ala. 527 (Ala. 1855), the Alabama Supreme Court ruled that

no person is liable in a civil action for he has done as a judge while acting within the limits of his

jurisdiction. The Alabama Supreme Court narrowed the scope in Craig v. Burnett, 32 Ala. 728

(Ala. 1858), by ruling that judicial immunity does not apply where a judicial officer of an

inferior court exercises an authority beyond the scope of his jurisdiction. See also Busteed v.

Parsons, 54 Ala. 393 (Ala. 1875); Woodruff v. Stewart, 63 Ala. 206 (Ala. 1879) (malice and

corruption irrelevant); Grider v. Talley, 77 Ala. 422 (Ala. 1884); Broom v. Douglas, 57 So. 860

(Ala. 1912); Pickett v. Richardson, 138 So. 274 (Ala. 1931); McKinley v. Simmons, 148 So.2d

61

648 (Ala. 1963) (slander or libel irrelevant); Bahakel v. Tate, 503 So.2d 837 (Ala. 1987) (good-

faith standard implemented for judges of courts of limited jurisdiction); Almon v. Battles, 541

So.2d 519 (Ala. 1989) (normative theories of judicial immunity).

In City of Bayou La Batre v. Robinson, 785 So.2d 1128 (Ala. 2000), Alabama Supreme

Court set forth factors in determining whether judicial immunity exists, assuming that the judge

acted in an official capacity: (1) whether the judge was performing judicial, legislative, or

executive functions when the disputed action took place; (2) if the judge is in an executive role,

immunity depends on whether ministerial phase or prosecutorial phase is being performed; (3)

ministerial actions, for which no immunity exists, include daily administrative activities and

personnel decisions, while prosecutorial activities occur primarily when a judge participates in

decisions involving the initiation of disciplinary proceedings. See also Ex parte City of

Greensboro, 948 So.2d 540 (Ala. 2006) (Judges acting in an official judicial capacity are entitled

to absolute judicial immunity under Alabama law).

Georgia

In Gault v. Wallis, 53 Ga. 675 (Ga. 1875), the Georgia Supreme Court took the position

that a judicial officer, acting within the jurisdiction conferred on him by law, is not liable for

errors of judgment, unless the error is the result of malice or corruption. In Calhoun v. Little, 32

S.E. 86 (Ga. 1898), the court eliminated the distinctions between different courts by ruling that

the presiding officers of courts of limited jurisdiction are exempt from civil liability in damages

for their judicial acts to the same extent as are judges of courts of general jurisdiction. See also

Long v. Carter, 147 S.E. 401 (Ga.App. 1929) (establishing “Good-Faith” standard of judicial

immunity); Smith v. Hancock, 256 S.E.2d 627 (Ga.Ap. 1979) (judges immune from liability in

62

actions for acts performed in their judicial capacity); Hawkins v. Rice, 417 S.E.2d 174 (Ga.App.

1992) (judicial immunity covers administrative law judges); Gaskins v. Hand, 466 S.E.2d 688

(Ga.App. 1996) (Municipal official who fails to perform a purely ministerial duty required by

law is subject to action for damages by one who is injured by the omission); Robinson v. Becker,

595 S.E.2d 319 (Ga.App. 2004) (Judicial immunity protects against state law claims as well as

federal civil rights actions). Most recently, in Wilson v. Moore, 621 S.E.2d 507 (Ga.App. 2005),

the Court of Appeals of Georgia ruled that judicial immunity is overcome in only two sets of

circumstances: first, a judge is not immune from liability for non-judicial actions, i.e., actions not

taken in the judge’s judicial capacity; and second, a judge is not immune for actions, though

judicial in nature, taken in the complete absence of all jurisdiction.

Florida

In McDaniel v. Harrell, 87 So. 631 (Fla. 1921), the Supreme Court of Florida ruled that

judges of inferior courts, as well as judges of courts of superior and general jurisdiction, are

exempt from civil liability in damages for their judicial acts, even when such acts are in excess of

their jurisdiction, provided there is not a clear absence of jurisdiction. In Farish v. Smoot, 58

So.2d 534 (Fla. 1952), the court ruled that a judge may be civilly liable for acts done from

without in regards to the scope of his jurisdiction. See also Waters v. Ray, 167 So.2d 326

(Fla.App.1.Dist. 1964); Silvers v. Drake, 188 So.2d 377 (Fla.App.1.Dist. 1966) (No action can be

maintained against a judge of any court for an error in judgment committed in execution of his

official duties); Rivello v. Cooper City, 322 So.2d 602 (Fla.App.4.Dist. 1975) (There must be a

clear absence of all jurisdiction over subject matter before judicial immunity can be abrogated);

Salfi v. Ising, 464 So.2d 687 (Fla.App.5.Dist. 1985) (judicial immunity is absolute in an action

for damages, except when judge acts in clear absence of jurisdiction); Office of State Attorney,

63

Fourth Judicial Circuit of Florida v. Parrotino, 628 So.2d 1097 (Fla. 1993) (subjecting judicial

and state’s quasi-judicial officers to punitive lawsuits for official actions violates the Separation

of Powers doctrine); Kalmanson v. Lockett, 848 So.2d 374 (Fla.App.5.Dist. 2003) (factors for

determining whether conduct in question is a “judicial act”).

V. Implied Rights of Action – Due Process, Equal Protection, and 42 U.S.C. § 1983

In the preceding materials, it has been made abundantly clear that there is no right of

action, through simple complaint in suit against a judicial officer, for any malfeasance they

commit as long as they do not act in the clear absence of all jurisdiction and they are performing

a judicial act. Since this avenue for seeking a remedy does not bear any real fruit beyond

injunctive relief, the analysis must turn somewhere else.

