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Judicial Immunity

Should Judges Have Absolute Or Qualified Immunity?

The U.S. Supreme Court has made clear that when judges perform judicial acts within their jurisdiction, they are absolutely immune from money damages lawsuits. When judges act outside their judicial function, such as in supervising their employees, they do not have absolute IMMUNITY. The Court's upholding of absolute immunity has troubled some legal commentators, who believe that in appropriate circumstances judges should be held personally accountable for judicial actions that are unlawful.

Defenders of absolute immunity claim that it is required for the benefit of the public, not for the protection of malicious or corrupt judges. The legitimacy of U.S. courts rests on the public's belief that judges have the freedom to act independently, without fear of the consequences. Absolute immunity provides the buffer needed for a judge to act.

In the adversarial process, one party wins, and the other party loses. Losing parties are inevitably disappointed, and some seek ways of venting their frustration at the legal system. Some file complaints with lawyer discipline boards, alleging ethical misconduct by the opposing party's attorney or their own attorney. Some file complaints with a judicial conduct board, claiming that the trial judge violated a canon of judicial conduct. Though these types of complaints do not result in the relitigation of a lawsuit, they do illustrate the VEXATIOUS LITIGATION that faces attorneys and judges. Allowing parties to sue a judge for a judicial act would invite a torrent of meritless suits that would impede the judicial system.

Defenders of absolute immunity note that a flood of litigation would not be the only consequence of relaxing the immunity standard. They say that once judges became liable for damages suits, self-interest would lead them to avoid making decisions likely to provoke such suits. The resulting overcautiousness and timidity might be hard to detect, but it would impair independent and impartial adjudication.

Judges do make honest mistakes during the course of trial. The law is complex, and judges cannot call a recess of court to research every motion before making a decision. If a judge could be sued for damages, another judge might have to rule that the defendant judge was liable for injuries due to an erroneous decision or procedural flaw. Having judges judge one another could erode the integrity of the courts and undermine public confidence.

Defenders of absolute immunity also point out that appellate review is a viable remedy for correcting judicial conduct. In addition, if a judge has violated the canons of judicial conduct, judicial conduct boards may issue sanctions, including a recommendation of removal from the bench. A judge can be prosecuted for criminal acts. In some states judges may be impeached, and most state court judges must stand for election periodically. All these options serve as checks on judicial behavior and provide protection to the public.

Those who criticize absolute immunity recognize that judicial independence must be preserved. Nevertheless, they claim that in certain situations the only way to protect the public is to allow personal lawsuits against judges. By totally insulating judges from personal responsibility for their actions, the judicial system allows a small number of judges to escape the consequences of unlawful and outrageous behavior. The public loses respect when it sees a judge "beat the system," while the victim loses the chance to be made whole for the injuries flowing from the judicial act.

These critics believe that a qualified immunity standard would protect judges from meritless lawsuits and guarantee victims of unlawful judicial conduct their opportunity to seek damages. Qualified immunity is a lesser form of immunity that may be granted by a court if the judge demonstrates that the law was not clear on the subject in which the judge's actions occurred. They point out that the EXECUTIVE BRANCH is governed by qualified immunity. There is no indication that the administration of government has ground to a halt, or that the executive branch cannot attract high-quality individuals to government service. A well-articulated qualified immunity standard would allow a lawsuit against a judge to be dismissed if it could be established that the judge was operating within accepted judicial authority.

The critics note that the alternative remedies offered by the defenders of absolute immunity do not address the type of conduct that would be the focus of a personal injury lawsuit against a judge. For example, in STUMP V. SPARKMAN, 435 U.S. 349, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978), the judge issued an order to sterilize a teenage girl without the order's ever having been filed with the clerk of court. Because there was no record of a case filing or decision, the order could not be reviewed by an appellate court. The judge could be sanctioned by the judicial conduct board, but that would not compensate the victim of the illegal sterilization. Absolute immunity allowed the court to dismiss the girl's claim because the "judicial act" was one normally performed by a judge and was within the judge's judicial capacity.

Supporters of qualified immunity discount the assumption that it would precipitate a flood of litigation. They maintain that decisions that judges typically make will seldom be litigated, as appellate review will satisfy most litigants. However, in the rare circumstances where a judge abuses her authority and someone is injured, these supporters contend, it is only fair to qualify a judge's personal immunity. They argue that the removal of absolute immunity would, over time, deter judicial abuse: judges would not be intimidated, but they would be more careful to safeguard the rights of all parties.

Additional topics

Law Library - American Law and Legal InformationFree Legal Encyclopedia: Jokes to Robert Marion La FolletteJudicial Immunity - Stump V. Sparkman, Should Judges Have Absolute Or Qualified Immunity?, Further Readings