The Officer Has No Robes: a Formalist Solution to the Expansion of Quasi-judicial Immunity

• Publication year: 2016

The Officer Has No Robes: A Formalist Solution to the Expansion of Quasi-Judicial Immunity

Seena Forouzan

THE OFFICER HAS NO ROBES: A FORMALIST SOLUTION TO THE EXPANSION OF QUASI-JUDICIAL IMMUNITY

ABSTRACT

In 1871, Congress passed the Civil Rights Act. Section 1 is now more commonly known as 42 U.S.C. § 1983, the primary vehicle for constitutional tort litigation. Commonly interpreted against a background of tort principles, federal courts have imported—contrary to the plain language of the law—several immunities. This Comment focuses on one immunity in particular: absolute judicial immunity.

Despite the "judicial" qualifier, absolute judicial immunity has been extended to a great deal of parties who are not judges. Commentators have decried this expansion and criticized lower federal courts for subverting civil-rights enforcement, exacerbating a pronounced rights-remedy gap, and departing from Supreme Court decisions that putatively cabin absolute judicial immunity. This Comment focuses on that last critique in particular.

Although language in Supreme Court opinions certainly supports restricting absolute judicial immunity, this Comment proposes that the Supreme Court's muddled methodology in this area supports the expansion of absolute judicial immunity. Fidelity to Supreme Court precedent will further expand absolute judicial immunity. This Comment proposes one solution to further the values commentators believe are disserved by the outgrowth of absolute judicial immunity: a formalist regime that clothes only judges with absolute immunity and the rest with qualified immunity.

INTRODUCTION

Absolute judicial immunity has been a feature of the common law since at least 1871 in the United States.¹ The justifications originally offered by the Supreme Court in Bradley v. Fisher continue to ring true today—to the Supreme Court, at the least. Absolute judicial immunity offers a judge independence and freedom to make decisions without fear of retribution.² Immunity properly allows for error correction to be channeled to either the political or appellate processes as opposed to being fought through new, potentially vexatious litigation.³ Recognizing the strength of absolute immunity, the Court has attempted to restrain judicial immunity by crafting a part-historical,⁴ part-functional,⁵ part-policy based⁶ approach when determining whether to extend immunity to non-judicial officers.

Despite the Supreme Court's assertion that it has historically been "quite sparing"⁷ in recognizing absolute immunity claims, commentators have observed an "expansion" of judicial immunity beyond what the Supreme Court has commanded.⁸ As noted by Professor Margaret Johns, the immunity has moved beyond the judicial robe and now clothes medical-experts,⁹ child-

[Page 124]

protective workers,¹⁰ arbitrators,¹¹ receivers,¹² and prison-hearing officers,¹³ to name a few.¹⁴ These decisions have been criticized for exacerbating a rights-remedy gap, undermining civil-rights enforcement, and—most relevant to this Comment—"misinterpret[ing] Supreme Court decisions that limit the application of the doctrine."¹⁵

This Comment argues that lower federal courts have not misinterpreted Supreme Court decisions in this field. Supreme Court precedent, rather, is in accord with the extension of absolute judicial immunity. To reverse the expansion and bolster civil-rights protections, this Comment proposes one solution: a formalist approach to judicial immunity.

This Comment proceeds in three Parts. Part I deals with common law, § 1983, and judicial immunity. It presents and explains the creation of judicial immunity and its framework. Further, Part I introduces quasi-judicial immunity, the label attached to absolute judicial immunity given to a non-judge, and presents the analytical model used by the Supreme Court to determine whether absolute immunity is appropriate.¹⁶

Part II concerns the extension of absolute immunity and is composed of two sections. First, it examines the operation of absolute immunity in a variety of cases. Second, it deals with the concerns articulated by various observers and reconciles the examined cases with Supreme Court language.

Part III presents the argument for formalism. The argument proceeds in two sections. First, it outlines the rationale behind a formalist application of judicial immunity and advocates that qualified immunity cover the denuded public

[Page 125]

officials.¹⁷ Second, it examines how formalism would operate in § 1983 litigation and applies the approach to demonstrate its benefits.

I. THE COMMON LAW BACKGROUND, § 1983, AND JUDICIAL IMMUNITY

This Part addresses the common law background, § 1983, and the creation and framework for judicial immunity, both absolute and quasi. First, this Part details the origin of § 1983 as well as how the Supreme Court has interpreted the statute in light of the common law. Second, this Part introduces the creation and importation of absolute judicial immunity into § 1983. Third, this Part discusses the quasi-judicial immunity framework.