The basic gist of the facts underlying this memorandum are this: The judges and justices

of the Oklahoma judicial system, along with the attorney on the other side of this controversy,

through various erroneous rulings of law and mistaken uses of judicial discretion, excised

$1,000,000 from Ted White’s pocket13. In doing so, the fundamental rights of Mr. White were

completely and unjustly abrogated under the false pretense of procedural and substantive rulings

of law. As such, Mr. White’s constitutional rights, namely to that of Due Process (U.S. Const.

Amend. V) and Equal Protection (U.S. Const. XIV) were consummately violated.

A. 42 U.S.C. §1983 – Civil Action for Deprivation of Rights

13 The total amount awarded in the suit was $3 million, with $1 million being the fee for Mr. White. The preliminary estimation on the amount of recovery on the case was approximately $500,000. When Mr. White delivered six times that amount, his client consummately refused to pay him, against all rational thinking whatsoever. At the same time, the attorney for the other side refused to pay the entire sum of $3 million altogether. Eventually, through various appeals and suits to execute on the judgment, the client was paid $2 million, but the $1 million owed to Mr. White was never paid. This failure to pay was upheld several times by the appellate courts of the state of Oklahoma through erroneous interpretations of the various rules of civil procedure in question. Regardless, the money that was owed for dutiful services rendered by Mr. White went unpaid, and it was done under the false umbrage of “the rule of law”.

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Fortuitously, the U.S. Congress has enacted legislation for this exact problem; 42 U.S.C. § 1983

provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, 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, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

42 U.S.C. §1983 (1996). Important to our inquiry, 1996 Amendment to this statute inserted a

provision relating to the immunity of judicial officers, namely the language providing “except…

in any action brought against a judicial officer for an act or omission taken in such officer’s

judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or

declaratory relief was unavailable.” Id. However, this provision of the statute will be of no

consequence because this language is geared around a specific remedy sought—an injunction.

Since an injunction is not sought in this particular instance, judicial immunity should not hold

true as it does in other actions. Therefore, the situation is fundamentally different in this

instance. As the U.S. District Court for the Southern District of Indiana stated:

Liability under section 1983 requires a finding that the defendant caused the constitutional deprivation at issue, such that he was “personally involved or acquiesced in the alleged constitutional violation.” Kelly v. Mun. Courts of Marion County, 97 F.3d 902, 909 (7th Cir.1996). A claimant must establish a “causal connection or an affirmative link” between the defendant and the alleged conduct, Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir.1983), but need not show that the defendant directly participated in the violation, Rascon v. Hardiman, 803 F.2d 269, 274 (7th Cir.1986). A person acting under color of state law can be liable if he acts or fails to act in deliberate or reckless disregard of plaintiff's constitutional rights, or if the conduct causing the constitutional deprivation occurs at his direction or with his knowledge and consent. Id.; Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir.1982).

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Patterson v. Burns, 670 F.Supp.2d 837, 849 (S.D.Ind. 2009). To prevail on a claim under 42

U.S.C. §1983, a plaintiff must show (1) that a right secured by the Constitution or laws of the

United States was violated, and (2) that the violation was committed by a person acting under the

color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988).

Liability may be imposed on the individual defendants if Plaintiff can show that they

proximately caused the deprivation of a federally protected right. Leer v. Murphy, 844 F.2d 628,

634 (9th Cir.1988); Harris v. City of Roseburg, 664 F.2d 1121, 1125 (9th Cir.1981). Under §

1983, a person deprives another of a constitutional right if he or she does an affirmative act,

participates in another's affirmative act, or omits to perform an act which he is legally required to

do, that causes the deprivation of which the plaintiff complains. Leer, 844 F.2d at 633. The

inquiry into causation must be individualized and focus on the duties and responsibilities of each

individual defendant whose acts or omissions are alleged to have caused a constitutional

deprivation. Id. In deciding the issue of official immunity under 42 U.S.C. §1983, the U.S.

Supreme Court has stated, “[O]fficials performing discretionary function[s], generally are

shielded from liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (emphasis added).

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In his concurring opinion in Bivens v. Six Unknown Named Agents14, 403 U.S. 388

(1971), Justice Harlan commented on the viability of money damages in light of violations of

federal constitutional provisions15:

I do not think that the fact that the interest is protected by the Constitution rather than statute or common law justifies the assertion that federal courts are powerless to grant damages in the absence of explicit congressional action authorizing the remedy….If explicit congressional authorization is an absolute prerequisite to the power of a federal court to accord compensatory relief regardless of the necessity or appropriateness of damages as a remedy simply because of the status of a legal interest as constitutionally protected, then it seems to me that explicit congressional authorization is similarly prerequisite to the exercise of equitable remedial discretion in favor of constitutionally protected interests. Conversely, if a general grant of jurisdiction to the federal courts by Congress is thought adequate to empower a federal court to grant equitable relief for all areas of subject-matter jurisdiction enumerated therein, see 28 U.S.C. §1331(a), then it seems to me that the same statute is sufficient to empower a federal court to grant a traditional remedy at law…. the judiciary has a particular responsibility to assure the vindication of constitutional interests such as those embraced by the Fourth Amendment…. the Bill of Rights is particularly intended to vindicate the interests of the individual in the face of the popular will as expressed in legislative majorities; at the very least, it strikes me as no more appropriate to await express congressional authorization of traditional judicial relief with regard to these legal interests than with respect to interests protected by federal statutes.

Bivens, 403 U.S. 403-407. While Bivens was an issue surrounding the Fourth Amendment, the

law is equally viable for other constitutional provisions. See Davis v. Passman, 442 U.S. 228

(1979) (Suit filed for vindication of rights under the equal protection component of the Fifth

Amendment’s Due Process Clause); Carlson v. Green, 446 U.S. 14 (1980) (Eighth Amendment

violations from unconstitutional prison conditions).

14 In Bivens, Agents of the Federal Bureau of Narcotics acting under a claim of federal authority, entered into petitioner’s apartment and arrested him for alleged narcotics violations. The agents handcuffed petitioner in front of his wife and children, and threatened to arrest the entire family. They searched the apartment thoroughly, after which he was taken to the federal courthouse, interrogated, booked, and subjected to a visible strip search. Petitioner then brought suit asserting that the arrest and search were effected without a warrant, that unreasonable force was employed in making the arrest, and that the arrest was made without probable cause in violation of the Fourth Amendment.15 The defendants in Bivens asserted that because this cause of action derived from the Constitution and not some statute or the common law, the fact that Congress had not explicitly passed a law allowing the judiciary to award money damages in such a case prevented any court from doing so.

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1. Procedural Due Process (Fifth and Fourteenth Amendments)

To maintain an action under 42 U.S.C. §1983 based on a violation of procedural due

process, a plaintiff must show that (1) the state does not provide any remedy; (2) the state

provides a remedy, but it is inadequate; or (3) the state provides an adequate remedy in form,

both procedurally and in damages, but the state failed to apply or misapplied the remedy; such a

showing does not require plaintiffs to utilize or exhaust the processes if they indeed exist, but

rather they must show only that there are no such processes in place. Clair v. Northern Ky.

Independent Health Dist., 504 F.Supp.2d 206 (E.D.Ky. 2006); aff’d, 239 Fed.Appx. 997, 2007

WL 2492420. To succeed on procedural due process claim under 42 U.S.C.§1983, plaintiff

must prove that: (1) he had property interest under state law, and (2) defendants, acting under

color of state law, deprived him of that property interest without following procedures required

by federal constitutional law. Patterson v. Tortolano, 359 F.Supp.2d 13 (D.Mass. 2005). A civil

rights claim predicated on violation of due process must involve invasion of recognized life,

liberty, or property interest. Polite v. Casella, 901 F.Supp. 90 (N.D.N.Y. 1995). To state claim

for relief under 42 U.S.C. §1983, plaintiff need only allege that defendant deprived her, under

color of state law, of right secured by Constitution and laws of the United States, and claim that

plaintiff was deprived of her liberty interest under due process clause of the Fourteenth

Amendment was sufficient as source for court's jurisdiction under this section. Flowers v. Webb,

575 F.Supp. 1450 (E.D.N.Y. 1983). See also Ohland v. City of Montpelier, 467 F.Supp. 324

(D.C.N.H. 1978).

2. Substantive Due Process (Fifth and Fourteenth Amendments)

To establish § 1983 substantive due process claims, plaintiff has to demonstrate that it had

property or property interest, that state deprived it of this property or property interest, and that

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state's action fell so beyond outer limits of legitimate governmental action that no process could

cure deficiency. City-Wide Asphalt Paving, Inc. v. Alamance County, 966 F.Supp. 395

(M.D.N.C. 1997). Only behavior intended to injure in some way unjustifiable by any

government interest is the sort of official action most likely to shock the conscience, as would

form the basis for a substantive due process claim under 42 U.S.C. §1983. Beberena-Garcia v.

Aviles, 2009 WL 982955 (D.Puerto Rico, 2009). If the claim is that there has been a violation of

the substantive component of the due process clause of the Fourteenth Amendment, plaintiff may

maintain federal civil rights action irrespective of whether there is a state remedy available.

Dugan v. Brooks, 818 F.2d 513 (C.A.6 (Ohio) 1987). Although litigant is not required to exhaust

state remedies before initiating § 1983 actions for alleged violations of procedural due process,

litigant's access to meaningful state post-deprivation procedures may preclude claims of

procedural due process violation. Hadad v. Croucher, 970 F.Supp. 1227 (N.D.Ohio 1997).

Nevertheless, a civil rights plaintiff may maintain a substantive due process claim even though

there are state tort remedies available. Sheets v. Indiana Dept. of Corrections, 656 F.Supp. 733

(S.D. 1986).

3. The Fifth Amendment

The Fifth Amendment to the United States Constitution provides:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

U.S. Const. Amend. V (emphasis added). Due process of law is primary and indispensable

foundation of individual freedom. Application of Gault, 387 U.S. 1 (1967). This clause also

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encompasses equal protection principles. Matthews v. De Castro, 429 U.S. 181 (1976); see also

NAACP v. Wilmington Medical Center, Inc., 453 F.Supp. 330 (D.C.Del. 1978); United

Federation of Postal Clerks v. Blount, 325 F.Supp. 879 (D.C.Dist.Colum. 1971); aff’d 404 U.S.

802. The Due Process Clause of the Fifth Amendment to the Constitution contains the same

guarantee of equal protection under law as that provided in the Fourteenth Amendment. U.S. v.

Pollard, 326 F.3d 397 (C.A.3 (Virgin Islands) 2003); cert. den., 540 U.S. 932. In a federal

question case, the constitutional limits of the court's personal jurisdiction are fixed, not by the

Fourteenth Amendment, but by the Due Process Clause of the Fifth Amendment; consequently, a

plaintiff need only show that the defendant has adequate contacts with the United States as a

whole, rather than with a particular state. ICP Solar Technologies, Inc. v. TAB Consulting, Inc.,

413 F.Supp.2d 12 (D.N.H. 2006).

4. The Fourteenth Amendment

Section 1 of the Fourteenth Amendment to the United States Constitution reads:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

U.S. Const. Amend. XIV §1 (emphasis added). Plaintiffs claiming equal protection violation

must first identify and relate specific instances in which person situated similarly in all relevant

aspects were treated differently, instances which have capacity to demonstrate that claimants

were singled out for unlawful oppression. Rubinovitz v. Rogato, 60 F.3d 906 (C.A.1 (Mass.)

1995). 42 U.S.C. §1983 embraces deprivation of both due process of law and equal protection

of laws—it contemplates such deprivation through unconstitutional application of law by

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conspiracy or otherwise and it permits damages, including punitive damages. Mansell v.

Saunders, 372 F.2d 573 (C.A.5 (Fla.) 1967). To state a § 1983 claim for deprivation of property

without due process in violation of the Fourteenth Amendment, plaintiff must show (1) that she

has a constitutionally protected property interest, and (2) that she has been deprived of that

interest by state action; once elements are established, question turns to what process is due and

whether it has been provided. Echtenkamp v. Loudon County Public Schools, 263 F.Supp.2d

1043 (E.D.Va. 2003).

5. The Full Faith and Credit Clause

The Full Faith and Credit Clause of the United States Constitution is found in Article IV,

section 1, and it provides:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

U.S. Const. Art. IV, §1 (emphasis added). The Full Faith and Credit Clause altered the status of

the several states as independent foreign sovereignties each free to ignore rights and obligations

created under the laws or established by the judicial proceedings of the others, by making each

an integral part of a single nation in which rights judicially established in any part are given

nationwide application. Magnolia Petroleum Co. v. Hunt, 320 U.S. 430 (1943); reh’ing den.,

321 U.S. 801. This clause means that not some but full credit must be given in each state to

judicial proceedings of other states. Davis v. Davis, 305 U.S. 32 (1938). Where a court refuses

to give effect to the judgment of a court of another state, it refuses to give full faith and credit to

that judgment. Mutual Life Ins. v. McGrew, 188 U.S. 291 (1903). The Full Faith and Credit

Clause requires that valid judgment of courts of competent jurisdiction be given full effect in

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another jurisdiction in manner to render justice to parties and avoid needless litigation. O’Shea

v. Chrysler Corp., 206 F.Supp. 601 (D.C.N.J. 1962). When duly pleaded and proved, judgments

of other states have the effect of being not merely prima facie evidence, but conclusive proof, of

the rights thereby adjudicated. Huntington v. Attrill, 146 U.S. 657 (U.S.Md. 1892); see also

Emery v. Hovey, 153 A. 322 (N.H. 1931); Bonfils v. Gillespie, 139 P. 1054 (Colo.App. 1914);

Hope v. Walsenberg First Nat. Bank, 82 S.E. 929 (Ga. 1914); Freyburger v. Adkins, 128 So. 115

(Ala.App. 1930). 42 U.S.C. §1983 is an appropriate basis on which to raise a claim that courts

of a state are denying rights asserted under Full Faith and Credit Clause, U.S.C.A.Const. Art. 4, §

1, and implementing statute, § 1738 of Title 28. Lamb Enterprises, Inc. v. Kiroff, 399 F.Supp.

409 (N.D.Ohio 1975); rev’d on other grounds, 549 F.2d 1052; cert. den., 431 U.S. 968, 97 S.Ct.

2926.

VI. 42 U.S.C. §1985 – The Conspiracy arm of 42 U.S.C. §1983

Title 42, ch. 21, section 1985, in relevant part, provides:

(2) Obstructing justice; intimidating party, witness, or juror – If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or of his being or having been such juror; or if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws.

42 U.S.C. §1985(2) (emphasis added). This section would seem to speak towards judges who

deny equal protection of the laws. However, the legislative history of §1985 does not abrogate

or impair traditional common law doctrine of judicial immunity. See Byrne v. Kysar, 347 F.2d

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734 (C.A.7 (Ill.) 1965); cert. den., 383 U.S. 913; reh’ring den., 384 U.S.914; reh’ring den., 384

U.S. 994; Kostal v. Stoner, 292 F.2d 492 (C.A.10 (Colo.) 1964); cert. den., 369 U.S. 868;

reh’ring den., 370 U.S. 920. As a general matter, an allegation of conspiracy will not abolish the

doctrine of judicial immunity. Hagan v. State of California, 265 F.Supp. 174 (C.D.Cal. 1967).

Furthermore, state judges are immune from suit brought under this section. Waits v. McGowan,

526 F.2d 203 (C.A.3 (N.J.) 1975). Phillips v. Singletary, 350 F.Supp. 297 (D.C.S.C. 1972),

stood for the proposition that no cause of action cognizable under §1983 of Title 42 pertaining to

a civil action for deprivation of rights, lay under §1985 relating to a conspiracy to interfere with

civil rights, lay against a judge who was, at all time states in the complaint, the presiding judge

and whose allegedly unlawful acts were done in his official capacity. See also Boruski v.

Stewart, 381 F.Supp. 529 (S.D.N.Y. 1974). All of this case law stands for the proposition that,

unfortunately, the common law doctrine of judicial immunity seems to survive as controlling law

even the statutory interpretation of these statutes would seem to direct otherwise.

VII. Action for Neglect to Prevent – 42 U.S.C. §1986

Title 42, ch. 21, section 1986 provides:

Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented; and such damages may be recovered in an action on the case; and any number of persons guilty of such wrongful neglect or refusal may be joined as defendants in the action; and if the death of any party be caused by any such wrongful act and neglect, the legal representatives of the deceased shall have such action therefor, and may recover not exceeding $5,000 damages therein, for the benefit of the widow of the deceased, if there be one, and if there be no widow, then for the benefit of the next of kin of the deceased. But no action under the provisions of this section shall be sustained which is not commenced within one year after the cause of action has accrued.

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42 U.S.C. §1986 (emphasis added). To establish a conspiracy of private individuals actionable

under this section, plaintiff must show that purpose of same was to deprive him of equal

protection; a conspiracy to deprive plaintiff of due process is insufficient. Smith v. Bucci

Detective Agency, 316 F.Supp. 1284 (W.D.Pa. 1970). Unfortunately, in Travis v. Miller, 226

F.Supp.2d 663 (E.D.Pa. 2002), a case in which a defendant in state court convicted of delivering

a controlled substance who alleged a violation of his federal rights as a result of a conspiracy of

court officials, including judges, to deny him access to a transcript of his proceedings, the court

found that the judge had absolute judicial immunity from a claim of monetary damages under

§1983, §1985, and §1986. Overall, the stigma of judicial immunity seems to follow no matter

what statutory scheme one utilizes to breach its veil.

