Critiques of the Judiciary
Judicial Immunity vs. Due Process: When Should a Judge be Subject to Suit?
ROBERT CRAIG WATERS
In the American judicial system, few more serious threats to individual liberty can be imagined than a corrupt judge.
Clothed with the power of the state and authorized to pass judgment on the most
basic aspects of everyday life, a judge can deprive citizens of liberty
and property in complete disregard of the Constitution. The injuries
inflicted may be severe and enduring. Yet the recent expansion of a
Consider the following examples.
In 1978, the Supreme Court in Stump v. Sparkman held that
the doctrine forbade a suit against an Indiana judge who had
authorized the sterilization of a slightly retarded
* * * * *
If judicial immunity truly is to serve as a bulwark of justice, some
more clearly defined limit must be placed on it. Logically this limit
must arise from the due process clause itself. Clothing a judge with
immunity simply because he has performed a "judicial act" overlooks
Instead of the abstract and ambiguous factors used in Stump to determine the existence of immunity, the courts should use a simpler inquiry founded on the fundamental principles embodied in the due process clause. To preserve the integrity of the judicial process, the courts always should presume that a trial court properly exercised its jurisdiction. But they should permit a plaintiff to overcome this presumption by showing that the judge acted with actual malice, consisting of a knowing or reckless disregard of due process. Specifically, if the court is to enjoy immunity, it must afford three thingsnotice, a chance to be heard, and a method of appeal. Then, and only then, would an irrebuttable presumption of immunity exist requiring dismissal of any subsequent suit against the judge.
* * * * *
American courts have agonized over the due process problems created in recent years by the doctrine of judicial immunity. A variety of ill-conceived approaches to the issue have resulted in "tests" that grant immunity to state-court judges in such sweeping terms as to amount to no test at all. The Supreme Court, troubled by threats to judicial independence, has developed its own test that invests judges with immunity for any act performed in an official capacity where the act itself is not expressly prohibited by existing law. Under this approach, corrupt and malicious local judges may easily shield even the most serious abuses behind a wall of immunity, leaving the victim unable to seek compensation from the state and its insurers.
Yet a state court’s jurisdiction is limited by due process guarantees
of notice and a chance for an impartial hearing. Ignoring this fact, the
Supreme Court has misconceived the problem by basing judicial
immunity purely on statutory concerns and distorted readings of
common law history. Like the jurisdiction of local courts, immunity
Copyright 1987, Cato Institute
Excerpted from: Cato Journal, Vol.7, No.2,
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