The Functional Inquiry
To decide if an individual judge is entitled to absolute immunity for section 1983 damages, a court will examine the function of the individual defendant. Forrester v. White, 484 U.S. 219 (1988). The functional inquiry is relatively straightforward for judges acting in their judicial roles, as long as the judge has not acted in the complete absence of jurisdiction. See Pierson. The functional inquiry to determine the availability of absolute immunity is more complicated if it is not clear whether the conduct was a judicial act or simply an act by a person who is a judge. While judges do perform roles other than judicial decision-making, such as administrative roles, the availability of absolute immunity turns on whether the acts complained of were judicial acts. See Forrester.
What Is a “Judicial Act”?
It is not always clear whether a judge’s conduct constituted a “judicial act.” In Stump v. Sparkman, 435 U.S. 349 (1978), an Indiana judge granted a mother’s petition to sterilize her 15-year-old daughter, ex parte, without a hearing, and without notice to the daughter or appointment of a guardian. The daughter believed she was having her appendix removed and only later discovered the sterilization, whereupon she sued the judge and others. The Supreme Court held that judicial immunity applied when the judge “had jurisdiction over the subject matter before him,” which must be “construed broadly.”The Court held: “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.” Id. at 356–57 (further citation omitted). Further, an action can be judicial even if the judge commits “grave procedural errors.” Whether an act by a judge is “judicial” depends on “the nature of the act itself, i.e., whether it is a function normally performed by a judge,” and on “the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity.”
The Supreme Court in Stump held the judge entitled to absolute immunity. Construing jurisdiction broadly, the Court reasoned that granting a petition was within the general jurisdiction of the state court, and rejected the daughter’s argument that the judge’s act was “so unfair and so totally devoid of judicial concern for the interests and wellbeing of the young-girl involved as to disqualify it as a judicial act.”
Two 2014 Decisions Disagree
Can a judge be entitled to absolute immunity from section 1983 damages even for non-judicial acts? A federal district court in Pennsylvania answered no. In Wallace v. Ciavarella, the district court held that a state-court judge could be held liable for damages for conduct that was not judicial. 2014 WL 70092 (M.D. Pa. Jan. 9, 2014). Wallace concerned a Pennsylvania judge who accepted bribes from the operator of private prisons, encouraged construction of a private juvenile-detention facility, and took actions to fill the private cells with juveniles. Colloquially, the scandal is known as “Kids for Cash.”
The non-judicial acts for which the state-court judge could be held liable for damages included:
- initiating the plan to bring together people with the financial ability to construct a new juvenile-detention facility;
- assisting in closing the public jail by “appearing on television urging a shutdown of a county-run detention facility” and helping to hire staff “for a private detention facility [neither of which are] functions ‘normally performed by a judge.’” Wallace, 2014 WL 70092 at 9;
- expanding a “no tolerance” probation policy for curfew, appointment, drug-and-alcohol, and other probation violations that increased the number of juveniles who appeared before the judge, an administrative and not a judicial act;
- failing to disclose the more than $2.7 million he and another judge received from the private juvenile-jail operator “while sending juveniles to his detention facility.”
Wallace, 2014 WL 70092 at *9–*10.
By contrast, the Sixth Circuit recently held differently: Yes, a judge can be absolutely immune from section 1983 damages for non-judicial acts. In King v. McCree, during a child-support hearing when the judge first saw the child’s mother, the judge flirted with her. ___ Fed. Appx. ___, 2014 WL 3579785 (6th Cir. July 21, 2014). The judge soon began a months-long sexual relationship with the child’s mother, gave her thousands of dollars, and instructed her to keep the relationship secret. The judge continued to preside over the child-support case for several months, until transferring it to another judge. Upon learning of the sexual relationship between the judge and the child’s mother, the child’s father sued the judge for denial of due process.
In an opinion surprisingly designated non-precedential, the Sixth Circuit held the judge immune from section 1983 liability, not only for the judge’s courtroom conduct but for his acts outside the courtroom. The Sixth Circuit agreed that the judge’s personal relationship with the child’s mother “consisted of non-judicial acts.” King, ___ Fed. Appx. ___, 2014 WL 3579785 at *9, n. 7. Nevertheless, the Sixth Circuit held that the judge’s acts “though often reprehensible, did not directly involve [the child’s father, the plaintiff].” “We hold that a [plaintiff] cannot avoid the bar of judicial immunity by relying on non-judicial, out-of-court acts that may have affected in-court judicial acts. Personal bias alone of a judge—when not serving in a judicial function—does not create a due-process violation.”
The Sixth Circuit distinguished Wallace from the Kids for Cash bribery case. The Sixth Circuit reasoned that in Wallace, the corrupt state-court judge’s non-judicial acts—of advocating closure of the public jail and the construction of a private facility, helping to staff the private facility, enacting the zero-tolerance probation policy, and actively concealing the bribes—“directly deprived the [juveniles] of their rights.” King, ___ Fed. Appx. ___, 2014 WL 3579785 at *11; id. at *10(judge in Wallace was “liable for non-judicial acts that directly harmed the plaintiffs”). Without expressly stating so, the Sixth Circuit held the judge’s non-judicial acts in King—essentially, conducting a sexual relationship with one of the two litigants while presiding over the litigation—did not directly harm the plaintiff. More importantly, the Sixth Circuit’s reasoning differed from Wallace, where the classification of the conduct as either judicial acts or non-judicial acts was key to the threshold inquiry of judicial immunity.
Curiously, while the Sixth Circuit in King cited its own precedent, Archie v. Lanier, in holding that the judge’s personal relationship was not a judicial act, the Sixth Circuit did not distinguish the holding of Archie v. Lanier, 95 F.3d 438, 441 (6th Cir. 1996) (rejecting invocation of judicial immunity because stalking and sexually assaulting a person are not “judicial acts” even though the assailant was a judge).
The plaintiff in King v. McCree is expected to file petition for certiorari to the U.S. Supreme Court.
Keywords: civil rights litigation, 42 U.S.C. 1983, section 1983, judge, immunity, judicial immunity, absolute immunity, judicial act, Kids for Cash, Sixth Circuit, Pennsylvania
Sarah E. Ricks is a clinical professor at Rutgers School of Law.