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Excerpt from page 1997 WL 721830, *10 (6th Cir.(Tenn.)) FN11. In the following cases, courts have found that the judges acted in their judicial capacity and were entitled to immunity: Mireles v. Waco, 502 U.S. 9, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991)(judge's alleged actions in directing police officers to bring attorney who was in the courthouse into his court were taken in judge's "judicial capacity" and, thus, judge was immune from S 1983 suit, even though judge allegedly directed officers to carry out order with excessive force); Burns v. Reed, 500 U.S. 478, 492, 111 S.Ct. 1934, 1942, 114 L.Ed.2d 547 (1991)(issuance of a search warrant is unquestionably a judicial act); Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978)(Indiana circuit court judge performed an act normally performed by judges in approving a mother's ex parte petition to have her 15 year old "somewhat retarded" daughter sterilized); Sheppard v. Maxwell, 384 U.S. 333, 358, 86 S.Ct. 1507, 1520, 16 L.Ed.2d 600 (1966)(a judge acts in a judicial capacity when exercising control of the judge's courtroom); Ireland v. Tunis, 113 F.3d 1435 (6th Cir.1997)(issuance of an arrest warrant was a judicial act); Cameron v. Seitz, 38 F.3d 264, 271 (6th Cir.1994)(state probate court judge's actions of not taking probate court employee's recommendations on disposition of juvenile cases, and barring employee's admittance into court were judicial acts and therefore subject to immunity despite the employee's allegations that judge made his decisions out of hostility arising from the employee's marriage to judge's secretary); Sparks v. Character and Fitness Committee of Kentucky, 859 F.2d 428 (6th Cir.1988), cert. denied, 489 U.S. 1011, 109 S.Ct. 1120, 103 L.Ed.2d 183 (1989)(actions taken by State Supreme Court, and Committee on Character and Fitness in denying application for admission to state bar were judicial acts); Ashelman v. Pope, 793 F.2d 1072 (9th Cir.1986)(extending judicial immunity to a judge who allegedly conspired with a prosecutor to predetermine outcome of proceeding).

In the following cases, courts have found that the judges acted outside of their judicial capacity and were not entitled to immunity: Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988)(state court judge did not have absolute immunity from damages suit under S 1983 for his decision to demote and dismiss a probation officer); Morrison v. Lipscomb, 877 F.2d 463 (6th Cir.1989)(state court judge was not entitled to judicial immunity in connection with order declaring moratorium on issuance of writs of restitution from December 15 through January 2, as judge was acting in administrative and not judicial capacity); King v. Love, 766 F.2d 962, 968 (6th Cir.), cert. denied, 474 U.S. 971, 106 S.Ct. 351, 88 L.Ed.2d 320 (1985)(although setting bond on an arrest warrant is a judicial act, the act of deliberately misleading the police officer who was to execute the warrant about the identity of the person sought was nonjudicial); Sevier v. Turner, 742 F.2d 262 (6th Cir.1984)(juvenile court judge's initiation of criminal prosecution and civil contempt proceeding against father for child support in arrears constituted nonjudicial acts); New Alaska Development Corporation v. Guetschow, 869 F.2d 1298 (9th Cir.1988)(receiver appointed by state court to manage business assets of an estate was entitled to absolute derivative judicial immunity, but receiver was not absolutely immune from allegations that he stole assets or slandered parties, as such alleged acts were not judicial); Harper v. Merckle, 638 F.2d 848 (5th Cir.), cert. denied, 454 U.S. 816, 102 S.Ct. 93, 70 L.Ed.2d 85 (1981)(holding a contempt proceeding and ordering plaintiff incarcerated were not judicial acts where controversy that led to incarceration did not center around any matter pending before the judge, but around domestic problems of plaintiff former wife who worked at the courthouse); Harris v. Harvey, 605 F.2d 330 (7th Cir.1979), cert. denied, 445 U.S. 938, 100 S.Ct. 1331, 63 L.Ed.2d 772 (1980)(allegedly repeated communications to the press and city officials which were critical of police lieutenant, and the improper instigation of criminal proceedings against the lieutenant by judge as part of a racial campaign to discredit lieutenant were not judicial acts).

