Judicial immunity is a form of
sovereign immunity
Sovereign immunity, or crown immunity, is a legal doctrine whereby a sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution, strictly speaking in modern texts in its own courts. A similar, stronger ...
, which protects
judge
A judge is a person who presides over court proceedings, either alone or as a part of a panel of judges. A judge hears all the witnesses and any other evidence presented by the barristers or solicitors of the case, assesses the credibility an ...
s and others employed by the
judiciary
The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...
from liability resulting from their judicial actions.
Though judges have immunity from lawsuit, in constitutional democracies
judicial misconduct
Judicial misconduct occurs when a judge acts in ways that are considered unethical or otherwise violate the judge's obligations of impartial conduct.
Actions that can be classified as judicial misconduct include: conduct prejudicial to the effect ...
or bad personal behaviour is not completely protected. Depending on the jurisdiction, they may be criminally charged for courtroom behavior unrelated to the decision-making process (for example, by shooting someone and committing a
murder
Murder is the unlawful killing of another human without justification (jurisprudence), justification or valid excuse (legal), excuse, especially the unlawful killing of another human with malice aforethought. ("The killing of another person wit ...
unrelated to
capital punishment
Capital punishment, also known as the death penalty, is the state-sanctioned practice of deliberately killing a person as a punishment for an actual or supposed crime, usually following an authorized, rule-governed process to conclude that t ...
by the state), bad decisions may be reversed by an
appeals court
A court of appeals, also called a court of appeal, appellate court, appeal court, court of second instance or second instance court, is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal. In much of ...
, and judges may be removed by other judges on the same or higher court (in the United States, a
judicial council), by a
recall election
A recall election (also called a recall referendum, recall petition or representative recall) is a procedure by which, in certain polities, voters can remove an elected official from office through a referendum before that official's term of offi ...
, by the next regular
election
An election is a formal group decision-making process by which a population chooses an individual or multiple individuals to hold public office.
Elections have been the usual mechanism by which modern representative democracy has opera ...
, or following
impeachment
Impeachment is the process by which a legislative body or other legally constituted tribunal initiates charges against a public official for misconduct. It may be understood as a unique process involving both political and legal elements.
In ...
by a legislature.
History
Historically, judicial immunity was associated with the English
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
idea that "the King can do no wrong" in the eyes of the courts, because the courts are created by the sovereign (
sovereign immunity
Sovereign immunity, or crown immunity, is a legal doctrine whereby a sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution, strictly speaking in modern texts in its own courts. A similar, stronger ...
). Judges, the King's delegates for dispensing justice, accordingly "ought not to be drawn into question for any supposed corruption
or this tendsto the slander of the justice of the King". An example of applying judicial immunity: a judge is not liable for a
slander
Defamation is the act of communicating to a third party false statements about a person, place or thing that results in damage to its reputation. It can be spoken (slander) or written (libel). It constitutes a tort or a crime. The legal defini ...
or
libel
Defamation is the act of communicating to a third party false statements about a person, place or thing that results in damage to its reputation. It can be spoken (slander) or written (libel). It constitutes a tort or a crime. The legal defini ...
suit for statements made about someone during a trial, no matter how corrupt that act was.
United Kingdom
In the United Kingdom,
tribunal
A tribunal, generally, is any person or institution with authority to judge, adjudicate on, or determine claims or disputes—whether or not it is called a tribunal in its title.