VIII. The Rooker-Feldman Doctrine – The Jurisdictional Barrier to Federal District Court

The Rooker-Feldman doctrine limits the power of lower federal courts to review state

court judgments16 or to reconsider matters finally decided by state courts17. Parties aggrieved by

the decisions of state courts may obtain federal review only by writ of certiorari to the United

States Supreme Court, not by collateral litigation in a federal district court18.

The Rooker-Feldman doctrine takes its name from two United States Supreme Court

cases19 which establish the clear principle that federal district courts lack jurisdiction over suits

that are, in substance, appeals from state-court judgments20. The doctrine does not reflect any

constitutional command21 or constitutional limitation on the lower federal courts22, but instead

16 Lance v. Dennis, 126 S.Ct. 1198, 163 L.Ed.2d 1059 (U.S. 2006); Jicarilla Apache Nation v. Rio Arriba County, 440 F.3d 1202 (10th Cir. 2006); Holt v. Lake County Bd. of Com’rs, 408 F.3d 335 (7th Cir. 2005)17 United States v. Timley, 443 F.3d 615 (8th Cir. 2006); pet. for cert. filed, 75 U.S.L.W. 3074 (U.S. Aug. 5, 2005)18 Jicarilla Apache Nation v. Rio Arriba County, 440 F.3d 1202 (10th Cir. 2006)19 Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); Dist. Ct. of Columbia Ct.App. v. Feldman, 460 U.S. 462 (2006)20 Hoblock v. Albany County Bd. of Elections, 422 F.3d 77 (2nd Cir. 2005)21 Doe v. Mann, 415 F.3d 1038 (9th Cir. 2005); cert. den., 126 S.Ct. 1909; and cert. den., 126 S.Ct. 191122 Mo’s Express, LLC v. Sopkin, 441 F.3d 1229 (10th Cir. 2006)

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arises from a federal statute, 28 U.S.C. §1257, stating, in relevant part, that final judgments or

decrees rendered by the highest court of a state in which a decision could be had, may be

reviewed by the United States Supreme Court23. Since Congress has never conferred a similar

power of review on the federal district courts, the inference is that Congress did not intend to

empower these lower federal courts to review state court decisions24.

The Rooker-Feldman doctrine promotes firmly-held notions of federalism and comity by

preserving the integrity of the state court decision-making process and the repose of state court

judgments. This doctrine arises by negative inference from the federal statute allowing parties to

state court judgments to seek direct review in the United States Supreme court, but not to appeal

to the lower federal courts. Mo’s Express, LLC v. Sopkin (citations in fn. 22). The doctrine

operates principally to preserve the structure of appeals from state courts to the United States

Supreme Court25, and to bar any proceeding that would functionally amount to a lateral appeal to

a federal district court26. The Rooker-Feldman doctrine not only applies to orders and decrees of

the highest state court, but also to final decisions of lower state courts 27. A state court's brevity

does not prevent application of the doctrine, and thus a state court's decision is not subject to

collateral attack in federal court simply because the state court failed to articulate on the record

all the factors informing its deliberate exercise of discretion28. The doctrine prevents appeals of

state court decisions to federal district courts, even if a federal question is present or there is

diversity of citizenship between the parties. See Noel v. Hall, 341 F.3d 1148 (9th Cir. 2003);

Hart v. Comerica Bank, 957 F.Supp. 958 (E.D.Mich. 1997).

23 In re Knapper, 407 F.3d 573 (3rd Cir. 2005)24 Guttman v. Khalsa, 446 F.3d 1027 (10th Cir. 2006); In re Knapper, 407 F.3d 573 (3rd Cir. 2005)25 Bear v. Patton, 451 F.3d 339 (10th Cir. 2006); Moore v. City of Asheville, N.C., 396 F.3d 385 (4th Cir. 2005); cert. den., 126 S.Ct. 349 (2005).26 Moore v. City of Asheville, N.C., citations in fn. 2527 In re Knapper, citations in fn. 2328 ITT Corp. v. Intelnet Intern., 366 F.3d 205 (3rd Cir. 2004); People v. Puertas, 613 N.W.2d 297 (Mich. 2000)

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Title 28, section 1257, supra, was a statute that was amended by virtue of the Supreme

Court Case Selections Act, Public Law 100-352, which became law on June 27, 1988. All of the

old contents were stricken out and a fresh §1257 was enacted. The amended statute, entitled

“State Courts; Certiorari”, provides in relevant part:

Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari where the validity of a treaty or statute of the United States is drawn in question or where the validity of a statute of any State is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, or where any title, right, privilege, or immunity is specially set up or claimed under the Constitution or the treaties or statutes of, or any commission held or authority exercised under, the United States.

28 U.S.C. §1257(a). Section 1257, as amended, governs the routing of cases from the highest

state courts to the U.S. Supreme Court. The amendment in effect made the only way to appeal

the rulings of the highest state courts by way of a writ of certiorari, and not by simple appeal to

the federal court system. David D. Siegal, the Distinguished Professor of Law Emeritus at

Albany Law School (N.Y.), in his commentary on §1257, wrote:

Cases seeking access to the U.S. Supreme Court from a state court will no longer get to the Supreme Court with an outright appeal; they will have to petition for certiorari…[T]he section allows certiorari to review not just a decision of the “highest court” of a state, but of the highest state court “in which a decision could be had”. That language, contained in the old section and repeated in the new, takes note of the internal strictures a state may impose on appeals within its own court system, perhaps stopping a case at some lower level and barring it from review by the state's highest court, or, for that matter, from any appellate court at all. If that case nevertheless poses a federal question, review of it can be applied for to the U.S. Supreme Court—solely by the certiorari route, of course—from whatever court it has been able to reach within the state system.