--- F.3d ---- ------------

Excerpt from page 1997 WL 721830, *18 (6th Cir.(Tenn.))

Gregory JOHNSON; Albert P. Owens; Robert Lynn Hill; Eddie Luellen, Plaintiffs-Appellants, v. Kenneth Austin TURNER, Individually and in his capacity as elected Juvenile Court Judge of Memphis and Shelby County; Herbert Lane; Michael H. Craig; A.C. Gilless, Individually and in his capacity as Sheriff of Memphis and Shelby County; Shelby County Government, a Home-Ruled County Governmental Entity Operating as a Governmental Municipality; Veronica Coleman, Individually and in her capacity as Shelby County Government Attorney-Employee; William Moore; Virginia Skinner, Individually and in her capacity as Shelby County Deputy Sheriff in charge of the criminal warrant division, Shelby County Government; Harold Horne, Individually and in his capacity as Shelby County Government Attorney-Employee, Defendants-Appellees, State of Tennessee, Intervening Defendant-Appellee. No. 94-5919. United States Court of Appeals, Sixth Circuit. Argued Oct. 16, 1995. Decided 125 F.3d 324

Thus, for example, a judge may be liable for action taken in his role as employer, Forrester v. White, 484 U.S. 219, 227-30, 108 S.Ct. 538, 544-46, 98 L.Ed.2d 555 (1988) (demotion and discharge of court employee is an administrative decision and not "a judicial act"), or for an action that is administrative in nature and that does not alter the rights and liabilities of the parties, Morrison v. Lipscomb, 877 F.2d 463, 464-66 (6th Cir.1989). This court also has held that the initiation of accusatory processes, such as criminal prosecutions or civil contempt proceedings, is a non-judicial act that may subject a judge to liability. Sevier v. Turner, 742 F.2d 262, 272 (6th Cir.1984). However, recently, in Barnes, we explained that the exception to absolute immunity, when a judge engages in a purely prosecutorial function, is a narrow one; and, even if the judge encroaches upon prosecutorial functions, the *334 broad shield of absolute immunity is not automatically overcome. 105 F.3d at 1118-119.

125 F.3d 324


Excerpt from pages 125 F.3d 324, *333-125 F.3d 324, *334

Johnida W. BARNES, Plaintiff-Appellee, v. Byron R. WINCHELL, Defendant-Appellant. No. 95-4008. United States Court of Appeals, Sixth Circuit. Feb. 3, 1997.

105 F.3d 1111 It is precisely when an issue facing a judge sparks intense emotions that the judge's fidelity to independent and fearless decisionmaking is of the utmost importance. See Stump, 435 U.S. at 364, 98 S.Ct. at 1108 (recognizing that the controversial nature of the issue "is all the more reason that [a judge] should be able to act without fear of suit."). To render a judge liable to answer in damages to every litigant who feels aggrieved during the course of judicial proceedings, "would destroy that independence without which no judiciary can be either respectable or useful." Bradley, 80 U.S. (13 Wall.) at 347.

Accordingly, we conclude that Judge Winchell's actions as the presiding judge in the underlying criminal prosecutions of Ms. Barnes do not amount to non- judicial acts stripping him of the absolute judicial immunity presumptively available to him. F. Claim of Absence of All Jurisdiction [11] Having determined that Judge Winchell's actions were judicial, we next consider whether Judge Winchell acted in complete absence of all jurisdiction, the second prong of a judicial immunity inquiry. See Mireles, 502 U.S. at 12, 112 S.Ct. at 288. Ms. Barnes claims that Judge Winchell never properly acquired jurisdiction over the misdemeanor charges against her because the prosecutor had only authorized criminal trespass actions.

The term "jurisdiction" is to be broadly construed to effectuate the purposes of judicial immunity. Stump, 435 U.S. at 356, 98 S.Ct. at 1104-05. Acts done "in the clear absence of jurisdiction," for which no immunity is afforded, should be distinguished from actions in "excess of jurisdiction," which fall within the ambit of immunity protection. Id. at 357 n. 7, 98 S.Ct. at 1105 n. 7 (quoting Bradley, 80 U.S. (13 Wall.) at 351-52). Thus, for example, a criminal court judge would be immune from liability for convicting a defendant of a nonexistent crime, an act taken in excess of his jurisdiction, whereas a probate court judge would not be immune from liability if he tried a criminal case because he clearly lacked all subject matter jurisdiction. Id. (citing Bradley, 80 U.S. (13 Wall.) at 352).

[12] Generally, where a court has some subject matter jurisdiction, there is sufficient jurisdiction for immunity purposes. Adams, 764 F.2d at 298. In Sevier, despite the fact that a judge of limited jurisdiction ordered the initiation of criminal and contempt proceedings, this court noted that the judge was "empowered to handle Juvenile Court cases ... [and], therefore, did not act in the clear absence of all jurisdiction." Sevier, 742 F.2d at 271; see also Lopez, 620 F.2d at 1234 (despite not being assigned to the particular branch of court, the judge was authorized by law to hear the kind of case in which he acted; his actions were not taken in clear absence of all jurisdiction).

[13] In this case, Judge Winchell had jurisdiction over the subject matter of the underlying actions. The Chillicothe Municipal Court has specific statutory jurisdiction over "the violation of any misdemeanor committed within the limits of its territory." Ohio Rev.Code Ann. S 1901.20(A) (Banks- Baldwin West 1996). "In any action or proceeding of which a municipal court has jurisdiction," a municipal court judge is further authorized "to exercise any other powers that are necessary to give effect to the jurisdiction of the court and to enforce its judgements, orders, or decrees." Ohio Rev.Code Ann. S 1901.13 (Banks-Baldwin West 1996). Although the municipal court is a court of limited, rather than general, jurisdiction, we have held that even "judges of courts of limited jurisdiction are entitled to absolute immunity for their judicial acts unless they act in the clear absence of all jurisdiction." King v. Love, 766 F.2d 962, 966 (6th Cir.), cert. denied, 474 U.S. 971, 106 S.Ct. 351, 88 L.Ed.2d 320 (1985).

In the present action, the complaint states that the local prosecuting authority had granted Scott and Carolyn Barnes authorization to initiate criminal proceedings against Ms. Barnes. Compl. P 12. Both criminal trespass and menacing by stalking, the two *1123 potential crimes at issue here, constitute misdemeanors over which the municipal court properly could maintain jurisdiction. Therefore, by statute, Judge Winchell was empowered to preside over the criminal proceedings that flowed from these misdemeanor complaints. Even assuming that there was a procedural problem with respect to the scope of the prosecutor's authorization, Judge Winchell was not wholly without jurisdiction. Such a situation would more closely resemble a judge convicting a criminal of a non-existent crime than a probate court judge trying a criminal case. Thus, Judge Winchell's actions were not taken in the clear absence of all jurisdiction.

Finally, included in the absolute judicial immunity balance is the availability of alternate forums and methods, apart from a civil suit for damages, for litigants to protect themselves from the potential consequences of actions taken by a judge. See Forrester, 484 U.S. at 227, 108 S.Ct. at 544 (emphasizing that a damages suit is not a litigant's only recourse: "Most judicial mistakes and wrongs are open to correction through ordinary mechanisms of review, which are largely free of the harmful side-effects inevitably associated with exposing judges to personal liability."). If Ms. Barnes felt that Judge Winchell was exceeding his authority or taking an inappropriate personal interest in her cases, she had at her disposal appropriate recourse through Ohio appellate courts, and/or the procedural mechanism to disqualify a municipal court judge, Ohio Rev.Code Ann. S 2937.20 (Banks-Baldwin West 1996). In fact, the complaint details that Ms. Barnes successfully utilized the latter method. Compl. P 17.

