Judicial Immunity: Court Reporters are Not Protected

BASICS OF JUDICIAL IMMUNITY

Michael Crowell
UNC School of Government
February 19, 2008

REPUBLISHED BY LIT: FEB 13, 2021

1. Judicial immunity is a longstanding concept, the purpose of which is to assure judicial independence.

“As early as 1872, the Court recognized that it was a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, [should] be free to act upon his own convictions without apprehension of personal consequences to himself.

Stump v. Sparkman 435 US 349, 355 (1978) (quoting Bradley v. Fisher, 13 Wall 335, 347, 20 LEd2d 646 (1872)).

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 v. Fisher, 13 Wall. 335, 20 L.Ed.2d 646 (1872).

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 v. Fisher, supra, 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 decisionmaking but to intimidation.

Pierson v. Ray, 386 US 547, 553-54 (1967).

2. The immunity, when recognized, is absolute and means judges are not liable in civil actions for their judicial acts, even when done maliciously and corruptly.

“The law is clear, that in general no action can be supported against a judge or justice of the peace, acting judicially and within the sphere of his jurisdiction, however erroneous his decision, or malicious the motive imputed to him.” Cunningham v. Dilliard, 20 NC 485 (1839).

“Judges and judicial officers have always been awarded „absolute‟ immunity for their judicial acts. Absolute immunity covers even

conduct which is corrupt, malicious or intended to do injury.” State ex rel. Jacobs v. Sherard, 36 NC App 60, 64 (1978).

3. In recent years most of the case law on judicial immunity has developed in federal court in actions for violations of civil rights under 42 USC § 1983.

In § 1983 actions, judicial immunity applies to both complaints seeking monetary damages and complaints seeking injunctive relief.

North Carolina state courts, in finding judicial immunity from state law claims, have not indicated any distinction between claims seeking monetary relief and those seeking injunctive relief.

[In Pulliam v. Allen, 466 US 522 (1984), the Supreme Court held that while judicial immunity prevents § 1983 lawsuits against judges for monetary damages it does not protect judges from lawsuits for injunctive relief nor from the award of attorneys fees under § 1988 for bringing a successful § 1983 action.

Congress, however, effectively reversed Pulliam v. Allen by enacting the Federal Courts Improvement Act of 1996, PL 104-317, amending § 1983 to provide that judicial immunity applies to § 1983 actions for injunctive relief as well, except when the injunction is granted because the judicial official violated a declaratory decree or declaratory relief was not available.]

4. Judicial immunity applies even when the judge acts in excess of the judge’s jurisdiction, but not if the judge acts without jurisdiction at all.

“[T]he scope of the judge‟s jurisdiction must be construed broadly where the issue is the immunity of the judge.

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.

Stump v. Sparkman, 435 US at 356-57 (quoting Bradley v. Fisher).

5. Judicial immunity does not apply to purely administrative acts of a judge, such as employment decisions, but there may be qualified immunity in such circumstances, just as for other public officials.

In the case before us, we think it clear that Judge White was acting in an administrative capacity when he demoted and discharged Forrester.

Those acts – like many others involved in supervising court employees and overseeing the efficient operation of a court – may have been quite important in providing the necessary conditions of a sound adjudicative system.

The decisions at issue, however, were not themselves judicial or adjudicative. . . .

[A] judge who hires or fires a probation officer cannot meaningfully be distinguished from a district attorney who hires and fires assistant district attorneys, or indeed from any other Executive Branch official who is responsible for making such employment decisions.

Forrester v. White, 484 US 219, 229 (1988).

6. Although the denial of a motion to dismiss on the basis of judicial immunity would be an interlocutory order, it is subject to immediate appeal because it affects a substantial right.

Immediate appeal of such interlocutory orders is allowed because the essence of absolute immunity is its possessor’s entitlement not to have to answer for his conduct in a civil damages action.

Martin v. Badgett, 149 NC App 667, 2002 WL 485187 (2002) (unpublished) (quoting Epps v. Duke University, 122 NC App 198, 201, disc. rev. denied, 344 NC 436 (1996)).

7. Judicial immunity is extended to non-judges when they are acting in a judicial or quasi- judicial capacity.

a. A court-appointed referee in an equitable distribution action is an agent of the court and entitled to judicial immunity.

