When the Defendant Is the Judge

JurisdictionUnited States,Federal
CitationVol. 18 No. 9 Pg. 1747
Publication year1989
18 Colo.Law. 1747
Colorado Lawyer

1989, September, Pg. 1747. When the Defendant is the Judge


Vol. 18, No. 9, Pg. 1747

When the Defendant is the Judge

by Peggy S. Ball

Judicial immunity is thought to have originated as a tool to discourage collateral attack and thereby establish the appellate process as the remedy for judicial error. However, the primary justification for absolute immunity is the impact that suits for damages would have on the quality of judicial decisions. Although detractors claim that the continued viability of judicial immunity is assisted by the fact that decisions about its applicability are made by judges themselves, various state and federal legislatures have declined to abrogate the immunity and have at times codified it.

As a rule, adjudicatory functions within jurisdictional boundaries carry absolute judicial immunity. In addition, judges also may have qualified immunity for functions which are related to the judicial process but which are not specifically adjudicatory. However, judicial immunity applies only to actions taken by judges in their official capacity. It is justified and defined by the functions it protects rather than by the person to whom it attaches.

Thus, there are two requirements for absolute judicial immunity. The first is that the act at issue must be a "judicial" act. The second is that the judge must not be acting in the clear absence of all jurisdiction. This article discusses these requirements and how they are determined. In addition, it discusses insurance issues that pertain to judicial acts.

The Judicial Function

Recently, the Supreme Court decided Forrester v. White,(fn1) which reaffirmed the "functional" approach to be the determinant of immunity. Under this approach, immunity attaches without regard to the identity of the actor, with reference only to whether the act was a "judicial function." This decision puts to rest any issues concerning formality of proceedings and judicial motives or malice as factors in determining immunity. The functional approach allows arbitrators and others who perform "judicial" types of functions access to the cloak of absolute immunity.

Determination of whether or not an act is "judicial" requires analysis of: (1) whether the act is a function normally performed by a judge; and (2) whether the judge dealt with the parties in the judicial capacity, based on the expectations and understanding of the parties.(fn2) Justification of absolute judicial immunity on the basis of potential impact on judicial decisions focuses the definition of a "judicial" act on whether allowing liability for a particular act would impair the judge's efficient performance of his or her duties.

In Forrester, the court held that the hiring and firing of probation officers, a duty assigned to the judge in that case by state statute, was an administrative duty similar to that performed by other officials and administrators. Therefore, absolute immunity was held to be inapplicable. The Forrester court left an important fall-back position for judges to claim the various qualified immunities available for administrative and legislative acts where absolute judicial immunity is unavailable. However, the court also stated that officials who seek exemption from personal liability on the basis of these alternate theories of qualified immunity have the burden of showing that such an exemption is justified by overriding considerations of public policy.

Scenarios in which issues have arisen as to whether the act in question was a judicial function include:

1. Employment Discrimination. As noted in Forrester, a judge's employment decisions may not be subject to absolute immunity, although qualified administrative immunity may be applicable.

2. Private Prior Agreements. A judge's actions in meeting with counsel for one side of a dispute to arrange evidentiary rulings or to predetermine the outcome of a hearing generally are...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT