By Samuel Beswick, Assistant Professor of Law, Peter A. Allard School of Law, The University of British Columbia.
Last month, the United States Sixth Circuit Court of Appeals and the Federal Court of Australia each gave judgments on lawsuits against sitting judges for abusing their contempt-of-court power. The US case arose after an Ohio Municipal Court Judge sentenced a spectator in his courtroom gallery to 10 days’ jail for refusing the judge’s unprompted demand that she take a drug test. She spent one night in prison during which she was subjected to pregnancy tests and full-body CAT scans. The Australian case concerned a Family Court judge in Queensland who began a hearing by accusing a self-represented litigant of not complying with disclosure orders, sentencing him to 12 months’ imprisonment in what the Federal Court characterized as “a gross parody of a court hearing” (¶129). The man spent a harrowing seven days in prison and became suicidal.
In both cases, the judges’ contempt orders were appealed and declared invalid. The Ohio Court of Appeals considered that the municipal judge had abused his discretion and violated the courtroom spectator’s due process rights. The Full Court of the Family Court of Australia described the Family Court judge’s hearing as “devoid of procedural fairness” and his order “an affront to justice” (¶9). The individuals in both cases sued the judges for their wrongful imprisonment. Their suits raised two issues: (1) whether the judges’ actions amounted to a violation of a right for which the plaintiffs had legal recourse; and (2) whether the judges’ judicial office immunized them from liability to the plaintiffs. The Sixth Circuit considered only issue (2) and dismissed the case before it as barred by the doctrine of absolute judicial immunity. The case before the Australian Federal Court, by contrast, succeeded: judicial immunity was rejected and the judge was held personally liable to pay damages for the tort of false imprisonment.
In my view, these two cases illustrate a divergence in principle underscoring the liability of public officers generally to civil suit. I explore this idea in a forthcoming article examining claims against police and prison officers: whereas immunity principles drive the adjudication of such suits in the United States, the principle of equality under ordinary law is the jurisprudential starting point in countries such as Canada, Australia and the United Kingdom. The Diceyan principle of equality under ordinary law extols “the equal subjection of all classes to the ordinary law of the land …” and “excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens ….” This principle is effected in Commonwealth jurisdictions through rights of action to sue officers and public authorities in common law tort. The principle of equality in civil actions is not foreign to US jurisprudence. The Supreme Court of the United States in Butz v. Economou, 438 U.S. 478 (1978) maintained:
“Our system of jurisprudence rests on the assumption that all individuals, whatever their position in government, are subject to federal law: ‘No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government from the highest to the lowest, are creatures of the law, and are bound to obey it.’ United States v. Lee, 106 U.S. 196, 220 (1882).”
Yet, this principle seems to have waned in US case law. Doctrines of qualified immunity from constitutional tort liability and various immunities of governments and officers from state tort liability have increasingly coalesced into what Professor James Pfander calls “Dicey’s Nightmare.” As Professor Pfander argues, “[r]ather than disclaiming power to legalize official misconduct, modern courts bend over backwards to avoid the recognition of a right to seek redress and thus effectively immunize official misconduct from legal scrutiny.”
The two recent cases on the liability of judges for wrongful imprisonment neatly illustrate this divergence in principle. The courtroom spectator in the Ohio case, Ms. Alexzandria Orta, sued Judge Mark Repp both for violating her federal constitutional rights as enforceable through 42 U.S.C. § 1983, as well as for the state torts of intentional infliction of emotional distress, invasion of privacy, sexual harassment, and negligence—but not, curiously, false imprisonment. The United States District Court characterized Ms. Orta’s suit as “a civil rights case” (p.1). Yet, rather than first addressing whether Judge Repp had violated Ms. Orta’s rights as alleged, the court resolved the case on a preliminary motion as to issue (2): whether Judge Repp had immunity from facing Ms. Orta’s damages suit at all. The court accepted the proposition, drawn from the controversial Supreme Court case of Mireles v. Waco, 502 U.S. 9 (1991), that “generally, a judge is immune from a suit for money damages” other than for actions “taken in the complete absence of all jurisdiction” or “actions not taken in the judge’s judicial capacity.” Neither exception was found to apply. The court found that Judge Repp exceeding his authority in ordering, without any legal basis, Ms. Orta to take a drug test and imprisoning her for contempt did not mean his actions were wholly without jurisdiction or non-judicial. The orders were made in the context of the judge’s “general power to control his courtroom.” Whether he used that power appropriately was “not the relevant question” (p.4). Though offering the sentiment that Judge Repp’s “actions are inexcusable” (p.7), both the District Court and the Sixth Circuit Court excused Judge Repp from suit under the doctrine of absolute judicial immunity. Ms. Orta’s claim was dismissed without the courts addressing issue (1) at all—that is, without ruling on whether her imprisonment had violated either state law or her federal constitutional rights. No precedent was set on those questions.
Whereas the principle of judicial immunity from ordinary law loomed large in the Ohio case, in the Australian case the equality principle underscored the court’s approach and the claim’s ultimate success. Mr. Stradford (a pseudonym) sued Judge Salvatore Vasta for the common law tort of false imprisonment. The Federal Court of Australia characterized issue (1) as the “central issue”—that is, whether Mr. Stradford was “entitled to a remedy to compensate him for the injury and loss suffered by him as a consequence of that lamentable incident” (¶1). In resolving this issue, the Court applied its ordinary precedents on false imprisonment and lawful justification. It recognized that anyone who imprisons another prima facie commits a tort in the absence of a lawful basis. It reasoned that the judge’s order, being invalid, had “no legal force or effect from the outset” and could not justify Mr Stradford’s imprisonment. Judge Vasta was thus found to have falsely imprisoned Mr. Stradford (¶197). It was only once the tort was established that the Court turned to issue (2): whether the judge had judicial immunity from liability for his tortious conduct (¶199). The Court did not take Judge Vasta’s claims of immunity at face value. It grappled with precedent and commentary spanning centuries, ultimately concluding that Judge Vasta had failed to show that the common law of Australia immunized inferior court judges for actions made in excess of jurisdiction (¶374). The court declined to fashion an immunity on the basis of the possibly “sound policy reasons” for shielding from liability judges who act unlawfully but in good faith (¶332). The Federal Court’s role was simply to apply the principle as established in precedent. Judge Vasta, along with the Commonwealth of Australia and the State of Queensland, was held civilly liable to Mr. Stradford. The judge was ordered to pay punitive damages for his “high-handed” conduct, his “thoroughly reckless disregard of, if not outright contempt for, Mr. Stradford and his rights,” and his “almost contemptuous disregard for the rule of law” (¶646). The judgment has reportedly unnerved some in the Australian judiciary. The defendants have appealed.
It might be tempting to distinguish these cases based on the perceived stability of the respective governing precedents. In Stradford v. Judge Vasta, the doctrine of judicial immunity of Australian inferior court judges was considered to be “somewhat unsettled” and thus not a robust shield for Judge Vasta (¶12). In Orta v. Judge Repp, by contrast, the parties did not dispute the applicable framework of judicial immunity and the courts did not question its scope or rationale. Yet, the historical, doctrinal and policy foundations of judicial immunity in the United States are far from stable. A recent note in the Harvard Law Review explores how “the historical record provides an ill-fitting justification” for the modern doctrine of judicial immunity, which operates today to prevent accountability of misbehaving judges.
These two cases also represent opposing policy positions (discussed in IJ Short Circuit and ABC Law Report podcasts). There are undoubtedly good policy reasons, grounded in the principle of judicial independence, for judicial immunity from civil liability. The court in Orta recognized that judicial immunity “may seem unfair to an individual litigant seeking to vindicate his or her rights against a judge,” but accepted that “the doctrine of judicial immunity is necessary to preserve an independent judiciary and to ultimately protect the public at large” (p.3). Judges cannot adjudicate in fear of a reprisal of vexatious claims. But nor should parties have to litigate in fear of bullies on the bench. That was the court’s concern in Stradford (¶118). The court recognized that the proper scope of judicial immunity is a complex issue; it is not self-evident that absolute judicial immunity strikes the right balance. In the face of significant abuses of the contempt of court power and ineffective judicial oversight procedures—such as those exposed by Reuters in an extensive special investigation into state court judicial misconduct in the United States—civil damages claims may serve as an important avenue of accountability and recourse.
The more fundamental distinction that these cases illustrate concerns the courts’ conceptions of the nature of rights of action against public officers. The Stradford case is notable for its presumption that civil actions should proceed against public officers—even judges—in the same way as against ordinary persons. The primary question was whether Mr. Stradford could show that Judge Vasta’s actions were tortious. Only if this was proved did the question of any special immunity from accountability for his proven wrongdoing arise. On this framework, even if judicial immunity had applied in the case (a point that will be vigorously contested on appeal), Mr. Stradford’s claim against his wrongdoer would still have been vindicated by a judgment on the primary question, even if not remedied. That vindication was denied to Ms. Orta. The Orta case presumed that judicial conduct cannot be challenged by civil action regardless of the judge’s alleged wrongdoing. The judicial office—like so many other offices that have been bestowed with expansive immunities—shields its holder not just from liability but from suit. The public officer is exempted from the ordinary course of accountability under civil law that governs other citizens.
In a critique of US federal jurisprudence on judicial immunity, Professor K.G. Jan Pillai contended that “the doctrine of absolute judicial immunity is repugnant to the American ideal of equality under the law” as championed in precedents such as Butz and Lee. Professor John Murphy has likewise argued that absolute judicial immunity infringes “fundamental principles of English law—namely, the idea that where there is a wrong, there is (or ought to be) a remedy, and the notion that we are all supposed to be equal before and under the law.” The judgment in Orta seems a missed opportunity for a circuit court to engage with such arguments. The judgment in Stradford, by contrast, is a remarkable affirmation of the principle of equality under ordinary law.