A. The Common Law Background and § 1983

Congress originally articulated 42 U.S.C. § 1983 as § 1 of the Ku Klux Act in 1871, during the Reconstruction Era.¹⁸ The Supreme Court has inferred three purposes from the 42nd Congress's passage of the Act: (1) to "override certain kinds of state laws," (2) to provide "a remedy where state law [fails]," and (3) "to provide a federal remedy where the state remedy, though adequate in theory, was not available in practice."¹⁹ Practically, § 1983 provides a "tort-like remedy"²⁰ for persons whose federally protected rights are deprived by state officials under the "color of [law]."²¹ To constrain the broad, forceful language

[Page 126]

of § 1983,²² the Supreme Court tasked the federal judiciary to read § 1983 "against the background of tort liability" that was in place in 1871.²³

The Supreme Court has relied heavily on the common law, as it existed in 1871,²⁴ to import absolute immunities²⁵ into § 1983, although none are expressly stated. The Court has defended its historical approach to the immunity question as partly functional.²⁶ The Court has explicitly noted that the extension of

[Page 127]

immunity must not be an exercise in the craft of judicial policymaking,²⁷ but an exercise in statutory interpretation in light of the 42nd Congress's "likely intent" in constructing § 1983.²⁸ Thus, the Court has described its analytical approach not as one that merely copies and pastes 1871 tort law into modern law,²⁹ but instead as one that adapts the varied principles supporting 1871 immunities and applies them to burgeoning contexts.³⁰

B. The Creation of and Framework for Judicial Immunity

Judicial immunity, as it is understood today, received its first extended treatment in Bradley v. Fisher in 1871.³¹ But the Supreme Court did not affirmatively recognize judicial immunity in the § 1983 context until Pierson v. Ray in 1967.³² Although affirmatively recognized, the Supreme Court did not articulate a framework for determining judicial immunity until Stump v. Sparkman in 1978.³³ This section will examine each decision in turn.

In Bradley, the plaintiff was a member of the bar of the Supreme Court of the District of Columbia and the defendant was a justice of the court.³⁴ The plaintiff alleged that shortly after confronting the defendant justice for having "accosted" him in a rude manner during trial, the justice retaliated by directing an order to disbar the plaintiff and remove him from practicing in the Supreme Court of the District.³⁵ The plaintiff filed suit for damages.³⁶

[Page 128]

The Court held that the defendant was not liable for damages and was absolutely immune from suit, emphasizing that the defendant functionally performed a "judicial act," to which liability cannot attach.³⁷ The Court reasoned that a judicial act "cannot [subject the judicial officer] to responsibility for it in a civil action";³⁸ otherwise, judicial officers would act "[with] apprehension"³⁹ and the judiciary would be "weak[ened]."⁴⁰ Perhaps cramped by institutional inertia, the Court grounded its holding primarily in the language of tradition: the issue had been settled "for many centuries" and was "deep[ly] root[ed] in the common law."⁴¹ The Court did not revisit the logic underscoring the immunity⁴² and denied the suggestion that immunity cannot attach when a judicial officer acts maliciously or corruptly.⁴³ Judicial immunity, the Court stated, attaches irrespective of the judicial officer's motives.⁴⁴

[Page 129]

The Bradley Court did distinguish, however, between judicial actions taken in "excess of jurisdiction" versus actions taken in the "clear absence of all jurisdiction over the subject-matter."⁴⁵ The former would be clothed with immunity, the latter would not.⁴⁶ For example, if a probate court proceeded to try a party for a criminal offense, the judicial officer would not receive absolute immunity.⁴⁷ If, however, a criminal judge held the defendant's conduct to be illegal, even though no law criminalized the behavior, absolute immunity would attach as the judicial officer acted only in "excess of his jurisdiction."⁴⁸

Bradley did not answer the immunity question within the § 1983 framework. The Court decided for the first time whether judicial immunity was applicable in a § 1983 suit in Pierson v. Ray.⁴⁹ The petitioners were African-American and white Episcopal clergymen who attempted to use segregated facilities at a bus terminal in Jackson, Mississippi.⁵⁰ The petitioners were arrested and charged with violating a Mississippi "breach the peace" law.⁵¹ A municipal justice convicted the petitioners.⁵² The conviction was appealed and overturned; shortly thereafter, the petitioners brought an action for damages under § 1983.⁵³ The Fifth Circuit held the judge was immune from liability under § 1983 for acts committed within his judicial jurisdiction.⁵⁴ The Supreme Court granted certiorari to consider whether a local judge may...