105 F.3d 1111


Excerpt from pages 105 F.3d 1111, *1122-105 F.3d 1111, *1123

Thomas Martin MALINA and Mrs. Thomas Martin Malina, Plaintiffs-Appellees, v. Judge Douglas GONZALES, Defendant-Appellant. No. 91-3757. United States Court of Appeals, Fifth Circuit. June 25, 1993. Rehearing Denied Aug. 26, 1993.

994 F.2d 1121 227k36 k. Liabilities for official acts. C.A.5 (La.),1993. Judge's actions in stopping motorist on highway, using police officer to summon motorist unofficially, and charging motorist with various crimes were not judicial acts for purposes of claiming absolute judicial immunity.

994 F.2d 1121 RICO Bus.Disp.Guide 8083 Unpublished Disposition

NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases.

(The decision of the Court is referenced in a "Table of Decisions Without Reported Opinions" appearing in the Federal Reporter.)

C.D. Di GIAMBATTISA, Plaintiff, Appellant, v. Sheila E. McGOVERN, et al., Defendants, Appellees. No. 92-1168. United States Court of Appeals, First Circuit. September 4, 1992

974 F.2d 1329 (Table)


Excerpt from page 974 F.2d 1329, 1992 WL 214444 (1st Cir.(Mass.)) Federal courts "have proceeded on the assumption that common-law principles of legislative and judicial immunity were incorporated into our judicial system and that they should not be abrogated absent clear legislative intent to do so." Pulliam v. Allen, 466 U.S. 522, 529 (1984). Under the common law, judges are generally immune from civil liability for judicial acts, subject to the conditions described above, but they do not enjoy immunity from criminal liability. See O'Shea v. Littleton, 414 U.S. 488, 503 (1974). Thus, the fact that judges have been held criminally liable for violating RICO in no way suggests that Congress intended to give civil RICO plaintiffs a remedy not available to those who sue judges under the common law. And, as we see no other indication of Congressional intent, we decline to deprive these judges of the immunity to which they are generally entitled by settled legal principles.

**2 Mr. Di Giambattista also contends that the judges here should not be protected by immunity because they acted in "the clear absence of all jurisdiction." The "scope of ... jurisdiction must be construed broadly where the issue is the immunity of the judge," Stump v. Sparkman, 435 U.S. at 356, and a judge will doff the cloak of immunity only when he conducts proceedings over which he lacks any semblance of subject-matter jurisdiction. Thus, in a classic example offered by the Supreme Court 120 years ago, "if a probate court, invested only with authority over wills and the settlement of estates of deceased persons, should proceed to try parties for [criminal] offenses, jurisdiction over the subject of offenses being entirely wanting in the court, and this being necessarily known to its judge, his commission would afford no protection to him in the exercise of the usurped authority." Bradley v. Fisher, 80 U.S. 335, 352 (1872). On the other hand, if a judge in a criminal court convicts a defendant of even a non-existent crime, he maintains his immunity, because "where jurisdiction over the subject-matter is invested by law in the judge, or in the court which he holds, the manner and extent in which the jurisdiction shall be exercised are generally as much questions for his determination as any other questions involved in the case...." Id. None of the acts identified by Mr. Di Giambattista was actionably extra- jurisdictional according to this standard. Massachusetts probate courts have general equity jurisdiction, M.G.L. c. 215 S 6, and the removal of a trustee or executor is an exercise of such equity jurisdiction. See, e.g., Gorman v. Stein, 1 Mass. App. Ct. 244 (1973). Thus, Judge Sullivan's rulings during the trial, whether or not correct, fell within his purview as a probate judge, and even Judge Highgas, though not the trial judge, did not act in the "clear absence of all jurisdiction" by hearing motions and issuing orders that affected the case, since "jurisdiction over the subject-matter [was] invested by law ... in the court which he [held]." Bradley v. Fisher, 80 U.S. at 352.

974 F.2d 1329 (Table)


Excerpt from pages 974 F.2d 1329, 1992 WL 214444, **1 (1st Cir.(Mass.))-974 F.2d 1329, 1992 WL 214444, **2 (1st Cir.(Mass.))

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