For example, an advocate who appears before a court with a single ...
s are considered judicial in nature and so judicial immunity applies to them at common law. This was accepted by the
Employment Appeal Tribunal
The Employment Appeal Tribunal is a tribunal in England and Wales and Scotland, and is a superior court of record. Its primary role is to hear appeals from Employment Tribunals in England, Scotland and Wales. It also hears appeals from decisions ...
and subsequently the
Court of Appeal of England and Wales
The Court of Appeal (formally "His Majesty's Court of Appeal in England", commonly cited as "CA", "EWCA" or "CoA") is the highest court within the Courts of England and Wales#Senior Courts of England and Wales, Senior Courts of England and Wal ...
in respect of police misconduct hearings constituted under the Police (Discipline) Regulations 1985 (since superseded by the Police (Conduct) Regulations 2008) in ''Heath v Commissioner of Police for the Metropolis''
004EWCA Civ 943. However, in ''P v Commissioner of Police of the Metropolis''
017UKSC 65, in which a police officer (an officer of the Crown, but under the
Equality Act 2010
The Equality Act 2010 is an Act of Parliament of the United Kingdom passed during the Brown ministry with the primary purpose of consolidating, updating and supplementing the numerous prior Acts and Regulations, that formed the basis of anti-d ...
treated as an employee in employment discrimination cases) sought review of her dismissal as constituting
disability discrimination
Ableism (; also known as ablism, disablism (British English), anapirophobia, anapirism, and disability discrimination) is discrimination and social prejudice against people with disabilities or who are perceived to be disabled. Ableism characteri ...
due to
post-traumatic stress disorder
Post-traumatic stress disorder (PTSD) is a mental and behavioral disorder that can develop because of exposure to a traumatic event, such as sexual assault, warfare, traffic collisions, child abuse, domestic violence, or other threats on ...
, the Supreme Court ruled that the
Employment Equality Framework Directive
The Equality Framework Directive''2000/78/ECis an EU Directive, and a major part of EU labour law which aims to combat discrimination on grounds of disability, sexual orientation, religion or belief and age in the workplace. It accompanies the ...
(implemented by the 2010 Act) provided directly applicable rights of access to justice in cases of employment discrimination, which, given the
supremacy of EU law, overrode the common law rule of judicial immunity.
United States
In the United States, judicial immunity is among a handful of forms of
absolute immunity In United States law, absolute immunity is a type of sovereign immunity for government officials that confers complete immunity from criminal prosecution and suits for damages, so long as officials are acting within the scope of their duties. The Su ...
, along with
prosecutorial immunity In United States law, absolute immunity is a type of sovereign immunity for government officials that confers complete immunity from criminal prosecution and suits for damages, so long as officials are acting within the scope of their duties. The S ...
, legislative immunity, and
witness immunity
Witness immunity from prosecution occurs when a prosecutor grants immunity to a witness in exchange for testimony or production of other evidence.
In the United States, the prosecution may grant immunity in one of two forms. Transactional immuni ...
. The U.S. Supreme Court has characterized judicial immunity as providing "the maximum ability
f judgesto deal fearlessly and impartially with the public". The justification is as follows: because of the likelihood of innocent individuals being convicted in a court of law under false claims, the "burden" of being subjected to a court of law (a trial) would "dampen" the judges "enthusiasm" or "passion". Opponents of judicial immunity argue that this doctrine is not adequately justified. For example, judges could be shielded from any personal capacity liability, and still be subject to official capacity liability so that they may be held accountable for their injurious acts – thus "balancing" the "evil" to better protect the fundamental rights of victims.
Judicial immunity does not protect judges from suits stemming from administrative decisions made while off the bench, like hiring and firing decisions. But immunity generally does extend to all judicial decisions in which the judge has proper jurisdiction, even if a decision is made with "corrupt or malicious intent". In 1997
West Virginia
West Virginia is a state in the Appalachian, Mid-Atlantic and Southeastern regions of the United States.The Census Bureau and the Association of American Geographers classify West Virginia as part of the Southern United States while the Bur ...
judge Troisi became so irritated with a rude defendant, he stepped down from the bench, took off his robe, and bit the defendant on the nose. He pleaded no contest to state charges but was acquitted of federal charges of violating the defendant's
civil rights
Civil and political rights are a class of rights that protect individuals' freedom from infringement by governments, social organizations, and private individuals. They ensure one's entitlement to participate in the civil and political life of ...
. He spent five days in jail and was put on probation.