David D. Siegal, “Commentary on the 1988 Revision”, 28 U.S.C. §1257. Consequently, the

federal courts derived a “negative inference” from this statute—namely that this statute created

the legal proposition that the only way to appeal the rulings from state courts at the federal level

was to petition the U.S. Supreme Court for certiorari, and not at the federal district court level or

its accompanying court of appeals.

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There has been some important case law in the U.S. Supreme Court involving the

Rooker-Feldman doctrine. The main thrust of these cases has been to fully flesh out what the

scope of the doctrine actually is, and to clarify mistakes made by the federal district courts in its

application. The first such case is Exxon Mobil Corp. v. Saudi Basic Industries Corp.29, 544 U.S.

280 (2005), where Justice Ginsburg, delivering the opinion of the court, wrote:

The Rooker-Feldman doctrine, we hold today, is confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments. Rooker-Feldman does not otherwise override or supplant preclusion doctrine or augment the circumscribed doctrines that allow federal courts to stay or dismiss proceedings in deference to state-court actions.... Since Feldman, this Court has never applied Rooker-Feldman to dismiss an action for want of jurisdiction. The few decisions that have mentioned Rooker and Feldman have done so only in passing or to explain why those cases did not dictate dismissal30.

Exxon Mobil Corp., 544 U.S. 284-288. Similarly, in an opinion delivered per curiam, the

Supreme Court again tackled the scope in Lance v. Dennis, 546 U.S. 459 (2006). Lance

involved two suits, with the first beginning in May 2001. When the Colorado General Assembly

29 This case gives a fantastic historical account of the development, history, and evolution, inter alia, of the Rooker-Feldman doctrine.30 See Verizon Md. Inc. v. Public Serv. Comm'n of Md., 535 U.S. 635, 644, n. 3, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002) ( Rooker-Feldman does not apply to a suit seeking review of state agency action); Johnson v. De Grandy, 512 U.S. 997, 1005-1006, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994) ( Rooker-Feldman bars a losing party in state court “from seeking what in substance would be appellate review of the state judgment in a United States district court, based on the losing party's claim that the state judgment itself violates the loser's federal rights,” but the doctrine has no application to a federal suit brought by a nonparty to the state suit.); Howlett v. Rose, 496 U.S. 356, 369-370, n. 16, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990) (citing Rooker and Feldman for “the rule that a federal district court cannot entertain an original action alleging that a state court violated the Constitution by giving effect to an unconstitutional state statute”); ASARCO Inc. v. Kadish, 490 U.S. 605, 622-623, 109 S.Ct. 2037, 104 L.Ed.2d 696 (1989) (If, instead of seeking review of an adverse state supreme court decision in the Supreme Court, petitioners sued in federal district court, the federal action would be an attempt to obtain direct review of the state supreme court decision and would “represent a partial inroad on Rooker-Feldman's construction of 28 U.S.C. § 1257.”); Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 6-10, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987) (abstaining under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), rather than dismissing under Rooker- Feldman, in a suit that challenged Texas procedures for enforcing judgments); 481 U.S., at 18, 107 S.Ct. 1519 (SCALIA, J., concurring) (The “so-called Rooker-Feldman doctrine” does not deprive the Court of jurisdiction to decide Texaco's challenge to the Texas procedures); id., at 21, 107 S.Ct. 1519 (Brennan, J., concurring in judgment) ( Rooker and Feldman do not apply; Texaco filed its federal action to protect its “right to a meaningful opportunity for appellate review, not to challenge the merits of the Texas suit.”). But cf. 481 U.S., at 25-26, 107 S.Ct. 1519 (Marshall, J., concurring in judgment) (Rooker- Feldman would apply because Texaco's claims necessarily called for review of the merits of its state appeal). See also Martin v. Wilks, 490 U.S. 755, 783-784, n. 21, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989) (STEVENS, J., dissenting) (it would be anomalous to allow courts to sit in review of judgments entered by courts of equal, or greater, authority (citing Rooker and Feldman)).

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failed to pass a redistricting plan for the 2002 congressional elections by the close of its regular

session, a group of Colorado voters asked the state courts to create a plan. The courts agreed,

drawing a new map reflecting the additional district. See Beauprez v. Avalos, 42 P.3d 642 (Colo.

2002) (en banc). The 2002 elections were held using this court-ordered plan. The General

assembly then passed its own redistricting plan in the spring of 2003, prompting further litigation

—this time about which electoral map was to govern. The two suits were filed seeking to enjoin

the legislature’s plan: an original action in the Colorado Supreme court by the state attorney

general seeking to require the secretary of state to use the court-ordered plan, and a similar action

brought in lower state court by several proponents of the court-ordered plan. 379 F.Supp.2d, at

1121. After the Colorado General Assembly intervened to defend its plan in the first case, the

Colorado Supreme court held that the legislative plan violated Article V, §44, of the State

Constitution, which the court construed to limit congressional redistricting to “once per decade.”

People ex. rel. Salazar v. Davidson, 79 P.3d 1221, 1231 (2003) (en banc). It therefore ordered

the secretary of state to use to court-created plan. The U.S. Supreme Court denied certiorari.

541 U.S. 1093 (2004). The second suit was removed to federal court by the defendants on the

basis of the plaintiff’s federal-law claims. See Keller v. Davidson, 299 F.Supp.2d 1171, 1175

(D.Colo. 2004). Once Salazar was decided by the Colorado Supreme Court, the viability of the

defendants’ counterclaims was the only remaining issue. A three-judge District Court held that

the defendants were barred by the Rooker-Feldman doctrine from amending their counterclaims

to assert additional challengers to the decision in Salazar. It also held that the defendants’s

original counterclaims, while not barred by the Rooker-Feldman doctrine, were precluded under

Colorado law by the judgment in Salazar. According the court dismissed the case.

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Now to the action that was actually before the U.S. Supreme Court: Before the dismissal

in Keller, several Colorado citizens unhappy with Salazar filed an action in the District Court

seeking to require the secretary of state to use the legislature’s plan. The plaintiff’s argued that

Article V, §44, of the Colorado Constitution, as interpreted by the Colorado Supreme Court,

violated the Elections Clause of Article I, § 4, of the U.S. Constitution (“The Times, Places and

Manner of holding Elections for Senators and Representatives, shall be prescribed in each State

by the Legislature thereof”), and the First Amendment's Petition Clause (“Congress shall make

no law...abridging...the right of the people...to petition the Government for a redress of

grievances”). The defendants filed a motion to dismiss, arguing that the Rooker-Feldman

doctrine and Colorado preclusion law barred any attack on the Colorado Supreme Court's

judgment in Salazar and that the plaintiffs had failed to state a valid Petition Clause claim. The

three-judge District Court ruled that under the Rooker-Feldman doctrine, it had no jurisdiction to

head the Elections Clause claim. 379 F.Supp.2d, at 1127. The Rooker-Feldman doctrine, the

court explained, includes three requirements:

(1) “[T]he party against whom the doctrine is invoked must have actually been a party to the prior state-court judgment or have been in privity with such a party”; (2) “the claim raised in the federal suit must have been actually raised or inextricably intertwined with the state-court judgment”; and (3) “the federal claim must not be parallel to the state-court claim.”

379 F.Supp.2d at 1124. The District Court found the first requirement satisfied on the ground

that the citizen-plaintiffs were in privity with the Colorado General Assembly-a losing party in

Salazar. Relying on previous U.S. Supreme Court cases31, the court stated that “when a state

government litigates a matter of public concern, that state’s citizens will be deemed in privity

with the government for preclusion purposes.” 379 F.Supp.2d at 1125. This principle, the court

31 Washington v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979), and Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 78 S.Ct. 1209, 2 L.Ed.2d 1345 (1958)

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reasoned, applies “with equal force in the Rooker-Feldman context.” Id. The court went on to

conclude that the Elections Clause claim was actually raised in Salazar, or inextricably

intertwined with that decision, and was not parallel to the claims presented in Salazar. As to the

Petition Clause claim, the court ruled that neither Rooker-Feldman nor Colorado preclusion law

prevented the court from proceeding to the merits, but that the plaintiffs failed to state a claim.

379 F.Supp.2d, at 1132; see Fed. Rule Civ. Proc. 12(b)(6). In response to these developments,

the U.S. Supreme Court stated:

This Court is vested, under 28 U.S.C. § 1257, with jurisdiction over appeals from final state-court judgments. We have held that this grant of jurisdiction is exclusive: “Review of such judgments may be had only in this Court.”32 Neither Rooker nor Feldman elaborated a rationale for a wide-reaching bar on the jurisdiction of lower federal courts, and our cases since Feldman have tended to emphasize the narrowness of the Rooker-Feldman rule.... In Exxon Mobil [mentioned supra], we warned that the lower courts have at times extended Rooker-Feldman “far beyond the contours of the Rooker and Feldman cases, overriding Congress' conferral of federal-court jurisdiction concurrent with jurisdiction exercised by state courts, and superseding the ordinary application of preclusion law pursuant to 28 U.S.C. § 1738.” 544 U.S., at 283, 125 S.Ct. 1517. Rooker-Feldman, we explained, is a narrow doctrine, confined to “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” 544 U.S., at 284, 125 S.Ct. 1517.... [W]e have held Rooker-Feldman inapplicable where the party against whom the doctrine is invoked was not a party to the underlying state-court proceeding. See De Grandy, 512 U.S. at 1006, 114 S.Ct. 2647.... Although the District Court recognized the “general rule” that “Rooker-Feldman may not be invoked against a federal-court plaintiff who was not actually a party to the prior state-court judgment,” 379 F.Supp.2d, at 1123, it nevertheless followed Tenth Circuit precedent in allowing application of Rooker-Feldman against parties who were in privity with a party to the earlier state-court action, 379 F.Supp.2d, at 1123.... The District Court erroneously conflated preclusion law with Rooker-Feldman. Whatever the impact of privity principles on preclusion rules, Rooker-Feldman is not simply preclusion by another name. The doctrine applies only in “limited circumstances,” where a party in effect seeks to take an appeal of an unfavorable state-court decision to a lower federal court. The Rooker-Feldman doctrine does not bar actions by nonparties to the earlier state-court judgment simply because, for purposes of preclusion law, they could be considered in privity with a party to the judgment.

32 District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983) (emphasis added); see also Atlantic Coast Line R. Co. v. Locomotive Engineers, 398 U.S. 281, 286 (1970); Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923).

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Lance v. Dennis, 546 U.S. 459, 463-466 (emphasis added). While the instant situation involving

attorneys’ fees deriving from the representation of someone in state court might be seen as

“inextricably tied” to the state action in which the services were rendered, and while an attorney

is certainly thought of as “in privity” with his client for the purposes of the original action, the

U.S. Supreme Court has fully set out that the Rooker-Feldman doctrine has nothing to do with

preclusion in regards to privity with the parties. As such, this action should not be barred by the

doctrine.

In summary, State court decisions are most likely to be found suitable for review by

certiorari if they involve an important federal question not previously considered by the Supreme

Court, or have resolved an important federal question in a way that conflicts with decisions of

the Supreme Court, a federal court of appeals, or the highest court of another state. See Smiley v.

Citibank, 116 S.Ct. 1730, 1732 (1996) (Certiorari was granted to resolve the conflict between the

decision of the Supreme Court of California in this case and a decision of the Supreme Court of

New Jersey); Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825, 826 (1988)

(Certiorari granted to review the state court decision of a federal question “[b]ecause of

conflicting decisions among the courts on the questions presented…”); Arizona v. Roberson, 486

U.S. 675, 679 (1988); Washington v. Washington State Commercial Passenger Fishing Vessel

Assn., 443 U.S. 658, 674 (1979) (Certiorari granted in parallel federal and state cases involving

interpretation and implementation of Indian treaty fishing rights); Duren v. Missouri, 439 U.S.

