III. Absolute Immunity
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III. ABSOLUTE IMMUNITY
Under a functional approach, absolute immunity protects certain government officials for their official acts regardless of the legality or constitutionality of the acts. Courts have consistently recognized two policy rationales justifying the recognition of absolute immunity: (1) the fear of damages may chill an official's exercise of discretion, and (2) the process of defending civil rights claims may divert the official's attention from his or her duties.23
A. Legislators
Federal law is well settled that legislators are entitled to an absolute immunity from suit under § 1983 for conduct in furtherance of their legislative duties.24 Utilizing a functional approach, however, the Court has limited the application of absolute legislative immunity to acts within the sphere of legitimate legislative activities.25
The landmark case of Tenney v. Brandhove26 discusses the historical antecedents of legislative immunity. Justice Felix Frankfurter wrote:
[Legislators] are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good. One must not expect uncommon courage even in legislators. The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of a pleader, or to the hazard of the judgment against them based upon a jury's speculation as to motives.27
This language was repeated favorably in Lake Country Estates, Inc. v. Tahoe Regional Planning Agency.28 Justice Frankfurter in Tenney quoted language from Coffin v. Coffin,29 in describing the parameters of absolute legislative immunity:
I will not confine it to delivering an opinion, uttering a speech, or haranguing in debate; but will extend it to the giving of a vote, to the making of a written report, and to every other act resulting from the nature, and in the execution, of the office; and . . . securing to every member exemption from prosecution, for everything said or done by him, as a representative, in the exercise of the functions of that office, without inquiring whether the exercise was regular according to the rules of the house, or irregular and against their rules.30
Recognizing this venerable tradition, the U.S. Supreme Court held in 1959 in Tenney that state legislators are entitled to absolute immunity from liability under § 1983 for their legislative activities.31 In 1979, this immunity was extended to regional legislators in Lake Country Estates32 and in 1998 to local legislators in Bogan.33
B. The Functional Approach: Legislative versus Administrative Acts
Under the functional approach, only those persons whose actions are legislative in nature are entitled to the protection of absolute legislative immunity.34
Legislators are absolutely immune while passing laws, holding committee meetings, or when acting "in a field where legislators traditionally have power to act."35 Absolute legislative immunity attaches to all actions taken "in the sphere of legitimate legislative activity."36 Legislative immunity has been found for budgeting decisions,37 ordinance enactment,38 zoning decisions,39 and other matters held to be legislative in nature.40
When local legislators are acting with respect to a specific situation that does not amount to policymaking, however, they may not have legislative immunity. For example, in the land-use area, a vote to change zoning laws or to establish general rules for the use of property may be a legislative act, but an individual decision on a single parcel of land may not be a legislative act. The mere fact that the complained-of action occurred by way of a vote does not automatically mean the action is legislative. A number of federal appellate courts have recognized that "[a]lthough a local legislator may vote on an issue, [the act of voting] alone does not necessarily determine that he or she was acting in a legislative capacity."41
The U.S. Supreme Court has not outlined any definitive test for determining when a particular action taken by a local official is considered legislative and when it is not. Nevertheless, the Fifth and First Circuits have adopted two tests to aid in this determination.42 The first test focuses on the nature of the facts used to reach a given decision. Under that test, if the underlying facts on which a decision is based are "legislative facts," such as generalizations concerning a policy or state of affairs, then the decision is legislative. If, on the other hand, the facts used in the decision making are more specific, such as those that relate to particular individuals or situations, then the decision is administrative.43
The second test focuses on the "particularity of the impact of the state action." Under this test, if the action involves establishment of a general policy, it is legislative. If it singles out specific individuals and affects them differently from others, it is administrative.44 Other federal appellate courts have adopted the same or similar tests for determining the scope of absolute legislative immunity.45
C. Judges
Absolute judicial immunity was recognized as part of the common law well before the adoption of the Civil Rights Act of 1871.46 In Pierson v. Ray, the Supreme Court recognized absolute judicial immunity for damages under § 1983: "The immunity of judges for acts within the judicial role is . . . well established, and we presume that Congress would have specifically so provided had it wished to abolish the doctrine [when it enacted § 1983]."47 It was not until the Supreme Court's 1978 decision in Stump v. Sparkman,48 however, that the Court articulated two limits on judicial immunity. The Court held that (1) acts in the clear absence of a court's jurisdiction are not entitled to immunity, although immunity does extend to acts in mere excess of jurisdiction, and (2) only judicial acts are protected.49
The Supreme Court has articulated at least three policy bases justifying absolute judicial immunity from § 1983 suits: (1) the recognition of the common-law history of immunity for judges; (2) the desire not to chill judicial discretion, undermine the finality of judicial proceedings, or unfairly punish judges from exercising discretion; and (3) the availability of alternative methods of addressing judicial abuse by way of appeal, judicial conduct proceedings, criminal prosecution, and the will of the electorate for elected judges.50
D. The Functional Approach: Judicial versus Non-judicial Conduct
The functional approach to absolute judicial immunity protects judges at all levels as well as those who act like judges.51 Only judicial acts, however, are protected by absolute immunity.52 In determining whether conduct constitutes a judicial act, the Supreme Court has stated:
[T]he factors determining whether an act by a judge is a "judicial" one 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.53
The Supreme Court has upheld judicial immunity even in extreme cir-cumstances.54 Lower courts have also upheld such immunity in a variety of circumstances.55 Even judges acting outside of, or in excess of, their jurisdiction are entitled to absolute judicial immunity unless the judge is acting in clear excess of his territorial jurisdiction.56
Judges are not typically entitled to immunity, however, when acting outside of their judicial offices. For example, in Zarcone v. Perry,57 a judge ordered a sandwich vender brought before him in handcuffs because he sold "putrid" coffee. In the resulting civil rights suit, the judge was held not to have been performing a judicial act and the jury's verdict of $80,000 in compensatory damages and $60,000 in punitive damages was subsequently upheld.58 In a rather striking case, the Sixth Circuit concluded in Archie v. Lanier:59
We hold that stalking and sexually assaulting a person, no matter the circumstances, do not constitute "judicial acts." The fact that, regrettably, Lanier happened to be a judge when he committed these reprehensible acts is not relevant to the question of whether he is entitled to immunity. Clearly he is not.60
Judges are not absolutely immune when they act in an administrative capac-ity61 or when they act as supervising employers.62 A judge acting in other
E. Others Who May Perform Judge-Like Functions
Executive officials performing judge-like functions are also immune,65 as are parole officers acting in a judicial capacity.66 Persons acting pursuant to court order or in conjunction with judicial activities are typically entitled to absolute immunity. For example, state officials charged with the duty of executing a facially valid court order enjoy absolute judicial immuni-ty.67 Court clerks acting in a ministerial role, however, are entitled only to qualified immunity with respect to certain functions.68 Persons who are an integral part of the judicial system are also absolutely immune.69 For example, grand jurors exercising discretionary judgment on the basis of evidence presented to them in grand jury proceedings are entitled to absolute immunity.70 Additionally, law enforcement officers acting pursuant to court orders are typically entitled to absolute immunity.71
F. Prosecutors
Prosecutors generally enjoy absolute immunity when performing prosecuto-rial acts.72 However, prosecutors are not absolutely immune for all actions taken. Following a functional approach, the courts have held that while prosecutors are entitled to immunity for traditional litigation activities, they are not absolutely immune for activities such as office administration, criminal investigations, or press releases.
Imbler articulated a number of justifications for immunizing prosecutors for their prosecutorial acts. Those justifications, which are substantially similar to those advanced to justify...
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