Because the immunity is attached to the judicial nature of the acts, not the official title of the officeholder, judicial immunity also applies to administrative hearings, although in some situations, only
qualified immunity
In the United States, qualified immunity is a legal principle that grants government officials performing discretionary (optional) functions immunity from civil suits unless the plaintiff shows that the official violated "clearly established statu ...
applies.
In determining whether absolute or qualified immunity should be provided, the U.S. Supreme Court has identified the following factors, according to the
Shriver Center's ''Federal Practice Manual for Legal Aid Attorneys'':
The following cases are relevant to this issue:
Origins
When the United States Constitution came into being in 1789, all federal employees had qualified immunity. This immunity protected them from being sued while in the performance of their duties unless they broke laws or used gross negligence. For the Judiciary, that all changed in 1872 with the lawsuit ''Bradley vs Fisher'' 80 U.S. 335, 351. It is worthwhile noting that Supreme Court Chief Justice Salmon Chase, an inexperienced jurist (his previous position was in Treasury, where he distributed the first dollar bills with his picture on the front of each bill), had just replaced long term justice Roger Taney. "Bradley vs Fisher" was a court case filed by a trial judge against a lawyer who insulted him in the courtroom. It resulted in the lawyer being permanently barred from practicing in federal court. The Supreme Court took the opportunity to update the Rules of the Court to grant itself sovereign immunity. The Court said it was a minor issue. However, Sovereign Immunity (think King George) is the reason the colonists fought the Revolutionary War, and a change of this magnitude should require a change to constitutional law (specifically, Article II of the Constitution concerning the establishment of the Judiciary). Instead, the Judiciary placed itself above the law. There is further proof of this in 28 U.S. §2072, where Congress allows Rules of the Court to supersede federal law. In the hierarchy of law, (The World Court, national law and state law) Rules are made to guide the departments of state government. They exist to effectuate the spirit and intent of the law, and if they disagree with law, they must be dropped. Here is that law:
![Sovereign Immunity is Alive and Well](https://upload.wikimedia.org/wikipedia/commons/d/d8/Sovereign_Immunity_is_Alive_and_Well.png)
Rules of the Court are updated annually by a committee of judges, with oversight provided by Congress. The above law can be found at the beginning of the Federal Rules of Civil Procedure, a copy of which is found here (pg. 7 of 137)
''Link''
''Stump v. Sparkman'' (1978)
One of the leading decisions on judicial immunity is ''
Stump v. Sparkman
''Stump v. Sparkman'', 435 U.S. 349 (1978), is the leading United States Supreme Court decision on judicial immunity. It involved an Indiana judge who was sued by a young woman who had been sterilized without her knowledge as a minor in accorda ...
''. In 1971, Judge Harold D. Stump granted a mother's petition to have a
tubal ligation
Tubal ligation (commonly known as having one's "tubes tied") is a surgical procedure for female sterilization in which the fallopian tubes are permanently blocked, clipped or removed. This prevents the fertilization of eggs by sperm and thus th ...
performed on her 15-year-old daughter, whom the mother alleged was "somewhat retarded". The daughter was told that the surgery was to remove her appendix. In 1975 the daughter, going by her then-married name of Linda Sparkman, learned that she had been sterilized. She sued the judge. The
U.S. Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
ruled that the judge could not be sued, because the decision was made in the course of his duties. In that regard, it was irrelevant that the judge's decision may have been contrary to law and morally reprehensible.
''Harris v. Harvey'' (1979)
Judges usually, but not always, receive immunity from being sued. One exception where a judge was sued and lost is ''Harris v. Harvey'' (1979). Sylvester Harris, an African-American police lieutenant in
Racine, Wisconsin
Racine ( ) is a city in and the county seat of Racine County, Wisconsin, United States. It is located on the shore of Lake Michigan at the mouth of the Root River. Racine is situated 22 miles (35 km) south of Milwaukee and approximately 60 ...