357, 363 (1979) (“We granted certiorari…because of concern that the decision below is not

consistent with our decisions…”); Johnson v. Fankell, 520 U.S. 911, 914 (1997) (Certiorari was

granted to resolve the conflict among state courts on the question of whether state courts are

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obliged to afford the right of interlocutory appeal that federal courts provide to public officials

who assert qualified or absolute immunity against claims based on federal law).

IX. Conclusion

The doctrine of judicial immunity has gone through an intense evolution, to say the least.

The earliest formulations of the doctrine varied greatly between the various states. Throughout

this variance, however, certain factors were used over others almost exclusively to determine the

efficacy of judicial immunity in any given case.

The first of these factors was jurisdiction. There were two types of jurisdiction relevant

to inquiry: (1) personal jurisdiction, and (2) subject matter jurisdiction. The evolution of the

doctrine turned upon another dichotomy: (1) a judge acting “in excess of his jurisdiction”, and

(2) a judge acting “in the clear absence of all jurisdiction”. If a judge had either personal or

subject matter jurisdiction, but lacked the other in a particular judicial act, then he was said to be

acting “in excess of his jurisdiction,” and still within the safety of judicial immunity. It was only

when the judge blatantly lacked both personal and subject matter jurisdiction that a judge was

ruled as having acted “in the clear absence of all jurisdiction,” and thus outside the purview of

judicial immunity. See, e.g., Roush v. Hey, fn. 7, supra.

The second factor important to an inquiry into judicial immunity was whether the judge,

in the action complained of, was performing a “judicial act.” To determine whether or not the

action complained of was indeed a “judicial” one, the courts developed a four prong test: (1)

whether the act complained of is one normally performed by a judge; (2) whether the act

occurred in the courtroom or an appropriate adjunct such as the judge’s chambers; (3) whether

the controversy centered around a case pending before the judge; and (4) whether the act arose

out of a visit to the judge in his judicial capacity. These factors are broadly construed in favor of

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immunity, so that immunity may exist even if three of the four factors are not met, and the

factors need not be given equal weight in all cases, but rather, they should be weighed according

the facts of a particular case. See, e.g., Hawkins v. Walvood, fn. 8, supra.

The third factor that was important, at least in the earlier cases, was “Good-Faith” action

in acting as a judge in a particular action. In those cases, it was said that if the judge was acting

in “good faith,” then they would be safely within the doctrine of judicial immunity. The

converse was also true—acting in bad faith would then bring a judge outside the doctrine and

would make him liable for damages for his actions. This approach, not universally accepted

even in the time of its usage, has fallen by the wayside. Instead, it has been stated in numerous

decisions that a judge’s actions motivated by malice, corruption, fraud, or in manifest error are

completely within the doctrine of judicial immunity. Furthermore, the case law has developed

the legal proposition that these factors are completely irrelevant to the determination of whether

a judge enjoys judicial immunity in a particular case. At this point in time, a judge’s internal

motives for making a particular decision are deemed irrelevant for the purposes of the

determination of judicial immunity.

There have been some exceptions developed to the doctrine of judicial immunity. First,

if a judge acts in a function that is not judicial in nature, then judicial immunity is off the table.

Examples of this type of action include a judge acting in an Administrative capacity, in a

Legislative capacity, or in capacities not tied to official duties of any kind. In these cases, they

are seen as not performing judicial acts and likewise not acting within any sort of jurisdiction,

and thus they cannot enjoy judicial immunity for actions taken in those capacities. While the

examples in the case law of this type of case are few and far between, it is a fully-recognized

exception to the doctrine of judicial immunity.

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In terms of the state of Oklahoma, the common law doctrine of judicial immunity has

developed almost, if not fully, identical to the other states. In the state of Oklahoma, a judge will

not be deprived of judicial immunity unless, first, he/she performs an action not deemed a

“judicial act,” and second, he/she performs this non-judicial act “in the clear absence of all

jurisdiction.” In sum, the common law immunity afforded to judges in the state of Oklahoma is

almost completely airtight and impenetrable.

In the fact pattern presented for this memorandum, there are certainly constitutional

issues prevalent to the proper adjudication of this matter. Issues of Due Process, Equal

Protection, Official Conspiracy, Full Faith and Credit, and federal statutes can all come into play

for this matter. It has been held in the U.S. Supreme Court that the abrogation of these rights

creates an “implied right of action” and that one, through the various statutory provision

enumerated above, can bring a case to vindicate the rights that are fully protected by the U.S.

Constitution. While there is extant case law that says that in certain factual situations

surrounding these various Constitutional and federal statutory rights that common law judicial

immunity still holds firm, the argument in this particular factual situation is very much unique,

and it can and should be made. The bottom line is that through manifest judicial errors a person

was wronged and should have an outlet in which to voice that wrong and receive a fair shake

within the judicial system of this country. The only known procedural hurdle to this adjudication

would be the Rooker-Feldman doctrine, outlined supra, in which to find adjudication in this

matter, the only procedural outlet is through a petition for certiorari directly to the United States

Supreme Court. Either way, this matter should be brought to light to the highest court possible,

and while many might find the statutory funneling of this claim as an insurmountable mountain

to climb, it can equally (and more correctly, in my opinion) be seen as a surmountable, and

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fortuitous path towards justice where it is required by the facts. The United States Congress,

through whatever motives they may claim, fully envisioned these types of claims not being

suited for the federal district courts or the federal courts of appeal. As such, they made the only

available means of adjudicating matters of this ilk by going directly to the highest court in the

land.

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