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Monday, December 06, 2010

A fun question of judicial immunity

Here's a fun one from Mississippi. The Mississippi Commission on Judicial Performance has recommended that Judge Talmadge Littlejohn, a Chancery Court judge, receive a public reprimand and pay $ 100 in costs for jailing a lawyer named Danny Lampley for criminal contempt when Lampley refused to recite the Pledge of Allegiance prior to the start of court proceedings. Littlejohn withdrew the contempt citation. He also conceded that his actions violated the First Amendment and has changed his court procedures to make reciting the pledge voluntary--and both facts were cited by the Commission in recommending only a reprimand. The recommendation now goes to the Mississippi Supreme Court.

This story was passed along by a reader, who then questioned whether this perhaps is an instance where Judge Littlejohn will not enjoy judicial immunity, in the event Lampley files a § 1983 claim (it does not sound like Lampley plans to do so). I doubt it. Although his conduct here was blatantly and patently unconstitutional, that is not the touchstone for judicial immunity. The only question is whether the judge was performing a judicial function. Issuing a contempt citation certainly is judicial and certainly within the jurisdiction of a judge. And so is establishing rules of behavior for lawyers in the courtroom; this strikes me as as the same as if a judge held an attorney in contempt for failing to rise or for dressing inappropriately or for otherwise failing to follow rules of courtroom decorum. True, this rule is unconstitutional. But that is not the point for immunity purposes.

Convince me I am wrong.

Posted by Howard Wasserman on December 6, 2010 at 08:46 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink

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Here's a hypo I made up for my students (mostly undergrads, plus a few grad students):

Case: Brown vs. Almond

Background of the case:
While working in a warehouse storing imported coffee, Dennis Brown discovered that his boss was using the coffee import business as a front to import large quantities of cocaine. He gathered photographic evidence of the operation and then went to local police. Unfortunately for Mr. Brown, the police officer to whom he reported the crime – Michael Smith -- was in the employ of the same drug cartel that was importing the cocaine. Officer Smith advised Mr. Brown that an undercover investigation was ongoing and that he should maintain absolute secrecy about what he saw. He convinced Mr. Brown to turn over the photographs and other evidence “for use in the investigation.” Fearing that Mr. Brown might still be retaining evidence at home, Officer Smith then approached Judge Hailey Almond, who was also on the payroll (to the tune of millions of dollars) of the drug cartel. In conjunction with the leaders of the drug cartel, Officer Smith and Judge Almond devised a plan to cover up the cocaine smuggling operation and arrange for the murder of Mr. Brown.
At Officer Smith’s request, Judge Almond issued a sweeping search warrant of Mr. Brown’s home. It failed to meet any ordinary procedural safeguard, such as including an affidavit or a list of particular things to be searched. After ransacking the house and finding all of the evidence, Officer Smith then planted a large quantity of cocaine in the house. When Mr. Brown returned home, he was arrested by Officer Smith. Without being a chance to contact an attorney, he was immediately transferred to the courtroom of Judge Almond, who had requested and received jurisdiction over the case from his colleagues. Judge Almond ordered him held without bail as a “danger to the community” while awaiting trial for cocaine possession. Mr. Brown was immediately transported to the county jail, where a drug cartel member was waiting for him. This fact was known by both Mr. Smith and Judge Almond, and motivated their decision to place him there. However, neither one had actually placed the cartel member in the prison or told him that Mr. Brown would be arriving – that dirty work was left to other cartel members. During the night, his throat was cut by the cartel member.
The plot was eventually discovered, and Judge Almond and Officer Smith were both subsequently convicted of a long string of felonies for their role in the drug cartel and their actions leading to the killing of Mr. Brown. Candace Brown, the wife of Dennis Brown, then brought civil actions against both Officer Smith and Judge Almond for the false imprisonment, deprivation of civil liberties, and wrongful death suffered by Mr. Brown. Judge Almond moved for immediate dismissal of all claims against himself, arguing that he was entitled to absolute immunity from civil lawsuits for any judicial functions he performed, including authorizing the search and detention of Mr. Brown – even if he only authorized the search and detention in order to facilitate the murder of Mr. Brown. His motion noted that he had jurisdiction over search warrants and that he had been assigned the case, albeit at his own request. Accordingly, the lawsuit was dismissed, a decision upheld by the appeals court. Mrs. Brown now appeals to the Supreme Court, seeking the right to proceed with the lawsuit against Judge Almond.

Questions for review:
1. Does the doctrine of absolute judicial immunity enunciated by this Court in Bradley v. Fisher and restated in Stump v. Sparkman require the appellant’s suit to be dismissed?
2. If the absolute doctrine of judicial immunity requires dismissal, should Bradley v. Fisher and/or Stump v. Sparkman be overruled?

Posted by: Jeffrey Dixon | Dec 7, 2010 3:18:31 AM

Of course, the shooting hypo would have to overcome Mireles v. Waco, where SCOTUS held the judge was immune for ordering bailiffs to bring an attorney into the courtroom and to use excessive force in doing it. Seriously, I imagine courts would insist on some specificity and say that shooting someone is not what judges do, even in enforcing rules of court.

But note that the issue in this case is not that the method of enforcing court order (contempt and jail) is unconstitutional, but that the underlying rule being enforced (recite the pledge) is unconstitutional. Jailing the same attorney for contempt for talking out of turn would probably be perfectly fine, at least as a constitutional matter.

Posted by: Howard Wasserman | Dec 6, 2010 11:03:50 PM

Ok, I'll bite, but only sort of. If litigation ensued in this case, I agree that the judge will probably be immune. But let me make what I think is the best argument in the other direction.

Consider this hypo: attorney talks out of turn in the courtroom. Judge pulls out gun and shoots attorney. Attorney sues judge, judge asserts absolute immunity because he was acting in his "judicial function." Judge should lose, right?

Depends. The "judicial function" doctrine, as applied these days, seems to almost assume that, if a judge did it, it must per se be part of the judicial function. Thus, even outrageous and obviously wrong behavior (like ordering the sterilization of a young woman in the woman's absence) is deemed judicial in large part because the person who performed the act was wearing a robe and sitting on a bench.

But can't we all agree that some acts, though taken by judges, lie so far outside the historical role of judges that the mere presence of a gavel and robe during the constitutional violation is not enough to insulate the judge from liability?

I admit that my hypo is hyperbolic, but I think the point it illustrates is fairly modest. "Judicial function" is a concept that must must be ground in the social norms of judging, not simply in the formality of whether the violation takes place in the courtroom. So the best argument here is that the judge's behavior was so far outside the socially established practice of judging that the judge was not in fact performing a "judicial function."

The problem here, however, is how broadly or narrowly to characterize the judge's behavior (a problem familiar in the qualified immunity arena). Should the judge's behavior be characterized as "maintaining order in his courtroom"--a task that has historically been part of the judge's inherent power? If so, doesn't that countenance not just the pledge of allegiance, but also the shooting of the out-of-order attorney? Any definition of "judicial function" that countenances the shooting has to be the wrong definition.

We could go on and on with the hypos. I'll stop here, partially because I'm not sure where I'd draw the line. But one thing's for sure, under the current doctrine, the judge in this case will be immune if sued.

Posted by: Jack Preis | Dec 6, 2010 10:27:17 PM

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