“In the instant case, this action is no different from one in which a plaintiff claims to have been damaged by a judge of the general court of justice. Since Ms. Sharp‟s action against the court- appointed referee is implicitly an action against the trial judge, it is barred by judicial immunity.” Sharp v. Gulley, 120 NC App 878 (1995).

b. A coroner is acting as a judicial official and entitled to judicial immunity in deciding whether to conduct an inquest.

The duty of determining whether an inquest is necessary and the manner of conducting an inquest are judicial functions. State v. Knight, 84 N.C. 789.

A judicial officer cannot be held accountable in an action for damages for the manner in which he performs his duties even though it be alleged that he acted corruptly and maliciously.

Gillikin v. United States Fidelity and Guaranty Company of Baltimore, Maryland, 254 NC 247, 249 (1961).

c. The clerk of court is performing judicial functions and entitled to judicial immunity for actions as judge of probate in the administration of estates.

In the instant case, defendant is the Clerk of Superior Court of Surry County, and as such is a judicial official of the General Court of Justice, who engages in „judicial functions that involve the discretionary application of law to a given set of facts.

See N.C.G.S. § 7A-103 (1999) (enumerating judicial powers of Clerk of Court).

The Clerk serves as the ex officio judge of probate, with jurisdiction over the administration of decedents estates.

Martin v. Badgett, 149 NC App 667, 2002 WL 485187 (2002) (unpublished).

d. Members of the Parole Commission act in a quasi-judicial capacity and are entitled to judicial immunity when determining issues of eligibility.

Quasi-judicial immunity is an absolute bar, available for individuals in actions taken while exercising their judicial function. [citations omitted] In effect, the rule of judicial immunity extends to those performing quasi-judicial functions.

Vest v. Easley, 145 NC App 70, 73 (2001).

e. Members of the Board of Medical Examiners are performing a quasi-judicial function and are entitled to judicial immunity in hearing complaints against physicians.

The public policy which supports the doctrine of absolute privilege fully supports the application of the doctrine to the Board of Medical Examiners and the individual members in the performance of their quasi-judicial statutory duties.

Mazzucco v. North Carolina Board of Medical Examiners, 31 NC App 47 (1976).

f. A notary public is performing a judicial act in the acknowledgement of a deed and is entitled to judicial immunity.

We observe that notaries public are included in the statute [G.S. 47-1 on execution of deeds] along with other officials who are clearly judicial officials.

It is noteworthy that the various sections of Chapter 47 refer to the acknowledgement or Proof of the execution of instruments. G.S. s 47-12 et seq., provide for proof of an attested instrument by a subscribing witness or by handwriting.

A notary public is authorized to make a determination as to those proofs, thereby performing a judicial act.

Historically, the probate of a real estate deed in this State has been regarded as a judicial act. . . .

Nelson v. Comer, 21 NC App 636, 639 (1974).

8. A functional test is used to determine whether the person is performing a judicial act and is entitled to immunity, i.e., whether the person is acting in a manner functionally comparable to that of a judge.

a. Butz v. Economou, 438 US 478 (1978), establishes the “functionally comparable” test for determining whether a non-judicial official is entitled to judicial immunity.

“Judges have absolute immunity not because of their particular location within the Government but because of the special nature of their responsibilities.

The cluster of immunities protecting the various participants in judge-supervised trials stems from the characteristics of the judicial process rather than its location.

We think that adjudication within a federal administrative agency shares enough of the characteristics of the judicial process that those who participate in such adjudication should also be immune from suits for damages.

There can be little doubt that the role of the modern federal hearing examiner or administrative law judge within this framework is functionally comparable to that of a judge. Butz v. Economou, 438 US 478, 511-13 (1978).

b. Butz v. Economou established a three-part test for determining whether judicial immunity applies to officials other than judges.

“We have distilled the Supreme Court’s approach to quasi-judicial immunity into a consideration of three main factors:

(1) whether the functions of the official in question are comparable to those of a judge;

(2) whether the nature of the controversy is intense enough that future harassment or intimidation by litigants is a realistic prospect; and

(3) whether the system contains safeguards which are adequate to justify dispensing with private damages suits to control unconstitutional conduct.

