Judicial Immunity: How Absolute is it?

Today’s New York Law Journal has a front page story (password required) about the dismissal of defamation claims filed against two federal judges by a pro se attorney. The libel actions stem from an employment discrimination suit filed in September 2003 by Loretta McHenry, a 1990 graduate of Brooklyn Law School. In August 2005, Judge David G. Trager entered an order for summary judgment in favor of Ms. McHenry’s former employer. McHenry appealed the dismissal to the Second Circuit where in February 2007 Judge Robert A. Katzmann affirmed the order for summary judgment in favor of the employer. In October 2007, McHenry filed a 22 page libel complaint against Judge Katzmann in Kings County Supreme Court. The following month, she filed a separate 38 page libel complaint in state court against Judge Trager, a former Dean of Brooklyn Law School from 1983 to 1993. Both libel actions were removed to federal court. In January 2008, Eastern District Judge Dora L. Irizarry entered an order dismissing the pro se plaintiff’s complaint against Judge Trager. On June 13, 2008, Judge Irizarry entered a separate order of dismissal of the complaint against Judge Katzmann. The dismissals of both libel complaints against the federal judges cited the US Supreme Court decisions of Mireles v. Waco 502 U.S. 9 (1991) and Forrester v. White, 484 U.S. 219 (1988) stating “It is well-settled that judges have absolute immunity from suits for damages arising out of judicial acts performed in their judicial capacities”.

Searching SARA, the library catalog, for material about judicial immunity yields only a few titles. Suing Judges: a Study of Judicial Immunity (1993) by Abimbola A. Olowofoyeku, Call No. K2146 .O45 1993 (Int’l) traces the origin of the doctrine of judicial immunity almost 400 years of the common law for the rule that “no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him”, quotiing Lord Denning in Sirros v Moore [1975] QB 118. The book reviews “the law relating to the protection of judicial officers in common law legal systems” and argues that immunity is unnecessarily wide. This book tests fundamental assumptions on the topic of judicial immunity.

A search of recent legal periodicals shows some cracks in the doctrine of absolute judicial immunity. For example, the November 2006 edition of the ABA Journal had an article entitled Getting out the ‘No’ Vote by Wendy N. Davis reporting a South Dakota campaign to persuade voters to reject a ballot initiative known as Judicial Accountability Initiative Law or JAIL. The proposal would have amended the state constitution to allow litigants to sue judges for intentionally violating people’s due process rights. The May 2008 edition of the Wisconsin Law Journal reported that the proposal was ultimately defeated by a margin of 89% to 11%, even though early polls showed voters in favor of the proposal by margins of 3 to 1. In the upcoming issue of 24 Touro Law Review at page 473, Erwin Chemerinsky has an article entitled Absolute Immunity: General Principles and Recent Developments which explores the issue of judicial immunity in detail.