Judicial Immunity from Suit

Under common law—the Supreme Court has not elevated judicial immunity from suit to a constitutional principle—judges “are responsible to the people alone for the manner in which they perform their duties. If faithless, if corrupt, if dishonest, if partial, if oppressive or arbitrary, they may be called to account by impeachment, and removed from office. . . . But responsible they are not to private parties in civil actions for the judicial acts, however injurious may be those acts, and however much they may deserve condemnation, unless perhaps where the acts are palpably in excess of the jurisdiction of the judges, and are done maliciously or corruptly.”175 Three years later, the Court qualified this exception to judges’ immunity: the phrase beginning “unless, perhaps,” the Court wrote, was “not necessary to a correct statement of the law, and . . . judges . . . are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly. A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter,” with judges subject to liability only in the latter instance.176

In Stump v. Sparkman, the Court upheld the immunity of a judge who approved a petition from the mother of a 15-year-old girl to have the girl sterilized without her knowledge (she was told that she was to have her appendix removed).177 In a 5-to-3 opinion, the Court found that there was not the “clear absence of all jurisdiction” that is required to hold a judge civilly liable. The judge had jurisdiction “in all cases at law and in equity whatsoever,” except where exclusive jurisdiction is “conferred by law upon some other court, board, or officer,” and no statute or case law prohibited the judge from considering a petition for sterilization.178 The Court also rejected the argument that the judge’s approving the petition had not constituted a “judicial” act. The Court found “that the 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. . . . Judge Stump performed the type of act normally performed only by judges and . . . he did so in his capacity as a [judge].”179

Although judges are generally immune from suits for damages, the Court has held that a judge may be enjoined from enforcing a court rule, such as a restriction on lawyer advertising that violates the First Amendment.180 Similarly, a state court magistrate may be enjoined from “imposing bail on persons arrested for nonjailable offenses under Virginia law and . . . incarcerating those persons if they could not meet the bail. . . .”181 But what if the prevailing party, as it did in these two cases, seeks an award of attorneys’ fees under the Civil Rights Attorney’s Fees Awards Act of 1976?182 The Court found that “Congress intended to permit attorney’s fees awards in cases in which prospective relief was properly awarded against defendants who would be immune from damage awards.”183 In fact, “Congress’s intent could hardly be more plain. Judicial immunity is no bar to the award of attorney’s fees under 42 U.S.C. § 1988.”184

Footnotes

175
Randall v. Brigham, 74 U.S. 523, 537 (1869). Judicial immunity “is a general principle of the highest importance to the proper administration of justice . . . . Liability . . . would destroy that independence without which no judiciary can be either respectable or useful. . . . Nor can this exemption of the judges from civil liability be affected by the motives with which their judicial acts are performed.” Bradley v. Fisher, 80 U.S. 335, 347 (1872). [Back to text]
176
Bradley v. Fisher, 80 U.S. 335, 351 (1872). The Court offered a hypothetical example of the distinction. A judge of a probate court who held a criminal trial would act in clear absence of all jurisdiction over the subject matter, whereas a judge of a criminal court who held a criminal trial for an offense that was not illegal would act merely in excess of his jurisdiction. Id. at 352. [Back to text]
177
435 U.S. 349 (1978). [Back to text]
178
435 U.S. at 357, 358. The defendant was an Indiana state court judge, but the suit was in federal court under 42 U.S.C. § 1983. The Court noted that it had held in Pierson v. Ray, 386 U.S. 547 (1967), that there was no indication that, in enacting this statute, Congress had intended to abolish the principle of judicial immunity established in Bradley v. Fisher, supra. [Back to text]
179
435 U.S. at 362. Justice Stewart’s dissent, joined by Justices Marshall and Powell, concluded that what Judge Stump did “was beyond the pale of anything that could sensibly be called a judicial act.” Id. at 365. Indiana law, Justice Stewart wrote, provided for administrative proceedings for the sterilization of certain people who were institutionalized (which the girl in this case was not), and what Judge Stump did “was in no way an act ‘normally performed by a judge.’ ” Id. at 367. [Back to text]
180
Supreme Court of Virginia v. Consumers Union of the United States, 446 U.S. 719 (1980). [Back to text]
181
Pulliam v. Allen, 466 U.S. 522, 524–25 (1984). [Back to text]
182
42 U.S.C. § 1988(b). Under this statute, “suits brought against individual officers for injunctive relief are for all practical purposes suits against the State itself,” and, therefore, the state must “bear the burden of the counsel fees award.” Hutto v. Finney, 437 U.S. 678, 700 (1978). [Back to text]
183
Consumers Union, 446 U.S. at 738–39. This is not the case, however, when judges are sued in their legislative capacity for having issued a rule. Id. at 734. [Back to text]
184
Pulliam, 466 U.S. at 544. In 1996, Public Law 104–317, § 309, amended § 1988(b) to preclude the award of attorneys’ fees in a suit against a judicial officer unless the officer’s action “was clearly in excess of such officer’s jurisdiction.” [Back to text]