Wagshal v. Foster, 28 F3d 1249 (DC Cir 1994), cert denied, 514 US 1004 (1995) (finding quasi-judicial immunity for neutral case evaluator in alternative dispute resolution program).

c. Applying the Butz v. Economou test, federal courts have held that third-party neutrals such as mediators and case evaluators are entitled to judicial immunity.

In certain respects it seems plain that a case evaluator in the Superior Court’s system performs judicial functions. Foster’s assigned tasks included identifying factual and legal issues, scheduling discovery and motions with the parties, and coordinating settlement efforts.

These obviously involve substantial discretion, a key feature of the tasks sheltered by judicial immunity . . .

Further, viewed as mental activities, the tasks appear precisely the same as those judges perform going about the business of adjudication and case management.

Wagshal v. Foster, 28 F3d 1249, 1252 (DC Cir 1994), cert denied, 514 US 1004 (1995).

d. The Supreme Court has rejected judicial immunity for court reporters whose function is to produce verbatim trial transcripts.

When judicial immunity is extended to officials other than judges, it is because their judgments are functional[ly] comparab[le] to those of judges – that is, because they too exercise a discretionary judgment as part of their function.

The function performed by court reporters is not in this category. As noted above, court reporters are required by statute to recor[d] verbatim court proceedings in their entirety. 28 U.S.C. § 753(b).

They are afforded no discretion in the carrying out of this duty; they are to record, as accurately as possible, what transpires in court.

Antoine v. Byers & Anderson, Inc., 508 US 429, 436 (1993).

e. In lawsuits under 42 USC § 1983 for violation of federal civil rights, federal courts are divided on whether the statutorily-enacted immunity from injunctive relief applies to non-judges performing judicial functions as well as to actual judges.

Some courts say the immunity from injunctive relief in § 1983 actions does extend to those quasi-judicial situations (e.g., Montero v. Travis, 171 F3d 757 (2nd Cir 1999)) while others say the immunity is not applicable (e.g., Simmons v. Fabian, 743 NW2d 281 (Minn App 2007)).

Judicial Immunity

A judge’s complete protection from personal liability for exercising judicial functions.

REPUBLISHED BY LIT: FEB 13, 2021

Judicial immunity protects judges from liability for monetary damages in civil court, for acts they perform pursuant to their judicial function. A judge generally has IMMUNITY from civil damages if he or she had jurisdiction over the subject matter in issue. This means that a judge has immunity for acts relating to cases before the court, but not for acts relating to cases beyond the court’s reach. For example, a criminal court judge would not have immunity if he or she tried to influence proceedings in a juvenile court.

Some states codify the judicial immunity doctrine in statutes. Most legislatures, including Congress, let court decisions govern the issue.

Judicial immunity is a common-law concept, derived from judicial decisions. It originated in the courts of medieval Europe to discourage persons from attacking a court decision by suing the judge. Losing parties were required instead to take their complaints to an appellate court. The idea of protecting judges from civil damages was derived from this basic tenet and served to solidify the independence of the judiciary. It became widely accepted in the English courts and in the courts of the United States.

Judicial immunity was first recognized by the U.S. Supreme Court in Randall v. Brigham, 74 U.S. (7 Wall.) 523, 19 L. Ed. 285 (1868). In Randall the Court held that an attorney who had been banned from the PRACTICE OF LAW by a judge could not sue the judge over the disbarment. In its opinion, the Court stated that a judge was not liable for judicial acts unless they were done “maliciously or corruptly.”

In Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L. Ed. 646 (1871), the U.S. Supreme Court clarified judicial immunity. Joseph H. Bradley had brought suit seeking civil damages against George P. Fisher, a former justice of the Supreme Court of the District of Columbia. Bradley had been the attorney for John H. Suratt, who was tried in connection with the assassination of President ABRAHAM LINCOLN. In Suratt’s trial, after Fisher had called a recess, Bradley accosted Fisher “in a rude and insulting manner” and accused Fisher of making insulting comments from the bench. Suratt’s trial continued, and the jury was unable to reach a verdict.