, was attacked in a variety of ways by Judge Richard G. Harvey. Harris sued Harvey because of (a) comments Harvey made to the news media, (b) threatening letters Harvey wrote to city and county officials who attempted to defend Harris, and (c) parties Harvey held for ranking state officials during which he attempted to get Harris removed from law enforcement. The jury concluded that Harvey was not eligible for judicial immunity for these actions, as such acts which were not part of the judge's normal duties (i.e. were "outside his jurisdiction"). The jury awarded Harris $260,000 damages. Another judge later added $7,500 legal fees. The
United States Court of Appeals for the Seventh Circuit
The United States Court of Appeals for the Seventh Circuit (in case citations, 7th Cir.) is the U.S. federal court with appellate jurisdiction over the courts in the following districts:
* Central District of Illinois
* Northern District of Il ...
concurred with the jury's decision. Judge Harvey petitioned the Seventh Circuit court for an
en banc
In law, an en banc session (; French for "in bench"; also known as ''in banc'', ''in banco'' or ''in bank'') is a session in which a case is heard before all the judges of a court (before the entire bench) rather than by one judge or a smaller ...
rehearing, which was denied. His petition to the
Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
was also denied. ''Harris v. Harvey'' is the first case in the United States where a sitting court judge has been sued and lost in a civil action; it is a
binding precedent
A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great va ...
in the Seventh Circuit and is
persuasive authority
A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great value ...
in the other circuits.
''Supreme Court of Virginia v. Consumers Union'' (1980)
In ''Supreme Court of Virginia v. Consumers Union'' (1980), the U.S. Supreme Court ruled that the Supreme Court of Virginia did not have immunity in federal court from being enjoined in its enforcement capacity where state law gave the court independent authority to initiate certain proceedings against attorneys. Consumers Union was hindered from compiling an attorney directory because many attorneys they contacted declined to provide requested information out of fear of violating attorney conduct regulations promulgated by the Supreme Court of Virginia. Consumers Union filed a lawsuit in federal court against the Supreme Court of Virginia and others, under
42 U.S.C. § 1983, seeking to have the regulation declared unconstitutional and to enjoin the defendants from enforcing it. The U.S. Supreme Court affirmed the Supreme Court of Virginia's legislative immunity:
''Mireles v. Waco'' (1991)
In the case of ''Mireles v. Waco'' (1991),
[502 U.S. 9, 112 S.Ct. 286, 116 L.Ed.2d 9] when a defense lawyer failed to appear for a scheduled hearing, the judge not only issued a
bench warrant
An arrest warrant is a warrant issued by a judge or magistrate on behalf of the state, which authorizes the arrest and detention of an individual, or the search and seizure of an individual's property.
Canada
Arrest warrants are issued by a ju ...
for his arrest, but instructed the police sent to arrest him to "rough him up a little" to teach him not to skip court dates. Although this was entirely unprofessional and possibly criminal, the judge was held, by the Supreme Court, to have
absolute immunity In United States law, absolute immunity is a type of sovereign immunity for government officials that confers complete immunity from criminal prosecution and suits for damages, so long as officials are acting within the scope of their duties. The Su ...
from a lawsuit arising from the resulting beating, because the misbehavior occurred entirely within his activities as a judge presiding over a court.
See also
*
Judicial misconduct
Judicial misconduct occurs when a judge acts in ways that are considered unethical or otherwise violate the judge's obligations of impartial conduct.
Actions that can be classified as judicial misconduct include: conduct prejudicial to the effect ...
*
Diminished responsibility
In criminal law, diminished responsibility (or diminished capacity) is a potential defense by excuse by which defendants argue that although they broke the law, they should not be held fully criminally liable for doing so, as their mental f ...
*
Diminished capacity in United States law
In criminal law, diminished responsibility (or diminished capacity) is a potential defense (legal), defense by excuse by which defendants argue that although they broke the law, they should not be held fully crime, criminally Legal liability, li ...
References
Further reading
*
External links
The Horrifying Extent of Absolute Judicial Immunity
{{DEFAULTSORT:Judicial Immunity
Legal immunity