Immediately after discharging the jury, Fisher ordered from the bench that Bradley’s name be stricken from the rolls of attorneys authorized to practice before the Supreme Court of the District of Columbia. Bradley sued Fisher for damages relating to lost work as a result of the order. At trial, Bradley attempted to introduce evidence in his favor, but Fisher’s attorney objected to each item, and the judge excluded each item. After three failed attempts to present evidence, the trial court directed the jury to deliver a verdict in favor of Fisher.

On appeal by Bradley, the U.S. Supreme Court affirmed the trial court’s decision. Judges could be reached for their malicious acts, but only through IMPEACHMENT, or removal from office. Thus, the facts of the case were irrelevant. Even if Fisher had exceeded his jurisdiction in single-handedly banning Bradley from the court, Fisher was justified in his actions. According to the Court, “A judge who should pass over in silence an offence of such gravity would soon find himself a subject of pity rather than respect.”

Since Bradley, the U.S. Supreme Court has identified some exceptions to judicial immunity. Judges do not receive immunity for their administrative decisions, such as in hiring and firing court employees (Forrester v. White, 484 U.S. 219, 108 S. Ct. 538, 98 L. Ed. 2d 555 [1988]). Judges also are not immune from declaratory and injunctive relief. These forms of relief differ from monetary relief. Generally they require parties to do or refrain from doing a certain thing. If a judge loses a suit for DECLARATORY JUDGMENT or injunctive relief, he or she may not be forced to pay money damages, but may be forced to pay the court costs and attorneys’ fees of the winning party. For example, assume that a judge requires the posting of bail by persons charged in criminal court with offenses for which they cannot be jailed. If a person subjected to this unconstitutional practice files suit against the judge, the judge will not be given judicial immunity and, upon losing the case, will be forced to pay the plaintiff’s attorney’s fees and court costs. (Pulliam v. Allen, 466 U.S. 522, 104 S. Ct. 1970, 80 L. Ed. 2d 565 [1984]).

The Court held in Pulliam that a judge could be forced to pay the plaintiff’s attorney’s fees and court costs under the 1976 Civil Rights Attorney’s Fees Awards Act, 42 U.S.C.A. § 1988. Gladys Pulliam, a Virginia state court magistrate, had jailed two men for failure to post bail following their arrest for abusive language and public drunkenness. Under Virginia law, the defendants could not receive a jail sentence if convicted of these offenses. The plaintiffs sued under the federal CIVIL RIGHTS ACT 42 U.S.C.A. SECTION 1983 and obtained an INJUNCTION forbidding the judge to require bail for these offenses. The judge was also ordered to pay the defendants $8,000 as reimbursement for their attorneys’ fees.

Judges throughout the United States viewed the Pulliam decision as a serious assault on judicial immunity. The Conference of State Chief Justices, the JUDICIAL CONFERENCE OF THE UNITED STATES, the AMERICAN BAR ASSOCIATION, and the American Judges Association lobbied Congress to amend the law and overturn Pulliam. Finally, in the Federal Courts Improvement Act of 1996 (Pub. L. No. 104-317, 110 Stat. 3847), Congress inserted language that voided the decision. The amendment prohibits injunctive relief in a § 1983 action against a “judicial officer for an act or omission taken in such officer’s judicial capacity” unless “a declaratory decree was violated or declaratory relief was unavailable.” In addition, language was added to § 1988 that precludes the award of costs and attorney’s fees against judges acting in their official capacity.

Filing a civil complaint against a judge can be risky for attorneys because the doctrine of judicial immunity is well established. In Marley v. Wright, 137 F.R.D. 359 (W.D. Okla. 1991), attorney Frank E. Marley sued two Oklahoma state court judges, Thornton Wright, Jr., and David M. Harbour, their court reporter, and others. Marley alleged in his complaint that Wright and Harbour had violated his constitutional rights in connection with a custody case concerning Marley’s children. The court not only dismissed the case, but also ordered Marley to pay the attorney’s fees that Wright and Harbour had incurred in defending the suit. According to the court, Marley’s complaint “was not warranted by existing law,” and Marley had used the suit “not to define the outer boundaries of judicial immunity but to harass judges and judicial personnel who rendered a decision he did not like.”